SUBSCRIPTION AGREEMENT
This
SUBSCRIPTION AGREEMENT
("Subscription
Agreement") is made and entered into as of February __, 2009 by and among
Novint Technologies,
Inc., a Delaware corporation ("Company"), and the subscribers
whose names and addresses are set forth on the signature page hereto (each a
"Subscriber").
The
Notes, the Convertible Notes, the Warrants and the Warrant Shares are sometimes
referred to herein as the “Securities.”
In
connection with this subscription, Subscriber and the Company agree as
follows:
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A.
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Subscription
of the Subscriber.
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1. Purchase of
Notes and Warrants. The undersigned Subscriber
hereby irrevocably agrees, represents and warrants with, to and for the benefit
of the Company, that such Subscriber is executing this Subscription Agreement in
connection with the subscription by the Subscriber for (i) that Senior
Secured Promissory Note (the “Note”) in the form attached
hereto as Exhibit
A in the principal amount (the “Principal Amount”) and for the
purchase price (the “Subscription Price”) as set
forth on the signature page hereof (which aggregate amount for all Subscribers
shall be a maximum Principal Amount of $625,000 for a maximum Subscription Price
of $500,000) and (ii) warrants, in the form attached hereto as Exhibit B (the “Warrants”) to acquire up to
that number of shares of common stock of the Company equal to 150% of the
Subscription Price (as exercised, the “Warrant Shares”). The Warrants
are exercisable for a term of five (5) years from February __, 2009 (the “Initial Closing Date”) at an
exercise price of $1.00 per share, provided that, (i) if any of the Principal
Amount of the Note is paid in cash on or before the Maturity Date, the exercise
price per share shall automatically reset, on a pro rata basis, to the Market
Price (as defined in the Warrant) per share on the date of such payment, but in
no event shall the exercise price per share be less than $0.20 or more than
$1.00; and (ii) if Subscriber sells any shares of common stock of the Company
during 120 days prior to the Maturity Date, then the exercise price of the
Warrant shall automatically reset to $2.00 per share. The Company
shall have the right at any time to inspect the trading records of Subscriber of
this time period to confirm compliance with the foregoing. All
principal and interest on the Note shall be due and payable on February __, 2010
(the “Maturity
Date”).
The
Subscriber understands that the Company is relying upon the accuracy and
completeness of the information contained herein in complying with its
obligations under federal and state securities and other applicable laws.
Subject to the terms and conditions of this Subscription Agreement, upon
execution and delivery hereof by the Subscriber, the Subscriber hereby agrees to
purchase the Securities pursuant to the transaction hereof, and against
concurrent delivery of the purchase price for such shares. The date upon which
the final subscription is accepted by the Company from a Subscriber, the full
Subscription Price has been tendered, and all conditions to closing on such
subscription have been satisfied, shall be a “Closing.” Following
the Initial Closing Date there may be multiple Closings for additional
subscriptions under this Subscription Agreement.
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2. Offering. This
offering of the Securities (the "Offering") is being made to a
limited group of investors, all of whom shall represent to the Company pursuant
to this Subscription Agreement that they are "accredited investors," as that
term is defined in Regulation D promulgated under the Securities Act of 1933, as
amended (the "Securities
Act") or who have otherwise been qualified as investors by the Company.
All of the Securities offered hereby are being sold by the Company. The Company
is offering the Securities for the consideration set forth herein. The Offering
is being made on a “best efforts” basis. The maximum offering by the
Company is $625,000 worth of Securities. This amount may be increased at the
Company’s discretion.
3. Refinance. In the
event that the Notes are not repaid by the Maturity Date, the Company shall have
the option to refinance the Notes and the accrued interest with 5% Convertible
Senior Secured Promissory Notes (the “Convertible Notes”) in the
form attached hereto as Exhibit
C. The Convertible Notes will have a maturity date of one year
from their issuance date, and the right to convert all or part of the principal
(but not accrued interest) into shares of the Company’s Common Stock at a
conversion price of $0.0625 per share, provided that, if Subscriber sells any
shares of common stock of the Company during 120 days prior to the Maturity
Date, then the conversion price of the Convertible Note shall automatically
reset to $1.00 per share. The Company shall have the right at any
time to inspect the trading records of Subscriber of this time period to confirm
compliance with the foregoing. The conversion right will also
be subject to the following trading restrictions: Subscriber agrees
that for a period of eighteen (18) months from the date of the first conversion
of the Convertible Note (i) on any given day, Subscriber shall not sell shares
of the Company’s Common Stock in excess of ten percent (10%) of that day’s
trading volume, and (ii) the Company shall have the right to receive reports
showing the daily number of shares of the Company’s Common Stock sold by
Subscriber and to inspect such brokerage statements as the Company may
reasonably request to confirm compliance with the this trading
restriction.
4. Intercreditor
Agreement. Concurrent with the execution of this Subscription
Agreement, the undersigned Subscriber hereby irrevocably agrees to execute and
become a party to the Intercreditor Agreement dated December 4, 2008 attached
hereto as Exhibit
D (the “Intercreditor
Agreement”) with each Noteholder under the Intercreditor Agreement and
each other Subscriber hereunder recognizing that the security interests granted
to such Subscriber under the Notes and the Convertible Notes rank pari passu
with the security interests granted by the Company to the other parties to the
Intercreditor Agreement.
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B.
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Representations and Warranties of
the Subscriber
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The
Subscriber hereby represents and warrants to the Company as of the date
hereof:
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1. Place of
Business. The
principal place of business address set forth below is such Subscriber's true
and correct principal place of business and is the only jurisdiction in which an
offer to sell the Securities was made to such Subscriber and such Subscriber has
no present intention of moving its principal place of business to or of becoming
a resident of any other state or jurisdiction.
2. Sale or
Transfer of the Securities. The Subscriber understands
that the Securities have not been registered under the Securities Act, or under
the laws of any other jurisdiction. The Subscriber understands and agrees that
transfer or sale of the Securities may be restricted or prohibited unless they
are subsequently registered under the Securities Act and, where required, under
the laws of other jurisdictions or an exemption from registration is available.
The Subscriber will not offer, sell, transfer or assign its Securities or any
interest therein in contravention of this Subscription Agreement, the Securities
Act or any state or federal law. The Subscriber understands and acknowledges
that, because of the substantial restrictions on the transferability of the
Securities, it may not be possible for the Subscriber to liquidate the
Subscriber's investment in the Company readily, even in the case of an
emergency.
3. Representation of Accredited
Investor Status, Investment Experience and Ability to Bear Risk.
Subscriber acknowledges that the Offering has not been registered with the
Securities and Exchange Commission because the Company is relying on an
exemption from registration under Section 4(2) of the Securities Act and
Regulation D promulgated thereunder. Subscriber believes that at the time of the sale
of the Securities to Subscriber, Subscriber (or, if Subscriber is a corporation,
limited liability company or trust, each of its equity owners) qualifies as an
"accredited investor" (as defined under Rule 501 of Regulation D promulgated
under the Securities Act) and has completed the Accredited Investor
Questionnaire attached hereto as Exhibit
E in support of this
representation and warranty.
In
addition, Subscriber is knowledgeable and experienced with respect to the
financial and business activities contemplated by the Company and is capable of
evaluating the risks and merits of investing in the Securities and, in making a
decision to proceed with this investment, has not relied upon any
representations, warranties or agreements, other than those set forth in this
Subscription Agreement and can bear the economic risk of an investment in the
Company for an indefinite period of time, and can afford to suffer the complete
loss thereof.
4. Own Advice. In
connection with the Subscriber's investment in the Company, the Subscriber has
carefully considered and has, to the extent the Subscriber believes such
discussion necessary, discussed with the Subscriber's professional legal, tax
and financial advisers (the "Investment Advisors") the
suitability of an investment in the Securities for the Subscriber's particular
tax and financial situation and the Subscriber has determined that the
Securities are a suitable investment for the Subscriber.
5. Risks.
The Subscriber represents and warrants that the Subscriber is aware
(i) that the Securities involve a substantial degree of risk of loss of the
Subscriber's entire investment and that there is no assurance of any income from
the Subscriber's investment; and (ii) that any federal and/or state income
tax benefits which may be available to the Subscriber, if any, may be lost
through the adoption of new laws or regulations, to changes to existing laws and
regulations and to changes in the interpretation of existing laws and
regulations. The Subscriber further represents that the Subscriber is relying
solely on the Subscriber's own conclusions or the advice of the Subscriber’s
Investment Advisors with respect to tax aspects of any investment in the
Securities. The Subscriber further represents that it has read and reviewed the
Company’s filings made with the Securities and Exchange
Commission.
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6. Inquiries.
The Subscriber and its Investment Advisors have been given access to, and prior
to the execution of this Subscription Agreement, have been provided with an
opportunity to ask questions of, and receive answers from, the Company officers
concerning the Company and the terms and conditions of the Offering and the
Securities, and to obtain any other information which the Subscriber and the
Subscriber's Investment Advisors required with respect to the Company and an
investment in the Company in order to evaluate such investment and verify the
accuracy of all information furnished to the Subscriber and its Investment
Advisors regarding the Company. All such questions, if asked, were answered
satisfactorily and all information or documents provided were found to be
satisfactory. Neither the Subscriber nor its Investment Advisors have been
furnished any offering literature on which they have relied on other this
Subscription Agreement and the Subscriber and its Investment Advisors have
relied only on this Subscription Agreement. At no time was the Subscriber
presented with or solicited by any leaflet, public promotion meeting, newspaper
or magazine article, radio or television advertisement or any other form of
general advertising or general solicitation.
7. Authority. The Subscriber is authorized and has
full right and power to subscribe for the Securities and to perform the
Subscriber's obligations pursuant to the provisions of this Subscription
Agreement; the person signing this Subscription Agreement and any other
instrument executed and delivered herewith on behalf of such Subscriber has been
duly authorized by such entity and has full power and authority to do so. If the
Subscriber is a corporation, partnership, unincorporated association or other
entity, the person signing this agreement has the legal capacity to authorize,
deliver and be bound by this Subscription Agreement and to take all actions
required pursuant hereto and further certifies that all necessary approvals of
directors, shareholders or otherwise have been given and obtained; and if the
Subscriber is an individual, it is of the full age of majority in the
jurisdiction in which the Subscriber is resident and is legally competent to
execute, deliver and be bound by this Subscription Agreement and take all action
pursuant hereto.
8. No
Default. The execution and delivery of this Subscription Agreement and
the consummation of the transactions contemplated hereby and thereby will not
conflict with, or result in any violation of or default pursuant to, any
provision of any governing instrument applicable to the Subscriber, or any
agreement or other instrument to which the Subscriber is a party or by which the
Subscriber or any of the Subscriber's properties are bound or any permit,
franchise, judgment, decree, statute, rule or regulation applicable to the
Subscriber or any of the Subscriber's business or properties.
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9. ERISA.
If the Subscriber is an employee benefit plan subject to ERISA, then such
Subscriber acknowledges that such Subscriber has been informed of and
understands the operations and business of the Company, and represents that such
Subscriber's investment in the Company (i) is permissible under the documents
and instruments governing such plan; (ii) satisfies the diversification
requirements of ERISA; (iii) is prudent considering all the facts and
circumstances, including the fact that there is no trading market for the
Securities; and (iv) is not a "prohibited transaction" within the meaning of
Section 406 of ERISA.
10. Purchase
Entirely For Own Account. This Subscription Agreement is made with the
Subscriber in reliance upon the Subscriber's representations to the Company,
which by the Subscriber's execution of this Subscription Agreement, the
Subscriber hereby confirms, that the Securities issuable to the Subscriber will
be acquired for investment for the Subscriber's own account, not as a nominee or
agent, and not with a view to the resale or distribution of any part thereof,
and that the Subscriber has no present intention of selling, granting any
participation in, or otherwise distributing the same. The Subscriber represents
and warrants that the Subscriber has no contract, understanding, agreement or
arrangement with any person to sell or transfer or pledge to such person or
anyone else any of the Securities for which the Subscriber hereby subscribes (in
whole or in part) or any interest therein; and the Subscriber represents and
warrants that the Subscriber has no present plans to enter into any such
contract, undertaking, agreement or arrangement.
The
Subscriber represents and warrants that the funds representing the Subscription
Price which will be advanced by the Subscriber hereunder will not represent
proceeds of crime and the Subscriber acknowledges that the Company may in the
future be required by law to disclose the Subscriber's name and other
information relating to this Subscription Agreement and the Subscriber's
subscription hereunder, on a confidential basis, and to the best of the
Subscriber's knowledge (i) none of the subscription funds to be provided by the
Subscriber (a) have been or will be derived from or related to any activity that
is deemed criminal under the laws of the United States of America, or any other
jurisdiction, or (b) are being tendered on behalf of a person or entity who has
not been identified to the Subscriber, and (ii) it shall promptly notify the
Company if the Subscriber discovers that any of such representations ceases to
be true, and to provide the Company with appropriate information in connection
therewith.
The
Subscriber represents and warrants that the current structure of this
transaction and all transactions and activities contemplated hereunder is not a
plan or scheme to evade the registration provisions of the Securities
Act.
The
Subscriber acknowledges that:
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(i)
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no
securities commission or similar regulatory authority has reviewed or
passed on the merits of the Securities;
and
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(ii)
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there
is no government or other insurance covering the Securities;
and
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(iii)
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there
are risks associated with the purchase of the Securities;
and
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(iv)
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there
are restrictions on the Subscriber's ability to resell the Securities and
it is the responsibility of the Subscriber to find out what those
restrictions are and to comply with them before selling the Securities;
and
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(v)
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the
Company has advised the Subscriber that the Company is relying on an
exemption from the requirements to provide the Subscriber with a
prospectus and to sell securities through a person or company registered
to sell securities under applicable securities laws and, as a consequence
of acquiring the Securities pursuant to this exemption, certain
protections, rights and remedies provided by applicable securities laws,
including statutory rights of rescission or damages, will not be available
to the Subscriber.
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The
Subscriber represents and warrants that neither the Company, nor any of their
respective directors, officers, employees or representatives, have made any
representations (oral or written) to the Subscriber regarding the future value
of the Securities.
The
Subscriber acknowledges that (i) the Company may complete secured or unsecured
debt financings or equity financings in the future in order to develop the
Company's business and to fund its ongoing development, (ii) there is no
assurance that such financings will be available and, if available, on
reasonable terms, (iii) any such future financings may have a dilutive effect on
current security holders, including the Subscriber, and (iv) if such future
financings are not available, the Company may be unable to fund its ongoing
development and the lack of capital resources may result in the failure of its
business.
The
Subscriber will not, directly or indirectly, except in compliance with (that is,
only to the extent required to comply with) the Securities Act and such other
securities or “Blue Sky” laws as may be applicable, (i) offer, sell, pledge,
transfer or otherwise dispose of (or solicit any offers to buy, purchase or
otherwise acquire or take a pledge of) any of the Securities, (ii) engage in any
short sale which results in a disposition of any of the Securities by
Subscriber, or (iii) hedge the economic risk of the Subscriber’s investment in
the Securities.
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C.
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Representations and Warranties of
the Company
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1. Corporate Organization;
Authority; Due Authorization.
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(a) The Company (i) is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of the State of Delaware, (ii) has the corporate power and
authority to own or lease its properties as and in the places where its business
is now conducted and to carry on its business as now conducted, and (iii) is
duly qualified as a foreign corporation authorized to do business in every
jurisdiction where the failure to so qualify, individually or in the aggregate,
would have a material adverse effect on the operations, assets, liabilities,
financial condition or business of the Company taken as a whole (a “Material Adverse
Effect”).
(b) The Company (i) has the
requisite corporate power and authority to execute, deliver and perform this
Subscription Agreement, the Note, the Convertible Note and the Warrant
(collectively, the “Transaction
Documents”) to which it is a party and to incur the obligations herein
and therein and (ii) has been authorized by all necessary corporate action to
execute, deliver and perform the Transaction Documents and to consummate the
transactions contemplated hereby and thereby (the “Contemplated Transactions”). The
Transaction Documents will be on each Closing Date valid and binding obligations
of the Company enforceable in accordance with their terms except as limited by
applicable bankruptcy, reorganization, insolvency, moratorium or similar laws
affecting the enforcement of creditors’ rights and the availability of equitable
remedies (regardless of whether such enforceability is considered in a
proceeding at law or equity).
2. Capitalization. The
authorized capital stock of the Company consists of one hundred and fifty
million (150,000,000) shares of common stock, $0.01 par value, of which
approximately thirty-two million two hundred fifty nine thousand one hundred
thirty one (32,259,131) shares of common stock are outstanding. All outstanding
shares of capital stock of the Company were issued in compliance with all
applicable Federal and state securities laws, and the issuance of such shares
was duly authorized by all necessary corporate action on the part of the
Company. Except as contemplated by this Subscription Agreement or as set forth
in the SEC Documents (hereinafter defined), there are (A) no outstanding
subscriptions, warrants, options, conversion privileges or other rights or
agreements obligating the Company to purchase or otherwise acquire or issue any
shares of capital stock of the Company (or shares reserved for such purpose),
(B) no preemptive rights contained in the Company’s Certificate of
Incorporation, as amended (the “Certificate of
Incorporation”), the By-laws of the Company or contracts to which the
Company is a party or rights of first refusal with respect to the issuance of
additional shares of capital stock of the Company, including without limitation
the Securities and (C) no commitments or understandings (oral or written) of the
Company to issue any shares, warrants, options or other rights to acquire any
equity securities of the Company other than with respect to existing
antidilution rights of existing investors. To the Company’s knowledge, except as
set forth in the SEC Documents, none of the shares of common stock are subject
to any stockholders’ agreement, voting trust agreement or similar arrangement or
understanding. Except as set forth in the SEC Documents, the Company has no
outstanding bonds, debentures, notes or other obligations the holders of which
have the right to vote (or which are convertible into or exercisable for
securities having the right to vote) with the stockholders of the Company on any
matter.
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3. Validity of
Securities. The issuance of the Securities has been duly authorized by
all necessary corporate action on the part of the Company and, when issued to,
delivered to, and paid for by the Subscribers in accordance with this
Subscription Agreement, the Securities will be validly issued, fully paid and
non-assessable.
4. Underlying
Securities. The issuance of the Warrant Shares has been duly authorized,
and the Warrant Shares, prior to exercise of the Warrants, will have been duly
reserved for issuance upon such exercise and, when so issued, will be validly
issued, fully paid and non assessable.
5. Private Offering. The
Company agrees that neither the Company nor anyone authorized to act on its
behalf will offer the Securities or any part thereof or any similar securities
for issuance or sale to, or solicit any offer to acquire any of the same from,
anyone so as to make the issuance and sale of the Securities subject to the
registration requirements of Section 5 of the Securities Act.
6. No Conflict; Required
Filings and Consents. The Company's execution, delivery and performance
of this Agreement and all other agreements contemplated hereby and thereby and
the consummation of the transactions contemplated hereby and thereby will not
with or without the giving of notice or the lapse of time or both (A) violate
any provision of law, statute, rule or regulation to which the Company is
subject, (B) violate any order, judgment or decree applicable to it, or (C)
conflict with or result in a breach or default under any term or condition of
its applicable governing instruments or any agreement or other instrument to
which it is a party or by which it is bound.
7. Compliance. Except as
set forth in the SEC Documents, the Company is not in conflict with, or in
default or violation of (i) any law, rule, regulation, order, judgment or decree
applicable to the Company or by which any property or asset of the Company is
bound or affected (“Legal
Requirement”), or (ii) any Material Agreement, in each case except for
any such conflicts, defaults or violations that would not, individually or in
the aggregate, have a Material Adverse Effect. The Company has not received any
written notice or other communication from any Governmental Body regarding any
actual or possible violation of, or failure to comply with, any Legal
Requirement, except any such violations or failures that would not, individually
or in the aggregate, have a Material Adverse Effect.
8. SEC Documents; Financial
Statements.
(a) The information contained
in the following documents, did not, as of the date of the applicable document,
include any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances in which they were made, not misleading, as of
their respective filing dates or, if amended, as so amended (the following
documents, collectively, the “SEC Documents”), provided that
the representation in this sentence shall not apply to any misstatement or
omission in any SEC Document filed prior to the date of this Subscription
Agreement which was superseded by a subsequent SEC Document filed prior to the
date of this Subscription Agreement:
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(i) the Company’s Quarterly
Report on Form 10-Q for the quarter ended September 30, 2008;
(ii) the
Company’s Quarterly Report on Form 10-Q for the quarter ended June 30,
2008;
(iii) the
Company’s Quarterly Report on Form 10-Q for the quarter ended March 31,
2008;
(iv) the
Company’s Annual Report on Form 10-KSB for the year ended December 31, 2007;
and
(v) the Company’s interim
filings on Form 8-K or other appropriate forms filed on any date after December
31, 2007 and on or before each Closing.
(b)
In addition, as of the date of this Subscription Agreement, when read
together with the SEC Documents and the information, qualifications and
exceptions contained in this Subscription Agreement, do not include any untrue
statement of a material fact or omit to state a material fact in light of the
circumstances in which such written disclosures were made.
(c)
The Company has filed all forms, reports and documents required to
be filed by it with the SEC for the 12 months preceding the date of this
Subscription Agreement, including without limitation the SEC Documents. As of
their respective dates, the SEC Documents filed prior to the date hereof
complied as to form in all material respects with the applicable requirements of
the Securities Act, the Exchange Act, and the rules and regulations
thereunder.
(d)
The Company’s Annual Report on Form 10-KSB for the year ended
December 31, 2007, includes consolidated balance sheets as of December 31, 2006
and 2007 and consolidated statements of income for the one year periods then
ended (collectively, the “Form
10-KSB Financial Statements”).
(e)
The Company’s Quarterly Report on Form 10-Q for
the quarter ended March 31, 2008, includes consolidated balance sheets as of
March 31, 2008 and consolidated statements of operations for the quarters ended
March 31, 2007 and 2008 (the “March 31 Financial
Statements”).
(f)
The Company’s Quarterly Report on Form 10-Q for the quarter
ended June 30, 2008 includes consolidated balance sheets as of June 30, 2008 and
consolidated statements of operations for the quarters ended June 30, 2007 and
2008 (the “June 30 Financial
Statements”).
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(g) The
Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2008
includes consolidated balance sheets as of September 30, 2008 and consolidated
statements of operations for the quarters ended September 30, 2007 and 2008 (the
“September 30 Financial
Statements” and together with the June 30 Financial Statements, the March
31 Financial Statements and the Form 10-KSB Financial Statements, the “Financial
Statements”).
(h) The
Financial Statements (including the related notes and schedules thereto) fairly
present in all material respects the consolidated financial position, the
results of operations, retained earnings or cash flows, as the case may be, of
the Company for the periods set forth therein (subject, in the case of unaudited
statements, to normal year-end audit adjustments that would not be material in
amount or effect), in each case in accordance with generally accepted accounting
principles consistently applied during the periods involved, except as may be
noted therein.
9. Use of Proceeds. The
net proceeds received by the Company from the sale of the Securities shall be
used by the Company for working capital and general corporate
purposes.
10. Subsidiaries. The
Company has no subsidiaries.
D. Legend.
The certificate representing the Securities issued by the Company shall bear the
following (or similar) legends:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE AND ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH LAWS. THESE
SECURITIES MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED UNLESS PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT OR EXEMPTION THEREFROM.
E. Indemnification.
The Subscriber agrees to indemnify and hold harmless the Company and its
officers, managers, members, employees, agents and affiliates against any and
all loss, liability, claim, damage and expense whatsoever (including without
limitation any and all expenses reasonably incurred in investigating, preparing
or defending against any litigation commenced or threatened or any claim
whatsoever) arising out of or based upon any false representation or warranty or
breach or failure by the Subscriber to comply with any covenant agreement made
by the Subscriber herein. The Company agrees to indemnify and hold harmless the
Subscriber and its officers, managers, members, employees, agents and affiliates
against any and all loss, liability, claim, damage and expense whatsoever
(including without limitation any and all expenses reasonably incurred in
investigating, preparing or defending against any litigation commenced or
threatened or any claim whatsoever) arising out of or based upon any false
representation or warranty or breach or failure to comply with any covenant
agreement made by the Company herein.
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F. Modification.
Any provision of this Subscription Agreement, the Notes, and the Warrants may be
amended, waived or terminated upon mutual agreement of the Company and holders
of a majority of the Securities outstanding at the time of such amendment,
waiver or termination. Approval of such amendment, waiver or
termination shall be binding upon all Subscribers, and all holders of the Notes
and Warrants.
G. Assignability.
This Subscription Agreement and the rights and obligations hereunder are not
transferable or assignable by the Subscriber.
H. Governing Law. This
Subscription Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware without regard to principles of conflicts of
law.
I. Survival of
Representations and Warranties. All representations and warranties made
by the Subscriber in this Subscription Agreement shall survive the execution and
delivery of this Subscription Agreement, as well as any investigation at any
time made by or on behalf of the Company and the issue and sale of the
Securities.
J. Reliance.
The Subscriber understands and acknowledges that the Subscriber's
representations, warranties, acknowledgements and agreements in this
Subscription Agreement will be relied upon by the Company in determining the
Subscriber's suitability as a purchaser of the Securities.
K. Further
Assurances. The Subscriber agrees to provide, if requested, any
additional information that may be requested or required to determine the
Subscriber's eligibility to purchase the Securities.
L. Entire
Agreement. This Subscription Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subject
matter hereof and no party shall be liable or bound to any other in any manner
by any representations, warranties, covenants and agreements except as
specifically set forth herein and therein.
M. Severability.
In the event one or more of the provisions of this Subscription Agreement
should, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality, or unenforceability shall not affect any
other provisions of this Subscription Agreement, and this Subscription Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein.
N. Notices. Any notice
or other communication required or permitted to be given hereunder (each a
“Notice”) shall be given
in writing and shall be made by personal delivery or sent by courier or
certified or registered first-class mail (postage prepaid), addressed to a party
at its address shown below or at such other address as such party may designate
by three days’ advance Notice to the other parties.
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Any
Notice to any of the Subscribers shall be sent to the addresses for such
Subscriber set forth on the signature pages hereof.
Any
Notice to the Company shall be sent to:
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Novint
Technologies, Inc.
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0000
Xxxxxxxx Xxxx XX
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Xxxxxxxxxxx,
XX 00000
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Attention:
CEO
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with a
copy to:
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Xxxxxxxxxx
& Xxxxx LLP
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00000
Xxxxxxxx Xxxx., Xxxxx 000
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Xxx
Xxxxxxx, XX. 00000
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Fax:
000.000.0000
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Attention:
Xxxxxxx Xxxxx, Esq.
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Each
Notice shall be deemed given and effective upon receipt (or refusal of
receipt).
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
12
IN
WITNESS WHEREOF, the undersigned has executed this Subscription Agreement as of
the date set forth on this signature page.
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Subscription
Price:
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$________________________
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Principal
Amount:
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$________________________
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___________________________
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_________________________________
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Print
Name of Individual, Company,
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Print
Name of Authorized Representative
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Limited
Liability Company, Corporation
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or
Trust
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|
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By:____________________________
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____________________________
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Signature
of Authorized Representative
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Capacity
of Authorized Representative
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Date:
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_____________
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Address:
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_______________________
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Social
Security Number of U.S. Tax Identification No:
___________________________
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SUBSCRIPTION
ACCEPTED:
NOVINT
TECHNOLOGIES, INC., a Delaware corporation
By:___________________________
Name: Xxxxxx
X. Xxxxxxxx
Title:
Chief Executive Officer
|
Date:
____________
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13
EXHIBIT
A
FORM
OF
5% SECURED PROMISSORY
NOTE
EXHIBIT
B
FORM
OF WARRANT
EXIBIT
C
FORM
OF
5%
CONVERTIBLE SECURED PROMISSORY NOTE
EXHIBIT
D
INTERCREDITOR
AGREEMENT
EXHIBIT
E
ACCREDITED
INVESTOR QUESTIONNAIRE
