Exhibit 10.1
Translated From Japanese
SUBSCRIPTION AGREEMENT
December 31, 2004
Xxx Tokyo Co. Ltd.
0-00-0 Xxxxxxx-xxxxxx
Xxxxxx Xxxxx Xxxxx 121-0063
Attention: Xxxxxxxx Xxxxx
Chief Executive Officer
Dear Sir:
By its signature on this Subscription Agreement ("Subscription
Agreement"), the undersigned (the "Subscriber") hereby confirms Subscriber's
subscription to purchase Five Hundred (500) Series A Preference Shares (the
"Preference Shares") of Xxx Tokyo Co Ltd (the "Company"), for the sum of Two
Hundred Thousand Yen ((Y)200,000) per Preference Share, a purchase price of One
Hundred Million Yen ((Y)100,000,000), in the aggregate, payable in two equal
installments and otherwise in accordance with the following terms.
1. ACKNOWLEDGEMENTS AND EFFECTIVE DATE OF PURCHASE. The Subscriber hereby
acknowledges that:
(a) (i) the Subscriber has tendered to the Company, in cash, the sum of
Fifty Million Yen ((Y)50,000,000) in consideration for the acquisition of 250
Preference Shares (the "Initial Investment"); and (ii) prior to December 31,
2005, assuming no default under this Subscription Agreement, Subscriber agrees
to pay to the Company, in cash, the sum of Fifty Million Yen ((Y)50,000,000) in
consideration for the acquisition of an additional 250 Preference Shares (the
"Subsequent Investment");
(b) contemporaneously with the execution of this Subscription
Agreement, the Company shall cause to be executed and delivered to the
Subscriber the Company's certificate evidencing the issuance of Two Hundred
Fifty (250) Preference Shares in the name of the Subscriber in connection with
the Initial Investment and, upon receipt of the funds for the Subsequent
Investment, the Company shall cause to be executed and delivered to the
Subscriber the Company's certificate evidencing the issuance of an additional
Two Hundred Fifty (250) Preference Shares in the name of the Subscriber.
(c) Subscriber's subscription shall be effective as of the date of
acceptance of this Subscription Agreement by the Company.
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2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby confirms
that the following representations and warranties to the Subscriber are true as
of the date hereof.
(a) The Company is duly organized and validly existing under the laws
of Japan. The Company has all requisite power and authority to enter into this
Subscription Agreement and to perform its obligations hereunder and to
consummate the transactions contemplated hereby. All acts and other proceedings
required to be taken by the Company to authorize the execution, delivery and
performance of this Subscription Agreement and the consummation of the
transactions contemplated hereby have been duly and properly taken. This
Subscription Agreement has been duly executed and delivered by Company and
constitutes a legal, valid and binding obligation of Company, enforceable
against Company in accordance with its terms except as such enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium, receivership
or similar laws affecting or relating to the enforcement of creditors' rights
generally or by equitable principles (regardless of whether enforcement is
sought in a proceeding in equity or at law).
(b) The execution, delivery and performance by the Company of this
Agreement will not (i) conflict with or result in a material breach of any
provision of the Company's organizational documents or any material contract or
agreement by which the Company is a party or is bound, (ii) violate any order,
writ, injunction, decree, statute, rule or regulation applicable to the Company,
or (iii) require the approval, consent or authorization of, or a declaration,
notice, filing or registration with, any governmental or regulatory authority,
or any other person.
(c) The Preference Shares are duly authorized and, when issued and sold
to the Subscriber after payment therefor, will be validly issued, fully paid and
nonassessable and will be issued in compliance with applicable law. The terms of
the Preference Shares are attached hereto as Annex A.
3. REPRESENTATIONS AND WARRANTIES OF THE SUBSCRIBER. The Subscriber hereby
confirms that the following representations and warranties to the Company are
true as of the date hereof.
(a) The Subscriber is the sole and true party in interest and is not
purchasing the Preference Shares for the benefit of any other person.
(b) The Subscriber has such knowledge and experience in financial and
business matters that he or she is capable of evaluating the merits and risks of
this investment.
(c) The Subscriber is capable of bearing the high degree of economic
risk and burdens of this venture, including but not limited to, the possibility
of a complete loss of all contributed capital, the lack of a public market and
limited transferability of the
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Preference Shares, which may make liquidation of this investment impossible for
the indefinite future.
(d) The Preference Shares are being acquired solely for the
Subscriber's own account for investment, and are not being purchased with a view
to resale, distribution, subdivision or fractionalization thereof.
4. TRANSFERABILITY. The Subscriber agrees not to transfer or assign the
obligations or duties contained in this Subscription Agreement, or any of the
Subscriber's interest herein.
5. ACCEPTANCE. Execution and delivery of this Subscription Agreement and tender
of the payment referenced in Paragraph 1 above shall constitute an irrevocable
offer to purchase the Preference Shares, which offer may be accepted or
rejected, in whole or in part, by the Company in its sole discretion, for any
cause or for no cause. Acceptance of this offer by the Company shall be
indicated by the execution of this Subscription Agreement by the Company.
6. BINDING AGREEMENT. The Subscriber agrees that it may not cancel, terminate or
revoke this Subscription Agreement or any agreement of the Subscriber made
hereunder.
7. NOTICES. Any notices or other communication required or permitted hereby
shall be sufficiently given if sent by mail, postage prepaid and addressed, if
to the Subscriber, at the address set forth under the Subscriber's name below,
and if to the Company, at its address set forth on the first page of this
Subscription Agreement, or otherwise to such address as either the Subscriber or
the Company designates to the other in writing.
8. APPLICABLE LAW. This Subscription Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, United States of
America.
IN WITNESS WHEREOF, the Subscriber has executed this Subscription
Agreement on the date set forth opposite his or her signature below.
SUBSCRIBER:
IA GLOBAL, INC. DATE: DECEMBER 31, 2004
-----------------
BY: /S/ XXXX XXXXXXXXXX
-------------------
NAME: XXXX XXXXXXXXXX
TITLE: CHIEF EXECUTIVE OFFICER
ADDRESS:
000 XXXXXXX XXXX. XXXXX 000
XXXXXXXXXX, XX 00000
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SUBSCRIPTION ACCEPTED BY
XXX TOKYO CO LTD
BY: /S/ XXXXXXXX XXXXX DATE: DECEMBER 31, 2004
------------------ -----------------
NAME: XXXXXXXX XXXXX
TITLE: CHIEF EXECUTIVE OFFICER
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Annex A
Translated From Japanese
Xxx Tokyo Co Ltd
Terms of Preference Shares
Preference Shares to be issued to IA Global, Inc. on the following terms:
Number of Shares to be issued: 250 preference shares
Price per share: 1 share to be 200,000 Yen
Dividend details: to receive 6,000 Yen per share in preference to common stock
holders per annum, assuming profitability of Xxx Tokyo Co Ltd.
New preferred share issue details:
Payment of 200,000 Yen per share is required by the payment date by wire
transfer to the designated account as proof of application for preferred shares.
Application Date: 24 Dec, 2004
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