SUBSCRIPTION AGREEMENT
Exhibit
10.1
NAME
OF SUBSCRIBER:
_____________________________
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To:
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Odyne
Corporation
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00
Xxxxx
Xxxxx, Xxxxx X
Xxxxxxxxx,
Xxx Xxxx 00000
This
Subscription Agreement (this “Agreement”) is being delivered to you in
connection with your investment in Odyne Corporation (“Odyne” or the “Company”).
Matrix USA LLC (the “Placement Agent”) shall serve as the placement agent of
Odyne in conducting an offering (the “Offering”) of units (“Units”), each Unit
consisting of (i) a 10% Senior Secured Convertible Debenture (“Debenture”),
which shall be secured by a first priority lien on Odyne’s assets, and which are
convertible into shares of Odyne’s common stock (“Common Stock”), and (ii) a
detachable, three-year warrant to purchase shares of Common Stock (“Warrant”)
equal to 100% of the principal amount of the Debenture divided by the exercise
price of the Warrant, which is $0.75 per
share. The purchase price per Unit is $100,000. The Offering is being conducted
on a “best efforts - five (5) Units or none” basis with a maximum of thirty five
(35) Units being offered. All funds received in the Offering prior to the First
closing of the Offering (the “First Closing”) shall be held in escrow by
Signature Bank (the “Escrow Agent”) and, upon fulfillment of the other
conditions precedent set forth herein, shall be released from escrow and
delivered to Odyne at which time the securities subscribed for as further
described below shall be delivered, subject to Section 8 hereof, to you. The
Company and the Placement Agent may continue to offer and sell Units and conduct
additional closings (each, a “Closing”) for the sale of additional Units after
the First Closing until the termination of the Offering.
1. SUBSCRIPTION
AND PURCHASE PRICE
1.1 Subscription.
Subject
to the conditions set forth in Section 2 hereof, the undersigned hereby
subscribes for and agrees to purchase the number of Units indicated on page
10
hereof on the terms and conditions described herein. The minimum number of
Units
that may be purchased is five (5). Subscriptions for lesser amounts may be
accepted at the discretion of Odyne and the Placement Agent.
1.2 Purchase
of Securities.
The
undersigned understands and acknowledges that the purchase price to be remitted
to the Placement Agent in exchange for the Units shall be $100,000 per Unit,
for
an aggregate purchase price as set forth on page 10 hereof (the “Aggregate
Purchase Price”). The undersigned’s delivery of this Agreement to the Placement
Agent shall be accompanied by payment for the Units subscribed for hereunder,
payable in United States dollars, by check or wire transfer, to “Signature Bank,
as Escrow Agent for Odyne Corporation” with the undersigned’s delivery of this
Agreement to the Placement Agent. The undersigned understands and agrees that,
subject to Section 2.1(a) and applicable law, by executing this Agreement,
he,
she or it is entering into a binding agreement. The undersigned further
understands and acknowledges that he, she or it is purchasing the Units
independently and not in reliance of any person or entity participating in
this
Offering.
2. ACCEPTANCE
AND CLOSING PROCEDURES
2.1 Acceptance
or Rejection.
(a) The
obligation of the undersigned to purchase the Units shall be irrevocable, and
the undersigned shall be legally bound to purchase the Units subject to the
terms set forth in this Agreement.
(b) The
undersigned understands and agrees that Odyne and the Placement Agent reserve
the right to reject this subscription for the Units in whole or part at any
time
prior to the closing (the “Closing”) of the purchase and sale of the Units if,
in their reasonable judgment, they deem such action to be in the best interest
of Odyne, notwithstanding the undersigned’s prior receipt of notice of
acceptance of the undersigned’s subscription.
(c) In
the
event of rejection of this subscription by Odyne or the Placement Agent in
accordance with Section 2.1(b), or in the event that the sale of the Units
is
not consummated by the Placement Agent for any reason, this Agreement and any
other agreement entered into between the undersigned and the Placement Agent
relating to this subscription shall thereafter have no force or effect, and
the
Placement Agent shall promptly return or cause to be returned to the undersigned
the purchase price remitted to the Escrow Agent, without interest thereon or
deduction therefrom.
2.2 Closing.
Each
Closing shall take place at the offices of Xxxxxxxxx Xxxxxxx, LLP, counsel
to
Odyne, at The MetLife Building, 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx
00000, or such other place as determined by the Placement Agent. The First
Closing shall take place on a Business Day promptly following the satisfaction
of the conditions set forth in Section 8 below. Each subsequent Closing shall
take place at such times as determined by Odyne (each closing date referred
to
as a “Closing Date”), or such other date as is mutually agreed to by the parties
and the undersigned. “Business Day” shall mean from the hours of 9:00 a.m.
(E.S.T.) through 5:00 p.m. (E.S.T.) of a day other than a Saturday, Sunday
or
other day on which commercial banks in New York, New York are authorized or
required to be closed.
3. INVESTOR’S
REPRESENTATIONS AND WARRANTIES
The
undersigned hereby acknowledges, agrees with and represents and warrants to
Odyne and the Placement Agent and its affiliates, as follows:
(a) The
undersigned has full power and authority to enter into this Agreement, the
execution and delivery of which has been duly authorized, if applicable, and
this Agreement constitutes a valid and legally binding obligation of the
undersigned.
(b) The
undersigned acknowledges his, her or its understanding that the offering and
sale of the Units is intended to be exempt from registration under the
Securities Act of 1933, as amended (the “Securities Act”), by virtue of Section
4(2) of the Securities Act and the provisions of Regulation D promulgated
thereunder (“Regulation D”). In furtherance thereof, the undersigned represents
and warrants to Odyne and the Placement Agent and its affiliates as
follows:
(i) The
undersigned realizes that the basis for the exemption from registration may
not
be available if, notwithstanding the undersigned’s representations contained
herein, the undersigned is merely acquiring the Units for a fixed
or
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determinable
period in the future, or for a market rise, or for sale if the market does
not
rise. The undersigned does not have any such intention.
(ii) The
undersigned is acquiring the Units solely for the undersigned’s own beneficial
account, for investment purposes, and not with view to, or resale in connection
with, any distribution of the Debenture, or shares of Common Stock into which
the Debenture is convertible and the Warrants are exercisable.
(iii) The
undersigned has the financial ability to bear the economic risk of his, her
or
its investment, has adequate means for providing for current needs and
contingencies, and has no need for liquidity with respect to the investment
in
Odyne;
(iv) The
undersigned and the undersigned’s attorney, accountant, purchaser representative
and/or tax advisor, if any (collectively, “Advisors”), have received the
Confidential Private Placement Memorandum of the Company dated September 19,
2007, together with all annexes thereto (as such documents may be further
amended or supplemented after the date hereof, the “Offering Materials”),
relating to the Offering by Odyne of the Units, and all other documents
requested by the undersigned or Advisors, if any, have carefully reviewed them
and understood the information contained therein, prior to the execution of
this
Agreement; and
(v) The
undersigned (together with the
undersigned’s
Advisors, if any) has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of the prospective
investment in the Units. If other than an individual, the undersigned also
represents it has not been organized solely for the purpose of acquiring the
Units.
(c) The
information in the Investor Questionnaire completed and executed by the
undersigned (the “Investor Questionnaire”) is true and accurate in all respects,
and the undersigned is an “accredited investor,” as that term is defined in Rule
501(a) of Regulation D.
(d) The
undersigned is not relying on the Placement Agent or its affiliates or
sub-agents with respect to economic considerations involved in this investment.
The undersigned has relied on the advice of, or has consulted with, only his,
her or its Advisors. Each Advisor, if any, is capable of evaluating the merits
and risks of an investment in the Units as such are described in the Offering
Materials, and each Advisor, if any, has disclosed to the undersigned in writing
(a copy of which is annexed to this Agreement) the specific details of any
and
all past, present or future relationships, actual or contemplated, between
the
Advisor and the Placement Agent or any affiliate or sub-agent
thereof.
(e) The
undersigned will not sell or otherwise transfer the Debenture or Warrants
(including such shares of Common Stock into which the Debentures are convertible
and Warrants are exercisable, and collectively with the Debentures and Warrants,
the “Securities”) without registration under the Securities Act or an exemption
therefrom, and fully understands and agrees that the undersigned must bear
the
economic risk of his, her or its purchase because, among other reasons, the
Securities have not been registered under the Securities Act or under the
securities laws of any state and, therefore, cannot be resold, pledged, assigned
or otherwise disposed of unless they are subsequently registered under the
Securities Act and under the applicable state securities laws, or an exemption
from such registration is available. In particular, the undersigned is aware
that the Securities are “restricted securities,” as such term is defined in Rule
144 promulgated under the Securities Act (“Rule 144”), and they may not be sold
pursuant to Rule 144 unless all of the conditions of Rule 144 are met. The
undersigned also understands that, except as otherwise provided herein, Odyne
is
under no obligation to register the Securities on the undersigned’s behalf or to
assist the undersigned in complying with any exemption from
registration
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under
the
Securities Act or applicable state securities laws. The undersigned understands
that any sales or transfers of the Securities may be further restricted by
state
securities laws and are further restricted by the provisions of this
Agreement.
(f) No
representations or warranties have been made to the undersigned by Odyne or
the
Placement Agent, or any of their respective officers, employees, agents,
sub-agents, affiliates or subsidiaries, other than any representations of Odyne
or the Placement Agent contained herein and in the Offering Materials, and
in
subscribing for Units the undersigned is not relying upon any representations
other than those contained herein or in the Offering Materials.
(g) The
undersigned understands and acknowledges that the undersigned’s purchase of the
Units is a speculative investment that involves a high degree of risk and the
potential loss of the undersigned’s entire investment. The undersigned has
carefully read and considered the matters set forth in the Offering Materials
and in particular the matters under the caption “Risk Factors” therein, and
expressly acknowledges that Odyne has a limited operating history.
(h) The
undersigned’s overall commitment to investments that are not readily marketable
is not disproportionate to the undersigned’s net worth, and an investment in the
Units will not cause such overall commitment to become excessive.
(i) The
undersigned understands and agrees that the Securities shall bear substantially
the following legend until (i) such Securities shall have been registered under
the Securities Act and effectively disposed of in accordance with a registration
statement that has been declared effective or (ii) in the opinion of counsel
for
Odyne such Securities may be sold without registration under the Securities
Act
or any applicable “blue sky” or state securities laws:
THE
SECURITIES REPRESENTED HEREIN HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES
LAWS. SUCH SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES AND MAY NOT
BE
OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FILED BY
THE
ISSUER WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION COVERING SUCH SECURITIES
UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER
THAT SUCH REGISTRATION IS NOT REQUIRED.
(j) Neither
the U.S. Securities and Exchange Commission (the “SEC”) nor any state securities
commission has approved the Units or the Securities, or passed upon or endorsed
the merits of the Offering or confirmed the accuracy or determined the adequacy
of the Offering Materials. The Offering Materials has not been reviewed by
any
Federal, state or other regulatory authority.
(k) The
undersigned and his, her or its Advisors, if any, have had a reasonable
opportunity to ask questions of and receive answers from a person or persons
acting on behalf of Odyne concerning the offering of the Units and the business,
financial condition, results of operations and prospects of Odyne, and all
such
questions have been answered to the full satisfaction of the undersigned and
the
undersigned’s Advisors, if any.
(l) The
undersigned is unaware of, is in no way relying on, and did not become aware
of
the offering of the Units through or as a result of, any form of general
solicitation or general advertising including, without limitation, any article,
notice, advertisement or other communication
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published
in any newspaper, magazine or similar media or broadcast over television, radio
or electronic mail through the Internet, in connection with the offering and
sale of the Units and is not subscribing for Units and did not become aware
of
the offering of the Units through or as a result of any seminar or meeting
to
which the undersigned was invited by, or any solicitation of a subscription
by,
a person not previously known to the undersigned in connection with investments
in securities generally.
(m) The
undersigned has taken no action that would give rise to any claim by any person
for brokerage commissions, finders’ fees or the like relating to this Agreement
or the transactions contemplated hereby (other than commissions to be paid
by
Odyne to the Placement Agent, its sub-agents or as otherwise described in the
Offering Materials and, in turn, to be paid to other selected
dealers).
(n) The
undersigned is not relying on Odyne, the Placement Agent or any of their
respective employees, agents or sub-agents with respect to the legal, tax,
economic and related considerations of an investment in the Units, and the
undersigned has relied on the advice of, or has consulted with, only his, her
or
its own Advisors.
(o) The
undersigned acknowledges that any estimates or forward-looking statements or
projections included in the Offering Materials were prepared by the management
of Odyne in good faith, but that the attainment of any such projections,
estimates or forward-looking statements cannot be guaranteed by Odyne or its
management and should not be relied upon.
(p) No
oral
or written representations have been made, or oral or written information
furnished, to the undersigned or his, her or its Advisors, if any, in connection
with the offering of the Units that are in any way inconsistent with the
information contained in the Offering Materials.
(q) The
undersigned’s substantive relationship with the Placement Agent or sub-agents
through which the undersigned is subscribing for Units predates the Placement
Agent’s or such sub-agents’ contact with the undersigned regarding an investment
in the Units.
(r) All
of
the foregoing representations, warranties and agreements shall survive the
Closing.
4. ODYNE’S
REPRESENTATIONS AND WARRANTIES
Odyne
hereby acknowledges, agrees with and represents and warrants to each of the
undersigned, as follows:
(a) Odyne
has
the corporate power and authority to execute and deliver this Agreement and
to
perform its obligations hereunder. This Agreement has been duly authorized,
executed and delivered by Odyne and is valid, binding and enforceable against
Odyne in accordance with its terms.
(b) The
Debentures and Warrants to be issued to the undersigned pursuant to this
Agreement, when issued and delivered in accordance with the terms thereof and
this Agreement, will be duly and validly issued and will be fully paid and
non-assessable.
(c) Odyne
has
duly and validly reserved, out of its authorized and unissued Common Stock,
for
issuance upon conversion of the Debenture and exercise of the Warrants, a number
of shares sufficient for such purpose. The Common Stock to be issued to the
undersigned upon conversion of the Debentures and exercise of the Warrants
pursuant to this Agreement, when issued and delivered in accordance with this
Agreement, the Debenture and the Warrant will, upon receipt by Odyne of the
applicable cash conversion or exercise price therefor, be validly issued and
fully paid and non-assessable.
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(d) Neither
the execution and delivery nor the performance of this Agreement by Odyne will
conflict with Odyne’s Certificate of Incorporation or By-laws, as amended to
date, or result in a breach of any terms or provisions of, or constitute a
default under, any material contract, agreement or instrument to which Odyne
is
a party or by which Odyne is bound.
(e) After
giving effect to the transactions contemplated by this Agreement and immediately
after the Closing, Odyne will have the outstanding capital stock as described
in
the Offering Materials.
(g) Odyne
has
made available to the Subscriber audited financial statements of Odyne for
the
year
ended December 31, 2006, as well as unaudited financial statements for the
six
months ended June 30, 2007 (collectively the “Financial Statements”), which
Financial Statements have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis (except as stated in such
Financial Statements or the notes thereto) and fairly present the financial
position of Odyne. The Offering Materials contain all material information
relating to Odyne and its operations and financial condition. Since the date
of
the Financial Statements, there has been no Material Adverse Effect in Odyne’s
business, financial condition or affairs not disclosed in the Offering
Materials. The Offering Materials and the Financial Statements do not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances when made. To
Odyne’s knowledge, none of its reports filed with the SEC contained, at the time
they were filed, any untrue statement of a material fact or omitted to state
any
material fact required to be stated therein or necessary to make the statements
made therein in light of the circumstances under which they were made, not
misleading.
5. COVENANTS
5.1 Registration
Rights.
Odyne
is obligated to register the resale of the shares of Common Stock issuable
upon
conversion and/or exercise of the Securities pursuant to the terms of the
Registration Rights Agreement of even date herewith between Odyne and the
undersigned.
5.2 Short
Sales.
The
undersigned covenants that neither it nor any affiliate acting on its behalf
or
pursuant to any understanding with it will execute any “short sales,” as defined
in Rule 200 of Regulation SHO under the Securities Exchange Act of 1934, as
amended (“Short Sales”), during the period commencing on the date of receipt by
the undersigned of this Agreement and ending on the earlier of (i) the date
of
effectiveness of the Registration Statement or (ii) the date on which the shares
of Common Stock issuable upon the conversion of the Debentures and exercise
of
the Warrants are first eligible for sale under Rule 144(k). The
undersigned understands
and acknowledges that the SEC currently takes the position that coverage of
short sales of shares of the Common Stock “against the box” prior to the
effectiveness of the Registration Statement with the Securities is a violation
of Section 5 of the Securities Act, as set forth in Item 65, Section A, of
the
Manual of Publicly Available Telephone Interpretations, dated July 1997,
compiled by the Office of Chief Counsel, Division of Corporation Finance.
Notwithstanding
the foregoing, except as otherwise provided for in this Section 5.2, the
undersigned does not make any representation, warranty or covenant hereby that
it will not engage in Short Sales in the securities of the Company after
the
earlier of (i) the date of effectiveness of the Registration Statement or (ii)
the date on which the shares of Common Stock issuable upon the conversion of
the
Debentures and exercise of the Warrants are first eligible for sale under Rule
144(k). The
undersigned covenants that, during the period commencing on the earlier of
(i)
the date of effectiveness of the Registration Statement or (ii) the date on
which the shares of Common Stock issuable upon the conversion of the Debentures
and exercise of the Warrants are first eligible for sale under Rule 144(k)
and
terminating on the date when it holds no shares of Common Stock, neither the
undersigned nor any affiliate acting on its behalf or pursuant to any
understanding with it shall knowingly engage in
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any
Short
Sales, except on those days (each, a “Permitted Day”) on which the aggregate
short position with respect to the Common Stock of the undersigned prior to
giving effect to any Short Sales by it on Permitted Day does not exceed its
Permitted Share Position (as defined below) on such Permitted Day; provided,
however,
that
the undersigned will only be entitled to engage in transactions that constitute
Short Sales on a Permitted Day to the extent that, following such transaction,
the aggregate short position with respect to the Common Stock of the undersigned
does not exceed its Permitted Share Position. For purposes of this Section
5.2, the undersigned’s “Permitted Share Position” means, with respect to any
date of determination, the number of shares of Common Stock beneficially owned
by it (including shares of Common Stock issuable upon the conversion of the
Debentures and exercise of the Warrants, and shares purchased in the open
market, or otherwise), plus the sum of the maximum number of shares then
issuable upon the exercise of the Warrants (including portions of the Warrants
not yet exercised and without regard to any other exercise restrictions
applicable to the Warrants) to the undersigned. Notwithstanding the
foregoing, in the case of a subscriber that is a multi-managed investment
vehicle in which separate portfolio managers manage separate portions of the
undersigned’s assets and the portfolio managers have no direct knowledge of the
investment decisions made by the portfolio managers managing other portions
of
its assets, the covenant set forth above shall only apply with respect to the
portion of assets managed by the portfolio manager that made the investment
decision to purchase the Securities covered by this Agreement.
6. USE
OF PROCEEDS
The
net
proceeds of the Offering will be used in a manner consistent with the plan
described in “Use of Proceeds” in the Offering Materials and the Monthly
Operating Budget, as defined in Section 8.1(a) of this Agreement.
7. XXXXXXX
XXXXXXX PROHIBITION; INDEMNITY
7.1 Until
the
filing by Odyne of its Current Report on Form 8-K with the SEC describing the
Offering, but without limiting the provisions of Section 7.2 below, the
undersigned hereby agrees to (i) refrain from (a) engaging in any transactions
with respect to the capital stock of Odyne or any securities exercisable or
convertible into or exchangeable for any shares of capital stock of Odyne,
and
(b) entering into any transaction which would have the same effect, or entering
into any swap, hedge or other arrangement that transfers, in whole or in part,
any of the economic consequences of ownership of the capital stock of Odyne
and
(ii) indemnify and hold harmless Odyne, the Placement Agent, and their
respective officers and directors, employees, agents, sub-agents and affiliates
and each other person, if any, who controls any of the foregoing, against any
loss, liability, claim, damage and expense whatsoever (including, but not
limited to, any and all expenses whatsoever reasonably incurred in
investigating, preparing or defending against any litigation commenced or
threatened or any claim whatsoever) arising out of or based upon any violation
of this Section 7 by the undersigned.
7.2 The
undersigned agrees to indemnify and hold harmless Odyne, the Placement Agent,
the Escrow Agent and their respective officers and directors, employees, agents,
sub-agents and affiliates and each other person, if any, who controls any of
the
foregoing, against any loss, liability, claim, damage and expense whatsoever
(including, but not limited to, any and all expenses whatsoever 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 by the undersigned, or the undersigned’s
breach of, or failure to comply with, any covenant or agreement made by the
undersigned herein or in any other document furnished by the undersigned to
Odyne, the Placement Agent, the Escrow Agent and their respective officers
and
directors, employees, agents, sub-agents and affiliates and each other person,
if any, who controls any of the foregoing in connection with the
Offering.
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8. CONDITIONS
TO ACCEPTANCE OF SUBSCRIPTION
Odyne’s
right to accept the subscription of the undersigned is conditioned upon
satisfaction of the following conditions precedent on or before the date Odyne
accepts such subscription (the “Closing Date”) (any or all of which may be
waived by the undersigned in his, her or its sole discretion):
8.1 On
the
First Closing,
(a) Odyne
shall provide the Placement Agent with evidence reasonably satisfactory to
the
Placement Agent that Odyne has decreased its average monthly operating expenses,
exclusive of materials, non-cash items and expenses associated with the
Offering, to no more than $275,000 per month, commencing as of September 1,
2007
(the “Monthly Operating Budget”).
(b) Messrs.
Xxxxxx Xxxxxxxx and Xxxxxxxxxxxx (Xxx) Xxxxxxxxx shall have extended their
employment agreements with Odyne for an additional three (3) years from the
First Closing.
(c) No
legal
action, suit or proceeding shall be pending which seeks to restrain or prohibit
the transactions contemplated by this Agreement.
(d) The
representations and warranties of Odyne contained in this Agreement shall have
been true and correct on the date of this Agreement and shall be true and
correct on the First Closing Date as if made on the First Closing
Date.
8.2 On
each
Closing thereafter,
(a) No
legal
action, suit or proceeding shall be pending which seeks to restrain or prohibit
the transactions contemplated by this Agreement.
(b) The
representations and warranties of Odyne contained in this Agreement shall have
been true and correct on the date of this Agreement and shall be true and
correct on the Closing Date as if made on the Closing Date.
(c) Odyne
shall have provided the Placement Agent with evidence that Odyne has been
maintaining the Monthly Operating Budget.
(d) The
Placement Agent shall be satisfied that the Company shall be working with the
CEO to develop new strategies for the overall improvement of the Company,
including, but not limited to, delivering products and adapting staffing needs
of the Company.
8.3 Appointment
of Director.
Upon
the
termination of the Offering, the Investor whom shall have purchased the most
Units in this Offering shall be appointed to the Board, provided such Investor
shall have purchased at least five (5) Units. In the event that no Investor
shall have purchased at least five (5) Units, then the Placement Agent shall
have the right, subject to the approval of Odyne, which such approval shall
not
be unreasonably withheld, to nominate an Investor to the Board or, at a minimum,
to nominate and Investor to attend all meetings of the Board.
9. NOTICES
TO SUBSCRIBERS
9.1 THE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR THE SECURITIES
LAWS OF ANY STATE AND ARE BEING OFFERED AND SOLD IN
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RELIANCE
ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
SUCH
STATE LAWS. THE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SEC,
ANY
STATE SECURITIES COMMISSION OR OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF
THE
FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING OR
THE
ACCURACY OR ADEQUACY OF THE OFFERING MATERIALS. ANY REPRESENTATION TO THE
CONTRARY IS UNLAWFUL.
9.2 THE
SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY
NOT
BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT, AND
APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM. SUBSCRIBERS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE
FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF
TIME.
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10.
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MISCELLANEOUS
PROVISIONS
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10.1 Survival.
The
undersigned’s representations and warranties made in this Subscription Agreement
shall survive the execution and delivery of this Agreement and the delivery
of
the Debentures and Warrants.
10.2 Notices.
Any
party may send any notice, request, demand, claim or other communication
hereunder to the undersigned at the address set forth on the signature page
of
this Agreement or to Odyne at the address set forth above using any means
(including personal delivery, expedited courier, messenger service, fax,
ordinary mail or electronic mail), but no such notice, request, demand, claim
or
other communication will be deemed to have been duly given unless and until
it
actually is received by the intended recipient. Any party may change the address
to which notices, requests, demands, claims and other communications hereunder
are to be delivered by giving the other parties written notice in the manner
herein set forth.
10.3 Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
10.4 Binding
Effect.
Except
as otherwise provided herein, this Agreement shall be binding upon, and inure
to
the benefit of, the parties to this Agreement and their heirs, executors,
administrators, successors, legal representatives and assigns. If the
undersigned is more than one person or entity, the obligation of the undersigned
shall be joint and several and the agreements, representations, warranties
and
acknowledgments contained herein shall be deemed to be made by, and be binding
upon, each such person or entity and his, her or its heirs, executors,
administrators, successors, legal representatives and permitted
assigns.
10.5 Assignability.
This
Agreement is not transferable or assignable by the undersigned. This Agreement
shall be transferable or assignable by the Placement Agent to
Odyne.
10.6 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, without giving effect to conflicts of law
principles.
10.7 Entire
Agreement; Amendments; Waivers.
This
Agreement supersedes all other prior oral or written agreements between the
undersigned and Odyne, their affiliates and persons acting on their behalf
with
respect to the matters discussed herein, and this Agreement and the instruments
referenced herein (including the other documents executed in connection with
the
Offering) contain the entire understanding of the parties with respect to the
matters covered herein and therein and, except as
-9-
specifically
set forth herein or therein, neither Odyne nor the undersigned makes any
representation, warranty, covenant or undertaking with respect to such matters.
In addition:
(i) Except
as
provided herein, no failure or delay on the part of the Investor in exercising
any power or right under this Agreement shall operate as a waiver thereof,
nor
shall any single or partial exercise of any such power or right preclude any
other or further exercise thereof or the exercise of any other power or right.
No notice to or demand on Odyne in any case shall entitle it to any notice
or
demand in similar or other circumstances. No waiver or approval by the Investor
shall, except as may be otherwise stated in such waiver or approval, be
applicable to subsequent transactions. No waiver or approval hereunder shall
require any similar or dissimilar waiver or approval thereafter to be granted
hereunder.
(ii) Neither
this Agreement, nor any provisions hereof, shall be waived, modified, discharged
or terminated except by an instrument in writing signed by the party against
whom any waiver, modification, discharge or termination is sought.
ANTI-MONEY
LAUNDERING REQUIREMENTS
|
The
USA PATRIOT Act
|
What
is money laundering?
|
How
big is the problem and why is it important?
|
|
The
USA PATRIOT Act is designed to detect, deter, and punish terrorists
in the
United States and abroad. The Act imposes new anti-money laundering
requirements on brokerage firms and financial institutions. Since
April
24, 2002, all brokerage firms have been required to have new,
comprehensive anti-money laundering programs.
To
help you understand these efforts, we want to provide you with some
information about money laundering and our steps to implement the
USA
PATRIOT Act.
|
Money
laundering is the process of disguising illegally obtained money
so that
the funds appear to come from legitimate sources or activities. Money
laundering occurs in connection with a wide variety of crimes, including
illegal arms sales, drug trafficking, robbery, fraud, racketeering,
and
terrorism.
|
The
use of the U.S. financial system by criminals to facilitate terrorism
or
other crimes could taint our financial markets. According to the
U.S.
State Department, one recent estimate puts the amount of worldwide
money
laundering activity at $1 trillion a
year.
|
|
What
are we required to do to eliminate money
laundering?
|
|
|
Under
the rules required by the USA PATRIOT Act, our anti-money laundering
program must designate a special compliance officer, set up employee
training, conduct independent audits, and establish policies and
procedures to detect and report suspicious transactions and ensure
compliance with the law.
|
As
part of our required program, we may ask you to provide various
identification documents or other information. Until you provide
the
information or documents we need, we may not be able to effect any
transactions for you.
|
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PRIVACY
POLICY
It
is the
policy of Matrix USA LLC (“Matrix”) to respect the privacy of customers who
subscribe to transactions underwritten by Matrix.
Whether
its own brokers introduce customers to Matrix or the introduction was made
through Selling Agents (hereinafter referred to as “Subscribers”) non-public
personal information is protected by Matrix.
Matrix
does not disclose any nonpublic personal information about Subscribers to
anyone, except as required or permitted by law and to effect, administer, or
enforce transactions requested by Subscribers in the ordinary processing,
servicing or maintaining their accounts. Furthermore, Matrix does not reserve
the right to disclose Subscriber’s nonpublic personal information in the future
without first notifying the Subscriber of a change in privacy policy and
providing a convenient opportunity for Subscriber to opt out of information
sharing with nonaffiliated third parties.
Under
the
USA PATRIOT Act of 2001 (Public Law 107-56)(together with all rules and
regulations promulgated thereunder, the “Patriot Act”), Matrix and/or your
broker may be required or requested to disclose to one or more regulatory and/or
law enforcement bodies certain information regarding transactions relating
to
your account involving transactions with foreign entitles and individuals,
other
transactions in your account as required in the Patriot Act and other activities
described in the Patriot Act as “suspicious activities.” Neither Matrix nor your
broker shall have any obligation to advise you of any such disclosures or
reports made in compliance with the Patriot Act.
-11-
ALL
SUBSCRIBERS MUST COMPLETE THIS PAGE
IN
WITNESS WHEREOF, the undersigned has executed this Agreement on the ____ day
of
____________ 2007.
|
________________________
|
X
$100,000 for each Unit
|
=
$_____________________.
|
|
Units
subscribed for
|
Aggregate
Purchase Price
|
Manner
in
which Title is to be held (Please Check One):
|
1.
|
___
|
Individual
|
7.
|
___
|
Trust/Estate/Pension
or Profit sharing Plan
Date
Opened:______________
|
|
2.
|
___
|
Joint
Tenants with Right of Survivorship
|
8.
|
___
|
As
a Custodian for
________________________________
Under
the Uniform Gift to Minors Act of the State of
________________________________
|
|
3.
|
___
|
Community
Property
|
9.
|
___
|
Married
with Separate Property
|
|
4.
|
___
|
Tenants
in Common
|
10.
|
___
|
Xxxxx
|
|
5.
|
___
|
Corporation/Partnership/
Limited Liability Company
|
11.
|
___
|
Tenants
by the Entirety
|
|
6.
|
___
|
XXX
|
IF
MORE
THAN ONE SUBSCRIBER, EACH SUBSCRIBER MUST SIGN.
INDIVIDUAL
SUBSCRIBERS MUST COMPLETE PAGE 12.
SUBSCRIBERS
WHICH ARE ENTITIES MUST COMPLETE PAGE 13.
-12-
EXECUTION
BY NATURAL PERSONS
|
_____________________________________________________________________________
Exact
Name in Which Title is to be Held
|
||
|
_________________________________
Name
(Please Print)
|
_________________________________
Name
of Additional Purchaser
|
|
|
_________________________________
Residence:
Number and Street
|
_________________________________
Address
of Additional Purchaser
|
|
|
_________________________________
City,
State and Zip Code
|
_________________________________
City,
State and Zip Code
|
|
|
_________________________________
Social
Security Number
|
_________________________________
Social Security Number
|
|
|
_________________________________
Telephone
Number
|
_________________________________
Telephone
Number
|
|
|
_________________________________
Fax
Number (if available)
|
________________________________
Fax
Number (if available)
|
|
|
_________________________________
E-Mail
(if available)
|
________________________________
E-Mail
(if available)
|
|
|
__________________________________
(Signature)
|
________________________________
(Signature
of Additional Purchaser)
|
|
|
ACCEPTED
this ___ day of _________ 2007, on behalf of Odyne.
|
||
|
By: _________________________________
Name:
Title:
|
||
-13-
EXECUTION
BY SUBSCRIBER WHICH IS AN ENTITY
(Corporation,
Partnership, LLC, Trust, Etc.)
|
_____________________________________________________________________________
Name
of Entity (Please Print)
|
|
|
Date
of Incorporation or Organization:
|
|
|
State
of Incorporation or Organization:
|
|
|
State
of Principal Office:
|
|
|
Federal
Taxpayer Identification Number:
____________________________________________
Office
Address
____________________________________________
City,
State and Zip Code
____________________________________________
Telephone
Number
____________________________________________
Fax
Number (if available)
____________________________________________
E-Mail
(if available)
|
|
|
By:
_________________________________
Name:
Title:
|
|
|
[seal]
Attest:
_________________________________
(If
Entity is a Corporation)
|
_________________________________
_________________________________
Address
|
|
ACCEPTED
this ____ day of __________ 2007, on behalf of Odyne.
|
|
|
By:
_________________________________
Name:
Title:
|
|
-14-
