ACTIGA CORPORATION SUBSCRIPTION AGREEMENT
ACTIGA
CORPORATION
The
undersigned (hereinafter “Subscriber”)
hereby
confirms his/her/its subscription for the purchase of a 12% unsecured note
with
an option to convert (the “Note”)
of
Actiga Corporation, a Nevada corporation (“Actiga”
or
the
“Company”).
The
Note in the amount of $_____is convertible into shares of common stock of
Actiga, par value $0.001 per share (“Common
Stock”).
The
Notes and the Common Stock underlying the Notes (the “Underlying
Shares”)
are
sometimes referred to as the “Securities”.
The
Company and Subscriber are executing and delivering this Agreement in reliance
upon the exemption from securities registration afforded by Rule 506 of
Regulation D (“Regulation
D”)
as
promulgated by the Securities and Exchange Commission (the “SEC”)
under
the Securities Act of 1933, as amended (the "Act")
and
Section 4(2) of the Act.
In
connection with this subscription, Subscriber and the Company agree as
follows:
1. Purchase
and Sale of the Securities.
(a) The
Company hereby agrees to issue and to sell to Subscriber, and Subscriber hereby
agrees to purchase from the Company, a Note for the aggregate subscription
amount set forth on the signature page hereto. Upon acceptance of this
Subscription Agreement by the Company, the Company shall issue and deliver
to
Subscriber the Note subscribed for against payment in U.S. Dollars of the
Purchase Price (as defined below).
(b) Subscriber
has hereby delivered and paid concurrently herewith the purchase price (the
“Purchase
Price”)
set
forth on the signature page hereof required to purchase the Note subscribed
for
hereunder which amount has been paid in U.S. Dollars by wire transfer or a
certified check.
(c) At
the
closing of this transaction (the “Closing”),
(1)
the Company shall deliver to or as directed by Subscriber: (i) a Note to be
issued to Subscriber and (ii) all other instruments and writings required to
have been delivered at or prior to the Closing by the Company pursuant to this
Agreement (collectively the “Related
Agreements”);
and
(2) the Subscriber shall deliver or cause to be delivered to the Company: (i)
by
certified check or wire transfer of immediately available funds in accordance
with the Company's written wire instructions, the Purchase Price, and (ii)
all
documents, instruments and writings required to have been delivered at or prior
to the Closing by Subscriber pursuant to this Agreement.
(d) Subscriber
understands and acknowledges that this subscription is part of a proposed
placement by the Company of up to $1,000,000 of Notes (the “Placement”),
which
offering is being made on a “best efforts” basis with no minimum amount.
2. Representations
and Warranties of Subscriber.
Subscriber represents and warrants to the Company as follows:
(a) At
the
time Subscriber was offered the Securities, Subscriber was, and on the date
Subscriber receives the Securities will be, an “accredited investor” as defined
by Rule 501 under the Act, and Subscriber is capable of evaluating the merits
and risks of Subscriber’s investment in the Company and has the capacity to
protect Subscriber’s own interests.
(b) Subscriber
understands that the Securities are not presently registered, but Subscriber
is
entitled to certain rights with respect to the registration of certain of the
Underlying Shares (set forth on the Note).
(c) The
Securities are being purchased by Subscriber for investment purposes for the
Subscriber’s own account, and not with a view to distribution or resale, nor
with the intention of selling, transferring, granting any participation in
or
otherwise disposing of all or any part thereof for any particular price, or
at
any particular time, or upon the happening of any particular event or
circumstances; and that an investment in the Securities is not a liquid
investment.
(d) Subscriber
acknowledges and understands that the Securities must be held indefinitely
unless subsequently registered under the Act or unless an exemption from such
registration is available. Subscriber is aware of the provisions of Rule 144
promulgated under the Act which permit limited resale of common stock purchased
in a private placement subject to the satisfaction of certain
conditions.
(e) Subscriber
acknowledges that Subscriber has had the opportunity to ask questions of, and
receive answers from the Company or any person acting on its behalf concerning
the Company and its business and to obtain any additional information, to the
extent possessed by the Company (or to the extent it could have been acquired
by
the Company without unreasonable effort or expense) necessary to verify the
accuracy of the information received by Subscriber. In connection therewith,
Subscriber acknowledges that Subscriber has had the opportunity to discuss
the
Company’s business, management and financial affairs with the Company’s
management or any person acting on its behalf. Without limiting the generality
of the foregoing, Subscriber has been furnished with or has had the opportunity
to acquire, and to review all information, both written and oral, that it
desires with respect to each of the Company’s business, management, financial
affairs and prospects. In determining whether to make this investment,
Subscriber has relied solely on Subscriber’s own knowledge and understanding of
the Company and its business based upon Subscriber’s own due diligence
investigations and the information furnished pursuant to this paragraph.
Subscriber understands that no person has been authorized to give any
information or to make any representations which were not furnished pursuant
to
this paragraph and Subscriber has not relied on any other representations or
information.
(f) Subscriber
has all requisite legal and other power and authority to execute and deliver
this Subscription Agreement and to carry out and perform Subscriber’s
obligations under the terms of this Subscription Agreement. This Subscription
Agreement constitutes a valid and legally binding obligation of Subscriber,
enforceable in accordance with its terms, and subject to laws of general
application relating to bankruptcy, insolvency and the relief of debtors and
rules of law governing specific performance, injunctive relief or other general
principals of equity, whether such enforcement is considered in a proceeding
in
equity or law.
2
(g) Subscriber
has carefully read this Subscription Agreement, the Risks Factors contained
in
the Term Sheet, the Company’s Quarterly Reports, Annual Report and any other
Report filed with the SEC pursuant to the Securities Exchange Act of 1934 and
Subscriber has accurately completed the Purchaser Questionnaire.
(h) Subscriber
has carefully considered and has discussed with the Subscriber’s professional
legal, tax, accounting and financial advisors, to the extent the Subscriber
has
deemed necessary, the suitability of this investment and the transactions
contemplated by this Subscription Agreement for the Subscriber’s particular
federal, state, local and foreign tax and financial situation and has determined
that this investment and the transactions contemplated by this Subscription
Agreement are a suitable investment for the Subscriber. Subscriber relies solely
on such advisors and not on any statements or representations of the Company
or
any of its agents. Subscriber understands that Subscriber (and not the Company)
shall be responsible for Subscriber’s own tax liability that may arise as a
result of this investment or the transactions contemplated by this Subscription
Agreement. Subscriber understands the risk with respect to the Securities set
forth in the “Risk Factors” section of the Term Sheet.
(i) This
Subscription Agreement and the Confidential Purchaser Questionnaire that
accompanies this Subscription Agreement (the “Purchaser Questionnaire”) do not
contain any untrue statements of material facts or omit any material facts
concerning Subscriber.
(j) There
are
no actions, suits, proceedings or investigations pending against Subscriber
or
Subscriber’s properties before any court or governmental agency (nor, to
Subscriber’s knowledge, is there any threat thereof) which would impair in any
way Subscriber’s ability to enter into and fully perform Subscriber’s
commitments and obligations under this Subscription Agreement or the
transactions contemplated hereby.
(k) The
execution, delivery and performance of and compliance with this Subscription
Agreement, and the issuance of the Notes will not result in any material
violation of, or conflict with, or constitute a material default under, any
of
Subscriber’s articles of incorporation or bylaws, if applicable, or any of
Subscriber’s material agreements nor result in the creation of any mortgage,
pledge, lien, encumbrance or charge against any of the assets or properties
of
Subscriber or the Notes.
(l) Subscriber
acknowledges that the Notes are speculative and involve a high degree of risk
and that Subscriber can bear the economic risk of the purchase of the Notes,
including a total loss of his/her/its investment.
(m) Subscriber
acknowledges that he/she/it has carefully reviewed and considered the risk
factors discussed in the Risk Factors section of the Term Sheet.
(n) Subscriber
recognizes that no federal, state or foreign agency has recommended or endorsed
the purchase of the Notes.
3
(o) Subscriber
is aware that the Securities are and will be, when issued, “restricted
securities” as that term is defined in Rule 144 of the general rules and
regulations under the Act.
(p) Subscriber
understands that any and all certificates representing the Notes and any and
all
securities issued in replacement thereof, in connection with the conversion
or
exercise thereof or in exchange therefor shall bear the following legend or
one
substantially similar thereto, which Subscriber has read and
understands:
“THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND NEITHER THE SECURITIES
NOR
ANY INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE
DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH
ACT OR SUCH LAWS OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH
LAWS
WHICH, IN THE OPINION OF COUNSEL FOR THIS CORPORATION, IS
AVAILABLE.”
(q) In
addition, the certificates representing the Notes, and any and all securities
issued in replacement thereof or in exchange therefor, shall bear such legend
as
may be required by the securities laws of the jurisdiction in which Subscriber
resides.
(r) Because
of the restrictions imposed on resale, Subscriber understands that the Company
shall have the right to note stop-transfer instructions in its stock transfer
records, and Subscriber has been informed of the Company’s intention to do so.
Any sales, transfers, or any other dispositions of the Securities by Subscriber,
if any, will be in compliance with the Act.
(s) Subscriber
acknowledges that Subscriber has such knowledge and experience in financial
and
business matters that he/she/it is capable of evaluating the merits and risks
of
an investment in the Notes and of making an informed investment
decision.
(t) Subscriber
represents that: (i) Subscriber is able to bear the economic risks of an
investment in the Notes and to afford the complete loss of the investment;
and
(ii) (A) Subscriber could be reasonably assumed to have the capacity to protect
his/her/its own interests in connection with this subscription; or (B)
Subscriber has a pre-existing personal or business relationship with either
the
Company or any affiliate thereof of such duration and nature as would enable
a
reasonably prudent purchaser to be aware of the character, business acumen
and
general business and financial circumstances of the Company or such affiliate
and is otherwise personally qualified to evaluate and assess the risks, nature
and other aspects of this subscription.
(u) Subscriber
further represents that the address set forth below is his/her principal
residence (or, if Subscriber is a company, partnership or other entity, the
address of its principal place of business); that Subscriber is purchasing
the
Notes for Subscriber’s own account and not, in whole or in part, for the account
of any other person; Subscriber is purchasing the Notes for investment and
not
with a view to resale or distribution; and that Subscriber has not formed any
entity for the purpose of purchasing the Notes.
4
(v) Subscriber
understands that the Company shall have the unconditional right to accept or
reject this subscription, in whole or in part, for any reason or without a
specific reason, in the sole and absolute discretion of the Company (even after
receipt and clearance of Subscriber’s funds). This Subscription Agreement is not
binding upon the Company until accepted by an authorized officer of the Company.
In the event that the subscription is rejected, then Subscriber’s subscription
funds will be returned without interest thereon or deduction
therefrom.
(w) Subscriber
represents that Subscriber is not subscribing for Notes as a result of or
subsequent to any advertisement, article, notice or other communication
published in any newspaper, magazine or similar media or broadcast over the
Internet, television or radio or presented at any seminar or
meeting.
(x) Subscriber
has not been furnished with any oral representation or oral information in
connection with the offering of the Securities that is not contained in the
Term
Sheet, Note and this Subscription Agreement.
(y) No
representations or warranties have been made to Subscriber by the Company or
its
officers, employees, agents, affiliates, or subsidiary of the Company, other
than the representations of the Company contained herein, and in subscribing
for
the Notes the Subscriber is not relying upon any representations other than
those contained in this Subscription Agreement or the Note.
(z) Subscriber
represents and warrants, to the best of its knowledge, that no finder, broker,
agent, financial advisor or other intermediary, nor any purchaser representative
or any broker-dealer acting as a broker, is entitled to any compensation in
connection with the transactions contemplated by this Subscription Agreement.
(aa) Subscriber
represents and warrants that Subscriber has: (i) not distributed or reproduced
this Subscription Agreement, the Term Sheet or the Notes (collectively, the
“Offering
Documents”),
in
whole or in part, at any time, without the prior written consent of the Company,
and (ii) kept confidential the existence of the Offering Documents and the
information contained therein or otherwise made available to Subscriber in
connection with any further investigation of the Company and (iii) refrained
and
shall refrain from trading in any publicly traded securities of the Company
for
so long as such recipient has been in possession of the material non-public
information contained in this Subscription Agreement, Note, Term Sheet or
related transaction documents.
3. Representations
and Warranties of the Company.
The
Company understands, agrees with, and represents and warrant to Subscriber
as
follows:
5
(a) The
Company is a corporation duly organized and existing, and in good standing
under
the laws of the jurisdiction in which it is incorporated and has the requisite
corporate power to own its properties and to carry on its business as now being
conducted. The Company is duly qualified as a foreign corporation to do business
and is in good standing in every jurisdiction in which the nature of the
business conducted by it makes such qualification necessary, except as would
not
have a material adverse effect on the business and financial condition of the
Company, taken as a whole (a “Material
Adverse Effect”).
(b) The
Company has the requisite corporate power and authority to: (i) enter into
and
perform its obligations under this Agreement in accordance with the terms
hereof, (ii) enter into and perform their obligations under the Note and the
Related Agreements and (iii) to issue the Note and the Common Stock issuable
upon conversion of the Note in accordance with the terms thereof. The execution,
delivery and performance of the Note and the Related Agreements, and the
consummation of the transactions contemplated hereby and thereby have been
duly
authorized by the Company’s Board of Directors and no further consent or
authorization of the Company or its Board of Directors, or its stockholders,
or
its debtholders is required. The Notes sold at the Closing have been duly and
validly authorized, executed and delivered by the Company. The Notes (when
issued) and the Related Agreements constitute the valid and binding obligations
of the Company enforceable against it in accordance with its respective terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar laws relating
to,
or affecting, generally, the enforcement of creditors’ rights and remedies or by
other equitable principles of general application. The Company (and its legal
counsel) has examined the Notes and is satisfied in its sole discretion that
the
Notes are being issued in accordance with the provisions of Regulation D
(“Regulation
D”)
as
promulgated by the SEC under the Act.
(c) The
Company has provided to Subscriber financial statements for the periods ended
December 31, 2007 and December 31, 2006 (the “Financial
Statements”).
As of
their respective dates, none of the Financial Statements contained any untrue
statement of a material fact or omitted to state a material fact required to
be
stated therein or necessary in order to make the statements therein, in light
of
the circumstances under which they were made, not misleading. The Financial
Statements have been prepared in accordance with generally accepted accounting
principles, consistently applied, during the periods involved (except as may
be
otherwise indicated in such financial statements or the notes thereto) and
fairly present in all material respects the financial position of the Company
as
of the dates thereof and the results of its operations and cash flows for the
periods then ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments). No other information provided by or on behalf
of
the Company contains any untrue statement of a material fact or omits to state
any material fact necessary in order to make the statements therein, in the
light of the circumstance under which they are or were made, not misleading.
4. Covenants.
(a) Certain
Securities Law Disclosures.
The
Company shall: (i) timely file with the SEC a Form D promulgated under the
Act
or, as appropriate, an amendment to Form D, as required under Regulation D
and
provide a copy thereof to Subscriber promptly after the filing thereof, and
(ii)
timely file all necessary State “blue sky” filings in connection herewith.
6
(b) Reservation
of Shares.
The
Company shall at all times while the Notes are outstanding keep in reserve
a
sufficient number of shares of its Common Stock issuable in connection with
conversion of the Notes. If at any time, the number of authorized but unissued
shares of Common Stock shall not be sufficient to effect the conversion of
the
Notes, the Company will take such corporate action as may, in the opinion of
its
counsel, be necessary to increase the number of authorized but unissued shares
of Common Stock to such number of shares as shall be sufficient for such
purposes, including, without limitation, using its best efforts to obtain the
requisite stockholder approval necessary to increase the number of authorized
shares of Common Stock.
(c) Integration.
The
Company shall not itself and shall use its best efforts to ensure that no
affiliate shall sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security that would be integrated with the offer
or
sale of the Notes in a manner that would require the registration under the
Act
of the issue, offer or sale of the Notes to Subscriber.
5. Indemnification.
Subscriber agrees to indemnify and hold harmless the Company and its respective
officers, directors, employees, stockholders, agents, counsel and affiliates,
and any person acting on behalf of the Company (“Indemnitees”), from and against
any and all damage, loss, liability, cost and expense (including reasonable
attorneys’ fees) (“Loss”) which any of them may incur by reason of the failure
by Subscriber to fulfill any of the terms and conditions of this Subscription
Agreement, or by reason of any breach of the representations and warranties
made
by Subscriber herein, or in any other document provided by Subscriber to the
Company. All representations, warranties and covenants of each of Subscriber
and
the Company contained herein shall survive the acceptance of this subscription.
6. Miscellaneous.
(a) Subscriber
agrees not to transfer or assign this Subscription Agreement or any of
Subscriber’s interest herein and further agrees that the transfer or assignment
of the Notes acquired pursuant hereto shall be made only in accordance with
the
Offering Documents and all applicable laws.
(b) Subscriber
agrees that Subscriber cannot cancel, terminate, or revoke this Subscription
Agreement or any agreement of Subscriber made hereunder, and this Subscription
Agreement shall survive the death or legal disability of Subscriber and shall
be
binding upon Subscriber’s heirs, executors, administrators, successors, and
permitted assigns.
(c) Subscriber
has read and has accurately completed this entire Subscription
Agreement.
(d) This
Subscription Agreement and the Note constitute the entire agreement among the
parties hereto with respect to the subject matter hereof and may be amended
only
by a written execution by all parties.
7
(e) Subscriber
acknowledges that it has been advised to consult with his/her/its own attorney
regarding this subscription and Subscriber has done so to the extent that
Subscriber deems appropriate.
(f) Any
notice or other document required or permitted to be given or delivered to
the
Company shall be in writing and sent by registered or certified mail with return
receipt requested (postage prepaid) to:
If
to the
Company, at:
Actiga
Corporation
000
Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx,
XX 00000
Attn:
Xxxx Xxxxxxxx
Tel:
000-000-0000
with
a
copy (which shall not constitute notice) to:
Xxxxxxx
X. Xxxxxxxx, Esq.
Ellenoff
Xxxxxxxx & Schole, LLP
000
Xxxx
00xx
Xxxxxx
Xxx
Xxxx,
XX 00000
Tel.
(000) 000-0000; Fax. (000) 000-0000
Any
notice or other document required or permitted to be given or delivered to
the
Subscriber shall be in writing and sent by (a) email to the Subscriber’s email
address as set forth on the signature page of this Subscription Agreement or
such other address as it shall have specified to the Company in writing (b)
by
registered or certified mail with return receipt requested (postage prepaid)
to
the address as set forth on the signature page of this Subscription Agreement.
(g) Failure
of the Company to exercise any right or remedy under this Subscription Agreement
or any other agreement between the Company and the Subscriber, or otherwise,
or
delay by the Company in exercising such right or remedy, will not operate as
a
waiver thereof. No waiver by the Company will be effective unless and until
it
is in writing and signed by the Company.
(h) This
Subscription Agreement shall be enforced, governed and construed in all respects
in accordance with the laws of the State of New York, as such laws are applied
by the New York courts and shall be binding upon the Subscriber, the
Subscriber’s heirs, estate, legal representatives, successors and assigns and
shall inure to the benefit of the Company, its successors and assigns.
(i) If
any
provision of this Subscription Agreement is held to be invalid or unenforceable
under any applicable statute or rule of law, then such provision shall be deemed
modified to conform to such statute or rule of law. Any provision hereof that
may prove invalid or unenforceable under any law shall not affect the validity
or enforceability of any other provisions hereof.
8
(j)
All
pronouns and any variations thereof used herein shall be deemed to refer to
the
masculine, feminine, singular or plural, as identity of the person or persons
may require.
(k) This
Subscription Agreement may be executed in counterparts and by facsimile, each
of
which shall be deemed an original, but all of which shall constitute one and
the
same instrument.
[Signature
Page Follows]
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Signature
Page for Individuals:
IN
WITNESS WHEREOF, Subscriber has caused this Subscription Agreement to be
executed as of the date indicated below.
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$
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Purchase
Price
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Notes
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Print
or Type Name
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Print
or Type Name (Joint-owner)
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Signature
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Signature
(Joint-owner)
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Date
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Date
(Joint-owner)
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Social
Security Number
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Social
Security Number (Joint-owner)
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Address
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Address
(Joint-owner)
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Email
Address
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Email-
Addresses (Joint-owner)
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_______
Joint Tenancy
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______
Tenants in Common
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S-1
Signature
Page for Partnerships, Corporations or Other Entities:
IN
WITNESS WHEREOF, Subscriber has caused this Subscription Agreement to be
executed as of the date indicated below.
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$
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Total
Purchase Price
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Notes
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Print
or Type Name of Entity
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Address
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Taxpayer
I.D. No. (if applicable)
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Date
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Signature
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Print
or Type Name and Indicate
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Title
or Position with Entity
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Signature
(other authorized signatory)
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Print
or Type Name and Indicate
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Title
or Position with Entity
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S-2
IN
WITNESS WHEREOF, the Company has caused this Subscription Agreement to be
executed, and the foregoing subscription accepted, as of the date indicated
below.
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ACTIGA
CORPORATION
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By:
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Name: | |
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Title:
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Date:
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S-3
