EXHIBIT 10.46
ON TRACK INNOVATIONS LTD.
Subscription Agreement
THE ORDINARY SHARES, THE WARRANTS AND THE ORDINARY SHARES ISSUABLE UPON EXERCISE
OF THE WARRANTS COVERED HEREBY HAVE NOT BEEN REGISTERED, QUALIFIED, APPROVED OR
DISAPPROVED UNDER ANY FEDERAL OR STATE SECURITIES LAWS, NOR HAS THE UNITED
STATES SECURITIES AND EXCHANGE COMMISSION OR ANY OTHER FEDERAL OR STATE
REGULATORY AUTHORITY PASSED ON OR ENDORSED THE MERITS OF THE OFFERING OF THE
ORDINARY SHARES AND THE WARRANTS. ANY REPRESENTATION TO THE CONTRARY IS
UNLAWFUL. THE ORDINARY SHARES, THE WARRANTS AND THE ORDINARY SHARES ISSUABLE
UPON EXERCISE OF THE WARRANTS MAY NOT BE SOLD, TRANSFERRED, OR OTHERWISE
DISPOSED OF BY AN INVESTOR UNLESS THE ORDINARY SHARES , THE WARRANTS AND THE
ORDINARY SHARES ISSUABLE UPON EXERCISE OF THE WARRANTS HAVE BEEN REGISTERED
UNDER FEDERAL SECURITIES LAWS AND, WHERE REQUIRED, UNDER THE LAWS OF OTHER
JURISDICTIONS, OR UNLESS THE PROPOSED SALE, TRANSFER OR DISPOSITION IS EXEMPT
FROM REGISTRATION. ACCORDINGLY, A PURCHASER OF THE ORDINARY SHARES, THE WARRANTS
AND THE ORDINARY SHARES ISSUABLE UPON EXERCISE OF THE WARRANTS MUST BE PREPARED
TO BEAR THE ECONOMIC RISK OF THE INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
Dated as of July 10, 2003
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Gentlemen:
The undersigned (the "Subscriber") is executing and delivering this
Agreement in connection with the subscription by the undersigned for 181,818
ordinary shares, NIS 0.1 nominal value (the "Ordinary Shares"), and related
warrants to purchase Ordinary Shares (the "Warrants") of On Track Innovations
Ltd., (the "Corporation"). The undersigned understands that the Corporation is
relying upon the accuracy and completeness of the information contained herein
in complying with its obligations under federal and state securities laws and in
considering whether or not to accept the subscription of the undersigned.
The undersigned hereby irrevocably agrees, represents and warrants
with, to and for the benefit of the Corporation as follows:
1. Subscription.
(a) Subject to the terms and conditions of this Agreement, the
undersigned hereby subscribes for the Ordinary Shares and the Warrants and
agrees to become a Subscriber for the amount set forth herein immediately above
the signature of the undersigned. The purchase price per Ordinary Share is U.S.
$2.75.
(b) The undersigned tenders herewith a check payable to On Track
Innovations Ltd. in the full amount of the subscription price of the undersigned
pursuant to Section 1(a).
(c) The undersigned is delivering herewith (i) two signed copies of
this Agreement and (ii) a signed and completed Investor Suitability
Questionnaire, in the form accompanying this Agreement.
2. Acceptance. The undersigned understands and agrees that the
Corporation has full right to accept or reject this subscription, in whole or in
part. Upon acceptance of a subscription by the Corporation, one copy of this
Agreement, signed by the undersigned and, to indicate acceptance, by the
Corporation, shall be returned to the undersigned by the Corporation.
3. Representations and Warranties.
(a) Set forth below is the true and correct address of the
undersigned's residence or principal place of business. The only jurisdiction in
which an offer to sell the Ordinary Shares and the Warrants was made to the
undersigned is the jurisdiction in which such residence or principal place of
business is situated. The undersigned has no present intention of becoming a
resident of (or moving its principal place of business to) any other state or
jurisdiction.
(b) The undersigned understands that the Ordinary Shares, the Warrants
and the Ordinary Shares issuable upon exercise of the Warrants have not been
registered under the Securities Act of 1933, as amended (the "1933 Act"), or
under the laws of any other jurisdiction. The undersigned understands and agrees
that the Ordinary Shares, the Warrants and the Ordinary Shares issuable upon
exercise of the Warrants must be held indefinitely unless they are subsequently
registered under the 1933 Act and, where required, under the laws of other
jurisdictions or unless an exemption from registration is available.
(c) The Ordinary Shares and the Warrants for which the undersigned
hereby subscribes are being acquired solely for the undersigned's own account
for investment and are not being purchased with a view to or for resale,
distribution or other disposition, and the undersigned has no present plans to
enter into any contract, undertaking, agreement or arrangement for any such
resale, distribution or other disposition.
(d) The undersigned understands, acknowledges, agrees and is aware
that:
(i) no federal or state agency has passed upon the Ordinary
Shares or Warrants or made any finding or determination as to the
fairness of this investment;
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(ii) the Ordinary Shares and the Warrants are speculative
investments which involve a high degree of risk, including the risk
that the undersigned might lose its entire investment in the
Corporation; and
(iii) any federal income tax benefits which may be available
to the undersigned may be lost through adoption of new laws, amendments
to existing laws or regulations, or changes in the interpretation of
existing laws and regulations.
(e) The undersigned has carefully reviewed and understands the risks of
a purchase of the Ordinary Shares and the Warrants.
(f) In connection with the undersigned's investment in the Corporation,
the undersigned has obtained the advice of the undersigned's own investment
advisors, counsel and accountants ("advisors").
(g) The undersigned and the undersigned's advisors have been furnished
all materials relating to the Corporation or the offering of Ordinary Shares and
the Warrants (the "Offering") which the undersigned and the undersigned's
advisors have requested. The undersigned and the undersigned's advisors have
been afforded the opportunity to ask questions of the Corporation concerning the
terms and conditions of the Offering and to obtain any additional information
necessary to verify the accuracy of any representations or information set forth
about the Ordinary Shares and the Warrants.
(h) The Corporation has answered all inquiries that the undersigned and
the undersigned's advisors have made concerning the Corporation or any other
matters relating to the creation and operations of the Corporation and the terms
and conditions of the Offering.
(i) At no time was the undersigned presented with or solicited by any
leaflet, public promotional meeting, newspaper or magazine article, radio or
television advertisement or any other form of general advertising or general
solicitation.
(j) The undersigned has the financial ability to bear the economic risk
of the undersigned's investment in the Corporation and has adequate net worth
and means of providing for the undersigned's current needs and contingencies to
sustain a complete loss of the undersigned's investment and has no need for
liquidity in the undersigned's investment in the Corporation.
(k) The undersigned has such knowledge and experience in financial and
business matters that the undersigned is capable of evaluating, and has
evaluated, the merits and risks of the proposed investment.
(l) The undersigned represents and warrants that it is an "accredited
investor," as that term is defined in Rule 501 of Regulation D under the 0000
Xxx.
(m) The information provided by the undersigned in the Investor
Suitability Questionnaire and the other Subscription documents delivered by the
undersigned to the Corporation herewith is incorporated herein by reference and
made a part hereof, and the undersigned represents and warrants that such
information is true and complete and fairly reflects the current financial
condition and affairs of the undersigned.
(n) If the undersigned is a corporation, partnership, trust or other
entity, (i) it is authorized and qualified and has full right and power to
become a Subscriber in, and is authorized to purchase Ordinary Shares and to
perform its obligations pursuant to the provisions hereof, (ii) the person
signing this Subscription Agreement, the other Subscription Documents, and any
other instrument executed and delivered herewith on behalf of such entity has
been duly authorized by such entity and has full power and authority to do so,
and (iii) such entity has not been formed for the specific purpose of acquiring
an interest in the Corporation, unless each owner of such entity is an
accredited investor under Regulation D of the SEC under the 1933 Act and has
submitted information substantiating such qualification.
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(o) The undersigned hereby represents and warrants to the Corporation
that by reason of the undersigned's business or financial experience the
undersigned has the capacity to protect the undersigned's interests in
connection with an investment in the Corporation.
(p) If the undersigned is a Plan or an entity whose underlying assets
include the assets of any Plan by reason of such Plan's investment in the
entity, then the undersigned represents and warrants that either such Plan or
the fiduciary responsible for the investment and reinvestment of either the
assets of such Plan, or that portion of the assets of such Plan from which the
investment in the Corporation will be made, has considered the following with
respect to such Plan's investment in the Corporation and has determined that in
view of such considerations, the purchase of an interest in the Corporation is
in furtherance of and in the best interests of the participants in such Plan and
their beneficiaries:
(A) the role such investment or investment course of action plays in,
as applicable, that portion of such Plan's portfolio which such fiduciary
manages, or in all of the assets of such Plan;
(B) whether such investment or investment course of action is
reasonably designed, as part of, as applicable, that portion of the portfolio
managed by such fiduciary, or as part of all of the assets of such Plan, to
further the purposes of such Plan, taking into account both the risk of loss and
the opportunity for gain that could result therefrom;
(C) the composition of, as applicable, that portion of the portfolio
which such fiduciary manages, or all of the assets of such Plan, with regard to
diversification of the assets of such Plan;
(D) the liquidity and current rate of return of, as applicable, that
portion of the portfolio managed by such fiduciary, or all of the assets of such
Plan, relative to the anticipated cash flow requirements of such Plan; and
(E) the projected return of, as applicable, that portion of the
portfolio managed by such fiduciary, or all of the assets of such Plan, relative
to the funding objectives of such Plan.
(q) The undersigned represents and warrants that neither it, nor its
affiliates, is a broker-dealer or otherwise a "Restricted Person" as such term
has meaning under the United States National Association of Securities Dealers,
Inc. ("NASD") Rules of Fair Practice and the related interpretations adopted by
the NASD's Board of Governors and if the undersigned or its affiliates becomes
such the undersigned will promptly notify the Corporation.
(r) The undersigned acknowledges and agrees that the certificate
representing the Ordinary Shares, the Warrants and the Ordinary Shares issuable
upon exercise of the Warrants shall bear a restrictive legend as counsel to the
Corporation may determine is necessary or appropriate under applicable
securities laws substantially to the effect of the following:
The Securities represented by this Certificate have
not been registered under the Securities Act of 1933,
as amended, and may not be sold, transferred, pledged
or hypothecated unless subsequently registered under
said Act or an exemption from registration is
available.
4. Covenant to Update Information. The undersigned covenants to advise
the Corporation by telephone and in writing if any representation and warranty
contained herein becomes untrue.
5. Agreement with Respect to Resale. The undersigned agrees that no
Ordinary Shares, Warrants or Ordinary Shares issued upon exercise of the
Warrants will be resold without registration under the 1933 Act, and, where
required, under the laws of other jurisdictions, or availability of an exemption
therefrom.
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6. Indemnification. The undersigned acknowledges that the undersigned
understands the meaning and legal consequences of the representations and
warranties contained in this Agreement and agrees to indemnify and hold harmless
the Corporation and its affiliates, employees, officers and agents and each
other Subscriber from and against any and all loss, damage, liability or
expense, including, without limitation, legal fees, due to or arising out of a
breach of any representation or warranty of the undersigned contained in any
document furnished by the undersigned in connection with the Offering,
including, without limitation, this Agreement and the Investor Suitability
Questionnaire, and all schedules, appendices and exhibits hereto or thereto,
submitted by the undersigned, or failure by the undersigned to comply with any
covenant or agreement by the undersigned herein or in any other document
furnished by the undersigned to any of the foregoing in connection with this
transaction.
7. Notices. All notices and other communications required or permitted
under this Agreement shall be in writing, and shall be deemed to have been given
if delivered personally, mailed, postage prepaid, by first class mail, to the
parties at the addresses set forth in this Agreement or such other address as a
party may specify to the other by notice as provided in this Section.
8. Assignment. This Agreement may not be assigned or transferred by
either party without the consent of the other party and any purported assignment
without such consent shall be null and void.
9. Amendment and Waiver. This Agreement may be amended or modified only
by an instrument signed by the undersigned and the Corporation. A waiver of any
provision of this Agreement must be in writing, designated as such, and signed
by the party against whom enforcement of that waiver is sought. The waiver by a
party of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent or other breach thereof.
10. Binding Effect. Except as otherwise provided herein, this Agreement
shall be binding upon and inure to the benefit of the undersigned and the
Corporation and its respective heirs, executors administrators, successors,
legal representatives and assigns. If the undersigned shall be joint and
several, then the representations and warranties herein contained shall be
deemed to be made by and be binding upon each such person and such person's
heirs, executors, administrators, legatees, devisees, assigns, legal
representatives and successors.
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SIGNATURE PAGE FOR INDIVIDUALS
IN WITNESS WHEREOF, the undersigned has executed this Subscription
Agreement on this _____ day of July, 2003.
Total investment: $___________________
Number of Ordinary Shares ____________________
Number of Ordinary Shares underlying Warrants _________________
Print Name of Individual
___________________________________
Signature of Individual
Legal Residence of Individual:
___________________________________
Number and Street
___________________________________
City, State, Zip Code
___________________________________
Social Security Number
Mailing Address if different from above:
___________________________________
Number and Street
___________________________________
City, State, Zip Code
___________________________________
Social Security Number
Accepted By:
ON TRACK INNOVATIONS LTD.
By: __________________________________
Title:________Chairman and CEO__________
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ACKNOWLEDGMENT FOR INDIVIDUAL SUBSCRIBERS
To be completed by Notary.
STATE OF___________________________
COUNTY OF_________________________
On this ____ day of July, 2003, before me, the undersigned Notary
Public, duly commissioned and sworn, personally appeared __________ and
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name is (or whose names are) subscribed to the within
instrument, and subscribed and swore to such instrument and acknowledged that he
(or she or they) executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate above written.
[SEAL] __________________________________
(Notary Public in and for the aforesaid County and State)
My Commission Expires:_______________________________
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SIGNATURE PAGE FOR CORPORATIONS,
PARTNERSHIPS, TRUSTS, LIMITED LIABILITY COMPANIES, LIMITED LIABILITY
PARTNERSHIPS AND OTHER ENTITIES
IF THE SUBSCRIBER IS A CORPORATION, PARTNERSHIP, TRUST, LIMITED
LIABILITY COMPANY, LIMITED LIABILITY PARTNERSHIP OR OTHER ENTITY, COMPLETE THE
FOLLOWING SIGNATURE LINES TO THE SUBSCRIPTION AGREEMENT AND HAVE A NOTARY
COMPLETE THE APPROPRIATE ACKNOWLEDGMENT ON THE FOLLOWING PAGES:
IN WITNESS WHEREOF, the undersigned has executed this Subscription
Agreement on this ____ day of July, 2003.
Total investment: $500,000
Number of Ordinary Shares 181,818
Number of Ordinary Shares underlying Warrants 90,909
Print Name of Corporation, Partnership, Trust, Limited Liability Company,
Limited Liability Partnership or Other Entity: Herald Investment Trust PLC
By: /s/ Xxxxx Xxxxxxx
Signature of Officer or Other Authorized Representative*
Print Name and Title of Officer or Other Authorized Representative:
Xxxxx Xxxxxxx, Fund Manager
Location of Principal Place of Business of Corporation, Partnership, Trust,
Limited Liability Company, Limited Liability Partnership or other Entity:
00 Xxxxxxxxxxxx Xx. Xxxxxx, XXXX 0XX
Name and Street City, State, Zip Code
Mailing Address (if different from above):
______________________________ ______________________________
Name and Street City, State, Zip Code
_______________________________
Tax Identification Number of Corporation, Partnership, Trust, Limited Liability
Company, Limited Liability Partnership or other Entity
Accepted By: Accepted By:
ON TRACK INNOVATIONS LTD. ON TRACK INNOVATIONS LTD.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxx Xxxxxx
Title: President Title: VP Projects
* (Only an officer or other representative of such corporation, partnership,
trust, limited liability company, limited liability partnership or other entity
who is authorized to execute this document on behalf of such entity should sign
this Agreement.)
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ACKNOWLEDGMENT FOR CORPORATION SUBSCRIBERS
To be completed by Notary.
STATE OF:____________________
COUNTY OF:__________________
On this ____ day of July, 2003, before me, the undersigned Notary
Public, duly commissioned and sworn, personally appeared
____________________________, to me known, who, being by me duly sworn, did
depose and say that he or she resides at ____________________________________
and that he or she is the ___________________ of ________________________, the
corporation described in and which executed the foregoing instrument and that he
or she is authorized to execute this instrument on behalf of such corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate above written.
[Seal]___________________________________
(Notary Public in and for the aforesaid County and State)
My Commission Expires:_______________________
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ACKNOWLEDGMENT FOR PARTNERSHIP SUBSCRIBERS
To be completed by Notary.
STATE OF:_______________________
COUNTY OF:_____________________
On this ____ day of July, 2003, before me, the undersigned Notary
Public, duly commissioned and sworn, personally appeared __________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the individual who executed the foregoing instrument and, who, being duly
sworn by me, did depose and say that he or she is a member of the firm of
___________________________, and that he or she executed the foregoing
instrument in the firm name of _________________ and that he or she had
authority to sign the same, and acknowledged that he or she executed the same as
the act and deed of said firm.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate above written.
[Seal]___________________________________
(Notary Public in and for the aforesaid County and State)
My Commission Expires:____________________________
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ACKNOWLEDGMENT FOR TRUST SUBSCRIBERS
To be completed by Notary.
STATE OF_________________
COUNTY OF_______________
On this ____ day of July, 2003, before me, the undersigned Notary
Public, duly commissioned and sworn, personally appeared
____________________________ , personally known to me (or proved to me on the
basis of satisfactory evidence) to be the trustee under the Trust for the
benefit of _____________________ and known to me to be the person who executed
the within instrument and acknowledged to me that he, she or it executed the
same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate above written.
[Seal]__________________________________
(Notary Public in and for the aforesaid County and State)
My Commission Expires:______________________
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ACKNOWLEDGMENT FOR LIMITED LIABILITY COMPANY SUBSCRIBERS
To be completed by Notary.
STATE OF:_______________________
COUNTY OF:_____________________
On this ____ day of July, 2003, before me, the undersigned Notary
Public, duly commissioned and sworn, personally appeared __________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the individual who executed the foregoing instrument and, who, being duly
sworn by me, did depose and say that he or she is the manager and/or a member of
the firm of ___________________________, and that he or she executed the
foregoing instrument in the firm name of _________________ and that he or she
had authority to sign the same, and acknowledged that he or she executed the
same as the act and deed of said firm.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate above written.
[Seal]___________________________________
(Notary Public in and for the aforesaid County and State)
My Commission Expires:____________________________
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ACKNOWLEDGMENT FOR LIMITED LIABILITY PARTNERSHIP SUBSCRIBERS
To be completed by Notary.
STATE OF:_______________________
COUNTY OF:_____________________
On this ____ day of July, 2003, before me, the undersigned Notary
Public, duly commissioned and sworn, personally appeared __________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the individual who executed the foregoing instrument and, who, being duly
sworn by me, did depose and say that he or she is a member of the firm of
___________________________, and that he or she executed the foregoing
instrument in the firm name of _________________ and that he or she had
authority to sign the same, and acknowledged that he or she executed the same as
the act and deed of said firm.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate above written.
[Seal]___________________________________
(Notary Public in and for the aforesaid County and State)
My Commission Expires:____________________________
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