SUBSCRIPTION AGREEMENT
EXHIBIT
A
This
Subscription Agreement (the “Agreement”)
is
provided in connection with the confidential Private Placement Memorandum (the
“Memorandum”)
of
Alpha Nutra, Inc. d/b/a China Broadband, a Nevada corporation (the “Company”),
relating to the offer for sale of the Company’s Units (the “Unit”), each Unit
consisting of 50,000 shares of common stock, par value $.001 per share (the
“Common
Stock”)
and
25,000 Redeemable Common Stock Purchase Warrants (the “Warrants”
and,
the shares issuable upon exercise thereof, the “Warrant
Shares”),
on a
“best efforts”, 160 Unit (or 8,000,000 shares of Common Stock and 4,000,000
Warrants) maximum or 6,000,000 share minimum basis (or 6,000,000 shares of
Common Stock and 3,000,000 Warrants). You should not complete or execute this
Agreement without first carefully reviewing the Memorandum and exhibits thereto,
including, without limitation, the “Risk Factors” section thereof. It is
understood that the securities described below are being offered for sale
pursuant to an exemption from the registration provisions of the Securities
Act
of 1933, as amended (the "Securities
Act")
and in
particular, Regulation D. The terms Unit, Common Stock, Warrant and Warrant
Shares are sometimes referred to herein as the “Securities”.
All
capitalized terms not otherwise defined herein shall have the meanings set
forth
in the Memorandum.
Once
you
have completed and executed this Agreement, forward the same along with the
signature pages for the Registration Rights Agreement and Escrow Agreement
(the
Registration Rights Agreement, this Agreement, the Escrow Agreement, each as
amended from time to time are sometimes collectively referred to herein as
the
“Transaction
Documents”)
appended at the end hereof for your convenience, to the Company at x/x Xxxxx
Broadband, Ltd. 0000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 XXX,
phone
number (000) 000-0000. Your subscription may be rejected for any reason or
for
no reason. You will not have an opportunity to approve disbursements from escrow
and you should not deposit funds into escrow without willing to commit to an
investment in the Company. Additionally, after the first closing of the offering
there will be no escrow requirement and all funds should be deposited directly
with the Company. Any funds forwarded to the Escrow Agent after the first
closing will be forwarded directly to the Company for acceptance and use.
All
funds
submitted prior
to the first closing
of the
offering only, shall be either by check made payable to “Xxxxxxx Xxxx, LLP, as
Escrow Agent” or shall be wired in accordance with the following wire
instructions:
Bank: Manufacturers
and Traders Trust Company
Buffalo:
New York
ABA
# :
000000000
Account
Name: Xxxxxxx Xxxx LLP
Client’s
Trust Account Number #: 10-314-3
Foreign
Wire: M & T Swift Code - MANTUS 33
Wire
Reference: - “China Broadband, Ltd.”
Wire
Contact: Xxxxx Xxxxx Ext. 1378
After
the
first closing, all funds should be forwarded directly to the Company at the
wire
instructions provided to you by the Placement Agent or the Company and will
be
available for immediate use by the Company. Additionally, any funds forwarded
to
the Escrow Agent after the first closing will be forwarded directly to the
Company.
1. Subscription.
The
undersigned (hereinafter referred to as the "Purchaser")
hereby
subscribes for the number of Units set forth on the signature pages hereof,
at a
purchase price of US $25,000 per Unit for a total purchase price of $___________________________
(the
“Purchase
Price”).
Accompanying this Agreement is the Purchaser's check or evidence of wire
transfer in accordance with the attached wire instructions (the "Payment"),
payable to "Xxxxxxx Xxxx, LLP, as Escrow Agent" in payment of the purchase
price
for the Units subscribed for hereby (or, if after the first closing date, then
such Payment shall be made payable to the Company). The Purchaser understands
that once funds are deposited into Escrow and the completed and executed
Transaction Documents are submitted by Purchaser, Purchaser will not have any
control over disbursement of funds from escrow, and, once the minimum offering
amount or greater is closed upon, the Company and Placement Agent may disburse
funds from escrow without consent of Purchaser. The Purchaser further
understands that after a closing on the minimum offering amount, all further
funds in escrow for accepted subscriptions will be disbursed from time to time
at the sole discretion of the Company and will be available for immediate use
by
the Company.
2.
Representations,
Warranties and Covenants of the Purchaser
2.1
The
information set forth on the questionnaire (the “Questionnaire”)
immediately following this Agreement is true and accurate in all respects the
provisions of which are incorporated herein in their entirety and made a part
hereof, as though fully set forth herein and the Purchaser is either an
Accredited Investor, as such term is defined in Rule 501 of Regulation D of
the
Securities Act, or is not a U.S. Person, as defined in the Memorandum. If you
are not a U.S. Person, the Company will provide you with an alternate
questionnaire.
3. Representations
and Warranties of each Purchaser.
Each
Purchaser hereby represents, warrants and covenants with the Company as
follows:
3.1 Legal
Power.
Each
Purchaser has the requisite individual, corporate, partnership, limited
liability company, trust, or fiduciary power, as appropriate, and is authorized,
if such Purchaser is a corporation, partnership, limited liability company,
or
trust, to enter into this Agreement, to purchase the Units hereunder, and to
carry out and perform its obligations under the terms of the Transaction
Documents to which it is a party.
3.2 Due
Execution.
This
Agreement and the other Transaction Documents have been duly authorized, if
such
Purchaser is a corporation, partnership, limited liability company, trust or
fiduciary, executed and delivered by such Purchaser, and, upon due execution
and
delivery by the Company, this Agreement and such other Transaction Documents
will be a valid and binding agreement of such Purchaser.
3.3 Access
to Information.
Purchaser has thoroughly reviewed this Agreement including, without limitation,
Section 3 which discloses certain material information about the Company. Each
Purchaser represents that such Purchaser has been given full and complete access
to the Company and to all materials relating to the business, finances and
operations of the Company and the prospective Business Acquisition and materials
relating to the offer and sale of the Units which have been requested by
Purchaser or its advisors. Each Purchaser represents that such Purchaser has
been afforded the opportunity to ask questions of, and has inquired with, the
officers of the Company regarding its business prospects and the Securities,
all
as such Purchaser or such Purchaser’s qualified representative have found
necessary to make an informed investment decision to purchase the Units or
exercise the Warrant.
Neither
such inquiries nor any other due diligence investigation conducted by Purchaser
or any of its advisors or representatives shall modify, amend or affect
purchaser’s right to rely on the Company’s representations and warranties
contained herein. The Purchaser understands that an investment in the Units
or
exercise of the Warrants involves a significant degree of risk. The Purchaser
understands that if the Business Acquisition is not consummated, funds will
be
returned to the Purchaser less such Purchaser’s pro rata share of the offering
expenses.
3.4 Restricted
Securities.
3.4.1 Each
Purchaser has been advised that the Securities have not been registered under
the Securities Act or any other applicable
securities laws and that Units
(and, upon exercise thereof, shares underlying the Warrants) are being offered
and sold pursuant to Section 4(2) of the Securities Act and/or Rule
506
of Regulation D thereunder, or under Regulation S, and that the Company’s
reliance upon Section 4(2) and/or Rule 506 of Regulation D and/or on Regulation
S, is predicated in part on such Purchaser representations as contained
herein.
Each
Purchaser acknowledges that the Securities will be issued as “restricted
securities” as defined by Rule 144 promulgated pursuant to the Securities Act.
None of the Securities may be resold in the absence of an effective registration
thereof under the Securities Act and applicable state securities laws unless,
in
the opinion of the Company’s counsel, an applicable exemption from registration
is available.
3.4.2 Each
Purchaser represents that such Purchaser is acquiring the Securities for such
Purchaser’s own account, and not as nominee or agent, for investment purposes
only and not with a view to, or for sale in connection with, a distribution,
as
that term is used in Section 2(11) of the Securities Act, in a manner which
would require registration under the Securities Act or any state securities
laws.
3.4.3 Each
Purchaser understands and acknowledges that the Common Stock and Warrants when
issued and, upon exercise of the Warrants the Warrant Shares, will bear
substantially the following legend:
THE
SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD OR TRANSFERRED
FOR VALUE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION THEREOF UNDER THE
SECURITIES ACT OF 1933 AND/OR THE SECURITIES ACT OF ANY STATE HAVING
JURISDICTION OR AN OPINION OF COUNSEL ACCEPTABLE TO THE CORPORATION THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER SUCH ACT OR ACTS.
3.4.4 Each
Purchaser acknowledges that an investment in the Securities is not liquid and
is
transferable only under limited conditions. Each Purchaser acknowledges that
such securities must be held indefinitely unless they are subsequently
registered under the Securities Act or an exemption from such registration
is
available. Each Purchaser is aware of the provisions of Rule 144 promulgated
under the Securities Act, which permits limited resale of restricted securities
subject to the satisfaction of certain conditions and that such Rule is not
now
available and, in the future, may not become available for resale of any of
the
Securities.
3.4.5 The
representations made by each Purchaser on the Purchaser Signature Page and
in
this Agreement are true and correct and do not omit any material
information.
3.5 Purchaser
Sophistication and Ability to Bear Risk of Loss.
Each
Purchaser acknowledges that it is able to protect its interests in connection
with the acquisition of the Units
and
can bear the economic risk of investment in such securities without producing
a
material adverse change in such Purchaser’s financial condition. Each Purchaser,
either alone or with such Purchaser’s representative(s), otherwise has such
knowledge and experience in financial or business matters that such Purchaser
is
capable of evaluating the merits and risks of the investment in the
Units.
3.6 Preexisting
Relationship.
Each
Purchaser has a preexisting personal or business relationship with the Company,
one or more of its officers, directors, or controlling persons, or the Placement
Agent (as defined herein).
3.7 Purchases
by Groups.
Each
Purchaser represents, warrants and covenants that it is not acquiring the Units
as part of a group within the meaning of Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended.
4.
Miscellaneous
4.1
All
notices or other communications given or made hereunder shall be in writing
and
shall be delivered by hand or mailed by registered or certified mail, return
receipt requested, postage prepaid, to the undersigned, at the address set
forth
herein, and to the Company at the address set forth above.
4.2 This
Agreement shall be governed by and construed in accordance with the laws of
the
state of New York applicable to contracts made and wholly performed in that
state.
4.3.
This
Agreement constitutes the entire agreement among the parties hereto with respect
to the subject matter hereof and may be amended only by a writing executed
by
the party to be bound thereby.
4.4 This
Agreement is not transferable or assignable by the Purchaser.
4.5 All
references in this Agreement to the "Purchaser" shall include all parties (other
than the Company) who execute this Agreement. If the Purchaser is a corporation,
partnership, trust or two or more individuals purchasing jointly, note the
specific instructions for the Certificate of Corporate, Partnership, Trust
and
Joint Purchases at page 8 hereof. Please date and sign the
certificate.
5. Acceptance
of Subscription.
It is
understood that this subscription is not binding upon the Company until the
Company accepts it, and that the Company has the right to accept or reject
this
subscription in whole or in part in its sole and complete discretion. If this
subscription is rejected in whole, the Company shall return the Payment to
Purchaser, without interest, and the Company and Purchaser shall have no further
obligation to each other hereunder. In the event of a partial rejection of
this
subscription, a pro rated amount of the Payment will be returned to the
Purchaser, without interest.
[Signature
Pages Follow]
SIGNATURE
PAGE TO SUBSCRIPTION AGREEMENT
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth on the Purchase Signature Page hereto.
| PURCHASER | ||
|
(By
Counterpart Form - See Purchaser Signature Pages
following the Questionnaire)
|
||
| COMPANY | ||
| |
|
ALPHA
NUTRA, INC.
d/b/a
China Broadband
|
|
(By
Execution of
Acceptance Page following Certificate
of Signatory)
|
QUESTIONNAIRE
The
undersigned Purchaser has read the Subscription Agreement dated as of ______
__,
2006 and acknowledges that the completion of this Questionnaire and the
execution of the Purchaser Signature Page that follows shall constitute the
undersigned’s execution of such Agreement. This Questionnaire is and shall
remain part of the Agreement. All capitalized terms used herein shall be as
defined in such Agreement.
I
hereby
subscribe for _____________________ Units of Alpha Nutra, Inc., d/b/a China
Broadband Inc. at
a
price of $25,000 per Unit, for a total purchase price of $_________________.
The
Units consist of 50,000 shares of Common Stock and 25,000 redeemable Warrants.
I
am a
resident of the State of __________________.
Please
print above the exact name(s) in which the Shares are to be
held
|
My
address is:
|
|
|
|
[continued]
I
agree
to keep information relating to the Company strictly confidential and not to
discuss or exploit or distribute any of the information herein except to my
professional advisors or as necessary to comply with law.
I
acknowledge that the offering of the Shares is subject to the Federal securities
laws of the United States and state securities laws of those states in which
the
Shares are offered, and that, pursuant to the U.S. Federal securities laws
and
state securities laws, the Shares may be purchased by persons who come within
the definition of an “Accredited
Investor”
as
that
term is defined in Rule 501(a) of Regulation D promulgated under the Securities
Act (“Regulation
D”).
By
initialing one of the categories below, I represent and warrant that I come
within the category so initialed and have truthfully set forth the factual
basis
or reason I come within that category. All information in response to this
paragraph will be kept strictly confidential. I agree to furnish any additional
information that the Company deems necessary in order to verify the answers
set
forth below.
NOTE:
You must either initial that at least ONE
category.
Individual
Purchaser:
(A
Purchaser who is an individual may initial either Category I, II, or
III)
|
Category
I
|
______
|
I
am a director or executive officer of the
Company.
|
| Category II | ______ | I am an individual (not a partnership, corporation, etc.) whose individual net worth, or joint net worth with my spouse, presently exceeds $1,000,000. |
| Explanation. In calculation of net worth, you may include equity in personal property and real estate, including your principal residence, cash, short term investments, stocks and securities. Equity in personal property and real estate should be based on the fair market value of such property less debt secured by such property. |
| Category III | ______ | I am an individual (not a partnership, corporation, etc.) who had an individual income in excess of $200,000 in 2004 and 2005, or joint income with my spouse in excess of $300,000 in 2004 and 2005, and I have a reasonable expectation of reaching the same income level in 2006. |
Entity
Purchasers:
(A
Purchaser which is a corporation, limited liability company, partnership, trust,
or other entity may initial
either Category IV, V, VI, VII or VIII)
| Category IV | ______ | The Purchaser is an entity in which all of the equity owners are “Accredited Investors” as defined in Rule 501(a) of Regulation D. If relying upon this category alone, each equity owner must complete a separate copy of this Agreement. |
_____________________________________________________
_____________________________________________________
(describe
entity) _____________________________________________________
| Category V | ______ | The Purchaser is a trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the Units offered, whose purchase is directed by a “Sophisticated Person” as described in Rule 506(b)(2)(ii) of Regulation D. |
| Category VI | ______ | The Purchaser is an organization described in Section 501(c)(3) of the Internal Revenue Code, corporation, Massachusetts or similar business trust, or partnership, not formed for the specific purpose of acquiring the Units, with total assets in excess of $5,000,000. |
_____________________________________________________
_____________________________________________________
_____________________________________________________
(describe entity)
| Category VII | ______ | The Purchaser is a private business development company as defined in Section 202(a)(22) of the Investment Advisers Act of 1940. |
_____________________________________________________
_____________________________________________________
_____________________________________________________
(describe entity)
Executed
this _____ day of _________, 2006 at ____________________,
________________.
PURCHASER
SIGNATURE PAGE
(For
Individual Purchasers)
This
Subscription Agreement (including the Questionnaire) is hereby executed and
entered into by the below Purchaser.
|
Signature (Individual) |
||
|
Name (Print) |
||
|
Street address |
||
|
City,
State and Zip Code
|
||
|
Tax Identification or Social Security Number |
||
| ( ) | ||
|
Telephone Number |
||
| ( ) | ||
|
Facsimile
Number
|
||
| Address to Which Correspondence Should Be Directed (if different from above) | ||
|
x/x Xxxx |
||
|
Xxxxxx Xxxxxxx |
||
|
Xxxx, Xxxxx and Zip Code |
||
| ( ) | ||
|
Telephone Number |
||
| ( ) | ||
|
Facsimile
Number
|
||
PURCHASER
SIGNATURE PAGE
(for
Corporation, Partnership, Trust or Other Entities)
This
Subscription Agreement (including the Questionnaire) is hereby executed and
entered into by the below Purchaser:
|
Name of Entity |
||
|
Type of Entity (i.e., corporation, partnership, etc.) |
||
|
Tax Identification or Social Security Number |
||
|
State
of Formation of Entity
|
||
|
Name of Signatory Typed or Printed |
||
| Its: | ||
|
Title
|
||
| Address to Which Correspondence Should Be Directed (if different from above) | ||
|
x/x Xxxx |
||
|
Xxxxxx Xxxxxxx |
||
|
Xxxx, Xxxxx and Zip Code |
||
| ( ) | ||
|
Telephone Number |
||
| ( ) | ||
|
Facsimile
Number
|
||
*If
Shares are being subscribed for by an entity, the Certificate of Signatory
that
follows must also be completed.
CERTIFICATE
OF SIGNATORY
To
be
completed if Shares are being subscribed for by an entity.
I,__________________________________,
am the ___________________________ of
________________________________________________________ (the
“Entity”).
I
certify
that I am empowered and duly authorized by the Entity to execute and carry
out
the terms of the Subscription Agreement relating to the sale of Common Stock
of
China Broadband Inc., and to purchase and hold the Shares. The Subscription
Agreement has been duly and validly executed on behalf of the Entity and
constitutes a legal and binding obligation of the Entity.
IN
WITNESS WHEREOF, I have hereto set my hand this ______ day of _________,
2006.
|
Signature
|
||
ACCEPTANCE
PAGE TO NOTE PURCHASE AGREEMENT OF
ALPHA
NUTRA, INC.
d/b/a
China Broadband
The
Foregoing subscriptions for shares of Common Stock, at a purchase price of
$.50
per share, in accordance with the foregoing Subscription Agreement, as amended
is hereby AGREED AND ACCEPTED:
Number
of
Shares for Which Subscription is Accepted: _______________________
Dollar
Amount of Investment Accepted:
$______________________
ALPHA
NUTRA, INC.
d/b/a
China Broadband
| By: | |||
|
|
|||
| Title: |
Date:
_____________________, 2007
