SUBSCRIPTION AGREEMENT WindTamer Corporation, a New York corporation
Exhibot 10.3
WindTamer
Corporation,
a
New York corporation
WindTamer
Corporation
0000 Xxx
Xxxxxx
Xxxxxxx,
Xxx Xxxx 00000
Gentlemen:
This Subscription Agreement (the “Agreement”)
is made by and between WindTamer Corporation, a New
York corporation (the “Company”),
and the undersigned (the “Subscriber”)
in connection with the private placement in a single transaction with the
undersigned of shares of the Company’s Common Stock, par value $.0001 per share
(“Common
Stock”) at a price of $0.60 per share (the “Private
Placement”). The offer and sale of the shares of our Common Stock are
being made in reliance upon the provisions of Section 4(2) under the Securities
Act of 1933, as amended (the “Securities
Act”).
In consideration of any agreement by
the Company to accept the Subscriber’s subscription upon the terms and
conditions set forth herein, the Subscriber agrees and represents as
follows:
1. Subscription.
(a) The
Subscriber hereby irrevocably subscribes to purchase from the Company at a
purchase price of $0.60 per share that number of shares of our Common Stock as
shall have been subscribed for by the Subscriber as set forth on the signature
page of this Agreement.
(b) Simultaneously
with the execution of this Agreement, the Subscriber is paying and delivering to
the Company a check made payable to “WindTamer Corporation” in the amount of the
aggregate purchase price due for the purchase of the Common Stock subscribed as
set forth on the signature page of this Agreement. Subscriber further
understands the payments made hereunder may be used by the Company as working
capital, and for other general corporate purposes.
2. Effectiveness. Subscriber
agrees that this Agreement shall not be binding on the Company unless and until
it is accepted by the Company. Until accepted, this Agreement
constitutes an irrevocable offer to the Company. Subscriber also
understands and agrees that the Company may refuse to accept this Agreement for
any reason and this Agreement shall not be accepted until the funds paid by
Subscriber herewith clear and are credited to the account of the
Company.
3. Investment
Representations.
Subscriber hereby makes the
representations and warranties set forth below with the express intention that
they be relied upon by the Company in determining the suitability of the
Subscriber to purchase Common Stock:
(a) SUBSCRIBER
IS AWARE THAT THE COMMON STOCK IS A SPECULATIVE INVESTMENT INVOLVING A HIGH
DEGREE OF RISK AND
THE POTENTIAL LOSS OF HIS/HER ENTIRE INVESTMENT.
(b) Subscriber can bear the economic
risk of this investment and can afford a complete loss of this investment; and
Subscriber (A) has sufficient liquid assets to pay the full purchase price for
the shares of our Common Stock; (B) has adequate means of providing for
Subscriber’s current needs and possible personal contingencies, and has no
present need for liquidity of Subscriber’s investment in the shares of our
Common Stock; (C) does not have a commitment to investments which are not
readily marketable or transferable which is disproportionate to Subscriber’s net
worth; and (D) Subscriber’s investment in shares of our Common Stock will not
cause such commitment to become excessive.
(c) Subscriber
has sought and received such accounting, legal and tax advice as the Subscriber
has considered necessary to make an informed investment decision;
(d) Subscriber has had the opportunity
to review publicly available materials filed by the Company with the Securities
and Exchange Commission (“SEC”)
pursuant to the Securities Exchange Act of 1934, as amended, including, but not
limited to, the Risk Factors related to the Company’s business and an investment
in its Common Stock. The Company has made available to Subscriber, a reasonable
time prior to the date hereof, the opportunity to ask questions of, and to
receive answers from, the Company and its representatives, concerning the terms
and conditions of the Private Placement and access to any information,
documents, financial statements, records and books (i) relative to the Company,
the business, the Private Placement and an investment in the Company, and (ii)
necessary to verify the accuracy of any information furnished to Subscriber.
Subscriber has been furnished, a reasonable time prior to the sale, a brief
description in writing of any material information concerning the offering that
has been provided by the Company to any accredited investor, but not previously
delivered to Subscriber, if any, and Subscriber has been furnished with a copy
of any such material as requested by him a reasonable time prior to the
sale.
(e) Subscriber understands that the
Common Stock has not been registered under the Securities Act or pursuant to the
provisions of the securities or other laws of any applicable jurisdictions, in
reliance upon certain exemptions contained in the Securities Act and Regulation
D promulgated thereunder and in the laws of such jurisdictions. Subscriber is
fully aware that Subscriber’s purchase of the shares of our Common Stock is to
be accepted by the Company in reliance upon such exemptions based upon
Subscriber’s representations, warranties and agreements contained herein. The
Subscriber further understands and agrees that the Company will not honor any
attempt by the Subscriber to sell, pledge, transfer or otherwise dispose of any
shares of Common Stock in the absence of an effective registration statement for
such shares of
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Common
Stock, or an opinion of counsel satisfactory to the Company that an exemption
from any applicable registration requirements is available. The Subscriber
further understands that the Company is under no obligation to register the
shares of Common Stock or make an exemption from registration available and that
the Company has not represented that it will make any attempt to so register the
shares of Common Stock to make such an exemption thereto available. Subscriber
is fully aware of the restrictions on sale, transferability, and assignment of
the Company’s securities for an indefinite period of time.
(f) Subscriber knows of no public
solicitation or advertisement of any offer in connection with the proposed
issuance and sale of the securities hereunder. Subscriber is not purchasing the
Common Stock as a result of any advertisement, article, notice or other
communication regarding the Company or the Common Stock published in any
newspaper, magazine or similar media or broadcast over television or radio or
the Internet or presented at any seminar or through any other general
solicitation or general advertisement and acknowledges that the Subscriber had a
preexisting business or personal relationship with an officer or director or
service provider of the Company.
(g) Subscriber understands that there
is presently no market for the Company’s securities and no assurance that any
such market will develop.
(h) Subscriber is an accredited
investor as defined under the Securities Act and the rules of the SEC
promulgated thereunder. Subscriber has delivered herewith a Representation of
Accredited Investor (attached as Exhibit
A hereto) and the Subscriber represents that the information contained in
such Representation is true and accurate as of the date hereof. The Subscriber
agrees to advise the Company if any of the information contained in the
Representation materially changes prior to acceptance of this
subscription.
(i) Subscriber’s execution and delivery
of this Agreement has been duly authorized by all necessary action. Subscriber
agrees not to transfer or assign this Agreement or any of Subscriber’s interest
herein. Subscriber is acquiring the shares of our Common Stock for Subscriber’s
own account and not as a fiduciary or nominee for any other person and for
investment purposes only and not with a view to or for the transfer, assignment,
resale, or distribution thereof, in whole or in part. Subscriber has no present
plans to enter into any such contract, undertaking, agreement, or arrangement.
Subscriber understands the meaning and legal consequences of the foregoing
representations and warranties. Subscriber is not an “underwriter” of any of the
Company’s securities, as that term is defined in Section 2(11) of the Securities
Act, and Subscriber will not take or cause to be taken any action that would
cause Subscriber to be deemed an “underwriter” of the
securities.
(j) Subscriber has the full power and
authority to execute, deliver and perform this Agreement. This Agreement, when
executed and delivered by Subscriber, will constitute a valid and legally
binding obligation of Subscriber, enforceable in accordance with its
terms.
(k) Subscriber acknowledges that,
except as expressly set forth in this Agreement, neither the Company, nor any
other Person acting on the Company’s behalf has made any other representations
and warranties of any kind or nature whatsoever to the Subscriber in
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connection
with the sale of the Common Stock hereunder, including without limitation, any
representation or warranty regarding the Company, its business, financial
statements, results of operations, financial condition or future
prospects.
(l) Subscriber (a) is executing,
delivering and performing this Agreement and is proceeding with the transactions
contemplated hereby on the basis that the Company may be in possession of
material, non-public information concerning the Company (“Non-Public
Company Information”) that is not or may not be known to the Subscriber
and that the Company has not disclosed to the Subscriber and that such
Non-Public Company Information may be material to an investor, such as
Subscriber, when making an investment decision, including the decision to enter
in this Agreement and purchase the Common Stock; (b) is consummating the
transactions contemplated hereby with full recognition and acknowledgment that
the Company may be privy to the Non-Public Company Information, and (c) is
voluntarily entering into this transaction without the benefit of the Non-Public
Company Information.
(m) The foregoing representations and
warranties are true and correct as of the date of Subscriber’s purchase of the
shares of our Common Stock subscribed for herein, and each such representation
and warranty shall survive such purchase. Subscriber agrees to notify the
Company immediately as soon as any such representation or warranty is no longer
true and correct.
4. Legends.
Each certificate representing the Common Stock which may be issued by the
Company shall bear the following legend:
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THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND SIMILAR STATE SECURITIES LAWS, AND
MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, OR HYPOTHECATED UNLESS
AND UNTIL REGISTERED UNDER SUCH ACT AND LAWS, OR UNLESS THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL OR OTHER EVIDENCE, SATISFACTORY TO THE
COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT
REQUIRED.
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5. Indemnification.
Subscriber hereby agrees to indemnify and hold harmless the Company and its
affiliated persons and entities (other than Subscriber) from any and all
damages, losses, costs, and expenses (including reasonable attorneys’ fees)
which it may incur by reason of Subscriber’s failure to fulfill any of the terms
and conditions of this purchase or by reason of any misrepresentation or breach
of any of the warranties contained herein. In this regard, Subscriber agrees to
hold the Company and its controlling persons harmless from all expenses,
liabilities, and damages deriving from an assignment or disposition of any
shares of our Common Stock subscribed for and/or purchased hereby in a manner
which violates the Securities Act, or of any applicable state securities law or
which may be suffered by the indemnified person by reason of any
misrepresentation or breach of any warranty or agreement by Subscriber set forth
herein.
6. Securities
Laws. Subscriber understands that this Private Placement has not been
reviewed by the U.S. Securities and Exchange Commission or the securities
commissioner or
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Attorney
General of any state due to the exempted nature of this Private Placement.
Subscriber understands that any Private Placement literature used in conjunction
with this Private Placement has not been reviewed by the U.S. Securities and
Exchange Commission or the Attorney General or securities commissioner of any
state and therefore has not been approved by the U.S. Securities and Exchange
Commission or any state securities commissioner.
7. Notices.
All notices and other communications required or permitted hereunder shall be in
writing, shall be effective when given, and shall in any event be deemed to be
given upon receipt by the other party or, if earlier, (a) five (5) days after
deposit with the United States Postal Service or other applicable postal
service, if delivered by first class mail, postage prepaid, (b) upon delivery,
if delivered by hand, (c) one (1) business day after the business day of deposit
with Federal Express or similar overnight courier, freight prepaid or (d) one
(1) business day after the business day of facsimile transmission, if delivered
by facsimile transmission with copy by first class mail, postage prepaid, and
shall be addressed to the parties at the following addresses and/or facsimile
numbers (or at such other address or number for a party as shall be specified by
like notice):
(a) If to the Company, to the address
first set forth in the beginning of this Agreement;
(b) If to Subscriber, to the address
set forth on the signature page of this Agreement for Subscriber.
8. Governing
Law. This Agreement shall be governed in all respects, including, without
limitation, validity, interpretation and effect, by the internal laws of the
State of New York as applied to contracts entered into and entirely performed
within such state.
9. Severability.
If any provision of this Agreement, or the application thereof, will for any
reason and to any extent be invalid or unenforceable, the remainder of this
Agreement and application of such provision to other persons or circumstances
will be interpreted so as reasonably to effect the intent of the parties hereto.
The parties further agree to replace such void or unenforceable provision of
this Agreement with a valid and enforceable provision that will achieve, to the
extent possible, the economic, business and other purposes of the void or
unenforceable provision.
10. Entire
Agreement. This Agreement, and the exhibits attached hereto, constitute
the entire agreement between the parties hereto with respect to the subject
matter hereof, are intended to be limited to the expressly provided provisions
hereof, and supersede any prior agreements, representations or understandings,
both written and oral, between the parties hereto with respect to the subject
matter hereof, including, but not limited to, any prior Subscription Agreement
which may have been executed in favor of the Company by the
Subscriber.
11. Binding
Effect. This Agreement is binding upon and will inure to the benefit of
the parties hereto and their respective successors and permitted
assigns.
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12. Amendment.
This Agreement may not be amended except by an instrument in writing signed on
behalf of each of the parties hereto.
13. Counterparts.
This Agreement may be executed in one or more counterparts, all of which shall
be considered one and the same agreement and shall become effective when one or
more counterparts have been signed by each of the parties and delivered to the
other party.
REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK
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SIGNATURE
PAGE TO SUBSCRIPTION AGREEMENT
The
undersigned hereby subscribes for the number of shares of Common Stock as
indicated below.
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Number
of shares of Common Stock subscribed:
125,000_ shares
X $0.60 per share = $75,000.00
payment.
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IN WITNESS WHEREOF, the
undersigned has executed this Subscription Agreement this 14th day of November,
2009.
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Signature:
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/s/ Xxxxxxx X. Xxxxxxx
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Name
(Print):
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Xxxxxxx X. Xxxxxxx
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Address:
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SSN
or EIN:
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Title
of Authorized Signatory if Subscriber is a corporation, partnership
or other entity
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Subscription
for 125,000
shares of Common Stock accepted this 14th day of November,
2009.
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WindTamer
Corporation
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By:
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/s/ Xxxxxx X.
Xxxxx
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Name:
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Xxxxxx
X. Xxxxx
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Title:
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Chief
Executive Officer
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EXHIBIT
A
REPRESENTATION
OF ACCREDITED INVESTOR
In connection with the proposed
offering by WindTamer Corporation, a New York corporation (the “Company”),
of shares of the common stock, par value $.0001 per share, of the Company (the
“Common
Stock”) in a transaction intended to qualify as a private placement of
securities exempt from registration under the Securities Act of 1933, as amended
(the “Act”),
pursuant to Section 4(2) thereof and Regulation D promulgated thereunder, I, the
undersigned, furnish the following representations and information:
1. I am an Accredited Investor (as that
term is defined in Attachment
1 hereto), as evidenced by my satisfying at least one of the following
standards (initial the one that applies):
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__X__
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(a)
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I
am an individual and had Income in excess of $200,000 in 2007 and 2008 or
joint Income with my spouse in excess of $300,000 in 2007 and 2008 and
reasonably expect to have Income in excess of this level in 2009. For
purposes of this Representation, “Income” shall mean salary and bonus
income, taxable income (gross receipts less cost of goods or services and
expenses) in the case of sale of proprietorships, distributable income
from trusts and partnerships, interest and dividend income (excluding
unrealized gains) and vested contributions made on behalf of an
individual; or
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_____
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(b)
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I
am an individual and my net worth (i.e., excess of total assets over total
liabilities), either individually or together with my spouse, is at least
$1,000,000; or
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_____
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(c)
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I
am a corporation or partnership, not formed for the purpose of acquiring
the shares, with total assets in excess of $5,000,000;
or
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_____
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(d)
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I
am an entity in which all of the equity owners meet the standards set
forth in any of the immediately preceding subparagraphs. (If this standard
is initialed, then each such equity owner must complete and return a copy
of this Representation); or
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_____
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(e)
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Other
(specify by reference to Attachment
1):
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IN WITNESS WHEREOF, I have
executed this Representation of Investor this 14th day of November, 2009,
and declare that it is truthful and correct.
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/s/ Xxxxxxx X.
Xxxxxxx
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Signature
of Prospective Purchaser
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Signature
of Prospective Co-Purchaser
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Xxxxxxx X.
Xxxxxxx
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PRINT
Purchaser Name
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PRINT
Co-Purchaser Name
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A-1
ATTACHMENT
1 - Definition
of Accredited Investor
Accredited
investor. Accredited investor shall mean any person who comes within
any of the following categories, or who the issuer reasonably believes comes
within any of the following categories, at the time of the sale of the
securities to that person:
(1) Any bank as defined in section
3(a)(2) of the Securities Act, or any savings and loan association or other
institution as defined in section 3(a)(5)(A) of the Securities Act whether
acting in its individual or fiduciary capacity; any broker or dealer registered
pursuant to section 15 of the Securities Exchange Act of 1934; any insurance
company as defined in section 2(13) of the Securities Act; any investment
company registered under the Investment Company Act of 1940 or a business
development company as defined in section 2(a)(48) of that Act; any Small
Business Investment Company licensed by the U.S. Small Business Administration
under section 301(c) or (d) of the Small Business Investment Act of 1958; any
plan established and maintained by a state, its political subdivisions, or any
agency or instrumentality of a state or its political subdivisions, for the
benefit of its employees, if such plan has total assets in excess of $
5,000,000; any employee benefit plan within the meaning of the Employee
Retirement Income Security Act of 1974 if the investment decision is made by a
plan fiduciary, as defined in section 3(21) of such act, which is either a bank,
savings and loan association, insurance company, or registered investment
adviser, or if the employee benefit plan has total assets in excess of $
5,000,000 or, if a self-directed plan, with investment decisions made solely by
persons that are accredited investors;
(2) Any private business development
company as defined in section 202(a)(22) of the Investment Advisers Act of
1940;
(3) Any 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 securities offered, with total assets in excess of $
5,000,000;
(4) Any director, executive officer,
or general partner of the issuer of the securities being offered or sold, or any
director, executive officer, or general partner of a general partner of that
issuer;
(5) Any natural person whose
individual net worth or joint net worth with that person’s spouse, at the time
of his purchase exceeds $1,000,000;
(6) Any natural person who had an
individual income in excess of $ 200,000 in each of the two most recent years or
joint income with that person’s spouse in excess of $300,000 in each of those
years and has a reasonable expectation of reaching the same income level in the
current year;
(7) Any trust, with total assets in
excess of $ 5,000,000, not formed for the specific purpose of acquiring the
securities offered, whose purchase is directed by a sophisticated person as
described in 17 C.F.R. § 230.506(b)(2)(ii); and
(8) Any entity in which all of the
equity owners are accredited investors.
A-2
