SUBSCRIPTION AGREEMENT
0 Xxxx
Xxxxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000
Gentlemen:
The
undersigned (the “Investor”) hereby
confirms its agreement with you as follows:
1. This
Subscription Agreement, including the Terms and Conditions for Purchase of
Shares attached hereto as Annex I
(collectively, this “Agreement”) is made
as of the date set forth below between Acorn Energy, Inc., a Delaware
corporation (the “Company”), and the
Investor.
2. The
Company has authorized the sale and issuance to the Investor of up to an
aggregate of 2,231,818 shares (the “Shares”) of its
common stock, par value $0.01 per share (the “Common Stock”), for a
purchase price of $5.50 per share (the “Purchase
Price”).
3. The
offering and sale of the Shares (the “Offering”) are being
made pursuant to (1) an effective Registration Statement on Form S-3 (including
the form of Prospectus dated September 16, 2009 contained therein (the “Base Prospectus”),
the “Registration
Statement”)) filed by the Company with the Securities and Exchange
Commission (the “Commission”), (2) if
applicable, certain “free writing
prospectuses” (as that term is defined in Rule 405 under the Securities
Act of 1933, as amended (the “Act”)), that have
been or will be filed with the Commission and delivered to the Investor on or
prior to the date hereof, and (3) a Prospectus Supplement (the “Prospectus
Supplement” and together with the Base Prospectus, the “Prospectus”)
containing certain supplemental information regarding the Shares and terms of
the Offering that have been or will be filed with the Commission and has been or
will be delivered to the Investor (or made available to the Investor by the
filing by the Company of an electronic version thereof with the Commission on or
prior to the time the Investor has executed this Agreement, other than the
Prospectus Supplement which shall be filed with the Commission no later than two
(2) days subsequent to the execution of this Agreement). The Base
Prospectus and any free writing prospectus delivered to the Investor on or prior
to the date hereof are collectively referred to herein as the “Disclosure
Materials.”
4. The
Company and the Investor agree that the Investor will purchase from the Company
and the Company will issue and sell to the Investor the Shares set forth below
for the aggregate Purchase Price set forth below. The Shares shall be purchased
pursuant to the Terms and Conditions for Purchase of Shares attached hereto as
Annex I
and incorporated herein by this reference as if fully set forth herein. The
Investor acknowledges that the Offering is not being underwritten by the
placement agent named in the Placement Agent Agreement referred to in Annex I
hereto (the “Placement
Agent”) and that there is no minimum offering amount.
5. The
Investor represents that, except as set forth below, (a) it has had no position,
office or other material relationship within the past three years with the
Company or persons known to it to be affiliates of the Company, (b) it is not a
NASD member or an Associated Person (as such term is defined under the NASD
Membership and Registration Rules Section 1011) as of the Closing, and (c)
neither the Investor nor any group of Investors (as identified in a public
filing made with the Commission) of which the Investor is a part in connection
with the Offering of the Shares, has acquired, or has obtained the right to
acquire, 20% or more of the Common Stock (or securities convertible into or
exercisable for Common Stock) or the voting power of the Company on a
post-transaction basis. Exceptions:
________________________________________________________________________
(If no
exceptions, write “none.” If left blank, response will be deemed to be
“none.”)
6. The
Investor represents that it has received (or otherwise had made available to it
by the filing by the Company of an electronic version thereof with the
Commission) the Disclosure Package prior to or in connection with the receipt of
this Agreement. The Investor acknowledges that, prior to the delivery of this
Agreement to the Company, the Investor may receive certain additional
information regarding the Offering, (the “Offering
Information”). Such Offering Information may be provided to the Investor
by any means permitted under the Act, including oral
communications.
7. No
offer by the Investor to buy Shares will be accepted and no part of the Purchase
Price will be delivered to the Company until the Investor has received the
Offering Information and the Company has accepted such offer by countersigning a
copy of this Agreement, and any such offer may be withdrawn or revoked, without
obligation or commitment of any kind, at any time prior to the Company sending
(orally, in writing or by electronic mail) notice of its acceptance of such
offer. An indication of interest will involve no obligation or commitment of any
kind until the Investor has been delivered the Offering Information and this
Agreement is accepted and countersigned by or on behalf of the
Company.
[Remainder
of the page intentionally left blank.]
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Number of
Shares:
Purchase
Price Per Share: $5.50
Aggregate
Purchase Price: $
Please
confirm that the foregoing correctly sets forth the agreement between us by
signing in the space provided below for that purpose.
Dated as
of: Xxxxx 0, 0000
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XXXXXXXX
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By:
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Print
Name:
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Title:
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Address:
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Copies
of notices etc. pursuant to Section 6 of the
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Terms
and Conditions For Purchase of Shares:
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-3-
Agreed
and Accepted
as of
March 8, 2010:
By:
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Name:
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Title:
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-4-
ANNEX I
TERMS AND
CONDITIONS FOR PURCHASE OF SHARES
1. Authorization and Sale of the
Shares. Subject to the terms and conditions of this Agreement,
the Company has authorized the sale of the Shares.
2. Agreement
to Sell and Purchase the Shares; Placement Agent.
2.1 At
the Closing (as defined in Section 3.1), the
Company will sell to the Investor, and the Investor will purchase from the
Company, upon the terms and conditions set forth herein, the number of Shares
set forth on the last page of the Agreement to which these Terms and Conditions
for Purchase of Shares are attached as Annex I (the “Signature Page”) for
the aggregate Purchase Price therefor set forth on the Signature
Page.
2.2 The
Company may enter into agreements similar to this Agreement with other investors
(the “Other
Investors”) and expects to complete sales of the Shares to them. (The
Investor and the Other Investors are hereinafter referred to as the “Investors” and this
Agreement and the agreements executed by the Other Investors are hereinafter
collectively referred to as the “Agreements”). The
Company may accept or reject any one or more Agreements in its sole
discretion.
2.3 The
Company has entered into a Placement Agency Agreement, dated March 8, 2010 (the
“Placement
Agreement”), with Xxxxxxxx Curhan & Ford Co. (the “Placement Agent”)
that contains certain representations, warranties, covenants and agreements of
the Company that may be relied upon by the Investor, which shall be a third
party beneficiary thereof. Investor acknowledges that the Company has agreed to
pay the Placement Agent a fee (the “Placement Fee”) in
respect of the sale of Shares to certain Investors. The Company further confirms
that neither it nor any other Person acting on its behalf has provided the
Investor or their agents or counsel with any information that constitutes or
could reasonably be expected to constitute material, nonpublic information. The
Company understands and confirms that the Investor will rely on the foregoing
representations in effecting transactions in securities of the
Company.
3. Closings
and Delivery of the Shares and Funds.
3.1 Closing. The completion of the
purchase and sale of the Shares (the “Closing”) shall occur
at a place and time (the “Closing Date”) and in
the manner specified by the Company and the Placement Agent as provided in the
Placement Agreement, and of which the Investor will be notified in advance by
the Placement Agent, in accordance with Rule 15c6-1 promulgated under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”).
3.2 Conditions
to the Company’s Obligations. The Company’s obligation to
issue and sell the Shares to the Investor shall be subject to: (i) the receipt
by the Company of the Purchase Price for the Shares being purchased hereunder as
set forth on the Signature Page, (ii) the accuracy of the representations and
warranties made by the Investor and the fulfillment of those undertakings of the
Investor to be fulfilled prior to the Closing Date and (iii) the receipt by the
Company of a completed Investor Questionnaire in the form of Exhibit A attached
hereto.
3.3 Conditions
to the Investor’s Obligations. The Investor’s obligation to
purchase the Shares will be subject to the condition that the Placement Agent
shall not have: (a) terminated the Placement Agreement pursuant to the terms
thereof or (b) determined that the conditions to the closing in the Placement
Agreement have not been satisfied.
1
3.4 Delivery
of Funds. No later than one (1) business day after the
execution of this Agreement by the Investor and the Company, the Investor shall
remit by wire transfer the amount of funds equal to the aggregate purchase price
for the Units being purchased by the Investor to the following account
designated by the Company:
Citibank
N.A.
ABA#
000000000
A/C#
00000000
Account
Name: Citigroup Capital Markets Inc.
000 Xxxx
Xxxxxx, Xxx Xxxx, XX 00000
For
further credit to:
232-3586C-10-444
Account
Name: Acorn Energy, Inc.
3.5 Delivery
of Shares. No later than one (1) business day after the
execution of this Agreement by the Investor and the Company, the Investor shall
direct the broker-dealer at which the account or accounts identified in Exhibit
A to Annex I to be credited with the Shares being purchased by such Investor are
maintained, which broker/dealer shall be a DTC participant, to set up a
Deposit/Withdrawal at Custodian (“DWAC”) instruction directing the Transfer
Agent to credit such account or accounts with the Shares. Such DWAC
instruction shall indicate the settlement date for the deposit of the Shares,
which date shall be provided to the Investor by the Placement
Agent. Upon the closing of the Offering, the Company shall direct the
Transfer Agent to credit the Investor’s account or accounts identified in
Exhibit A to Annex I with the Shares.
4. Representations,
Warranties and Covenants of the Investor.
The
Investor acknowledges, represents and warrants to, and agrees with, the Company
and the Placement Agent that:
4.1 The
Investor (a) is knowledgeable, sophisticated and experienced in making, and is
qualified to make decisions with respect to, investments in securities
presenting an investment decision like that involved in the purchase of the
Shares, including investments in securities issued by the Company and
investments in comparable companies, (b) has answered all questions on the
Signature Page and the Investor Questionnaire and the answers thereto are true
and correct as of the date hereof and will be true and correct as of the Closing
Date and (c) in connection with its decision to purchase the number of Shares
set forth on the Signature Page, has received and is relying only upon the
Disclosure Package and the documents incorporated by reference therein, and the
Offering Information. Other than the issuance of the Shares as described in
Section 1 of this Agreement, the Investor acknowledges that it has not received
from the Company any information that the Company has advised the Investor that
it deems to be material or non-public concerning the Company.
4.2 (a)
No action has been or will be taken in any jurisdiction outside the United
States by the Company or the Placement Agent that would permit an offering of
the Shares, or possession or distribution of offering materials in connection
with the issue of the Shares in any jurisdiction outside the United States where
action for that purpose is required, (b) if the Investor is outside the United
States, it will comply with all applicable laws and regulations in each foreign
jurisdiction in which it purchases, offers, sells or delivers Shares or has in
its possession or distributes any offering material, in all cases at its own
expense and (c) the Placement Agent is not authorized to make and has not made
any representation, disclosure or use of any information in connection with the
issue, placement, purchase and sale of the Shares, except as set forth or
incorporated by reference in the Base Prospectus or the Prospectus
Supplement.
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4.3 (a)
The Investor has full right, power, authority and capacity to enter into this
Agreement and to consummate the transactions contemplated hereby and has taken
all necessary action to authorize the execution, delivery and performance of
this Agreement, and (b) this Agreement constitutes a valid and binding
obligation of the Investor enforceable against the Investor in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’ and
contracting parties’ rights generally and except as enforceability may be
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and except as
to the enforceability of any rights to indemnification or contribution that may
be violative of the public policy underlying any law, rule or regulation
(including any federal or state securities law, rule or
regulation).
4.4 The
Investor understands that nothing in this Agreement, the Disclosure Materials,
the Offering Information, the Prospectus Supplement or any other materials
presented to the Investor in connection with the purchase and sale of the Shares
constitutes legal, tax or investment advice. The Investor has consulted such
legal, tax and investment advisors as it, in its sole discretion, has deemed
necessary or appropriate in connection with its purchase of Shares.
4.5 Since
the date on which the Placement Agent first contacted the Investor about the
Offering, the Investor has kept the Offering confidential and has not engaged in
any purchases or sales of the securities of the Company (including, without
limitation, any Short Sales involving the Company’s securities). The Investor
covenants that it will keep the Offering confidential and not engage in any
purchases or sales of the securities of the Company (including Short Sales)
prior to the time that the transactions contemplated by this Agreement are
publicly disclosed. The Investor is aware of, and will adhere to, the position
of the Commission set forth in Item A.65 of the Commission’s Telephone
Interpretations Manual. For purposes hereof, “Short Sales” include,
without limitation, all “short sales” as
defined in Rule 200 promulgated under Regulation SHO under the Exchange Act,
whether or not against the box, and all types of direct and indirect stock
pledges, forward sales contracts, options, puts, calls, short sales, swaps,
“put equivalent
positions” (as defined in Rule 16a-1(h) under the Exchange Act) and
similar arrangements (including on a total return basis), and sales and other
transactions through non-US broker dealers or foreign regulated
brokers.
5. Survival of Representations,
Warranties and Agreements; Third Party Beneficiary. Notwithstanding any
investigation made by any party to this Agreement or by the Placement Agent, all
covenants, agreements, representations and warranties made by the Company and
the Investor herein will survive the execution of this Agreement, the delivery
to the Investor of the Shares being purchased and the payment therefor. The
Placement Agent shall be an express third party beneficiary with respect to the
representations, warranties and agreements of the Investor in Section 4
hereof.
6. Notices. All notices,
requests, consents and other communications hereunder will be in writing, will
be mailed (a) if within the domestic United States by first-class registered or
certified airmail, or nationally recognized overnight express courier, postage
prepaid, or by facsimile or (b) if delivered from outside the United States, by
International Federal Express or facsimile, and will be deemed given (i) if
delivered by first-class registered or certified mail domestic, three business
days after so mailed, (ii) if delivered by nationally recognized overnight
carrier, one business day after so mailed, (iii) if delivered by International
Federal Express, two business days after so mailed and (iv) if delivered by
facsimile, upon electronic confirmation of receipt and will be delivered and
addressed as follows:
3
if to the
Company, to :
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Xxxx Xxxxxxxx
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Xxxxxxxxxx,
Xxxxxxxx 00000
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Attention:
Xxxx X. Xxxxx
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Facsimile:
(000) 000-0000
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with
copies (for information purposes only) to :
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Xxxxxxxxx
& Xxxxxx LLP
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00
Xxxx 00xx Xxxxxx, 00xx Xxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attention:
Xxxxxxx Xxxxxx, Esq.
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Facsimile:
(000) 000-0000
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If to the
Investor :
At its
address on the Signature Page hereto, or at such other address or addresses as
may have been furnished to the Company in writing, with copies (for
informational purposes only) to the person(s) identified on the Signature Page
hereto.
7. Changes. This Agreement may
not be modified or amended except pursuant to an instrument in writing signed by
the Company and the Investor.
8. Headings. The headings of the
various sections of this Agreement have been inserted for convenience of
reference only and will not be deemed to be part of this Agreement.
9. Severability. In case any
provision contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein will not in any way be affected or
impaired thereby.
10. Governing Law. This Agreement
will be governed by, and construed in accordance with, the internal laws of the
State of New York, without giving effect to the principles of conflicts of law
that would require the application of the laws of any other
jurisdiction.
11. Counterparts. This Agreement
may be executed in two or more counterparts, each of which will constitute an
original, but all of which, when taken together, will constitute but one
instrument, and will become effective when one or more counterparts have been
signed by each party hereto and delivered to the other parties.
12. Confirmation of Sale. The
Investor acknowledges and agrees that the Investor’s receipt of the Company’s
counterpart to this Agreement, together with the Prospectus Supplement (or the
filing by the Company of an electronic version thereof with the Commission),
shall constitute written confirmation of the Company’s sale of Shares to the
Investor.
13. Press Release. The Company and
the Investor agree that the Company shall issue a press release announcing the
material terms of the Offering prior to the opening of the financial markets in
New York City on the day after the date hereof. From and after the issuance of
the press release referred to above, the Investor shall not be in possession of
any material, nonpublic information received from the Company, its Subsidiary or
any of their respective officers, directors, employees or agents, that is not
disclosed in the press release. The Company shall not, and shall cause its
Subsidiary and each of their respective officers, directors, employees and
agents, not to, provide the Investor with any material, non public information
regarding the Company or its Subsidiary from and after the issuance of the press
release without the express written consent of the Investor.
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14. Termination. In the event that
the Placement Agreement is terminated by the Placement Agent pursuant to the
terms thereof, this Agreement shall terminate without any further action on the
part of the parties hereto.
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EXHIBIT
A
ACORN
ENERGY, INC. INVESTOR QUESTIONNAIRE
Pursuant
to Section 3 of
Annex I to the
Agreement, please provide us with the following information:
1.
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The
exact name that your Shares are to be registered in. You may use a nominee
name if appropriate:
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2.
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The
relationship between the Investor and the registered holder listed in
response to item 1 above:
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3.
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The
mailing address of the registered holder listed in response to item 1
above:
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4.
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The
Social Security Number or Tax Identification Number of the registered
holder listed in the response to item 1 above:
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5.
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Name
of DTC Participant (broker-dealer at which the account or accounts to be
credited with the Shares are maintained):
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6.
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DTC
Participant Number:
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7.
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Name
of Account at DTC Participant being credited with the
Shares:
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8.
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Account
Number at DTC Participant being credited with the
Shares:
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