SUBSCRIPTION AGREEMENT Nova Technologies USA, Inc.
Exhibit
10.1
The
undersigned has received and read the Confidential Private Placement Memorandum
dated March 15, 2007 ("Memorandum"), pursuant to which, Nova Technologies USA,
Inc., a Nevada corporation ("Company"), is offering for sale to the undersigned
shares of the Company's $.001 par value common stock at a purchase price of
$0.50 per share ("Offered Shares"). The terms used and not defined in this
Subscription Agreement have the meanings specified for such terms in the
Memorandum.
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1.
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Subscription.
On the terms and subject to the conditions of this Subscription Agreement
and the Memorandum, the undersigned hereby subscribes for the number
of
Offered Shares of the Company, specified below for a subscription
price of
$0.50 per Offered Share. The undersigned hereby agrees that this
subscription shall be irrevocable and shall survive the death or
disability of the undersigned. Payment of the purchase price for
the
Offered Shares is due upon
subscription.
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2.
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Acceptance
of Subscription. The undersigned acknowledges that (i) the
Company has the right to accept or reject this subscription in whole
or in
part, and (ii) this subscription shall be deemed to be accepted by
the
Company only when this Subscription Agreement is signed by the Company.
The undersigned agrees that subscriptions need not be accepted by
the
Company in the order in which subscriptions are
received.
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3.
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Representations,
Warranties, and Covenants of the Undersigned. The undersigned
hereby represents and warrants to and covenants with the Company,
the
Company's officers, directors, employees, attorneys, agents and any
person
who has solicited this subscription as
follows:
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(a)
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The
undersigned has adequate means of providing for his or her current
needs
and possible personal contingencies, and he or she has no need in
the
foreseeable future to sell the Offered Shares. The undersigned is
able to
accommodate the economic risks of the undersigned’s signature purchased of
Offered Shares, and the undersigned has sufficient net worth to sustain
a
loss of his or her investment in the Company, or a portion thereof,
in the
event of such loss should occur.
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(b)
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The
undersigned has such knowledge and experience in financial and business
matters that he or she is capable of evaluating the merits and risks
of an
investment in the Company.
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(c)
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The
undersigned confirms that all documents, records and books, pertaining
to
his or her proposed investment in the Company have been made available
to
the undersigned.
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(d)
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The
undersigned has had an opportunity to ask questions of and receive
satisfactory answers from the Company, or any person or persons acting
on
the Company's behalf, concerning the terms and conditions of his
or her
proposed investment in the Company, and all such questions have been
answered to the complete satisfaction of the
undersigned.
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(e)
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The
Offered Shares will be acquired by the undersigned for his or her
own
account for investment in a manner which would not require registration
or
qualification pursuant to the provisions of the Securities Act of
1933, as
amended ("Act"), or any state Blue Sky
law.
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(f)
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The
undersigned understands that the offer and sale of the Offered Shares
in
the individual states in transactions which satisfy the requirements
of
Rule 506 of Regulation D promulgated pursuant to Section 4(2) of
the
Securities Act of 1933 are not required to be registered or qualified
in
the individual states because of adoption of the National Securities
Markets Improvement Act of 1996 ("NSMIA "). NSMIA preempts state
registration and similar qualification provisions for transactions
exempt
pursuant to that Rule 506.
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(g)
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The
undersigned represents that it has been called to his or her attention
by
those provisions of the Memorandum and by those persons with whom
the
undersigned has dealt in connection with his or her proposed investment
in
the Company, that the Company has no history of operation and no
earnings
and that the undersigned proposed investment in the Company involves
significant risks which may result in the loss of that investment,
or a
portion thereof.
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(h)
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The
undersigned has received no representations or warranties in making
his or
her investment decision.
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(i)
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The
undersigned acknowledges and agrees that the Company has made available
to
the undersigned or his or her personal advisors the opportunity to
obtain
appropriate information to evaluate the merits and risks of an investment
in the Company.
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(j)
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The
undersigned understands that neither the Securities and Exchange
Commission nor any Securities Administrator or similar person of
any state
or province has made any finding or determination relating to the
fairness
of any purchase of the Offered Shares and that neither the Securities
and
Exchange Commission nor any Securities Administrator or similar person
of
any state or province has or will recommend or endorse a purchase
of the
Offered Shares.
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(k)
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The
undersigned is now a bona fide citizen of the United States of America
and
a bona fide resident of the state set forth below and the address
and
Social Security number or federal tax identification number set forth
below are his true and correct residence and Social Security number
or
federal tax identification number. The undersigned has no current
intention of becoming a resident of any other state or jurisdiction.
If
the undersigned is a corporation, partnership, trust or other form
of
business organization, the undersigned represents and warrants that
the
undersigned was formed pursuant to the laws of
________________________________, and the undersigned's principal
place of
business is within such state, and that the undersigned was not
organized for the purpose of acquiring Offered
Shares.
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(l)
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The
undersigned hereby represents and warrants that the undersigned's
total
purchase of Offered Shares shall not exceed 10% of the undersigned's
net
worth.
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(m)
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By
initialing where indicated and appropriate below, the undersigned
hereby
represents and warrants that the undersigned is an " Accredited
Investor " , as defined by the provisions of Rule 501 of Regulation D
promulgated pursuant to the Act, and falls within one of the following
categories:
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_______
(1)
Initials
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The
undersigned is a director or executive officer of the Company,
or any
director, executive, executive
officer, or general partner of a general partner of the
Company;
or
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(2)
Initials
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The
undersigned is a natural person whose individual net worth, or
joint net
worth with the undersigned's
spouse, at the time of his or her purchase exceeds $1,000,000.00;
or
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(3)
Initials
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The
undersigned is a natural person who had an individual income in
excess of
$200,000.00 in each of the most
recent years or joint income with the undersigned's spouse in excess
of
$300,000.00 in each of those
years and has a reasonable expectation of having the same income
level in
the current year; or
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(4)
Initials
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The
undersigned is a trust, with total assets in excess of $5,000,000.00,
not
formed for the specific purpose of
acquiring the securities offered, whose purchase is directed by
a
sophisticated person as described in Regulation 230. 506(b)(2)(ii)
promulgated pursuant to the Act; or
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(5)
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The
undersigned is an entity in which all of the equity owners are
Accredited
Investors.
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Initials
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4.
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Indemnification.
The undersigned acknowledges that he or she understands
the
meaning and legal consequences of the representations, warranties,
and
covenants specified in Paragraph 3 of this Subscription Agreement
and that
the Company has relied on such representations, warranties and covenants,
and the undersigned hereby agrees to indemnify and hold harmless
the
Company, and its officers, directors, controlling persons, agents,
attorneys, accountants, and employees, from any and all loss, damage
or
liability due to, or occurring because of, a breach of any such
representation, warranty, or
covenant.
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5.
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Subsequent
Registration of Offered Shares. The undersigned has no right to
require that the Offered Shares be registered pursuant to the provisions
of the Act, or otherwise. The undersigned further acknowledges and
agrees
that the Company has no obligation to assist the undersigned in obtaining
any exemption from any registration requirements imposed by applicable
law. The undersigned also acknowledges and agrees that he or she
shall be
responsible for compliance with all conditions on transfer imposed
by a
Securities Administrator or similar person of any state, province
or
territory.
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6.
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Limitation
on Transfer of Offered Shares. The undersigned acknowledges and
agrees that he or she is aware that there are substantial restrictions
on
the transferability of the Offered Shares. Because the Offered Shares
will
not be registered pursuant to the provisions of the Act (unless the
undersigned exercises his or her right to require such registration),
the
undersigned agrees not to sell, transfer, assign, pledge, hypothecate
or
otherwise dispose of any Offered Shares unless such sale is exempt
from
such registration pursuant to the provisions of the Act or unless
the
Offered Shares are registered pursuant to the Act. The undersigned
further
acknowledges and agrees that the Company has no obligation to assist
the
undersigned in obtaining any exemption from any registration requirements
imposed by applicable law. The undersigned also acknowledges and
agrees
that he or she shall be responsible for compliance with all conditions
on
transfer imposed by a Securities Administrator of any state, province
or
territory and for any expenses incurred by the Company for legal
and
accounting services in connection with reviewing such a proposed
transfer
and issuing opinions in connection
therewith.
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7.
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Compliance
with Act. The undersigned understands and agrees that the
following restrictions and limitations are applicable to his or her
purchase and any sale, transfer, assignment, pledge, hypothecation
or
other disposition of Offered Shares pursuant to Section 4(2) of the
Act
and Rule 506 of Regulation D promulgated pursuant
thereto:
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(a)
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The
undersigned agrees that the Offered Shares shall not be sold, pledged,
hypothecated or otherwise disposed of unless the Offered Shares are
registered pursuant to the Act and applicable state or other applicable
securities laws or are exempt there
from.
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(b)
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A
legend in substantially the following form has been or will be placed
on
any certificate(s) or other documents evidencing the Offered
Shares:
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THE
SECURITIES REPRESENTED BY THIS INSTRUMENT OR DOCUMENT HA VE BEEN ACQUIRED FOR
INVESTMENT ONLY AND HAVE NOT BEEN REGISTERED PURSUANT TO THE PROVISIONS OF
THE
SECURITIES ACT OF 1933 AS AMENDED ("ACT"), AND HA VE BEEN OFFERED AND SOLD
IN
RELIANCE UPON THE EXEMPTIONS SPECIFIED IN SECTION 4(2) OF THE ACT AND RULE
506
OF REGULATION D PROMULGATED PURSUANT THERETO. WITHOUT SUCH REGISTRATION, SUCH
SECURITIES MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF, EXCEPT UPON DELIVERY TO THE COMPANY OR ITS TRANSFER
AGENT
OF AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY OR ITS TRANSFER AGENT
THAT
REGISTRATION IS NOT REQUIRED FOR SUCH TRANSFER OR THE SUBMISSION TO THE COMP
ANY
OR ITS TRANSFER AGENT OF SUCH OTHER EVIDENCE AS MAY BE SATISFACTORY TO THE
COMPANY OR ITS TRANSFER AGENT TO THE EFFECT THAT ANY SUCH TRANSFER SHALL NOT
BE
IN VIOLATION OF THE ACT, APPLICABLE STATE SECURITIES LAWSOR ANY RULE OF
REGULATION PROMULGATED PURSUANT THERETO.
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(c)
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Stop
transfer instructions to the transfer agent of the Company have been
or
will be placed with respect to the Offered Shares so as to restrict
the
sale, transfer, pledge, hypothecation or other disposition thereof,
subject to the further terms hereof, including the provisions of
the
legend set forth in subparagraph (b)
above.
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(d)
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The
legend and stop transfer instructions described in subparagraphs
(b) and
(c) above will be placed on any new certificate(s) or other documents
for
transfer.
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8.
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Financial
Information. The undersigned has previously been furnished an
Offered Questionnaire which has been completed and executed by the
undersigned and the information contained therein remains true and
correct
in material aspects.
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REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK
4
OFFEREE
QUESTIONNAIRE
Nova
Technologies USA,
Inc., a Nevada corporation ("Company") will use the
responses to this questionnaire to qualify prospective investors for purposes
of
federal and state securities laws.
If the
answer to any question below is "none" or "not applicable," please so
indicate.
Your
answers will be kept confidential at all times. However, by signing this
questionnaire, you agree that the Company may present this questionnaire to
any
person, as it deems appropriate to establish the availability of exemptions
from
registration pursuant to state and federal securities laws.
PART
I. INDIVIDUAL INVESTORS
Investors
that are not individuals (that is, are corporations, partnerships, trusts,
etc.)
should start at PART II.
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1.
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Name
(as it should appear on stock certificate):
_______________________________________________
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2.
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Residence
address:
_____________________________________________________________________
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3.
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Home
telephone:
_______________________________________________________________________
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4.
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Date
of birth:
__________________________________________________________________________
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5.
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Social
security number:
__________________________________________________________________
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6.
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United
States citizen:
___________________________________________________________________
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o Yes
o No
If
no,
country of citizenship:
______________________________________________________________
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7.
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Occupation: __________________________________________________________________________
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8.
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Number
of years:
_______________________________________________________________________
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9.
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Present
employer:
______________________________________________________________________
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10.
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Position/Title:
_________________________________________________________________________
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11.
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Business
address:
______________________________________________________________________
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12.
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Business
telephone:
_____________________________________________________________________
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13.
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Business
fax and/or email address:
_________________________________________________________
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14.
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Please
specify each state and foreign country in which you have maintained
your
principal residence during the past three years, and the dates during
which you resided in each:
__________________________________________________________________________________________________________________________________
__________________________________________________________________________________________________________________________________
__________________________________________________________________________________________________________________________________
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15.
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Are
you registered to vote in, or do you have a driver's license issued
by, or
do you maintain a residence in any other state or
country?
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If
yes,
in which state and countries?
______________________________________________________________
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16.
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Do
you reasonably expect that either your own income from all sources
during
the current year will exceed $200,000 or the joint income of you
and your
spouse (if married) from all sources during the current year will
exceed
$300,000?
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If
no,
please specify the amount:
$_______________________________________________________________
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17.
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Percentage
of your income (as shown above) anticipated to be derived from sources
other than salary:
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__________________________________________________________________________________________
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18.
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Was
your yearly income from all sources during each of the last two years
in
excess of $200,000 or was the joint income of you and your spouse
(if
married) from all sources during each of those years in excess of
$300.000?
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If
no,
please specify the amount for last year: $________________and the year before:
$____________________
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19.
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Will
your net worth as of the date you purchase the Offered Shares, together
with the net worth of your spouse, be in excess of $1
million?
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If
no,
please specify the amount:
$_______________________________________________________________
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20.
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Please
describe your educational background and degrees obtained, if any:
________________________________________________________________________
__________________________________________________________________________________________________________________________________
__________________________________________________________________________________________________________________________________
__________________________________________________________________________________________________________________________________
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21.
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If
you have any existing personal or business
relationship with the Company or any of its officers, directors or
controlling persons, please describe the nature and duration of each
relationship:
____________________________________________________________________________________________________________________
__________________________________________________________________________________________________________________________________
__________________________________________________________________________________________________________________________________
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22.
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Please
describe in reasonable detail the nature and extent of your business,
financial and investment experience that you believe gives you the
capacity to evaluate the merits and risks of the proposed investment
and
the capacity to protect your interests:
__________________________________________________________________________________________________________________________________
__________________________________________________________________________________________________________________________________
__________________________________________________________________________________________________________________________________
__________________________________________________________________________________________________________________________________
__________________________________________________________________________________________________________________________________
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23.
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Are
you purchasing the Offered Shares for your own account and for investment
purposes only?
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If
no,
please specify for whom you are investing and the reason for investing:
___________________________________________________________________________________________________________________________________
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24.
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In
evaluating this investment, will you use the services of any of the
following advisors? If so, please identify , providing address and
telephone number:
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_______________________________________________________________________________
_______________________________________________________________________________
Anticipated
dollar amount of subscription:
________________________________________
_______________________________________________________________________________
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25.
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Indicate
type of ownership in which securities will be
held:
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In
signing below, you acknowledge that the information provided in this
questionnaire is true and correct in all material respects and that you
recognize that the Company and its counsel are relying on the truth and accuracy
of that information in reliance on the exemption contained in Section 4(2)
of
the Securities Act of 1933, as amended, and Rule 506 and Regulation D. You
agree
to notify the Company promptly of any changes in the foregoing information
that
occur before the investment.
Executed
at ____________________________________, on
_________________________________________.
________________________________________________
(Signature)
__________________________________________________________
(Print
or
type name)
7
PART
II. NONINDIVIDUAL INVESTORS
Please
complete this PART II only if the proposed purchase is to be made by a
corporation, partnership, trust or other entity. If the investment will be
made
by more than one affiliated entity, please COMPLETE A COPY OF THIS QUESTIONNAIRE
FOR EACH ENTITY.
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1.
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Name
(as it will appear on stock certificate):
___________________________________________________
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2.
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Address
of principal place of business:
______________________________________________________
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3.
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Jurisdiction
of formation or incorporation:
____________________________________________________
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4.
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Contact
person:
________________________________________________________________________
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5.
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Telephone
number:
_____________________________________________________________________
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6.
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Fax
number:
___________________________________________________________________________
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7.
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Type
of entity (corporation, partnership, trust, etc.):
_____________________________________________
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8.
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Taxpayer
identification number:
____________________________________________________________
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9.
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Was
this entity formed for the purpose of this
investment?
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If
yes,
all shareholders, partners or other equity owners must answer PART I of this
Questionnaire.
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10.
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Amount
of your proposed investment: $
_____________________________________________________
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11.
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Entity's
net worth at the time the securities will be purchased: $
__________________________________
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12.
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Check
the appropriate box to indicate which of the following accurately
describes the nature of the business conducted by the investing
entity:
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o Private
business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940 (namely, a U .S.
venture capital fund that invests primarily through private placements
in
nonpublicly traded securities and makes available, either directly or through
coinvestors, to the portfolio companies significant guidance concerning
management, operations or business objectives);
o A
small business investment company licensed by the U.S. Small
Business Administration pursuant to Section 301(c) or (d) of the Small Business
Investment Act of 1958;
o An
investment company registered pursuant to the Investment Company
Act of 1940 or a business development company as defined in Section 2(a)(48)
of
that Act;
o A
bank as defined in Section 3(a)(2) of the Securities Act of 1933
or a savings and loan association or other institution defined in Section
3(a)(5)(A) of that Act, acting in either an individual or fiduciary
capacity;
8
o An
employee benefit plan within the meaning of Title I of the
Employee Retirement Income Security Act of 1974 (a) whose investment decision
is
made by a fiduciary that is either a bank, a savings and loan association,
an
insurance company or a registered investment advisor or whose
total assets exceed $5 million or (b) if a self-directed plan, whose investment
decisions are made solely by persons who are accredited
investors;
o An
organization described in Internal Revenue Code Section
501(c)(3), a corporation, a Massachusetts or similar business trust or a
partnership, in each case not formed for the purpose of this investment, with
total assets in excess of $5 million;
o An
entity not located in the United States and whose equity owners
are neither U.S. citizens nor U.S. residents;
o A
trust with total assets in excess of $5 million whose purchase is
directed by a sophisticated person as described in Rule 506(b)(2)(ii) under
the
Securities Act of 1933;
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13.
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Please
provide information detailing the business, financial and investment
experience of the entity and investment manager of the entity:
_________________________
__________________________________________________________________________________________________________________________________
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In
signing below, you acknowledge that the information provided in this
questionnaire is true and correct in all material respects and that you
recognize that the Company and its counsel are relying on the truth and accuracy
of that information in reliance on the exemption contained in Section 4(2)
of
the Securities Act of 1933, as amended, and Rule 506 and Regulation D. You
agree
to notify the Company promptly of any changes in the foregoing information
that
occur before the investment.
Executed
at _________________________________, on
_______________________________________.
___________________________________________________________
(Print
or type name)
By:
________________________________________________________
Title:
_______________________________________________________
9
SIGNATURE
PAGE TO SUBSCRIPTION AGREEMENT
Amount
of
Investors subscribed for_________. Subscription Amount $
__________
Make
check payable to: Nova Technologies USA, Inc.
EACH
SUBSCRIBER REPRESENTS THAT:
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(a)
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The
information contained in this Subscription Agreement is complete
and
accurate and may be relied upon,
and
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IN
WITNESS WHEREOF, the undersigned has executed this Subscription
Agreement and initialed the foregoing statements and executed the included
questionnaire this ___________ day of,_________2007
FOR
INDIVIDUALS:
____________________________________
Print
Name
____________________________________
Signature
NAME
AND SIGNATURE OF JOINT TENANT OR TENANT IN COMMON
____________________________________
Print
Name
____________________________________
Signature
FOR
TRUSTS, CORPORATIONS, PARTNERSHIPS
___________________________________________________________________________________
Print
Name of Entity
By:
_________________________________________________________________________________
Print
name (Trustee, President or General Partner) of person(s) making investment
decision
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__________________________________
Signature
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__________________________________
Signature
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Agreed
to
and accepted
By: __________________________________
▇▇.
▇. ▇▇▇▇▇▇▇▇, President
10