PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT CardioGenics Holdings Inc. OTCBB: CGNH {Accredited Investors Only}
EXHIBIT
10.1
THE
SECURITIES TO WHICH THIS PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT RELATES HAVE
NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED,
OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, SUCH SECURITIES
MAY NOT BE OFFERED OR SOLD IN THE UNITED STATES OR TO U.S. PERSONS EXCEPT
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE 1933 ACT.
OTCBB:
CGNH
{Accredited
Investors Only}
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INSTRUCTIONS
TO SUBSCRIBER
1.This
subscription agreement is for use by Accredited Investors
only.
2.Complete
the information regarding the number of shares being purchased and the
aggregate purchase price required in § 1.1 below.
3.Insert
the applicable information required on page 7 and sign the Subscription
Agreement where indicated on page 7.
4.Complete
and sign the Accredited Investor Questionnaire contained in Annex 1 to
this Subscription Agreement in accordance with its
instructions.
5.Return
the fully completed and executed originals of this Subscription Agreement
and the Accredited Investor Questionnaire to:
0000
Xxxxxxx Xxxxx, Xxxx 0
Xxxxxxxxxxx,
Xxxxxxx X0X 0X0
Xxxxxx
Attention:
Xxxxx Xxxxx, Chief Executive Officer
_______________________
Tel:
0.000.000.0000
Fax:
0.000.000.0000
E-Mail:
xxxxxx@xxxxxxxxxxxx.xxx
6.
Upon your receipt of the fully executed counterpart of this Subscription
Agreement from the Company, please wire transfer the required Purchase
Price to CardioGenics, in accordance with the wire instructions contained
in Annex 2 to this Agreement.
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PRIVATE PLACEMENT SUBSCRIPTION
AGREEMENT (the “Agreement”) by and
between CARDIOGENICS HOLDINGS
INC., a corporation duly organized and validly existing under the laws of
the State of Nevada (the “Company”) and the
undersigned party (the “Subscriber”).
INTRODUCTORY
STATEMENT
The
Company desires to make available for purchase up to 4,000,000 shares of the
Company’s common stock, at a price of US$0.50 per share (the “Shares”), which
Shares may be purchased by Subscribers in minimum blocks of 50,000 Shares (US$25,000). The Company,
without notice to any existing subscribers, may from time-to-time, on a
case-by-case basis (and in its sole discretion), waive the foregoing minimum
subscription requirements and any other requirement of this Agreement. If
accepted by the Company, each subscription shall fund and close as the Company
receives the funds for such subscription, whether or not all 4,000,000 Shares
are subscribed. The solicitation of this Agreement and, if accepted by the
Company, the offer, sale and issuance of the Shares are being made in reliance
upon the provisions of Regulation D (“Regulation D”)
promulgated under the United States Securities Act of 1933, as amended (the
“Act”).
NOW, THEREFORE, for and in
consideration of the mutual promises, representations, warranties and conditions
set forth herein, the parties hereto hereby agree as follows:
SUBSCRIPTION;
CLOSING; CLOSING DELIVERIES & CONDITIONS; AND CLOSING ESCROW
1.1 Subscription. Subject
to the terms and conditions hereinafter set forth, the Subscriber hereby
subscribes for and agrees to purchase from the Company, the number of Shares
indicated below for the aggregate purchase price indicated below (the “Purchase Price”), and
upon execution by the Company, the Company agrees to sell to Subscriber the
Shares in consideration for the Purchase Price.
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NUMBER
OF SHARES TO BE PURCHASED:
__________________________
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PURCHASE
PRICE:
US
$_______________________
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2
1.2 Closing. The closing of
the transactions contemplated herein (the “Closing”) shall occur
at such time and place agreed upon by the parties, but in no event later than
five (5) Business Days following the execution of this Agreement by the
Subscriber and acceptance of this Agreement by the Company.
1.3 Pre-Closing
& Closing Deliveries. The following items shall
be delivered by the parties at the Closing, or at such other times as may be
specified:
(A) Upon
execution of this Agreement, Subscriber shall deliver a properly completed and
executed counterpart of this Agreement to the Company at the address specified
in the instructions on page 1, along with a properly completed and executed
Accredited Investor Questionnaire in the form contained in Annex 1.
(B) If
the subscription is accepted by the Company, the Company shall deliver promptly
to Subscriber a fully executed counterpart of this Agreement.
(C) Promptly
after receipt of the fully executed counterpart of this Agreement, Subscriber
shall wire transfer to the Company the Purchase Price in accordance with the
wire instructions contained in Annex 2.
REPRESENTATIONS
AND WARRANTIES BY SUBSCRIBER
2.1 Subscriber
hereby represents and warrants to the Company the following:
(A) Subscriber
recognizes that the purchase of the Shares subscribed to herein involves a high
degree of risk.
(B) An
investment in the Company is highly speculative and only investors who can
afford the loss of their entire investment should consider investing in the
Company and the Shares.
(C) Subscriber
is purchasing the Shares for its own account for investment and not with a view
towards distribution. Subscriber acknowledges that it must bear the
economic risk of its investment indefinitely unless the Shares are resold in
compliance with Regulation D, are registered pursuant to the Act, or an
exemption from such registration is available.
(D) Subscriber
is a sophisticated investor (as defined in Rule 506(b)(2)(ii) of Regulation D
and has such knowledge and experience in finance, securities, investments, and
other business matters so as to be able to evaluate the merits and risks of an
investment in the Shares;
(E) Subscriber
is an accredited investor (as defined in Rule 501 of Regulation D) and has
delivered to the Company, along with this Agreement, a properly completed and
executed Accredited Investor Questionnaire in the form attached as Annex 1 to
this Agreement.
3
(F) Subscriber
hereby acknowledges that (i) this offering of the Shares has not been reviewed
by the United States Securities and Exchange Commission; (ii) the Shares are
being issued by the Company pursuant to an exemption from registration provided
by Section 4(2) of the Act; and (iii) the stock certificate evidencing the
Shares will contain a restrictive legend substantially in the following
form:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR STATE SECURITIES LAWS, AND NO
TRANSFER OF THESE SECURITIES MAY BE MADE EXCEPT (A) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR (B) PURSUANT TO AN EXEMPTION THEREFROM
WITH RESPECT TO WHICH THE COMPANY MAY REQUIRE AN OPINION OF COUNSEL FOR THE
HOLDER THAT SUCH TRANSFER IS EXEMPT FROM THE REQUIREMENTS OF THE
ACT.
(G) Subscriber
is not an officer, director or “affiliate” (as that term is defined in Rule 405
of the Act) of the Company.
(H) Subscriber
knows of no public solicitation or advertisement of an offer in connection with
the proposed issuance and sale of the Shares.
(I) Subscriber
acknowledges that it has had the opportunity to review this Agreement and the
Company’s public filings on XXXXX with his or its own legal counsel and
investment and tax advisors. The Subscriber is relying solely on such
counsel and advisors and not on any statements or representations of the Company
or any of its representatives or agents for legal, tax or investment advice with
respect to this investment, the transactions contemplated by this Agreement or
the securities laws of any jurisdiction.
(J) Subscriber
has been given the opportunity to ask questions of, and receive answers from,
the Company concerning the investment and to obtain any additional information
that Subscriber deemed necessary.
(K) Subscriber
understands that the Shares are being offered and sold to it in reliance on
specific provisions of United States federal and state securities laws and that
the Company is relying upon the truth and accuracy of the representations,
warranties, agreements, acknowledgments and understandings of the Subscriber set
forth in this Agreement in order to determine the applicability of such
provisions.
(L) Subscriber
has been advised that (i) there are substantial limitations on Subscriber’s
ability to sell or transfer the Shares, and (ii) it may not be possible to
readily liquidate Subscriber’s investment in the Shares.
(M) Subscriber,
if a corporation, limited liability company, partnership, trust or other form of
business entity, is authorized and otherwise duly qualified to purchase and hold
Shares and such entity has not been formed for the specific purpose of acquiring
Shares in this Offering. If Subscriber is one of the aforementioned
entities, it hereby agrees that upon request of the Company it will supply the
Company with any additional written documentation as the Company may deem
necessary or desirable in order to evidence the above-referenced authorization
or qualifications of such entity.
4
REPRESENTATIONS
BY THE COMPANY
3.1 The
Company represents and warrants to the Subscriber that:
(A) The
Company is a corporation duly organized, existing and in good standing under the
laws of the State of Nevada and has the corporate power to conduct the business
which it conducts and proposes to conduct.
(B) Upon
issuance, the Shares purchased hereunder by Subscriber will be duly and validly
issued, fully paid and non-assessable common shares of the Company.
ADDITIONAL
TERMS OF SUBSCRIPTION
4.1 Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York except for matters arising
under the Act or the United States Securities Exchange Act of 1934, as amended,
which matters shall be construed and interpreted in accordance with such
laws.
4.2 Entire
Agreement; Amendment. This Agreement and the other
documents delivered pursuant hereto constitute the full and entire understanding
and agreement between the parties with regard to the subjects hereof and
thereof, and no party shall be liable or bound to any other party in any manner
by any warranties, representations or covenants except as specifically set forth
in this Agreement or therein. Except as expressly provided in this
Agreement, neither this Agreement nor any term hereof may be amended, waived,
discharged or terminated other than by a written instrument signed by the party
against whom enforcement of any such amendment, waiver, discharge or termination
is sought.
4.3 Notices. Any
notice, demand or request required or permitted to be given by either the
Company or Subscriber pursuant to the terms of this Agreement shall be in
writing and shall be deemed given when delivered personally, by commercial
courier or by facsimile (with a hard copy to follow by two-day courier addressed
to the parties at the addresses of the parties set forth at the end of this
Agreement or such other address as a party may request by notifying the other in
writing).
4.4 Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
enforceable against the parties actually executing such counterparts, and all of
which together shall constitute one instrument.
4.5 Severability. In
the event that any provision of this Agreement becomes or is declared by a court
of competent jurisdiction to be illegal, unenforceable or void, this Agreement
shall continue in full force and effect without said provision; provided that no
such severability shall be effective if it materially changes the economic
benefit of this Agreement to any party.
5
4.6 Titles
and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
4.7 Compliance
with Securities Laws. Nothing in this Agreement shall
affect in any way the Subscriber’s obligations and agreement to comply with all
applicable securities laws upon resale of the Shares.
4.8 Further
Assurances. The parties agree to execute and deliver all
such further documents, agreements and instruments and take such other and
further action as may be necessary or appropriate to carry out the purposes and
intent of this Agreement.
The
undersigned acknowledges that this subscription shall not be effective unless
accepted by the Company as indicated below.
[SIGNATURES
APPEAR ON NEXT PAGE]
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If
Subscriber is a corporation, limited liability company, partnership or
other entity:
(Print
or Type Name of Entity)
X
(Signature of Authorized Signatory) (Print
Name of Authorized Signatory)
(Title
of Authorized Signatory)
(Type
of Entity)
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If
Subscriber is an Individual:
X
(Signature)
(Print
or Type Name)
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7
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THIS
SUBSCRIPTION IS ACCEPTED BY THE COMPANY ON THE __________DAY OF NOVEMBER,
2010.
By:___________________________________
Name: Xxxxx
Xxxxx
Title: Chief
Executive Officer
Principal
Place of Business:
0000
Xxxxxxx Xxxxx, Xxxx 0
Xxxxxxxxxxx,
Xxxxxxx X0X 0X0
Xxxxxx
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8
ANNEX
1
ACCREDITED
INVESTOR QUESTIONNAIRE
9
Accredited Investor
Questionnaire
CardioGenics Holdings Inc. (“CardioGenics”)
The purpose of this Questionnaire is to
determine whether you meet the standards for participation in a non-public
offering under Section 4(2) of the Securities Act of 1933, as amended ("Act"),
and under the laws of the various States.
We do not use your confidential
information for any purpose other than determining that you meet the definition
of Accredited Investor as required by State and Federal law; however, each
individual or entity that completes and submits this Questionnaire thereby
agrees that CardioGenics may present such responses to this Questionnaire to
such parties as CardioGenics deems appropriate for verification in order to
assure itself and future issuers that the subsequent offer and sale of
securities will not result in a violation of the provisions of State or Federal
securities laws.
Please complete this form as thoroughly
as possible and submit it. If the answer to any question is "None" or "Not
Applicable", please so
state. Do not leave blanks.
Part I
If
Investor is an individual, please complete the following
information:
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Name:
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Date of
Birth:
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Social Security
#:
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Residential
Address:
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City: State: Zip:
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Tel
#: Fax
#: E-Mail:
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âPlease indicate the state in which
you are registered to
vote:
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âPlease indicate the state in which
you hold a valid
driver’s license:
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âPlease indicate your state of
residence as indicated on your last personal income tax
return:
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10
If
Investor is an entity, please complete the following information:
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Name of
Entity:
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EIN:
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Address of
Entity:
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City: State: Zip:
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Tel
#: Fax
#: E-Mail:
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Type of
Entity: o
Corporation o Limited Liability
Company o Partnership
o Trust o
Estate
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Part II
FOR
INDIVIDUALS:
Are you:
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(i)
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a 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?
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Yes:_____ No:_____
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(ii)
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a 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?
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Yes:_____ No:_____
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(iii)
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a director, executive officer, or
general partner of the issuer of the securities being offered or sold, or
a director, executive officer, or general partner of a general partner of
that issuer?
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Yes:_____ No:_____
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FOR
ENTITIES:
Are you:
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(iv)
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a bank as defined in section
3(a)(2) of the Act, or a savings and loan association or other institution
as defined in section 3(a)(5)(A) of the Act whether acting in its
individual or fiduciary
capacity?
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Yes:_____ No:_____
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(v)
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a broker or dealer registered
pursuant to section 15 of the Securities Exchange Act of
1934?
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Yes:_____ No:_____
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(vi)
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an insurance company as defined in
section 2(13) of the Act?
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Yes:_____ No:_____
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(vii)
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an 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?
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Yes:_____ No:_____
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(viii)
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a 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?
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Yes:_____ No:_____
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(ix)
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a 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?
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Yes:_____ No:_____
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(x)
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an 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 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?
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Yes:_____ No:_____
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(xi)
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a private business development
company as defined in section 202(a)(22) of the Investment Advisors Act of
1940?
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Yes:_____ No:_____
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(xii)
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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 securities offered, with total assets in excess
of $5,000,000?
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Yes:_____ No:_____
[INTENTIONALLY
LEFT BLANK]
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PART
III
The
undersigned Investor hereby certifies that the information contained in this
Questionnaire is complete and accurate and the undersigned Investor will notify
CardioGenics promptly of any change in any such information.
If this
Questionnaire is being completed on behalf of a corporation, limited liability
company, partnership, trust or estate, the person executing on behalf of the
undersigned Investor represents that it has the authority to execute and deliver
this Questionnaire on behalf of such entity.
Dated:
________________, 2010
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If
a corporation, limited liability company, partnership or other
entity:
(Print
or Type Name of Entity)
X
(Signature of Authorized Signatory) (Print
Name of Authorized Signatory)
(Title
of Authorized Signatory)
(Type
of Entity)
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If
an Individual:
X
(Signature)
(Print
or Type Name)
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14
ANNEX
2
WIRE
INSTRUCTIONS
15
Wire
Instructions
| Wire transfer to the Company by Subscriber: | |
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Bank:
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ABA
#:
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Account
Name:
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BRANCH:
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Account
#:
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**********************************************************
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