EXHIBIT 10.1
SUBSCRIPTION
AGREEMENT
THIS SUBSCRIPTION AGREEMENT (this
“Agreement”), dated as of April 23, 2009, is by and
among American DG Energy Inc., a Delaware corporation (the
“Company”), and the subscribers identified on the
signature pages hereto (each a “Subscriber” and
collectively the “Subscribers”).
WHEREAS, the Company and the Subscribers are
executing and delivering this Agreement in reliance upon an
exemption from securities registration afforded by the provisions
of Section 4(2), Section 4(6) and/or Regulation D (“Reg.
D”) as promulgated by the United States Securities and
Exchange Commission (the “SEC”) under the Securities
Act of 1933, as amended (the “Securities Act”);
and
WHEREAS, the parties desire that, upon the terms
and subject to the conditions contained herein, the Company shall
issue and sell to the Subscribers, as provided herein, and the
Subscribers shall purchase, in the aggregate, at the Closing (as
defined below), $2,260,000 (the “Purchase Price”) of
shares of the Company’s Common Stock (such shares, the
“Shares”) at a purchase price per Share of U.S. $2.10
(“Per Share Purchase Price”). The Purchase
Price shall be payable to the Company at the Closing.
NOW, THEREFORE, in consideration of the mutual
covenants and other agreements contained in this Agreement, the
Company and the Subscribers hereby agree as follows:
1. Purchase and Sale of
Shares . Subject to the satisfaction (or waiver) of
the conditions to Closing set forth in this Agreement, at the
Closing, each Subscriber shall purchase Shares for the portion of
the Purchase Price indicated on such Subscriber’s signature
page hereto (the “Subscriber’s Purchase Price”),
and the Company shall sell such Shares to the
Subscriber.
2. Closing; Deliveries Etc
.
(a) Closing . The
consummation of the transactions contemplated herein (the
“Closing”) shall take place remotely via the electronic
exchange of documents and signatures, at 10:00 a.m., Eastern U.S.
Time, on Monday, April 27, 2009 (the “Closing Date”),
provided that the conditions to Closing set forth herein have been
satisfied or waived.
(b)
Company’s Deliveries . At the Closing, the Company
shall deliver or cause to be delivered to each Subscriber a copy of
duly executed irrevocable instructions, in customary form, to the
Company’s transfer agent instructing the transfer agent to
deliver, on an expedited basis, a certificate evidencing a number
of Shares equal to such Subscriber’s Purchase Price divided
by the Per Share Purchase Price, registered in the name of such
Subscriber.
(c)
Subscribers’ Deliveries . At the Closing, each
Subscriber shall deliver or cause to be delivered to the Company
such Subscriber’s Purchase Price by wire transfer to an
account specified in writing by the Company prior to the
Closing.
(d) Subscribers’ Closing
Conditions . The obligation of each Subscriber to consummate
the transactions contemplated by this Agreement at the Closing
shall be subject to the satisfaction, prior to or at the Closing,
of the following conditions: (i) the representations and
warranties of the Company contained in this Agreement shall be true
and correct in all material respects on and as of the Closing Date
as though such warranties and representations were made at and as
of such date; (ii) the Company shall have performed and complied in
all material respects with all agreements, covenants and conditions
contained in this Agreement which are required to be performed or
complied with by the Company prior to or at the Closing; and (iii)
there shall be no effective injunction, writ, preliminary
restraining order or any order of any nature issued by a court of
competent jurisdiction directing that the transactions provided for
herein or any of them not be consummated as herein
provided.
American DG
Energy Inc.
Subscription
Agreement Offering 2009
(e) Company’s Closing
Conditions . The obligation of the Company to consummate the
transactions contemplated by this Agreement at the Closing, shall
be subject, in the absence of a written waiver by the Company, to
the satisfaction, prior or at the Closing, of the following
conditions: (i) the representations and warranties of
each of the Subscribers contained in this Agreement shall be true
on and as of the Closing Date in all material respects as though
such warranties and representations were made at and as of such
date; (ii) each Subscriber shall have performed and complied in all
material respects with all agreements, covenants and conditions
contained in this Agreement which are required to be performed or
complied with by it prior to or at the Closing; and (iii) there
shall be no effective injunction, writ, preliminary restraining
order or any order of any nature issued by a court of competent
jurisdiction directing that the transactions provided for herein or
any of them not be consummated as herein provided.
3. Subscribers’
Representations and Warranties . Each Subscriber
hereby represents and warrants to and agrees with the Company, only
as to such Subscriber, that:
(a) Information on Company
. The Subscriber has been furnished with or has
had access at the EDGAR website of the SEC to the Company’s
Form 10-K for the year ended December 31, 2008, and all filings
subsequently made by the Company with the SEC (hereinafter referred
to collectively as the “Reports”). In
addition, the Subscriber has received in writing from the Company
such other information concerning its operations, financial
condition and other matters as the Subscriber has requested in
writing and considered all factors the Subscriber deems material in
deciding on the advisability of investing in the Shares.
(b) Information on Subscriber
. The Subscriber was at the time it was offered the
Shares, is on the date hereof and will be on the Closing Date an
“accredited investor”, as such term is defined in Reg.
D promulgated by the SEC under the Securities Act, is experienced
in investments and business matters, has made investments of a
speculative or high risk nature and has purchased securities of
publicly-owned companies in private placements in the past and,
together with its representatives and/or trustee, as applicable,
has such knowledge and experience in financial, tax and other
business matters as to enable the Subscriber to utilize the
information made available by the Company to evaluate the merits
and risks of and to make an informed investment decision with
respect to the proposed purchase. The Subscriber has the
authority and is duly and legally qualified to purchase and own the
Shares. The Subscriber is able to bear the risk of such
investment for an indefinite period and to afford a complete loss
thereof. The information set forth on the signature page
hereto regarding the Subscriber is accurate. Such Subscriber does
not currently hold or beneficially own any shares of the
Company’s Common Stock. The Subscriber was not formed for the
specific purpose of acquiring the Shares and is not a registered
broker-dealer or an affiliate of a registered
broker-dealer.
(c) Purchase for Investment
. On the Closing Date, the Subscriber will purchase the
Shares as principal for its own account for investment and not with
a view to any sale of other transfer thereof in contravention of
the Securities Act.
(d) Compliance with the
Securities Act . The Subscriber understands and
agrees that the Shares have not been registered under the
Securities Act or any applicable state securities laws by reason of
their issuance in a transaction that does not require registration
under the Securities Act (based in part on the accuracy of the
representations and warranties of Subscriber contained herein), and
that such Shares must be held indefinitely unless a subsequent
disposition is registered under the Securities Act or any
applicable state securities laws or is exempt from such
registration.
American DG
Energy Inc.
Subscription
Agreement Offering 2009
(e) Restrictive Legend
. The Shares may bear a customary restrictive Securities
Act legend in the form specified by the Company.
(f) Communication of
Offer . The offer to sell the Shares was directly
communicated to the Subscriber by the Company. At no
time was the Subscriber presented with or solicited by any leaflet,
newspaper or magazine article, radio or television advertisement,
or any other form of general advertising or solicited or invited to
attend a promotional meeting otherwise than in connection and
concurrently with such communicated offer.
(g) Organization; Authority;
Enforceability . Such Subscriber, if an entity, is
duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization (if such “good
standing” concept is recognized in such jurisdiction) with
full right, corporate, partnership or trust power and
authority to enter into and to consummate the transactions
contemplated by this Agreement. This Agreement and other agreements
delivered together with this Agreement or in connection herewith
have been duly authorized, executed and delivered by the Subscriber
and are valid and binding agreements enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights
generally and to general principles of equity; and Subscriber has
full corporate, partnership, trust or similar power and authority
necessary to enter into this Agreement and such other agreements
and to perform its obligations hereunder and under all other
agreements entered into by the Subscriber relating
hereto.
(h) Correctness of
Representations . Each Subscriber represents as to
such Subscriber that the foregoing representations and warranties
are true and correct as of the date hereof and, unless a Subscriber
otherwise notifies the Company prior to the Closing, shall be true
and correct as of the Closing Date.
(i) Survival . The
foregoing representations and warranties shall survive the Closing
Date for three years.
(j) Restriction on Short
Sales . Each Subscriber agrees that, to the extent
required by law, it will not enter into or effect any short sale or
other hedging transaction with respect to the Company’s
Common Stock.
(k) Disclosure . Each
Subscriber acknowledges and agrees that the Company does not make
nor has made any representations or warranties with respect to the
Shares or the transactions contemplated hereby other than those
specifically set forth in Section 4 hereof.
4. Company Representations and
Warranties . The Company represents and warrants to
and agrees with each Subscriber that on the date hereof:
(a) Due Incorporation
. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware and has the requisite corporate power to own its
properties and to carry on its business as now being
conducted.
(b) Outstanding Stock
. All issued and outstanding shares of capital stock of
the Company has been duly authorized and validly issued and are
fully paid and non-assessable.
(c) Authority; Enforceability
. The Company has full corporate power and authority
necessary to enter into and deliver this Agreement and to perform
its obligations thereunder. This Agreement has been duly
authorized, executed and delivered by the Company and is a valid
and binding agreement enforceable against the Company in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights
generally and to general principles of equity.
American DG
Energy Inc.
Subscription
Agreement Offering 2009
(d) Consents
. No consent, approval, authorization or order of any
court or governmental agency or body having jurisdiction over the
Company is required for the execution by the Company of this
Agreement and compliance and performance by the Company of its
obligations hereunder, including, without limitation, the issuance
and sale of the Shares.
(e) No Violation or Conflict
. Assuming the representations and warranties of the
Subscribers in Section 3 are true and correct, neither the issuance
and sale of the Shares nor the performance of the Company’s
obligations under this Agreement and all other agreements entered
into by the Company relating thereto by the Company
will:
(i) violate, conflict with, result in
a breach of, or constitute a default (or an event which with the
giving of notice or the lapse of time or both would be reasonably
likely to constitute a default) under (A) the certificate of
incorporation of the Company, (B) to the Company’s knowledge,
any decree, judgment, order, law, treaty, rule, regulation or
determination applicable to the Company of any court or
governmental agency or body having jurisdiction over the Company or
over the properties or assets of the Company, (C) the terms of any
bond, debenture, note or any other evidence of indebtedness, or any
agreement, stock option or other similar plan, indenture, lease,
mortgage, deed of trust or other instrument to which the Company is
a party, by which the Company is bound, or to which any of the
properties of the Company is subject, or (D) the terms of any
“lock-up” or similar provision of any underwriting or
similar agreement to which the Company is a party except the
violation, conflict, breach, or default of which would not have a
material adverse effect on the business, operations or financial
condition of the Company and its subsidiaries taken as a whole (a
“Material Adverse Effect”);
(ii) result in the activation of any
anti-dilution rights or a reset or repricing of any debt or
security instrument of any other creditor or equity holder of the
Company, nor result in the acceleration of the due date of any
borrowing of the Company; or
(iii) result in the activation of any
piggy-back registration rights of any person or entity holding
securities of the Company or having the right to receive securities
of the Company.
(f) The Shares
. The Shares upon issuance in accordance with the terms
of this Agreement:
(i) are, or will be, free and clear
of any security interests, liens, claims or other encumbrances,
subject to restrictions upon transfer under the Securities Act and
any applicable state securities laws;
(ii) will be duly and validly
authorized, and on the date of issuance of the Shares, the Shares
will be duly and validly issued, fully paid and nonassessable;
and
(iii) will not have been issued or
sold in violation of any preemptive or other similar rights of the
holders of any securities of the Company.
(g) Litigation
. There is no pending or, to the best knowledge of the
Comp
