EXHIBIT 10.1
SUBSCRIPTION
AGREEMENT
THIS SUBSCRIPTION AGREEMENT (this
“Agreement”), is by and between American DG Energy
Inc., a Delaware corporation (the “Company”), and the
subscriber identified on the signature page below (the
“Subscriber”).
The Company and the Subscriber hereby agree as
follows:
1.
Purchase and Sale of Shares .
(a) Subject to the
terms and conditions of this Agreement, at the First Closing (as
defined herein), the Company shall sell and issue to the
Subscriber, and the Subscriber shall purchase from the Company that
number of shares of the Company’s Common Stock set forth on
the signature page at the per share purchase price also specified
therein.
(b) At the Second
Closing (as defined herein), at the option of the Subscriber, the
Company shall sell and issue to the Subscriber, and the Subscriber
shall purchase from the Company, that number of shares of the
Company’s Common Stock set forth on the signature page at the
per share purchase price also specified therein. The shares sold at
the First Closing and, if issued, the shares sold at the Second
Closing are referred to herein as the
“Shares”.
2. Closings. The
Closings shall take place as follows:
(a) The first closing
(the “First Closing”) of the sale and purchase of the
Shares pursuant to this Agreement is taking place contemporaneously
with the execution and delivery of this Agreement on the date
hereof. At the First Closing, the Subscriber is wiring to an
account specified by the Company the purchase price for the Shares
being purchased at the First Closing. As soon as practical after
the First Closing, the Company will cause its transfer agent to
deliver to the Subscriber a certificate representing that number of
Shares so purchased, which shall be registered in the name of the
Purchaser or its nominee.
(b) The Subscriber
shall indicate to the Company by written notice given no later than
December 15 th , 2009, whether or not it elects that the second
closing under this Agreement (the “Second Closing”)
shall occur. Such notice shall specify a closing date for the
Second Closing no more than 3 business days after the delivery of
such notice, or December 18 th , 2009 . At the Second Closing, the Subscriber will
wire to an account specified by the Company the purchase price for
the Shares being purchased at the Second Closing. As soon as
practical after the Second Closing, the Company will cause its
transfer agent to deliver to the Subscriber a certificate
representing that number of Shares so purchased, which shall be
registered in the name of the Purchaser or its nominee.
(c) The First Closing
and the Second Closing, if any, shall be collectively referred to
as the “Closings,” each may individually be referred to
as a “Closing” and the date of each Closing shall be
referred to as a “Closing Date.” All deliveries at each
Closing shall take place by the electronic delivery, by fax or
email, of all closing documents.
(d) In
the event that the Subscriber shall notify the Company that it
elects that the Second Closing shall occur, the obligation of the
Subscriber to consummate the Second Closing shall be subject to the
satisfaction, prior to or at the Second 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 Second 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) In
the event that the Subscriber shall notify the Company that it
elects that the Second Closing shall occur, the obligation of the
Company to consummate the Second Closing shall be subject to the
satisfaction, prior to or at the Second Closing, of the following
conditions: (i) the representations and
warranties of the Subscriber contained in this Agreement shall be
true on and as of the Second Closing Date in all material respects
as though such warranties and representations were made at and as
of such date; (ii) the 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 Second 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.
Subscriber’s Representations and Warranties . The
Subscriber hereby represents and warrants to and agrees with the
Company that:
(a)
Information on Company . The Subscriber has been
furnished with or has had access at the EDGAR website of the U.S.
Securities and Exchange Commission (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 regarding the Subscriber is accurate. The Subscriber does not
currently hold or beneficially own any shares of the
Company’s Common Stock other than as set forth on the
signature page. 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 of 1933 (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 . The
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 . The Subscriber represents
that the foregoing representations and warranties are true and
correct as of the date hereof and, unless the 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 applicable Closing Date for three
years.
(j)
Restriction on Short Sales . The 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 . The 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 the 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 have 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 Subscriber 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
re-pricing 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 Company, threatened action, suit, proceeding or
investigation before any court, governmental agency or body, or
arbitrator having jurisdiction over the Company that would affect
the execution by the Company or the performance by the Company of
its obligations under this Agreement, and all other agreements
entered into by the Company relating hereto. Except as
disclosed in the Reports, there is no pending or, to the best
knowledge of the Company, basis for or threatened action, suit,
proceeding or investigation before any court or governmental agency
or body, which litigation if adversely determined could have a
Material Adverse Effect.
(h)
Reporting Company . The Company is a
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