SUBSCRIPTION AND INVESTMENT AGREEMENT
This Subscription and Investment Agreement (this "Agreement") is
executed in reliance upon the transaction exemption afforded by Regulation S
("Regulation S"), promulgated by the Securities and Exchange Commission ("SEC")
under the Securities Act of 1933, as amended ("1933 Act").
The securities subscribed to hereby have not been registered under the
1933 Act and may not be offered or sold in the United States or to U.S. persons
(as defined in Section 4(A)(i) below) unless the securities are registered under
the 1933 Act, or an exemption from the registration requirements of the 1933 Act
is available. Hedging transactions in these securities may not be conducted
except in compliance with the 1933 Act.
This Agreement has been executed by the undersigned in connection with
the issuance of 14,000,000 shares of Common Stock (the "Shares") of Ener1, Inc.,
a Florida corporation (the "Issuer"), whose Common Stock is included for trading
on the OTC Bulletin Board, and ITOCHU Corporation ("Subscriber"), a non-U.S.
person (whenever such term is used herein, it shall have the meaning given in
Regulation S)(the "Offering").
The parties hereto agree as follows:
1. Agreement to Subscribe: Purchase Price.
A. Subscription. The Subscriber hereby agrees to
purchase the Shares from the Issuer.
B. Form of Payment. Subscriber shall pay the Issuer the
sum of US$3.5 million (the "Purchase Price"), in full payment of the Purchase
Price for the Shares.
2. Options to Purchase Additional Common Stock of Issuer.
A. First Six Month Option Period. For a period of six
months from the date of this Agreement, Subscriber shall have the option to
purchase additional Common Stock of the Issuer totaling not more than Four
Percent (4%), in the aggregate, of the Issuer's total outstanding Common Stock,
computed immediately prior to the date hereof, at the price of US$0.70 per
share.
B. Second Six Month Option Period. During the second
six months following the date of this Agreement, Subscriber shall have the
option to purchase additional Common Stock of the Issuer totaling not more than
Three Percent (3%), in the aggregate, of the Issuer's total outstanding Common
Stock, computed immediately prior to the date hereof, at the price of US$2.50
per share.
C. Terms of Option Exercise. The options in A and B
above may be exercised in whole or in part, at any time and from time to time,
during their respective periods. All purchases under the options shall be made
in accordance with purchase terms herein. The option prices shall be adjusted to
account for the effect of forward or reverse splits in Issuer's stock (e.g., if
the Issuer completes a reverse stock split for its Common Stock on a one-for-two
basis, the option price per share for the second option period would be US$5.00
per share).
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4. Subscriber Representations; Covenants; Share Legend; Access to
Information; Independent Investigation.
A. Subscriber Representations. Subscriber represents
and warrants to Issuer as of the date this Agreement is executed by Subscriber,
as follows:
(i) Subscriber is not a U.S. person (whenever
such term is used herein, it shall have the meaning given in Regulation
S).
(ii) At the time Subscriber executed and
delivered this Agreement, Subscriber was outside the United States and
is outside of the United States as of the date of the execution and
delivery of this Agreement.
(iii) Subscriber is acquiring the Shares for its
own account and not on behalf of any U.S. person, and the sale has not
been pre-arranged with a purchaser in the United States.
(iv) All offering documents received by
Subscriber have included statements to the effect that the Shares have
not been registered under the 1933 Act and may not be offered or sold
in the United States or to or for the account or benefit of a U.S.
person (other than distributors as defined in Regulation S) during the
period commencing on the date of the closing of the Offering of the
Shares and ending one year thereafter, unless adjusted as hereinafter
provided (the "Restricted Period") unless the Shares are registered
under the 1933 Act or an exemption from the registration requirements
is available.
(v) Subscriber acknowledges that the purchase of
the Shares involves a high degree of risk and affirms that it can bear
the economic risk of acquiring the Shares, including the total loss of
its investment.
(vi) Subscriber is sufficiently experienced in
financial and business matters to be capable of evaluating the merits
and risks of its investments and to make an informed decision relating
thereto.
(vii) In evaluating its investment, Subscriber has
consulted its own investment and/or legal and/or tax advisors.
(viii) Subscriber acknowledges that, in the view of
the SEC, the statutory exemption claimed for this transaction would not
be present if the offering of Shares, although in technical compliance
with Regulation S, is part of a plan or scheme to evade the
registration provisions of the 1933 Act. Subscriber is acquiring the
Shares for investment purposes and has no present intention to sell the
Shares in the United States or to a U.S. person or for the account or
benefit of a U.S. person either now or promptly after the expiration of
the Restricted Period.
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(ix) Subscriber is not an underwriter of, or
dealer in, the Shares; and Subscriber is not participating, pursuant to
a contractual agreement, in the distribution of the Shares.
(x) If Subscriber is purchasing the Shares
subscribed for hereby in representative or fiduciary capacity, the
representations and warranties in this Agreement shall be deemed to
have been made on behalf of the person or persons for whom Subscriber
is so purchasing.
(xi) (a) Subscriber is a corporation
organized and existing, and in good standing under, the laws of
[Japan], and that it has full and unrestricted authority to enter into
this Agreement and to perform its obligations hereunder.
(b) The execution, delivery and
performance of this Agreement by Subscriber will not result in any
breach or violation of any contract, agreement, undertaking, judgment,
decree, order, law, regulation or rule to which Subscriber is a party
or by which Subscriber or any of its assets are bound.
(c) This Agreement has been duly and
validly executed and delivered by Subscriber and is binding upon and
enforceable against Subscriber in accordance with its terms, except as
enforceability may be limited or affected by applicable bankruptcy,
insolvency, reorganization or other laws of general application
relating to or affecting the rights of creditors and except as
enforceability may be limited by rules of law governing specific
performance, injunctive relief or other equitable remedies.
The foregoing representations and warranties are true and accurate as
of the date hereof, and shall be true and accurate as of the date of the
acceptance by the Issuer of Subscriber's subscription. Subscriber understands
that the Shares are being offered and sold to it in reliance on specific
exemptions from the registration requirements of federal and state securities
laws and that the Issuer is relying upon the truth and accuracy of the
representations, warranties, agreements, acknowledgments and undertakings of
Subscriber set forth herein in order to determine the applicability of such
exemptions and the suitability of Subscriber to acquire the Shares.
B. Subscriber Covenants. Subscriber covenants as
follows:
(i) Subscriber hereby agrees that all offers and
sales of the Shares prior to the expiration of the Restricted Period shall only
be made in compliance with the safe harbor contained in Regulation S, pursuant
to registration of the Shares under the 1933 Act or pursuant to an exemption
from registration, and all offers and sales after the Restricted Period shall be
made only pursuant to such a registration or to such exemption from
registration.
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(ii) Subscriber will not engage in any hedging
transactions as precluded by Regulation S under the Act.
C. Share Legend. The parties hereto agree that the
Shares shall contain the following legend on the face of the certificates
evidencing the Shares:
"THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE UNITED STATES
SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION
OF ANY STATE. THESE SECURITIES ARE BEING OFFERED PURSUANT TO A
SAFE HARBOR FROM REGISTRATION UNDER REGULATION S PROMULGATED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). THE
SECURITIES ARE "RESTRICTED" AND MAY NOT BE OFFERED OR SOLD IN THE
UNITED STATES OR TO U.S. PERSONS (AS SUCH TERM IS DEFINED IN
REGULATION S PROMULGATED UNDER THE ACT) UNLESS THE SECURITIES ARE
REGISTERED UNDER THE ACT, PURSUANT TO REGULATION S OR PURSUANT TO
AVAILABLE EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE
ACT AND THE SELLER WILL BE PROVIDED WITH OPINION OF COUNSEL OR
OTHER SUCH INFORMATION AS IT MAY REASONABLY REQUIRE TO CONFIRM
THAT SUCH EXEMPTIONS ARE AVAILABLE. FURTHER HEDGING TRANSACTIONS
INVOLVING THE SECURITIES MAY NOT BE MADE EXCEPT IN COMPLIANCE
WITH THE ACT."
D. Registration Under Section 12(g) of the Securities
Exchange Act of 1934. Subscriber acknowledges that Issuer's Common Stock is
registered under Section 12(g) of the Securities Exchange Act of 1934 (the
"1934 Act") and, it is currently obligated to file periodic reports with the SEC
pursuant to the 1934 Act.
E. Independent Investigation; Access. Subscriber
acknowledges that Subscriber, in making the decision to purchase the Shares
subscribed for, has relied upon independent investigations made by it and
Subscriber's representatives, if any, and Subscriber and such representatives,
if any, have been given access and the opportunity, prior to any sale to it, to
examine all material books and records of the Issuer, all material contracts and
documents relating to this offering and an opportunity to ask questions of, and
to receive answers from Issuer or any person acting on its behalf concerning the
terms and conditions of this offering. Subscriber and its advisors, if any, have
been furnished with access to all publicly available materials relating to the
business, finances and operations of the Issuer and materials relating to the
offer and sale of the Shares which have been requested. Subscriber and its
advisors, if any, have received complete and satisfactory answers to any such
inquiries.
F. No Government Recommendation or Approval. Subscriber
understands that no federal or state agency has made or will make any finding or
determination relating to the fairness for public investment in the Subscribers,
or has passed or made, or will pass on or make, any recommendation or
endorsement of the Shares.
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5. Issuer Representations.
A. Issuer Representations. Issuer represents and
warrants to Subscriber as of the date this Agreement is executed by Issuer, as
follows:
(i) Offshore Transaction. The Issuer has not
offered the Shares to any person in the United States or to any U.S.
person or for the account or benefit of any U.S. person.
(ii) No Directed Selling Efforts. In regard to
this transaction, the Issuer has not conducted any "directed selling
efforts" as that term is defined in Rule 902 of Regulation S, nor has
the Issuer conducted any general solicitation relating to the offer and
sale of the Shares to persons resident within the United States or
elsewhere.
(iii) Intellectual Property. To the best of its
knowledge, the Issuer owns or possesses sufficient title and ownership
to all patents, trademarks, service marks, trade names, copyrights,
trade secrets, licenses, information and proprietary rights and
processes necessary for its business as now conducted and as proposed
to be conducted without any conflict with, or infringement of, the
rights of others. There are no outstanding options, licenses, or
agreements of any kind relating to the foregoing, nor is the Issuer
bound by or a party to any options, licenses or agreements of any kind
with respect to the patents, trademarks, service marks, trade names,
copyrights, trade secrets, licenses, information, proprietary rights
and processes of any other person or entity. The Issuer has not
received any communications alleging that the Issuer has violated or,
by conducting its business, would violate any of the patents,
trademarks, service marks, trade names, copyrights, trade secrets or
other proprietary rights or processes of any other person or entity.
The Issuer is not aware that any of its employees is obligated under
any contract (including license, covenants or commitments of any
nature) or other agreement, or subject to any judgment, decree or order
of any court or administrative agency, that would interfere with the
use of such employee's best efforts to promote the interest of the
Issuer or that would conflict with the Issuer's business. Neither the
execution or delivery of this Agreement, nor the carrying on of the
Issuer's business by the employees of the Issuer, nor the conduct of
the Issuer's business as proposed, will, to the Issuer's knowledge,
conflict with or result in a breach of the terms, conditions, or
provisions of, or constitute a default under, any contract, covenant or
instrument under which any such employee is now obligated. The Issuer
does not believe it is or will be necessary to use any inventions of
any of its employees (or persons it currently intends to hire) made
prior to their employment by the Issuer.
(iv) Securities Filings. The Annual Report filed
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
(the "1934 Act") for the fiscal year ended December 31, 2002 (the
"Form 10-KSB") is accurate in all material respects and does not omit
any material matters that are required to be reported pursuant to the
1934 Act. There has been no material adverse change in the information
contained in the Form 10-KSB that was not reported in the Form 10-QSB
filed for the quarter ended March 31, 2003.
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(v) Qualification of Offering. Subject to the
accuracy of the representations of Subscriber made in Section 4 above,
the Offering qualifies as an exempt transaction pursuant to Regulation
S.
(vi) Litigation. There is no action, suit,
proceeding or investigation pending or, to the Issuer's knowledge,
currently threatened against the Issuer or any of its subsidiaries or
affiliates that questions the validity of this Agreement or the right
of the Issuer to enter into it, or to consummate the transactions
contemplated hereby, or that would result, either individually or in
the aggregate, in any material adverse change in the assets, condition
or affairs of the Issuer, financially or otherwise, or any material
change in the current equity ownership of the Issuer, nor is the Issuer
aware that there is any basis for the foregoing.
(vii) Financial Statements. The audited financial
statements (including balance sheet, income statement and statement of
cash flows) as of and for the fiscal year ended December 31, 2002 (the
"Financial Statements") have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis throughout
the period indicated and fairly present the financial condition and
operating results of the Issuer for the period indicated. Except as
otherwise set forth in the Financial Statements, the Issuer had, as of
the date of the Financial Statements no material liabilities,
contingent or otherwise, other than liabilities incurred in the
ordinary course of business.
(viii) Title to Property and Assets. The Issuer
owns its property and assets free and clear of all mortgages, liens,
loans and encumbrances, except such encumbrances and liens which arise
in the ordinary course of business and do not materially impair the
Issuer's ownership or use of such property or assets and the security
interests held by BZINFIN SA and Meliorbanca S.p.A. with respect to
equipment and pending patents, as to which the Subscriber acknowledges
that it has been informed. With respect to the property and assets it
leases, the Issuer is in compliance with such leases and, to its
knowledge, holds a valid leasehold interest free of any liens, claims
or encumbrances.
(ix) (a) Issuer is a corporation organized
and existing, and in good standing under, the laws of [the State of
Florida, United States of America], and that it has full and
unrestricted authority to enter into this Agreement and to perform its
obligations hereunder.
(b) The execution, delivery and
performance of this Agreement by Issuer will not result in any breach
or violation of any contract, agreement, undertaking, judgment, decree,
order, law, regulation or rule to which Issuer is a party or by which
Issuer or any of its assets are bound.
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(c) This Agreement has been duly and
validly executed and delivered by Issuer and is binding upon and
enforceable against Issuer in accordance with its terms, except as
enforceability may be limited or affected by applicable bankruptcy,
insolvency, reorganization or other laws of general application
relating to or affecting the rights of creditors and except as
enforceability may be limited by rules of law governing specific
performance, injunctive relief or other equitable remedies.
(x) The results of bending test MoO3 films
(395µthickness) shown to the delegation of Subscriber on June 29, 2003 were
processed and produced using the Vapor High Density Vacuum Condensation -
Solidification Process at ENER1 laboratory in Ukraine, and such process is
detailed in the attached EXHIBIT A.
6. Expiration of Restricted Period. The transaction
restriction in connection with this offshore offer and sale restrict the
Subscriber from offering and selling to U.S. persons or for the account or
benefit of a U.S. person for a one-year period. In the event that multiple
subscriptions are accepted by the Issuer, each separate subscription agreement
shall be deemed to be a separate offering under Regulation S, and the
restrictive period shall begin for each transaction separately on the date
payment is made for that specific transaction. Upon the expiration of the
Restricted Period, upon the request of Subscriber combined with the return of
the stock certificates representing the Shares, the Issuer shall re-issue the
certificates without the restrictive legend and promptly deliver the same to
Subscriber.
7. Registration of Shares. If prior to the expiration of the
Restricted Period, the Issuer undertakes to either (a) register any shares of
the Issuer's equity securities under applicable securities laws of the United
States; or (b) re-list its securities on any publicly traded market in the
United States, the Issuer shall, at Issuer's expense, take all actions necessary
to include with such registration or to separately register pursuant to the 1933
Act the Shares purchased by Subscriber hereunder, prior to undertaking such
action.
8. Exemption; Reliance on Representations. Subscriber
understands that the issuance of the Shares is not being registered under the
1933 Act, and that the Issuer is relying on the rules governing offers and sales
made outside the United States pursuant to Regulation S. Rules 901 through 903
of Regulation S govern this transaction.
9. Stock Delivery Instructions. The Shares shall be delivered to
the Subscriber promptly following acceptance of this Agreement by the Issuer (as
acknowledged by signature below) and payment of the consideration required by
this subscription agreement.
10. Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereof with respect to the subject matter hereof and
supersedes any and all prior or contemporaneous representations, warranties,
agreements and understandings in connection therewith. This Agreement may be
amended only by a writing executed by all parties hereto.
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Whereas, the parties have caused their duly authorized representatives
to execute this Agreement as of the date provided below.
Dated this 25th day of July ▇▇▇▇
▇▇▇▇▇▇ Corporation
Subscriber
By:
Name: ______________________________
Title: ______________________________
Accepted this 25th day of July 2003
ENER1, INC.
Issuer
By:
Name: ______________________________
Title: ______________________________