Exhibit 4.1
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (this "Agreement"), dated as of March 24,
2005, by and among MILESTONE SCIENTIFIC INC., a Delaware corporation (the
"Company"), and the subscribers identified on the signature page hereto (each a
"Subscriber" and collectively "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) and Rule 506 of Regulation D ("Regulation D") as
promulgated by the United States Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "1933 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, an amount not to exceed $3,000,000 (the "Purchase Price") of Units
each Unit consisting of (i) ten (10) shares of the Company's common stock, $.001
par value (the "Common Stock"), and (ii) two warrants each to purchase one share
of Common Stock (the "Warrants"), in the form attached hereto as Exhibit A (the
"Warrants"). The shares underlying the Warrants are referred to as the Warrant
Shares. The per Unit Purchase Price shall be $29.69, which is equal to the
average closing price of the Common Stock on the American Stock exchange during
the first ten of the 12 trading days ending on March 24, 2005, (the "Closing
Date") multiplied by 10. The Purchase Price shall be payable to the Company on
the Closing Date, as defined in Section 10 hereof. The shares of Common Stock
issuable to the Subscribers are referred to herein as the "Shares," and the
Shares, the Warrants and the Warrant Shares are collectively referred to herein
as the "Securities".
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 and Warrants. Subject to the
satisfaction (or waiver) of the conditions to Closing set forth in this
Agreement, each Subscriber shall purchase the Shares and Warrants for the
Purchase Price indicated on the signature page hereto, and the Company shall
sell the Shares and Warrants called for by the above formula price to the
Subscriber. The Purchase Price for the Shares and Warrants shall be paid in
cash. The Company shall (i) instruct its transfer agent to issue stock
certificates for the number of Shares included in the Units to be purchased
hereunder and to deliver such Shares to each Subscriber within 15 business days
of the Closing Date, such Shares to be registered in the name of the Subscriber
and (ii) deliver Warrants for the number of Warrants purchased hereunder to the
Subscriber within said 15 business days. The Company will not issue fractional
Units but will refund amounts in excess of the price of the nearest full number
of Units which can be purchased with the purchase price tendered hereunder.
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2. Warrants. Promptly after the Closing Date the Company will issue
two Warrants to each Subscriber for each ten (10) shares issued to such
Subscriber on the Closing Date. The per Warrant exercise price shall be $4.89
per share. The Warrants shall be exercisable until February 17, 2009.
3. Subscriber's 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 a draft of the Company's Form 10-KSB for the year ended December 31, 2004,
and has also been furnished with or has had access at the XXXXX Website of the
Commission to the Company's Form 10-KSB for the year ended December 31, 2003 as
filed with the Commission, together with all subsequently filed Forms 10-QSB,
8-K, and filings made with the Commission available at the XXXXX website
(hereinafter referred to collectively as the "Reports"). The Subscriber has
considered all factors the Subscriber deems material in deciding on the
advisability of investing in the Securities.
(b) Information on Subscriber. At the time the Subscriber was
offered the Securities it was, and as of the date hereof it is an "accredited
investor", as such term is defined in Regulation D promulgated by the Commission
under the 1933 Act, is experienced in investments and business matters, has made
investments of a speculative nature and has purchased securities of United
States publicly-owned companies in private placements in the past and, with its
representatives, 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, which
represents a speculative investment. The Subscriber has the authority to
purchase and own the Securities. The Subscriber is able to bear the economic
risk of such investment and at the present time, is able to afford a complete
loss thereof. The information set forth on the signature page hereto regarding
the Subscriber is accurate.
(c) Purchase of Common Stock and Warrants. The Subscriber is
purchasing the Common Stock and Warrants as principal for its own account and
not with a view to any distribution thereof (this representation and warranty
not limiting such Subscriber's right to sell the Shares and Warrant Shares
pursuant to the Registration Statement (as defined below hereof) or otherwise in
compliance with applicable federal and state securities laws).
(d) Compliance with 1933 Act. The Subscriber understands and
agrees that the Securities have not been registered under the 1933 Act or any
applicable state securities laws, by reason of their issuance in a transaction
that does not require registration under the 1933 Act (based in part on the
accuracy of the representations and warranties of Subscriber contained herein),
and that such Securities must be held indefinitely unless a subsequent
disposition is registered under the 1933 Act or any applicable state securities
laws or is exempt from such registration.
(e) Subscribers Representations. The Subscriber is not
currently a holder of the issuer's securities.
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(f) The Subscriber confirms that it understands that it has
been provided material non-public information with respect to the Company and
that if the Subscriber trades on the basis of such information or provides such
information to others such person may be subject to xxxxxxx xxxxxxx liability or
liability for violation of Regulation FD.
(g) 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 in all material respects and, unless a
Subscriber otherwise notifies the Company prior to the Closing Date (as
hereinafter defined), shall be true and correct in all material respects as of
the Closing Date.
4. Company Representations and Warranties. The Company represents
and warrants to and agrees with each Subscriber that (i) the Company is duly
organized, validly existing and in good standing on the date hereof, (ii) has
full power and authority to issue the Securities, (iii) is eligible to register
the resale of its Common Stock by the Subscribers under Form S-3 promulgated
under the 1933 Act, (iv) upon receipt and acceptance of consideration from the
Subscriber the Securities will be legally and validly issued, (v) the Company's
Form 10-KSB for the year ended December 31, 2004, fully complies with the
requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended and the information contained in the Form 10-KSB fairly presents, in
all material respects, the financial condition and results of operations of the
Company and does not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading and (vi) the Company has taken all action
required by its Articles of Incorporation and Bylaws and the rules and
regulations of the American Stock Exchange to approve the offer and sale of the
securities, except that it has not applied for additional listing of such
securities with the American Stock Exchange but undertakes to do so promptly
upon closing hereunder.
5. Regulation D Offering. The offer and issuance of the Securities
to the Subscribers is being made pursuant to the exemption from the registration
provisions of the 1933 Act afforded by Section 4(2) of the 1933 Act and Rule 506
of Regulation D promulgated thereunder.
6. Registration and Listing.
(a) The Company covenants and agrees with the Subscribers that
on or before the 40th day after the last Closing Date, prior to the Filing Date
the Company shall prepare and file with the Commission a Registration Statement
covering the shares of common stock issuable under this Agreement and issuable
upon exercise of the Warrants (the "Registrable Securities") for an offering to
be made on a continuous basis pursuant to Rule 415. The Registration Statement
shall be on Form S-3. The Company shall cause the Registration Statement to
become effective and remain effective as provided herein. The Company shall use
its best efforts to cause the Registration Statement to be declared effective
under the Securities Act as promptly as possible after the filing thereof. The
Company shall use its best efforts to keep
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the Registration Statement continuously effective under the Securities Act until
the date which is the earlier date of when (i) all Registrable Securities have
been sold or (ii) all Registrable Securities may be sold immediately without
registration under the Securities Act and without volume restrictions pursuant
to Rule 144(k), as determined by the counsel to the Company pursuant to a
written opinion letter to such effect, addressed and acceptable to the Company's
transfer agent and the affected Holders .
(b) Transfers. The Securities may only be disposed of in
compliance with state and federal securities laws. In connection with any
transfer of Securities other than pursuant to an effective registration
statement, to the Company, to an Affiliate of a Subscriber or in connection with
a pledge as contemplated in this Section 10, the Company may require the
transferor thereof to provide to the Company an opinion of counsel selected by
the transferor, the form and substance of which opinion shall be reasonably
satisfactory to the Company, to the effect that such transfer does not require
registration of such transferred Securities under the 1933 Act. As a condition
of transfer, any such transferee shall agree in writing to be bound by the terms
of this Agreement and shall have the rights of a Subscriber under this Agreement
and the Registration Rights Agreement.
(c) Shares Legend. The Subscribers agree to the imprinting, so
long as is required by this Section 7(b), of a legend on the Shares and the
Warrant Shares, in substantially the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THESE SHARES MAY NOT
BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH SECURITIES ACT OR ANY
APPLICABLE STATE SECURITIES LAW OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED,
EXCEPT THAT THESE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A
BONA FIDE MARGIN ACCOUNT OF THE HOLDER WITH A REGISTERED
BROKER-DEALER OR OTHER LOAN OF THE HOLDER WITH A FINANCIAL
INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE
501(a) UNDER THE SECURITIES ACT."
(d) Warrant Legend. The Subscribers agree to the imprinting,
so long as is required by this Section 6, of a legend on the Warrants, in
substantially the following form:
"THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE
OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. THIS WARRANT AND THE SHARES
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OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT MAY NOT BE
SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT AS TO THIS WARRANT UNDER SAID ACT
OR ANY APPLICABLE STATE SECURITIES LAW OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED, EXCEPT THAT THESE SECURITIES MAY BE PLEDGED IN CONNECTION
WITH A BONA FIDE MARGIN ACCOUNT OF THE HOLDER WITH A REGISTERED
BROKER-DEALER OR OTHER LOAN OF THE HOLDER WITH A FINANCIAL
INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE
501(a) UNDER THE SECURITIES ACT"
(e) Certificates. Certificates evidencing the Shares and
Warrant Shares shall not contain any legend (including the legend set forth in
Sections 7(b) and (c)), (i) while a registration statement (including the
Registration Statement) covering the resale of such security is effective under
the 1933 Act, or (ii) following any sale of such Shares or Warrant Shares
pursuant to Rule 144, or (iii) if such Shares or Warrant Shares are eligible for
sale under Rule 144(k), or (iv) if such legend is not required under applicable
requirements of the 1933 Act (including judicial interpretations and
pronouncements issued by the Staff of the Commission). The Company shall cause
its counsel to issue a legal opinion to the Company's transfer agent promptly
after the effective date of the Registration Statement if required by the
Company's transfer agent to effect the removal of the legend hereunder as and
when any Subscriber so requests. If all or any portion of a Warrant is exercised
at a time when there is an effective registration statement to cover the resale
of the Warrant Shares, such Warrant Shares shall be issued free of all legends
(f) Acknowledgement. Each Subscriber severally and not jointly
agrees that the removal of the restrictive legend from certificates representing
Securities as set forth in this Section 7 is predicated upon the Company's
reliance that the Subscriber will sell any Securities pursuant to either the
registration requirements of the 1933 Act, including any applicable prospectus
delivery requirements, or an exemption therefrom.
(g) The Company covenants and agrees with the Subscribers that
on or before the 40th day after the last closing date it will file an
application with the American Stock Exchange to list the shares of the Company's
Common Stock underlying the Units, including the shares of Common Stock
underlying the Warrants and will use its best efforts to prosecute such
application to effectiveness
7. Conditions Precedent to Obligations of the Company. The
obligations of the Company are subject to the fulfillment prior to or on the
Closing Date of the following conditions any of which may be waived by the
Company in writing:
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(a) all representations and warranties of the Subscribers
contained in this Agreement shall be true and correct in all respects as of the
Closing Date with the same effect as though such representations and warranties
had been made on or as of such date; and (b) all agreements and covenants of the
Subscribers to be performed or complied with on or prior to the Closing Date
have in all material respects been so performed or complied with.
8. Conditions Precedent to Obligations of the Subscribers. The
obligations of the Subscribers are subject to the fulfillment prior to or on the
Closing Date of the following conditions any of which may be waived by the
Subscribers in writing:
(a) all representations and warranties of the Company
contained in this Agreement shall be true and correct in all respects as of the
Closing Date with the same effect as though such representations and warranties
had been made on or as of such date; and
(b) all obligations, agreements and covenants of the Company
to be performed or complied with on or prior to the Closing Date shall have, in
all respects been so performed or complied with.
9. Miscellaneous.
(a) Notices. All notices, demands, requests, consents,
approvals, and other communications required or permitted hereunder shall be in
writing and, unless otherwise specified herein, shall be (i) personally served,
(ii) deposited in the mail, registered or certified, return receipt requested,
postage prepaid, (iii) delivered by reputable air courier service with charges
prepaid, or (iv) transmitted by hand delivery, telegram, or facsimile, addressed
as set forth below or to such other address as such party shall have specified
most recently by written notice. Any notice or other communication required or
permitted to be given hereunder shall be deemed effective (a) upon hand delivery
or delivery by facsimile, with accurate confirmation generated by the
transmitting facsimile machine, at the address or number designated below (if
delivered on a business day during normal business hours where such notice is to
be received), or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice is
to be received) or (b) on the second business day following the date of mailing
by express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The addresses for
such communications shall be: (i) if to the Company, to: Milestone Scientific
Inc., 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 07039Attention: Xxxxxxx Xxxxx,
Chairman, fax: (000) 000-0000, with a copy to: Morse, Zelnick, Rose & Lander,
LLP, 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx
Xxxxxxx, telecopier: (000) 000-0000, (ii) if to the Subscriber[s], to: the one
or more addresses and telecopier numbers indicated on the signature pages
hereto, , and (iii) if to the Placement Agent, to: I-Bankers Securities.
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(b) Closing. The consummation of the transactions contemplated
herein shall take place at the offices of Morse, Zelnick, Rose & Lander, LLP,
upon receipt of good funds at its escrow account ,
The Chase Manhattan Bank,
1211 Avenue of the Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000,
Account Name: Morse, Zelnick, Rose & Lander, LLP
Attorney Trust Account
Account Number: 967086639
ABA Number: 000000000
and upon the satisfaction of all conditions to Closing set forth in this
Agreement. This offering shall be kept open no later than three business days
after this Closing Date so as to allow one or more subsequent Closings for late
subscriptions. The date of any such subsequent Closing is also referred to
herein as a "Closing Date."
(c) Entire Agreement; Assignment. This Agreement and the other
Transaction Documents represent the entire agreement between the parties hereto
with respect to the subject matter hereof and may be amended only by a writing
executed by the Company and each Subscriber. Neither the Company nor the
Subscribers have relied on any representations not contained or referred to in
this Agreement and the documents delivered herewith. No right or obligation of
the Company shall be assigned without prior notice to and the written consent of
the Subscribers. Any Subscriber may assign any or all of its rights hereunder to
any person in connection with a transfer of any Security to such person,
provided such transferee agrees in writing to be bound, with respect to the
transferred Securities, by the provisions hereof that apply to the Subscribers.
(d) Counterparts/Execution. This Agreement may be executed in
any number of counterparts and by the different signatories hereto on separate
counterparts, each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute but one and the same instrument. This
Agreement may be executed by facsimile signature and delivered by facsimile
transmission.
(e) Law Governing this Agreement. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
without regard to principles of conflicts of laws. Any action brought by either
party against the other concerning the transactions contemplated by this
Agreement shall be brought only in the state courts of New York or in the
federal courts located in the state of New York. The parties and the individuals
executing this Agreement and other agreements referred to herein or delivered in
connection herewith on behalf of the Company agree to submit to the jurisdiction
of such courts and waive trial by jury. The prevailing party shall be entitled
to recover from the other party its reasonable attorney's fees and costs. In the
event that any provision of this Agreement or any other agreement delivered in
connection herewith is invalid or unenforceable under any applicable statute or
rule of law, then such provision shall be deemed inoperative to the extent that
it may conflict therewith and shall be deemed modified to conform with such
statute or rule
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of law. Any such provision which may prove invalid or unenforceable under any
law shall not affect the validity or enforceability of any other provision of
any agreement.
(f) Independent Nature of Subscribers' Obligations and Rights.
The obligations of each Subscriber hereunder are several and not joint with the
obligations of any other Subscriber hereunder, and no such Subscriber shall be
responsible in any way for the performance of the obligations of any other
hereunder.
(g) Equitable Adjustment. The Securities and the purchase
prices of Securities being purchased hereunder shall be equitably adjusted to
offset the effect of stock splits, stock dividends, and distributions of
property or equity interests of the Company to its shareholders occurring
between the date of this Agreement and the Closing Date.
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SIGNATURE PAGE TO SUBSCRIPTION AGREEMENT
Please acknowledge your acceptance of the foregoing Subscription Agreement
by signing and returning a copy to the undersigned whereupon it shall become a
binding agreement between us.
Dated: March _____, 2005
The Company
MILESTONE SCIENTIFIC INC
a Delaware corporation
By:
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Name:
Title:
Subscriber
Dated: March ___ 2005
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Name
by:
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SUBSCRIBER'S NAME AND PURCHASE
ADDRESS PRICE
EXHIBIT A
[Form of Warrant]
