Subscription Agreement By and Between
By
and Between
Hepalife Technologies, Inc.,
a Florida corporation (the “Company”) and the subscriber whose name is
set forth on the signature pages affixed hereto (the “Subscriber”
WHEREAS, the Company is
offering, a minimum (the “Minimum Number”) of 9,400,000
units and up to a maximum (the “Maximum Number”) of 20,000,000
units (collectively, the “Units”), of the Company’s common
stock, $0.001 par value per share (the “Common Stock”), at a price of
$0.125 per Unit (the “Purchase
Price”), on a “best efforts, all or none” basis with respect to the
Minimum Number and on a “best efforts” basis with respect to the remaining
10,6400,000 Units (the “Offering”).
WHEREAS, each Unit consists of
(i) one (1) share (collectively, the “Unit Shares”)of the Company’s
Common Stock; (ii) one
half of one Series E Stock Purchase Warrant in the form of Exhibit
A hereto (the “Series E
Warrants”); and one half of one Series F Stock Purchase Warrant in the
form of Exhibit
B hereto (the “Series F
Warrants” and together with the Series E Warrants, the “Warrants”).
WHEREAS, one Series E Warrant
entitles the holder to purchase one additional common share (the “Series E Shares”) at a price
of $0.16 for a period of five (5) years from the Closing Date as such term is
defined in Section 1.3
hereof; and one Series F Warrant entitles the holder to purchase one additional
common share (the “Series F
Shares”) at a price of $0.20 for a period of five (5) years from the
Closing Date; collectively, the Series E Shares and the Series F Shares are
referred to herein as the “Warrant Shares.”
WHEREAS, the Company is
conducting this Offering as a consequence of its having entered into a
non-binding Memorandum of Intent dated February 24, 2010 (the “MOI”) with AquaMed
Technologies, Inc. (“AquaMed”), which MOI
contemplates the Company’s acquisition of all of the outstanding shares, on a
fully-diluted basis, of AquaMed (the “AquaMed Acquisition”) in
exchange for an aggregate of 80,000,000 shares of the Company’s Common Stock,
provided that certain preconditions are satisfied. One of the
preconditions to the consummation of the AquaMed Acquisition is that, on the
closing date of the AquaMed Acquisition, the Company has cash on hand (after
deduction of accrued and unpaid liabilities) and/or held in escrow pursuant to
this Offering for its benefit an aggregate of $3,600,000.
WHEREAS, the Units will only
be offered and sold to a limited number of subscriber who are “accredited investors,” as such
term is defined in Section 2.7
hereof.
1
WHEREAS, the Company and the
Subscriber are executing and delivering this Agreement in reliance upon an
exemption from securities registration afforded by, but not limited to, the
provisions of Section 4(2) and 4(6) of the Securities Act of 1933, as amended
(the “1933 Act”), and
Regulation D (“Regulation
D”) and Regulation S (“Regulation S”) each as
promulgated by the United States Securities and Exchange Commission (the “Commission”) under the 1933
Act.
WHEREAS, pending the Closing,
as such term is defined in Section 1.3 hereof, the
parties hereto desire to have the aggregate proceeds from the sale of Units held
in escrow by Xxxxxx X. Xxxxx,
LLP (the “Escrow
Agent”) pursuant to the terms of an Escrow Agreement by and among, the
Company, AquaMed and the Escrow Agent, substantially in the form attached hereto
as Exhibit
C (the “Escrow
Agreement”).
WHEREAS, the Company has
engaged Palladium Capital Advisors, LLC (the “Placement Agent”) on a
non-exclusive basis to assist the Company in placing the Units in the Offering
as described herein.
WHEREAS, the undersigned
Subscriber hereby subscribes to purchase the number of Units set forth on the
signature page attached hereto (the “Subscribed Units”), at an
aggregate price as set forth on such signature page hereto (the “Subscription Amount”), subject
to the terms and conditions of this Agreement and on the basis of the
representations, warranties, covenants and agreements contained
herein.
WHEREAS, the Company desires
to enter into this Agreement to issue and sell the Subscribed Units to the
Subscriber and the Subscriber desires to purchase the number of Subscribed Units
from the Company all on the terms and conditions set forth herein.
NOW, THEREFORE, in
consideration of the mutual covenants and other agreements contained in this
Agreement the Company and the Subscriber hereby agree as follows:
(a) Check. If by check, payable to
as Escrow Agent, and delivered to:
Xxxxxx X. Xxxxx, PLLC
000 Xxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx
00000
(b) Wire Transfer. If by wire
transfer of funds to:
2
Bank:
|
HSBC
BANK
|
000
XXXXX XXXXXX, XXX XXXX, XXX XXXX 00000
|
|
ABA
Routing #:
|
000000000
|
Beneficiary:
|
Xxxxxx
X. Xxxxx, PLLC Attorney Escrow Account
|
Account
#:
|
011031395
|
Reference:
|
“HepaLife
Technologies, Inc. – [insert Subscriber’s
name]”
|
1.2 Subscription
Procedure. To complete a subscription for the Units, the
Subscriber must fully comply with the subscription procedure provided in this
Section 1.2 on or before
the Closing Date
:
(a) Subscription
Agreement. On or before the Closing Date, the Subscriber shall
review, complete and execute the Signature Page to this Agreement; and shall
have completed the Subscriber Questionnaire and Certification set forth in Section 8 hereof, and shall
return this Agreement, as executed to the Company c/x Xxxxxxxx & Company,
LLP, 000 Xxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000. Executed
documents may be delivered to by facsimile or electronic mail (e-mail), provided
that the Subscriber delivers the original copies of the documents as soon as
practicable thereafter.
(b) Purchases by the Company’s Affiliates
and Placement Agents. The Subscriber understands that the Company’s,
AquaMed’s, and the Placement Agent’s respective officers, directors,
employees and/or affiliates may purchase Units which purchases may be used to
satisfy the Minimum Number.
3
(1)
the Company, the following:
(i)
This
Agreement, and the completed Subscriber Questionnaire and Certification
incorporated therein;
(ii)
For U.S.
citizens or residents of the U.S., an Internal Revenue Service Form
W-9;
(iii) For
individual investors, a copy of one form of government issued picture
identification (e.g. state issued driver’s license or passport);
and
(2) to
the Escrow Agent, the Subscription Amount.
(1) the
Subscriber:
(i) If
accepted by the Company, a duly countersigned copy of this
Agreement;
(ii) a
copy of the written instructions to its transfer agent to issue and deliver
certificates representing the Unit Shares acquired by the Subscriber, all as
more fully set forth on the signature page hereto, to the address set forth on
the aforesaid signature page; and
(2)
the Escrow Agent, written (i) notice of the satisfaction of the Closing
Conditions and (ii) direction to release the Escrowed Funds to the
Company.
4
2.2 No
Conflicts. The execution, delivery and performance of this
Agreement and the other Transaction Documents and the consummation by the
Subscriber of the transactions contemplated hereby and thereby or relating
hereto or thereto do not and will not (i) result in a violation of the
Subscriber’s charter documents, bylaws or other organizational documents, if
applicable, (ii) conflict with nor constitute a default (or an event which with
notice or lapse of time or both would become a default) under any agreement to
which the Subscriber is a party, nor (iii) result in a violation of any law,
rule, or regulation, or any order, judgment or decree of any court or
governmental agency applicable to the Subscriber or its properties (except for
such conflicts, defaults and violations as would not, individually or in the
aggregate, have a material adverse effect on Subscriber). The
Subscriber is not required to obtain any consent, authorization or order of, or
make any filing or registration with, any court or governmental agency in order
for it to execute, deliver or perform any of its obligations under this
Agreement and the other Transaction Documents nor to purchase the
Units in accordance with the terms hereof, provided that for purposes of the
representation made in this sentence, the Subscriber is assuming and relying
upon the accuracy of the relevant representations and agreements of the Company
herein.
5
6
7
FOR U.S. PERSONS:
“THE SECURITIES REPRESENTED HEREBY
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “1933
ACT”), OR APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES MAY NOT
BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF (A) AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE 1933 ACT, OR (B)
AN OPINION OF COUNSEL (REASONABLY SATISFACTORY TO THE COMPANY), THAT
REGISTRATION IS NOT REQUIRED UNDER SAID 1933 ACT.”
FOR
NON-U.S. PERSONS:
“THESE
SECURITIES WERE ISSUED IN AN OFFSHORE TRANSACTION TO PERSONS WHO ARE NOT U.S.
PERSONS (AS DEFINED IN REGULATION S) PURSUANT TO REGULATION S UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”). ACCORDINGLY, NONE OF
THE SECURITIES TO WHICH THIS CERTIFICATE RELATES HAVE BEEN REGISTERED UNDER THE
1933 ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, NONE MAY
BE OFFERED OR SOLD IN THE UNITED STATES OR, DIRECTLY OR INDIRECTLY, TO U.S.
PERSONS EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE
STATE SECURITIES LAWS. IN ADDITION, HEDGING TRANSACTIONS INVOLVING THE
SECURITIES MAY NOT BE CONDUCTED UNLESS IN ACCORDANCE WITH THE 1933
ACT.”
2.14 Non-US Persons. If
the Subscriber is not a “U.S.
Person” as defined in Regulation S, the Subscriber further represents and
warrants to the Company that:
(a) it
is acquiring the Units in an offshore transaction pursuant to Regulation S and
the Subscriber was outside the United States when receiving and executing
this Agreement;
(b) the
Subscriber has not acquired the Units as a result of, and will not itself engage
in, any “directed selling efforts” (as defined in Regulation S) in the United
States in respect of the Units which would include any activities undertaken for
the purpose of, or that could reasonably be expected to have the effect of,
conditioning the market in the United States for the resale of the Units;
provided, however, that the Subscriber may sell or otherwise dispose of the
Units pursuant to registration of the Units under the 1933 Act and any
applicable state and provincial securities laws or under an exemption from such
registration requirements and as otherwise provided herein;
8
(c) the
Subscriber understands and agrees that offers and sales of any of the Units
prior to the expiration of a period of one year after the date of transfer of
the Units under this Agreement (the “Distribution Compliance
Period”), shall only be made in compliance with the safe harbor
provisions set forth in Regulation S, pursuant to the registration provisions of
the 1933 Act or an exemption therefrom, and that all offers and sales after the
Distribution Compliance Period shall be made only in compliance with the
registration provisions of the 1933 Act or an exemption therefrom, and in each
case only in accordance with all applicable securities laws;
(d) the
Subscriber understands and agrees not to engage in any hedging transactions
involving the Units prior to the end of the Distribution Compliance Period
unless such transactions are in compliance with the 1933 Act;
and
(e) the
Subscriber hereby represents that it has satisfied itself as to the full
observance of the laws of its jurisdiction in connection with any invitation to
subscribe for the Units or any use of this Agreement, including: (i) the legal
requirements within its jurisdiction for the purchase of the Units; (ii) any
foreign exchange restrictions applicable to such purchase; (iii) any
governmental or other consents that may need to be obtained; and (iv) the income
tax and other tax consequences, if any, that may be relevant to the purchase,
holding, redemption, sale or transfer of the Units. The Subscriber’s
subscription and payment for, and its continued beneficial ownership of the
Units, will not violate any applicable securities or other laws of the
Subscriber’s jurisdiction.
9
10
3.1 Due
Incorporation. The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation and has the requisite corporate power to own its properties and to
carry on its business as presently conducted. The Company is duly
qualified as a foreign corporation to do business and is in good standing in
each jurisdiction where the nature of the business conducted or property owned
by it makes such qualification necessary, other than those jurisdictions in
which the failure to so qualify would not have a Material Adverse
Effect. For purposes of this Agreement, a “Material Adverse Effect” shall
mean a material adverse effect on the financial condition, results of
operations, prospects, properties or business of the Company and its
Subsidiaries taken as a whole. For purposes of this Agreement, “Subsidiary” means, with
respect to any entity at any date, any corporation, limited or general
partnership, limited liability company, trust, estate, association, joint
venture or other business entity of which more than 50% of (i) the
outstanding capital stock having (in the absence of contingencies) ordinary
voting power to elect a majority of the board of directors or other managing
body of such entity, (ii) in the case of a partnership or limited liability
company, the interest in the capital or profits of such partnership or limited
liability company or (iii) in the case of a trust, estate, association,
joint venture or other entity, the beneficial interest in such trust, estate,
association or other entity business is, at the time of determination, owned or
controlled directly or indirectly through one or more intermediaries, by such
entity.
3.2 Outstanding
Stock. All issued and outstanding shares of capital stock and
other equity interests in the Company have been duly authorized and validly
issued and are fully paid and non-assessable.
11
(a) 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 articles or certificate of
incorporation, charter or bylaws 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, governmental agency or body, or
arbitrator having jurisdiction over the Company or over the properties or assets
of the Company or any of its Affiliates, (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 or any of its Affiliates is a party, by which
the Company or any of its Affiliates is bound, or to which any of the properties
of the Company or any of its Affiliates is subject, or (D) the terms of any
"lock-up" or similar provision of any underwriting or similar agreement to which
the Company, or any of its Affiliates is a party except the violation, conflict,
breach, or default of which would not have a Material Adverse Effect;
or
12
(b) result
in the creation or imposition of any lien, charge or encumbrance upon the
Subscribed Units or any of the assets of the Company or any of its Affiliates
except in favor of the Subscriber as described herein; or
(c) result
in the triggering of any piggy-back or other registration rights of any Person
or entity holding securities of the Company or having the right to receive
securities of the Company.
(a) are,
or will be, free and clear of any security interests, liens, claims or other
encumbrances, subject only to restrictions upon transfer under the 1933 Act and
any applicable state securities laws;
(b) have
been, or will be, duly and validly authorized and validly issued, and
non-assessable;
(c) 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 or rights to acquire
securities of the Company;
(d) will
not subject the holders thereof to personal liability by reason of being such
holders; and
(e) assuming
the representations and warranties of the Subscriber as set forth in Section 2 hereof are true and
correct, will not result in a violation of Section 5 under the 0000
Xxx.
13
14
15
16
17
18
7.1 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: Hepalife Technologies,
Inc., 00 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxxx 00000, with a copy
(which shall not constitute notice) to Xxxxxxxx & Company, LLP, 000 Xxxx
Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000, Facsimile 000-000-0000; and (ii) if
to the Subscriber, to: the addresses and fax numbers indicated on the signature
page hereto.
19
7.5 Calendar
Days. All references to “days” in the Transaction
Documents shall mean calendar days unless otherwise stated. The terms
“business days” and “trading days” shall mean days that the New York Stock
Exchange is open for trading for three or more hours. Time periods
shall be determined as if the relevant action, calculation or time period were
occurring in New York City. Any deadline that falls on a non-business
day in any of the Transaction Documents shall be automatically extended to the
next business day and interest, if any, shall be calculated and payable through
such extended period.
20
21
7.17 Governing
Law. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be governed by
and construed and enforced in accordance with the internal laws of the State of
New York, without regard to the principles of conflicts of law
thereof. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in New York County, New
York for the adjudication of any dispute hereunder or in connection herewith or
with any transaction contemplated hereby or discussed herein, and hereby
irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such
court, that such suit, action or proceeding is improper. Each party
hereby irrevocably waives personal service of process and consents to process
being served in any such suit, action or proceeding by mailing a copy thereof
via registered or certified mail or overnight delivery (with evidence of
delivery). Nothing contained herein shall be deemed to limit in any way any
right to serve process in any manner permitted by law. Each party irrevocably
waives, to the fullest extent permitted by applicable law, any and all right to
trial by jury in any legal proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby. If either party
shall commence an action or proceeding to enforce any provisions of the
documents contemplated herein, then the prevailing party in such action or
proceeding shall be reimbursed by the other party for its attorney’s fees and
other costs and expenses incurred with the investigation, preparation and
prosecution of such action or proceeding.
22
The
Subscriber has initialed those representations applicable to the Subscriber and
hereby represents and warrants that those representations which are initialed
are true and correct.
____________
|
1.
|
Subscriber
represents that he or she has an individual net worth, or together with
his or her spouse a combined net worth, in excess of $1,000,000. For
purposes of this representation, “net worth” means the excess of total
assets at fair market value, including, home, home furnishings and
automobiles, over total liabilities.
|
____________
|
2.
|
Subscriber
represents that he or she had an individual income of more than $200,000
in each of the last two calendar years or joint income with his or her
spouse in excess of $300,000 in each of those years and reasonably expects
to reach the same income level in the current calendar
year.
|
____________
|
3.
|
Subscriber
represents that it is a corporation, Massachusetts or similar business
trust, or partnership not formed for the specific purpose of acquiring
Units with total assets in excess of
$5,000,000.
|
For
purposes of determining “net worth,” the principal residence owned by an
individual must be valued either at (A) cost, including the cost of
improvements, net of current encumbrances upon the property, or (B) the
appraised value of the property as determined upon a written appraisal
used by an institutional lender making a loan to the individual secured by
the property, including the cost of subsequent improvements, net of
current encumbrances upon the property. “Institutional lender” means a
bank, savings and loan company, industrial loan company, credit union or
personal property broker or a company whose principal business is as a
lender upon loans secured by real property and that has such loans
receivable in the amount of $2,000,000 or
more.
|
23
____________
|
4.
|
Subscriber
represents that all of its equity owners meet the standard set out in
Statement (1) above ($ 1,000,000 net worth) or Statement (2) above
($200,000 individual income or $300,000 joint income). For purposes of
this representation, “net worth” means the excess of total tangible assets
at current value less total liabilities. Please list below the names of
all equity owners of Subscriber. EACH SUCH EQUITY OWNER MUST
COMPLETE A SUBSCRIBER QUESTIONNAIRE AND CERTIFICATION.
|
Name
of All Equity Owners
|
||
_____________________________________________
|
||
_____________________________________________
|
||
_____________________________________________
|
||
____________
|
5.
|
Subscriber
represents that it has total assets in excess of $5,000,000, was not
formed for the specific purpose of acquiring Units and that the investment
is being directed by a sophisticated Person as defined below. For purposes
of this representation, a “sophisticated Person” means a Person who has
such knowledge and experience in financial and business matters that he or
she is capable of evaluating the merits and risks of the prospective
investment.
|
____________
|
6.
|
Subscriber
represents that it is (a) a bank as defined in Section 3(a)(2) of the 1933
Act, (b) acting in its fiduciary capacity as trustee, (c) subscribing for
the purchase of the securities being offered on behalf of a
trust.
|
____________
|
7.
|
Subscriber
represents that it is a revocable trust that may be amended or revoked at
any time by its grantors and that all of its grantors meet the standard
set out in Statement (1) above ($1,000,000 net worth) or statement (2)
(above $200,000 individual income or $300,000 joint income). Please list
below the names of all grantors. EACH SUCH GRANTOR
MUST COMPLETE A SUBSCRIBER QUESTIONNAIRE AND
CERTIFICATION.
|
Name
of Grantors
|
||
_____________________________________________
|
||
_____________________________________________
|
||
_____________________________________________
|
||
24
____________
|
8.
|
Subscriber
represents that it is an employee benefit plan within the meaning of Title
I of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), with respect to which the decision to invest was made by a plan
fiduciary as defined in Section 3(21) of ERISA that is a bank, savings and
loan association, insurance company or investment adviser registered under
the Investment Advisers Act of 1940, as amended (the “1940
Act”).
|
____________
|
9.
|
Subscriber
represents that it is an employee benefit plan within the meaning of Title
I of ERISA and it has total assets in excess of
$5,000,000.
|
____________
|
10.
|
Subscriber
represents that it is a self-directed plan with respect to which the
decision to invest was made solely by Persons who are “accredited
investors” within the meaning of Regulation D under the 1933
Act.
|
____________
|
11.
|
Subscriber
represents that it is a plan established and maintained by a state, its
political subdivisions, or an agency or instrumentality of a state or its
political subdivisions, for the benefit of its employees, and that it has
total assets in excess of $5,000,000.
|
FOR
CHARITABLE ORGANIZATIONS:
|
||
____________
|
12.
|
Subscriber
represents that it is an organization described in Section 501(c)(3) of
the Internal Revenue Code of 1986, as amended not formed for the specific
purpose of acquiring Units with total assets in excess of
$5,000,000.
|
OTHER
ACCREDITED INVESTORS:
|
||
____________
|
13.
|
Subscriber
represents that it is either a non-resident alien of the United States, a
foreign entity (i.e., not formed under the laws of any state of the United
States or its territories) or a bank as defined in Section 3 (a)(2) of the
1933Act whether acting in its individual or fiduciary
capacity.
|
____________
|
14.
|
Subscriber
represents that it is a savings and loan association or other institution
specified in Section 3(a)(5)(A) of the 1933 Act whether acting in its
individual or fiduciary capacity.
|
____________
|
15.
|
Subscriber
represents that it is a broker or dealer registered pursuant to Section 15
of the Securities Exchange Act of 1934.
|
____________
|
16.
|
Subscriber
represents that it is an insurance company as defined in
Section 2(13) of the 1933 Act.
|
25
____________
|
17.
|
Subscriber
represents that it is an investment company registered under the 1940
Act.
|
____________
|
18.
|
Subscriber
represents that it is a business development company as defined in Section
2(a) (48) of the 1940 Act.
|
____________
|
19.
|
Subscriber
represents that it is 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, as amended.
|
____________
|
20.
|
Subscriber
represents that it is a private business development company as defined in
Section 202(a)(22) of the 1940 Act.
|
(If
the Subscriber is not a U.S. Person the Subscriber must INITIAL this
section):
Initial _______ The Subscriber
is not a “U.S. Person” as defined in Regulation S; and specifically the
Subscriber is not:
1. a
natural Person resident in the United States of America, including its
territories and possessions (“United States”);
2. a
partnership or corporation organized or incorporated under the laws of the
United States;
3. an
estate of which any executor or administrator is a U.S. Person;
4. a
trust of which any trustee is a U.S. Person;
5. an
agency or branch of a foreign entity located in the United States;
6. a
non-discretionary account or similar account (other than an estate or trust)
held by a dealer or other fiduciary for the benefit or account of a U.S.
Person;
7. a
discretionary account or similar account (other than an estate or trust) held by
a dealer or other fiduciary organized, incorporated, or (if an individual)
resident in the United States; or
8. a
partnership or corporation: (i) organized or incorporated under the laws of any
foreign jurisdiction; and (ii) formed by a U.S. Person principally for the
purpose of investing in securities not registered under the 1933 Act, unless it
is organized or incorporated, and owned, by accredited investors (as defined in
Rule 501(a) under the 0000 Xxx) who are not natural Persons, estates or
trusts.
26
And, in
addition:
9. the
Subscriber was not offered the Units in the United States;
10. at the
time the buy-order for the Units was originated, the Subscriber was outside the
United States; and
11. the
Subscriber is purchasing the Units for its own account and not on behalf of any
U.S. Person (as defined in Regulation S) and a sale of the Units has not been
pre-arranged with a purchaser in the United States.
[COMPANY’S
SIGNATURE PAGE FOLLOWS]
27
HEPALIFE
TECHNOLOGIES, INC.
IN
WITNESS WHEREOF, the Company has duly executed this Subscription
Agreement.
Dated:
|
,
2010
|
HEPALIFE
TECHNOLOGIES, INC.
|
|||
By:
|
|||
Name:
|
Xxxx
X. Xxxx
|
||
Title:
|
Chief
Executive Officer and President
|
||
[SUBSCRIBER’S
SIGNATURE PAGE FOLLOWS]
28
HEPALIFE
TECHNOLOGIES, INC.
SUBSCRIBER
SIGNATURE PAGE
IN WITNESS WHEREOF, the
Subscriber hereby executes this Subscription Agreement.
Dated:
|
,
2010
|
X
|
$0.125
|
=
|
$
|
||
Number
of Units
|
Price
per Share
|
Purchase
Price
|
SUBSCRIBER
(individual)
|
SUBSCRIBER
(entity)
|
|||
Signature
|
Name
of Entity
|
|||
Print
Name
|
Signature
|
|||
Print
Name:
|
||||
Signature
(if Joint Tenants or Tenants in Common)
|
||||
Title:
|
||||
Address
of Principal Residence:
|
Address
of Executive Offices:
|
|||
Social
Security Number(s):
|
IRS
Tax Identification Number:
|
|||
Telephone
Number:
|
Telephone
Number:
|
|||
Facsimile
Number:
|
Facsimile
Number:
|
|||
E-mail
Address:
|
E-mail
Address:
|
|||
Placement
Agent, if any:
|
29
Exhibit
A
Form of
Series E Warrant
Exhibit
B
Form of
Series F Warrant
Exhibit
C
Form of
Escrow Agreement
30