EXHIBIT 4.5
FORM OF
SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT (this "Agreement") made as of the date set forth
on the signature page hereof between Lakaro Biopharmaceuticals, Inc. (the
"Company"), and the undersigned (the "Subscriber").
W I T N E S S E T H:
WHEREAS, the Company desires to issue a minimum of four (4) Units (the
"Minimum Offering") and a maximum of twenty four (24) Units (the "Maximum
offering"), each "Unit" consisting of five thousand (5,000) shares of Series A
Preferred Shares (the "Preferred Stock" or the "Securities");
WHEREAS, the Subscriber desires to purchase that number of Units set
forth on the signature page hereof on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the premises and the mutual
representations and covenants hereinafter set forth, the parties hereto do
hereby agree as follows:
I. SUBSCRIPTION FOR UNITS AND REPRESENTATIONS BY SUBSCRIBER
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1.1 Subject to the terms and conditions hereinafter set forth, the
Subscriber hereby subscribes for and agrees to purchase from the Company such
number of units, or fractions thereof, and the Company agrees to sell such Units
to the Subscriber as is set forth on the signature page hereof at a price equal
to $500,000 per Unit (the "Offering Price") payable in U.S. funds. The purchase
price is payable by personal or business check, wire transfer of immediately
available funds or money order made payable to "State Street Bank and Trust
Company, N.A., Escrow Agent, F/B/O Lakaro Biopharmaceuticals, Inc."
contemporaneously with the execution and delivery of this Agreement by the
Subscriber. (Specific wire instructions are annexed to this Agreement as Exhibit
A.) The Preferred Stock shall be delivered by the Company within ten (10)
business days following the consummation of the offering as set forth in Article
III-hereof. The Subscriber understands, however, that this purchase of Units is
contingent upon the company making sales of the minimum offering amount prior to
the Final Closing Date (as defined below) of the offering.
1.2 The Subscriber recognizes that the purchase of Units involves a
high degree of risk including, but not limited to, the following: (a) the
Company is a development stage business with no operating history, and requires
~ubstantial funds in addition to the proceeds of the Offering; (b) an investment
in the Company is highly speculative, and only investors who can afford the loss
of their entire investment should consider investing in the Company and the
Units; (c) the Subscriber may not be able to liquidate his investment; (d)
transferability of the Securities is extremely limited; (e) in the event of a
disposition, the Subscriber could sustain the loss of his entire investment.
Such risks are more fully set forth in the Confidential Private Placement
Memorandum, dated November 18, 1999, and the exhibits thereto ' all of which
constitute an integral part thereof furnished by the Company to the Subscriber
(the "PPM").
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1.3 The Subscriber represents that the Subscriber is an "accredited
investor" as such term in defined in Rule 501 of Regulation D promulgated under
the Securities Act of 1933, as amended (the "Securities Act"), as indicated by
the Subscriber's responses to the questions contained in Article VII hereof, and
that the Subscriber is able to bear the economic risk of an investment in the
Units.
1.4 The Subscriber hereby acknowledges and represents that (a) the
Subscriber has significant prior investment experience, including investment in
securities that are non-listed, unregistered and/or neither traded on a national
securities exchange nor on the National Association of Securities Dealers' (the
"NASD") automated quotation system, or the Subscriber has employed the services
of an investment advisor, attorney and/or accountant to read all of the
documents furnished or made available by the Company both to the Subscriber and
to all other prospective investors in the Units and to assist the Subscriber in
evaluating the merits and risks of such an investment on the Subscriber's
behalf; (b) the Subscriber recognizes the highly speculative nature of this
investment; and (c) the Subscriber is able to bear the economic risk that the
Subscriber hereby assumes.
1.5 The Subscriber hereby acknowledges receipt from the Company and
careful review by the Subscriber of (a) the PPM including without limitation,
the section entitled "Risk Factors", and (b) this Agreement, and hereby
represents that the Subscriber has been furnished by the Company during the
course of this transaction with all information regarding the Company that the
Subscriber has requested or desired to know, has been afforded the opportunity
to ask questions of and receive answers from duly authorized officers or other
representatives of the Company concerning the terms and conditions of the
offering and has received any additional information that the Subscriber has
requested.
1.6 (a) The Subscriber has relied solely upon the information provided
by the Company in the PPM, in this Agreement and in other material, if any,
provided by the Company in response to the Subscriber's request made pursuant to
Section 1.6, above, in making the decision to invest in the Units. To the extent
the Subscriber deems it to be necessary, the Subscriber has retained, at its own
expense, and relied upon appropriate professional advice regarding the
investment, tax and legal merits and consequences of this Agreement and its
purchase of the Units hereunder. The Subscriber acknowledges and agrees that (i)
the Company has prepared the PPM and that no other person, including without
limitation, Paramount Capital, Inc. (the "Finder"), has supplied any information
for inclusion in the PPM, (ii) the Finder has no responsibility for the accuracy
or completeness of the PPM and (iii) the Subscriber has not relied upon the
independent investigation or verification, if any, that may have been undertaken
by the Finder.
(b) The Subscriber represents that (i) the Subscriber was contacted
regarding the sale of the Units by the Finder or the Company (or an authorized
agent or representative thereof) with whom the Subscriber had a prior
substantial pre-existing relationship and (ii) no Units were offered or sold to
it by means of any form of general solicitation or general advertising, and in
connection therewith the Subscriber did not (A) receive or review any
advertisement, article, notice or other communication published in a newspaper
or magazine or similar media or broadcast over television or radio, whether
closed circuit, or generally available; or (B) attend any seminar meeting or
industry
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investor conference whose attendees were invited by any general solicitation or
general advertising.
1.7 The Subscriber hereby represents that the Subscriber, by reason of
the Subscriber's business or financial experience or the business or financial
experience of the Subscriber's professional advisors (who are unaffiliated with
and who are not compensated by the Company or any affiliate or selling agent of
the Company, including the Finder, directly or indirectly), has the capacity to
protect the Subscriber's own interests in connection with the transaction
contemplated hereby.
1.8 The Subscriber hereby acknowledges that the Offering has not been
reviewed by the United States Securities and Exchange Conmission (the "SEC" or
"Commission") nor any state, local or foreign regulatory authority because the
offering is intended to be exempt from the registration requirements of Section
5 of the Securities Act pursuant to Section 4(2) of the Securities Act, and/or
Regulation D promulgated under the Securities Act. The Subscriber agrees that
the Subscriber will not sell or otherwise transfer the Securities unless they
are registered under the Securities Act or unless an exemption from such
registration is available.
1.9 The Subscriber understands that the Securities comprising the Units
have not been registered under the Securities Act or any other law by reason of
a claimed exemption under the provisions of the Securities Act and other laws
that depend, in part, upon the Subscriber's investment intention. In this
connection, the Subscriber hereby represents that the Subscriber is purchasing
the Securities comprising the Units for the Subscriber's own account for
investment and not with a view toward the resale or distribution to others. The
Subscriber if an entity further represents that it was not formed for the
purpose of purchasing the Securities. THE SALE OF THESE SECURITIES SHALL BE
VOIDABLE BY ANY FLORIDA RESIDENT WITHIN 3 DAYS AFTER THE FIRST TENDER OF
CONSIDERATION IS MADE BY SUCH FLORIDA RESIDENT TO THE COMPANY OR WITHIN 3 DAYS
AFTER THE AVAILABILITY OF THAT PRIVILEGE IS COMMUNICATED TO SUCH FLORIDA
RESIDENT, WHICHEVER OCCURS LATER, AS REQUIRED BY SECTION 517.061(11)(a)(5),
FLORIDA STATUTES.
1.10 The Subscriber understands that there is no public market for the
Units nor the Securities comprising the Units and that no market may develop
for any of such Securities. The Subscriber understands that even if a public
market develops for such securities Rule 144 ("Rule 144") promulgated under the
Securities Act requires for non-affiliates, among other conditions, a one-year
holding period prior to the resale (in limited amounts) of securities acquired
in a non-public offering without having to satisfy the registration requirements
under the Securities Act. The Subscriber understands and hereby acknowledges
that the Company is under no obligation to register any of the Units or any of
the Securities comprising the Units under the Securities Act or any state
securities or "blue sky" laws other than as set forth in Article V. The
Subscriber consents that, the Company, may but is not obligated to do so, and
accordingly, may permit transfer of the Securities only when the request for
transfer is accompanied by an opinion of counsel satisfactory to the Company
that neither the proposed sale nor the proposed transfer results in the
violation of the Securities Act or any other applicable state, local or foreign
securities or blue sky laws.
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The Subscriber agrees to hold the Company and its directors, officers,
employees, affiliates, controlling persons and agents (including the Finder and
its officers, directors, employees, counsel, controlling persons and agents) and
their respective heirs, representatives, successors and assigns harmless and to
indemnify them against all liabilities, costs and expenses incurred by them as a
result of, (a) any misrepresentation made by the Subscriber contained in this
Agreement (including the Confidential Investor Questionnaire contained in
Article VII herein), (b) any sale or distribution by the Subscriber in violation
of the Securities Act or any applicable state securities or "blue sky" laws or
(c) any untrue statement of a material fact made by the Subscriber and contained
herein.
1.11 The Subscriber consents to the placement of a legend on any
certificate or other document evidencing the Securities that such Securities
have not been registered under the Securities Act or any local, foreign or state
securities or "blue sky" laws and setting forth or referring to the restrictions
on transferability and sale thereof contained in this Agreement. The Subscriber
is aware that the Company will make a notation in its appropriate records with
respect to the restrictions on the transferability of such Securities.
1.12 The Subscriber understands that the Company will review this
Agreement and is hereby given authority by the Subscriber to call Subscriber's
bank or place of employment or otherwise review the financial standing of the
Subscriber; and it is further agreed that the Company reserves the unrestricted
right, without further documentation or agreement on the part of the Subscriber,
to reject or limit any subscription, to accept subscriptions for fractional
Units and to close the Offering to the Subscriber at any time.
1.13 The Subscriber hereby represents that the address of the
Subscriber furnished by Subscriber on the signature page hereof is the
Subscriber's principal residence if Subscriber is an individual or its principal
business address if it is a corporation or other entity.
1.14 The Subscriber represents that the Subscriber has full power and
authority (corporate, statutory and otherwise) to execute and deliver this
Agreement and to purchase the Units and the Securities underlying the Units.
This Agreement constitutes the legal, valid and binding obligation of the
Subscriber, enforceable against the Subscriber in accordance with its terms.
1.15 If the Subscriber is a corporation, partnership, limited
liability Company, trust, employee benefit plan, individual retirement account,
Xxxxx Plan, or other tax-exempt entity, it is authorized and qualified to become
an investor in the Company and the person signing this Agreement on behalf of
such entity has been duly authorized by such entity to do so. (If a Subscriber
is an employee benefit plan, individual retirement amount, Xxxxx Plan or other
tax-exempt entity, it may have special tax and ERISA considerations to take into
account.)
1.16 The Subscriber acknowledges that if he or she is a Registered
Representative of an NASD member firm, he or she must give such firm the notice
required by the NASD's Rules of Fair Practice, receipt of which must be
acknowledged by such firm in Section 7.4 below.
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1.17 Subscriber acknowledges that the Finder will assist the Company
in identifying potential investors for which it will receive certain
compensation as described in the PPM.
1.18 In connection with any subsequent public offering of the
Company's securities, the Subscriber hereby agrees to be subject to a lock-up
for a period of sixty (60) days or such longer period following such public
offering as required by the underwriter or underwriters of such public offering.
During such "lock-up" periods, the Subscriber agrees not to directly or
indirectly sell, offer to sell, contract to sell, including, without limitation,
"short" or "short against the box" (as those terms are generally understood),
grant any option to purchase or otherwise transfer or dispose of (other than to
donees who agree to be similarly bound) any securities of the Company or
derivative thereof held by it at any time during such period. This Section 1.18
shall be binding upon any transferee of the Securities. The Subscriber agrees
upon request to certify in writing to the Company its compliance with this
Section 1.18.
In order to enforce the foregoing covenant, the Company may impose
stock-transfer instructions with respect to the Securities of each Subscriber
(and the shares or securities of every other person subject to the foregoing
restriction) until the end of such period.
II. REPRESENTATIONS BY THE COMPANY
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The Company hereby represents and warrants to the Subscriber that:
2.1 Organization, Good Standing and Qualification. The Company is a
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corporation duly organized and validly existing under the laws of the State of
Delaware and has full corporate power and authority to conduct its business as
described in the PPM.
2.2 Capitalization and Voting Rights. The authorized, issued and
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outstanding capital stock of the Company is as set forth in the PPM; all issued
and outstanding shares of the Company are validly issued, fully paid and
nonassessable. The Securities comprising the Units, when issued and paid for in
accordance with the terms of this Agreement, will be validly issued, fully paid
and nonassessable. Except as set forth in the PPM, there are no outstanding
options, warrants, agreements, convertible securities, preemptive rights or
other rights to subscribe for or to purchase any shares of capital stock of the
Company. Except as set forth in the PPM, in this Agreement and as otherwise
required by law, there are no restrictions upon the voting or transfer of any of
the shares of capital stock of the Company pursuant to the Company's Certificate
of Incorporation and/or By-Laws (collectively, the "Incorporation Documents"),
or other governing documents or any agreement or other instruments to which the
Company is a party or by which the Company is bound.
2.3 Authorization; Enforceability. The Company has all corporate
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right, power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. All corporate action necessary for the
authorization, execution, delivery and performance of this Agreement by the
Company, the authorization, sale, issuance and
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delivery of the Securities contemplated hereby and the performance of the
Company's obligations hereunder has been or will be taken prior to the Closing.
This Agreement has been duly executed and delivered by the Company and
constitutes a legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, subject to laws of general
application relating to bankruptcy, insolvency and the relief of debtors and
rules of law governing specific performance, injunctive relief or other
equitable remedies, and to limitations of public policy. Upon the issuance and
delivery of the Securities (including the Common Stock issuable upon exercise of
the Finder Warrants (as defined in the PPM), and upon compliance by the
Subscriber with the terms hereof, the Securities will be validly issued, fully
paid and nonassessable. The issuance and sale of the Securities contemplated
hereby (including the Common Stock issuable upon exercise of the Finder
Warrants), will not give rise to any preemptive rights or rights of first
refusal on behalf of any person.
2.4 No Conflict; Governmental Consents.
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(a) The execution and delivery by the Company of this Agreement and
the consummation of the transactions contemplated hereby will not result in the
violation of any law, statute, rule, regulation, order, writ, injunction,
judgment or decree of any court or governmental authority to or by which the
Company is bound, or of any provision of the Incorporation Documents of the
Company, and will not conflict with, or result in a breach or violation of, any
of the terms or provisions of, or constitute (with due notice or lapse of time
or both) a default under, any lease, loan agreement, mortgage, security
agreement, trust indenture or other agreement or instrument to which the Company
is a party or by which it is bound or to which any of its properties or assets
is subject, nor result in the creation or imposition of any lien upon any of the
properties or assets of the Company.
(b) No consent, approval, authorization or other order of any
governmental authority is required to be obtained by the Company in connection
with the authorization, execution and delivery of this Agreement or with the
authorization, issue and sale of the Units or the Securities comprising the
Units, except such filings as may be required to be made with the SEC, the NASD
and the NASDAQ and with any state or foreign blue sky or securities regulatory
authority.
2.5 Litigation. Except as set forth in the PPM, the Company knows of
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no pending or threatened legal or governmental proceedings against the Company
that could materially adversely affect the business, property, financial
condition or operations of the Company.
III. TERMS OF SUBSCRIPTION
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3.1 The Company shall issue a minimum of four (4) Units (the "Minimum
Offering") and a maximum of twenty (24) Units (the "Maximum Offering"), each
"Unit" consisting of five thousand (5,000) shares of Series A Preferred Shares
(the "Preferred Stock"). Upon receipt of the Minimum Offering amount, the
Company may conduct a closing (the "Initial Closing Date") and may conduct
subsequent closings on an interim basis (each a "Closing") until the Maximum
Offering has been reached (the "Final Closing
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Date"). The Offering Period shall terminate at 11:59 p.m. New York City time on
December 31, 1999, subject to an extension, at the option of the Company, for
one additional sixty (60) day period. The Units will be offered on a "best
efforts" basis. The purchase price is payable by personal or business check,
wire transfer of immediately available funds or money order made payable to
"State Street Bank & Trust, N.A., Escrow Agent, F/B/O Lakaro Biopharmaceuticals,
Inc."
3.2 Pending the sale of the Units, all funds paid hereunder shall be
deposited by the Company in an interest-bearing escrow account with State Street
Bank & Trust, N.A, having a branch at 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000. If
the Company shall not have obtained subscriptions (including this subscription)
for purchases of the Minimum Offering amount on or before the Final Closing
Date, then this subscription shall be void and all funds paid hereunder by the
Subscriber shall be promptly returned to the Subscriber, with interest, subject
to paragraph 3.4 hereof.
3.3 The Subscriber hereby authorizes and directs the Company to
deliver the Preferred Stock to be issued to the Subscriber pursuant to this
Agreement to the residential or business address indicated on the signature page
hereto.
3.4 The Subscriber hereby authorizes and directs the Company to
return any funds for unaccepted subscriptions to the same account from which the
funds were drawn.
IV. CONDITIONS TO OBLIGATIONS OF THE SUBSCRIBERS
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4.1 The Subscriber's obligation to purchase the Units at the closings
(each, a "Closing") is subject to the fulfillment on or prior to each Closing of
the following conditions, which conditions may be waived at the option of each
Subscriber to the extent permitted by law:
(a) Representations and Warranties Correct. The representations
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and warranties made by the Company in Article II hereof shall be true and
correct in all material respects when made, and shall be true and correct in all
material respects on each Closing with the same force and effect as if they had
been made on and as of said date.
(b) No Legal Order Pending. There shall not then be in effect
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any legal or other order enjoining or restraining the transactions contemplated
by this Agreement.
(c) No Law Prohibiting or Restricting Such Sale. There shall
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not be in effect any law, rule or regulation prohibiting or restricting such
sale or requiring any consent or approval of any person, which shall not have
been obtained, to issue the Securities (except as otherwise provided in this
Agreement).
(d) Minimum Subscriptions. The Company shall have received
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binding subscriptions for at least the Minimum Offering amount.
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V. REGISTRATION RIGHTS
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5.1 Any capitalized terms used herein that are not otherwise
defined herein shall have the meanings ascribed to such terms in the Memorandum,
the definitions from which are hereby incorporated as if set out in full herein.
As used in this Agreement, the following terms shall have the following
meanings:
(a) The term "Holder" means any person owning or having the
right to acquire Registrable Securities or any assignee thereof.
(b) The terms "register", "registered" and "registration"
refer to a registration effected by preparing and filing a registration
statement or similar document in the United States in compliance with the
Securities Act, and the declaration or order of effectiveness of such
registration statement or document.
(c) The term "Registrable Securities" shall mean (i) the
shares of Common Stock issuable upon the conversion of the Preferred Stock being
sold in the Units, (ii) the shares of Common Stock underlying the Finder
Warrants and (iii) any shares of Common Stock issued as (or issuable upon the
conversion or exercise of any warrant, right or other security that is issued
as) a dividend or other distribution with respect to or in replacement of the
Preferred Stock; provided, however, that securities shall only be treated as
Registrable Securities if and only for so long as they (A) have not been
disposed of pursuant to a registration statement declared effective by the
Commission, (B) have not been issued or sold in a transaction exempt from the
registration and prospectus delivery requirements of the Securities Act so that
all transfer restrictions and restrictive legends with respect thereto are
removed upon the consummation of such sale or (C) are held by a Holder or a
permitted transferee of a Holder pursuant to Section 5.10.
5.2 Piggy-back Registration Rights. (a) The Company agrees that if,
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at any time, and from time to time, commencing one (1) year after the closing
date of the first public offering of securities of the Company in the United
States (other than a registration statement relating either to the sale of
securities to employees of the Company pursuant to a stock option, stock
purchase or similar plan or a SEC Rule 145 transaction)(the "IPO") and ending on
the date that is five (5) years from the date hereof, the Board of Directors of
the Company shall authorize the filing of a registration statement under the
Securities Act (other than the initial public offering of the Company's Common
Stock, or other than a registration statement on Form X-0, Xxxx X-0 or any other
form that does not include substantially the same information as would be
required in a form for the general registration of securities) in connection
with the proposed offer of any of its securities by it or any of its
stockholders, the Company shall, (A) promptly notify the Holder that such
registration statement will be filed and that the Registrable Securities then
held by the Holder, which such Holder requests in writing within twenty (20)
days of notice by the Company be registered, will be included in such
registration statement at the Holder's request, (B) cause such registration
statement to cover all of such Registrable Securities issued to the Holder
requesting inclusion, (C) use its reasonable best efforts to cause such
registration statement to become effective as soon as practicable and (D) take
all other action necessary under any Federal or state law or regulation of any
governmental authority to permit all such Registrable Securities that have
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been issued to the Holder to be sold or otherwise disposed of, and will maintain
such compliance with each such Federal and state law and regulation of any
governmental authority for the period necessary for the Holder to effect the
proposed sale or other disposition.
(b) Notwithstanding any other provision of this Article V, the
Company may at any time, abandon or delay any registration commenced by the
Company. In the event of such an abandonment by the Company, the Company shall
not be required to continue registration of shares requested by the Holder for
inclusion and the Holder shall retain the right to request inclusion of shares
as set forth above.
(c) The Holder shall have the right to request inclusion of
any of their Registrable Securities in a registration statement as described in
this Section 5.2 up to two (2) times.
5.3 Obligations of the Company. Whenever required under this
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Article V to include Registrable Securities in a Company registration statement,
the Company shall, as expeditiously as reasonably possible:
(a) Use its reasonable best efforts to cause such registration
statement to become effective, and, upon the request of the Holders of a
majority of the Registrable Securities registered thereunder, keep such
registration statement effective for the shorter of a period of up to one
hundred twenty (120) days or until the distribution contemplated in the
Registration Statement has been completed (the "Effective Period"); provided,
however, that such 120-day period shall be extended for a period of time equal
to the period that the Holder refrains from selling any securities included in
such registration at the request of an underwriter of Common Stock (or other
securities) of the Company, and provided further that if applicable rules under
the Securities Act governing the obligation to file a post-effective amendment
permits, in lieu of filing a post-effective amendment that (i) includes any
prospectus required by Section 10(a)(3) of the Securities Act or (ii) reflects
facts or events representing a material or fundamental change in the information
set forth in the registration statement, the Company may incorporate by
reference information required to be included in (i) and (ii) above to the
extent such information is contained in periodic reports filed pursuant to
Section 13 or 15(d) of the Exchange Act in the registration statement.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement, and the prospectus used in
connection with such registration statement, as may be necessary to comply with
the provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
(d) Use its reasonable best efforts to register and qualify
the securities covered by such registration statement under such other federal
or state securities laws of such jurisdictions as shall be reasonably requested
by the Holders; provided, however, that
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the Company shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to service of
process in any such states or jurisdictions, unless the Company is already
subject to service in such jurisdiction and except as may be required by the
Securities Act.
(e) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by
such registration statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
(g) Cause all such Registrable Securities registered hereunder
to be listed on each securities exchange or quotation service on which similar
securities issued by the Company are then listed or quoted.
(h) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
5.4 Furnish Information. It shall be a condition precedent to the
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obligation of the Company to take any action pursuant to this Article V with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding the Holder, the
Registrable Securities held by the Holder, and the intended method of
disposition of such securities as shall be reasonably required by the Company to
effect the registration of such Holder's Registrable Securities, including,
without limitation, as may be required by the applicable rules and regulations
of the SEC and applicable state or foreign securities laws concerning the
proposed method of sale or other disposition of the Securities and the identity
of, and compensation to be paid to, any proposed underwriter or brokers to be
employed by the Holder in connection therewith, and the Holder shall deliver to
the Company upon request any written undertakings reasonably requested by the
Company to assure full compliance with applicable laws.
5.5 Expenses of Company Registration. The Company shall bear and pay
all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 5.2 for each Holder, including (without limitation) all
registration, filing, and qualification fees, printers and accounting fees
relating or apportionable thereto, but excluding underwriting discounts and
commissions relating to Registrable Securities; provided, however, that the
Company shall not bear the cost of any professional fees or costs of accounting,
financial or legal advisors to any of the Holders. Notwithstanding the
foregoing, each Holder shall pay all registration expenses which such Holder is
required to pay under applicable law.
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5.6 Underwriting Requirements. In connection with any offering
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involving an underwriting of shares of the Company's capital stock, the Company
shall not be required under Article 5.2 to include any of the Holders'
Registrable Securities in such underwriting unless they accept the terms of the
underwriting as agreed upon between the Company and the underwriters selected by
it (or by other persons entitled to select the underwriters), and then only in
such quantity as the underwriters determine in their sole discretion will not
jeopardize the success of the offering by the Company. If the total amount of
securities, including Registrable Securities, requested by stockholders to be
included in such offering exceeds the amount of securities sold other than by
the Company that the underwriters determine in their sole discretion is
compatible with the success of the offering, then the Company shall be required
to include in the offering only that number of such securities, including
Registrable Securities, which the underwriters determine in their sole
discretion will not jeopardize the success of the offering (the securities so
included to be apportioned pro rata among the selling stockholders according to
the total amount of securities entitled to be included therein owned by each
selling stockholder or in such other proportions as shall mutually be agreed to
by such selling stockholders). For purposes of the preceding parenthetical
concerning apportionment, for any selling stockholder who is a holder of
Registrable Securities and is a partnership or corporation, the partners,
retired partners and stockholders of such holder, or the estates and family
members of any such partners and retired partners and any trusts for the benefit
of any of the foregoing persons shall be deemed to be a single "selling
stockholder", and any pro-rata reduction with respect to such "selling
stockholder" shall be based upon the aggregate amount of shares carrying
registration rights owned by all entities and individuals included in such
"selling stockholder", as defined in this sentence.
5.7 Delay of Registration. No Holder shall have any right to obtain or
---------------------
seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Article V.
5.8 Indemnification. In the event that any Registrable Securities are
---------------
included in a registration statement under this Article V:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, any underwriter (as defined in the Securities Act)
for such Holder and each person, if any, who controls such Holder or underwriter
within the meaning of the Securities Act or the Exchange Act, against any
losses, claims, damages, or liabilities (joint or several) to which they may
become subject under the Securities Act, or the Exchange Act, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereof) arise
out of or are based upon any of the following statements, omissions or
violations (collectively a "Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, or any rule or
regulation promulgated under the Securities Act, or the Exchange Act, and the
Company will reimburse each such Holder, underwriter or controlling person for
any legal or other expenses reasonably incurred
-11-
by them in connection with investigating or defending any such loss, claim,
damage, liability, or action; provided, however, that the indemnity agreement
contained in this Article 5.8(a) shall not apply to amounts paid in settlement
of any such loss, claim, damage, liability, or action if such settlement is
effected without the consent of the Company (which consent shall not be
unreasonably withheld), nor shall the Company be liable in any such case for any
such loss, claim, damage, liability, or action to the extent that it arises out
of or is based upon a Violation which occurs in reliance upon and in conformity
with written information furnished expressly for use in connection with such
registration by any such Holder, underwriter or controlling person; provided,
that, in no event shall any indemnity under this Article 5.8(b) exceed the gross
proceeds from the offering received by such Holder.
(b) To the extent permitted by law, each Holder registering its
Registrable Securities will indemnify and hold harmless the Company, each of its
directors, each of its officers who has signed the registration statement, each
person, if any, who controls the Company within the meaning of the Securities
Act, any underwriter, any other Holder selling securities in such registration
statement and any controlling person of any such underwriter or other Holder,
against any losses, claims, damages, or liabilities (joint or several) to which
any of the foregoing persons may become subject, under the Securities Act, or
the Exchange Act, insofar as such losses, claims, damages, or liabilities (or
actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by such
Holder expressly for use in connection with such registration or arises out of a
Violation; and each such Holder will pay, as incurred, any legal or other
expenses reasonably incurred by any person intended to be indemnified pursuant
to this Article 5.8(b), in connection with investigating or defending any such
loss, claim, damage, liability, or action; provided, however, that the indemnity
agreement contained in this Article 5.8(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder, which consent shall
not be unreasonably withheld; provided, that, in no event shall any indemnity
under this Article 5.8(b) exceed the gross proceeds from the offering received
by such Holder.
(c) Promptly after receipt by an indemnified party under this
Article 5.8 of notice of the commencement of any action (including any
governmental action), such indemnified party shall, if a claim in respect
thereof is to be made against any indemnifying party under this Article 5.8,
deliver to the indemnifying party a written notice of the commencement thereof
and the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly notified, to assume the defense thereof with counsel selected by
the indemnifying party and approved by the indemnified party (whose approval
shall not be unreasonably withheld); provided, however, that an indemnified
party (together with all other indemnified parties which may be represented
without conflict by one counsel) shall have the right to retain one separate
counsel, with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Article
5.8, but
-12-
the omission so to deliver written notice to the indemnifying party will not
relieve it of any liability that it may have to any indemnified party otherwise
than under this Article 5.8.
(d) If the indemnification provided for in this Article 5.8 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage, or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) The obligations of the Company and Holders under this Article
5.8 shall survive the completion of any offering of Registrable Securities in a
registration statement under this Article V, and otherwise.
5.9 Reports Under Securities Exchange Act of 1934. With a view to
---------------------------------------------
making available to the Holders the benefits of Rule 144 promulgated under the
Securities Act and any other rule or regulation of the SEC that may at any time
permit a Holder to sell securities of the Company to the public without
registration or pursuant to a registration on Form S-3, and provided that the
Company's Common Stock is otherwise registered pursuant to the Securities Act,
the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times after ninety (90) days
after the effective date of the registration statement filed in connection with
an IPO by the Company;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
(c) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a copy of the most recent
annual or quarterly report of the Company and such other reports and documents
so filed by the Company, and (ii) such other information as may be reasonably
requested in availing any Holder of any rule or regulation of the SEC which
permits the selling of any such securities without registration or pursuant to
such form.
-13-
5.10 Assignment of Registration Rights. The rights to cause the Company
---------------------------------
to register Registrable Securities granted to the Holders by the Company under
this Article V may be assigned in full by a Holder in connection with a transfer
by such Holder of its Registrable Securities if: (a) such Holder gives prior
written notice to the Company; and (b) such transferee agrees for the benefit of
the Company, to comply with the terms and provisions of this Agreement, and such
transfer is otherwise in compliance with this Agreement; provided, however, that
such transfer may otherwise be effected in accordance with applicable securities
laws. Except as specifically permitted by this Section 5.10, the rights of a
Holder with respect to Registrable Securities as set out herein shall not be
transferable to any other Person, and any attempted transfer shall cause all
rights of such Holder therein to be forfeited.
5.11 Termination of Registration Rights. In addition, notwithstanding
----------------------------------
Section 5.2(a), the right of any Holder to request inclusion in any registration
pursuant to Section 5.2 shall terminate if all shares of Registrable Securities
held by such Holder may be sold under Rule 144 during any 90-day period.
VI. MISCELLANEOUS
6.1 Notices. Any notice or other communication given hereunder
-------
shall be deemed sufficient if in writing and sent by registered or certified
mail, return receipt requested, or delivered by hand against written receipt
therefor, addressed to the Company at 000 Xxxxx Xxxx, Xxxxxxxxx 00000 Israel,
Attn: General Counsel, with a copy to x/x Xxxxxxxxx Xxxxxxx, Inc. 000 Xxxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxx X. Xxxxx, and to the
Subscriber at the Subscriber's address indicated on the signature page of this
Agreement. Notices shall be deemed to have been given or delivered on the date
of mailing, except notices of change of address, which shall be deemed to have
been given or delivered when received.
6.2 Amendment. Except as otherwise provided herein, this
---------
Agreement shall not be changed, modified or amended except by a writing signed
by the parties to be charged, and this Agreement may not be discharged except by
performance in accordance with its terms or by a writing signed by the party to
be charged.
6.3 Successors and Assigns. This Agreement shall be binding upon
----------------------
and inure to the benefit of the parties hereto and to their respective heirs,
legal representatives, successors and assigns. This Agreement sets forth the
entire agreement and understanding between the parties as to the subject matter
hereof and merges and supersedes all prior discussions, agreements and
understandings of any and every nature among them.
6.4 Binding Obligation. Upon the execution and delivery of this
------------------
Agreement by the Subscriber, this Agreement shall become a binding obligation of
the Subscriber with respect to the purchase of Units as herein provided,
subject, however, to the right hereby reserved by the Company to enter into the
same agreements with other Subscribers and to add and/or delete other persons as
Subscribers.
-14-
6.5 Governing Law; Jurisdiction. NOTWITHSTANDING THE PLACE WHERE
---------------------------
THIS AGREEMENT MAY BE EXECUTED BY ANY OF THE PARTIES HERETO, THE PARTIES
EXPRESSLY AGREE THAT ALL THE TERMS AND PROVISIONS HEREOF SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW. IN THE EVENT THAT A JUDICIAL PROCEEDING IS
NECESSARY, THE SOLE FORUM FOR RESOLVING DISPUTES ARISING OUT OF OR RELATING TO
THIS AGREEMENT IS THE APPROPRIATE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY
OF NEW YORK, AND ALL RELATED APPELLATE COURTS, THE PARTIES HEREBY IRREVOCABLY
CONSENT TO THE JURISDICTION OF SUCH COURTS AND AGREE TO SAID VENUE.
6.6 Attorney Fees. In order to discourage frivolous claims the
-------------
parties agree that unless a claimant in any proceeding arising out of this
Agreement succeeds in establishing his claim and recovering a judgment against
another party (regardless of whether such claimant succeeds against one of the
other parties to the action), then the other party shall be entitled to recover
from such claimant all of its/their reasonable legal costs and expenses relating
to such proceeding and/or incurred in preparation therefor.
6.7 Severability. The holding of any provision of this Agreement
------------
to be invalid or unenforceable by a court of competent jurisdiction shall not
affect any other provision of this Agreement, which shall remain in full force
and effect. If any provision of this Agreement shall be declared by a court of
competent jurisdiction to be invalid, illegal or incapable of being enforced in
whole or in part, such provision shall be interpreted so as to remain
enforceable to the maximum extent permissible consistent with applicable law and
the remaining conditions and provisions or portions thereof shall nevertheless
remain in full force and effect and enforceable to the extent they are valid,
legal and enforceable, and no provisions shall be deemed dependent upon any
other covenant or provision unless so expressed herein.
6.8 Waiver. It is agreed that a waiver by either party of a
------
breach of any provision of this Agreement shall not operate, or be construed, as
a waiver of any subsequent breach by that same party.
6.9 Further Obligations. The parties agree to execute and deliver
-------------------
all such further documents, agreements and instruments and take such other and
further action as may be necessary or appropriate to carry out the purposes and
intent of this Agreement.
6.10 Counterparts. This Agreement may be executed in two or
------------
more counterparts each of which shall be deemed an original, but all of which
shall together constitute one and the same instrument.
6.11 Publicity. The Subscribers severally agree not to issue any
---------
public statement with respect to the Subscribers' investment or proposed
investment in the Company or the terms of any agreement or covenant between them
and the Company without the Company's prior written consent, except such
disclosures as may be required under
-15-
applicable law or under any applicable order, rule or regulation, in which case
the Subscriber shall give reasonable advance notice to the Company of such
required disclosure.
6.12 No Brokers. Each Subscriber severally represents and warrants
----------
that it has not engaged, consented to or authorized any broker, Finder or
intermediary to act on its behalf, directly or indirectly, as a broker, finder
or intermediary in connection with the transactions contemplated by this
Agreement. Each Subscriber hereby severally agrees to indemnify and hold
harmless the Company from and against all fees, commissions or other payments
owing to any such person or firm acting on behalf of such Subscriber hereunder.
6.13 No Rights. Nothing in this Agreement shall create or be
---------
deemed to create any rights in any person or entity not a party to this
Agreement, except for the Finder pursuant to Sections 1.6(a) hereof.
-16-
VII. CONFIDENTIAL INVESTOR QUESTIONNAIRE
-----------------------------------
7.1 The Subscriber represents and warrants that he, she or it
comes within one category marked below, and that for any category marked, he,
she or it has truthfully set forth, where applicable, the factual basis or
reason the Subscriber comes within that category. ALL INFORMATION IN RESPONSE TO
THIS SECTION WILL BE KEPT STRICTLY CONFIDENTIAL. The undersigned agrees to
furnish any additional information which the Company deems necessary in order to
verify the answers set forth below.
Category A ___ The undersigned is an individual (not a partnership,
corporation, etc.) whose individual net worth, or
joint net worth with his or her spouse, presently
exceeds $1,000,000.
Explanation. In calculating net worth you may include
equity in personal property and real estate,
including your principal residence, cash, short-term
investments, stock and securities. Equity in personal
property and real estate should be based on the fair
market value of such property less debt secured by
such property.
Category B ___ The undersigned is an individual (not a partnership,
corporation, etc.) who had an individual income in
excess of $200,000 in each of the two most recent
years, or joint income with his or her spouse in
excess of $300,000 in each of those years (in each
case including foreign income, tax exempt income and
full amount of capital gains and losses but excluding
any income of other family members and any unrealized
capital appreciation) and has a reasonable
expectation of reaching the same income level in the
current year.
Category C ___ The undersigned is a director or executive officer of
the Company which is issuing and selling the Units.
Category D ___ The undersigned is a bank; a savings and loan
association; insurance company; registered investment
company; registered business development company;
licensed small business investment company ("SBIC");
or employee benefit plan within the meaning of Title
1 of ERISA and (a) the investment decision is made by
a plan fiduciary which is either a bank, savings and
loan association, insurance company or registered
investment advisor, or (b) the plan has total assets
in excess of $5,000,000 or is a self directed plan
with investment decisions made solely by persons that
are accredited investors.
Category E ___ The undersigned is a private business development
company as defined in section 202(a)(22) of the
Investment Advisors Act of 1940.
-17-
Category F ___ The undersigned is either a corporation, partnership,
Massachusetts business trust, or non-profit
organization within the meaning of Section 501(c)(3)
of the Internal Revenue Code, in each case not formed
for the specific purpose of acquiring the Units and
with total assets in excess of $5,000,000.
Category G ___ The undersigned is a trust with total assets in
excess of $5,000,000, not formed for the specific
purpose of acquiring the Units, where the purchase is
directed by a "sophisticated person" as defined in
Regulation 506(b)(2)(ii) under the Securities Act.
Category H ___ The undersigned is an entity (other than a trust) all
the equity owners of which are "accredited investors"
within one or more of the above categories. If
relying upon this Category alone, each equity owner
must complete a separate copy of this Agreement.
Category I ___ The undersigned is not within any of the categories
above and is therefore not an accredited investor.
The undersigned agrees that the undersigned will notify the Company at any time
on or prior to the Final Closing Date in the event that the representations and
warranties in this Agreement shall cease to be true, accurate and complete.
-18-
7.2 SUITABILITY (please answer each question)
-----------
(a) For an individual subscriber, please describe your current employment,
including the company by which you are employed and its principal business:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(b) For an individual subscriber, please describe any college or graduate
degrees held by you:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(c) For all subscribers, please list types of prior investments:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(d) For all subscribers, please state whether you have you participated in other
private placements before:
YES_______ NO_______
(e) If your answer to question (d) above was "YES", please indicate frequency of
such prior participation in private placements of:
Public Companies Private Companies Public or Private
---------------- -----------------
Biotechnology or
Medical Device
Companies
---------
Frequently ________________ _________________ _________________
Occasionally ________________ _________________ _________________
Never ________________ _________________ _________________
(f) For individual subscribers, do you expect your current level of income to
significantly decrease in the foreseeable future:
YES_______ NO_______
(g) For trust, corporate, partnership and other institutional subscribers, do
you expect your total assets to significantly decrease in the foreseeable
future:
-19-
YES_______ NO_______
(h) For all subscribers, do you have any other investments or contingent
liabilities which you reasonably anticipate could cause you to need sudden cash
requirements in excess of cash readily available to you:
YES_______ NO_______
(i) For all subscribers, are you familiar with the risk aspects and the
non-liquidity of investments such as the securities for which you seek to
subscribe?
YES_______ NO_______
(j) For all subscribers, do you understand that there is no guarantee of
financial return on this investment and that you run the risk of losing your
entire investment?
YES_______ NO_______
7.3 MANNER IN WHICH TITLE IS TO BE HELD. (circle one)
-----------------------------------
(a) Individual Ownership
(b) Community Property
(c) Joint Tenant with Right of
Survivorship (both parties
must sign)
(d) Partnership*
(e) Tenants in Common
(f) Corporation*
(g) Trust*
(h) Other
*If Units are being subscribed for by an entity, the attached
Certificate of Signatory must also be completed.
-20-
7.4 NASD AFFILIATION.
----------------
Are you affiliated or associated with an NASD member firm (please check one):
Yes _________ No __________
If Yes, please describe:
_________________________________________________________
_________________________________________________________
_________________________________________________________
*If Subscriber is a Registered Representative with an NASD member firm, have the
following acknowledgment signed by the appropriate party:
The undersigned NASD member firm acknowledges receipt of the notice required by
Rule 3050 of the NASD Conduct Rules.
---------------------------------
Name of NASD Member Firm
By:______________________________
Authorized Officer
Date:____________________________
7.5 The undersigned is informed of the significance to the Company of
the foregoing representations and answers contained in the Confidential Investor
Questionnaire contained in this Section VI and such answers have been provided
under the assumption that the Company will rely on them.
-21-
[Signature Page]
NUMBER OF UNITS X $500,000 = (the "Purchase Price")
_______ ____________________
________________________________________________________________________________
Signature Signature (if purchasing jointly)
________________________________________________________________________________
Name Typed or Printed Name Typed or Printed
________________________________________________________________________________
Entity Name Entity Name
________________________________________________________________________________
Address Address
________________________________________________________________________________
City, State and Zip Code City, State and Zip Code
________________________________________________________________________________
Telephone-Business Telephone--Business
________________________________________________________________________________
Telephone-Residence Telephone--Residence
________________________________________________________________________________
Facsimile-Business Facsimile--Business
________________________________________________________________________________
Facsimile-Residence Facsimile--Residence
________________________________________________________________________________
Tax ID # or Social Security # Tax ID # or Social Security #
________________________________________________________________________________
Name in which securities should be issued:
Check the box marked YES if you would like the securities
to be delivered to your account with Paramount Capital, Inc.
Yes ___ No ___
(If you check "No", securities will be delivered to you at the address provided
above.)
Dated: , 1999
This Subscription Agreement is agreed to and accepted as of ______________,
1999.
Lakaro Biopharmaceuticals, Inc.
By: ____________________________________
Name: Xxxxxx Xxxxxx, M.D.
Title: Chief Executive Officer
CERTIFICATE OF SIGNATORY
(To be completed if Units are
being subscribed for by an entity)
I,______________________________, am the_______________________________ of
_____________________________________________ (the "Entity").
I certify that I am empowered and duly authorized by the Entity to execute and
carry out the terms of the Subscription Agreement and to purchase and hold the
Units, and certify further that the Subscription Agreement has been duly and
validly executed on behalf of the Entity and constitutes a legal and binding
obligation of the Entity.
IN WITNESS WHEREOF, I have set my hand this ____day of _________________, 1999.
_______________________________________
(Signature)
