SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT made as of this 1st day of September, 2004
between Symbollon Pharmaceuticals, Inc., a Delaware corporation with its
principal offices at 00 Xxxxxx Xxxxx, Xxxxxxxxxx, XX 00000 (the "Company"), and
the undersigned (the "Subscriber").
WHEREAS, the Company desires to issue and sell in a private placement
to accredited investors (the "Offering") up to 3,000,000 shares of Class A
common stock, par value $.001 per share (the "Common Stock"). The shares are
being offered at $0.65 per share, or for an aggregate purchase price of up to
$1,950,000. For each two shares subscribed for, the purchaser will also receive
one common stock purchase warrant (the "Warrant"). Each Warrant entitles the
holder to purchase one share of common stock at a price of $0.65 per share for a
period of eighteen months from the date of issuance, substantially in the form
set forth as Attachment V to the Confidential Private Placement Memorandum,
dated August 2, 2004, as it may be supplemented and amended (the "Memorandum"),
relating to the Offering. The Offering is being conducted on a "best efforts"
basis by the Company, and completion of the Offering is not subject to the
purchase of a minimum number of shares. All funds will be deposited directly in
the treasury of the Company. The shares sold in the Offering and Warrants are
sometime hereinafter referred to as the "Securities".
NOW, THEREFORE, for and in consideration of the premises and
the mutual covenants hereinafter set forth, the parties hereto do hereby agree
as follows:
I. SUBSCRIPTION FOR UNITS AND REPRESENTATIONS BY SUBSCRIBER
1.1 Subject to the terms and conditions hereinafter set forth,
the Subscriber hereby subscribes for and agrees to purchase from the Company the
number of shares and Warrants (one-half the number of shares) set forth upon the
signature page hereof at a price equal to $0.65 per share, and the Company
agrees to sell such number of shares and Warrants for said purchase price.
Subscriptions will be accepted only for an even number of shares - no fractional
Warrants will be issued. The purchase price is payable by (i) certified or bank
check made payable to Symbollon Pharmaceuticals, Inc., or (ii) wire transfer in
accordance with the wire transfer instructions set forth on Exhibit A hereto,
contemporaneously with the execution and delivery of this Subscription
Agreement. The Subscriber understands however, that this purchase of Securities
is contingent upon the Company acceptance of the subscription. This subscription
is submitted to the Company in accordance with and subject to the terms and
conditions described in this Agreement and the Memorandum.
1.2 The Subscriber recognizes that the purchase of Securities
involves a high degree of risk in that (i) the Company has had only limited
operations, minimal revenues and requires substantial funds in addition to the
proceeds of this private placement, (ii) 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 Securities, (iii) he
may not be able to liquidate his investment; (iv) transferability of the
Securities is extremely limited; and (v) in the event of a disposition, an
investor could sustain the loss of his entire investment.
1.3 The Subscriber represents that he is an "accredited
investor" as such term is defined in Rule 501 of Regulation D promulgated under
the United States Securities Act of 1933, as amended (the "Act"), as indicated
by his responses to the Confidential Purchaser Questionnaire, and that he is
able to bear the economic risk of an investment in the Securities.
1.4 The Subscriber acknowledges that he has prior investment
experience, including investment in non-listed and non-registered securities, or
he has employed the services of an investment advisor, attorney or accountant to
read all of the documents furnished or made available by the Company both to him
and to all other prospective investors in the Securities and to evaluate the
merits and risks of such an investment on his behalf, and that he recognizes the
highly speculative nature of this investment.
1.5 The Subscriber acknowledges receipt and careful review of
the Memorandum (which includes certain Risks Factors relating to the Company and
this Offering), the Company's Annual Report on Form 10-KSB for the year ended
December 31, 2003, the Quarterly Report on Form 10-QSB for the three months
ended March 31, 2004 and a Proxy Statement for the 2004 annual meeting of
stockholders of the Company (collectively, the "Offering Documents"), and hereby
represents that he has been furnished by the Company during the course of this
transaction with all information regarding the Company which he had requested or
desired to know, that all documents which could be reasonably provided have been
made available for his inspection and review; and that such information and
documents have, in his opinion, afforded the Subscriber with all of the same
information that would be provided him in a registration statement filed under
the Act; that he 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 any additional
information which he had requested.
1.6 The Subscriber hereby acknowledges that this Offering has
not been reviewed by the United States Securities and Exchange Commission
("SEC") because of the Company's representations that this is intended to be a
nonpublic offering pursuant to Section 4(2) of the Act. The Subscriber
represents that the Securities are being purchased for his own account, for
investment and not for distribution or resale to others. The Subscriber agrees
that he will not sell or otherwise transfer such securities unless they are
registered under the Act or unless an exemption from such registration is
available.
1.7 The Subscriber understands that the shares of Common
Stock, the Warrants, and the shares of Common Stock issuable upon exercise of
the Warrants (the shares of Common Stock sold in the Offering and the shares of
Common Stock issuable upon exercise of the Warrants collectively shall be
referred to as the "Shares"), have not been registered under the Act by reason
of a claimed exemption under the provisions of the Act which depends, in part,
upon his investment intention. In this connection, the Subscriber understands
that it is the position of the SEC that the statutory basis for such exemption
would not be present if his representation merely meant that his present
intention was to hold such securities for a short period, such as the capital
gains period of tax statutes, for a deferred sale, for a market rise, assuming
that a market develops, or for any other fixed period. The Subscriber realizes
that, in the view of the SEC, a purchase now with an intent to resell would
represent a purchase with an intent inconsistent with his representation to the
Company, and the SEC might regard such a sale or disposition as a deferred sale
to which such exemptions are not available.
2
1.8 The Subscriber understands that Rule 144 (the "Rule")
promulgated under the Act requires, 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 Act. The Subscriber understands that the Company makes no
representation or warranty regarding its fulfillment in the future of any
reporting requirements under the Securities Exchange Act of 1934, as amended, or
its dissemination to the public of any current financial or other information
concerning the Company, as is required by the Rule as one of the conditions of
its availability. The Subscriber understands and hereby acknowledges that the
Company is under no obligation (and does not intend) to register the Warrants
under the Act, and is under no obligation to the Shares under the Act except as
set forth in Article IV herein. The Subscriber consents that the Company may, if
it desires, permit the transfer of the Shares out of his name only when his
request for transfer is accompanied by an opinion of counsel reasonably
satisfactory to the Company that neither the sale nor the proposed transfer
results in a violation of the Act or any applicable state "blue sky" laws
(collectively "Securities Laws"). The Subscriber agrees to hold the Company and
its directors, officers and controlling persons 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 any
misrepresentation made by the Subscriber contained herein or in the Confidential
Purchaser Questionnaire or any sale or distribution by the undersigned
Subscriber in violation of any Securities Laws.
1.9 The Subscriber consents to the placement of a legend on
any certificate or other document evidencing the Securities stating that they
have not been registered under the Act and setting forth or referring to the
restrictions on transferability and sale thereof.
1.10 The Subscriber understands that the Company will review
this Subscription Agreement and the Confidential Purchaser Questionnaire and is
hereby given authority by the undersigned to call his 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 to reject or
limit any subscription and to close the offer at any time.
1.11 The Subscriber hereby represents that the address of
Subscriber furnished by him at the end of this Subscription Agreement is the
undersigned's principal residence if he is an individual or its principal
business address if it is a corporation or other entity.
1.12 The Subscriber acknowledges that if he is a Registered
Representative of an NASD member firm, he must give such firm the notice
required by the NASD's Rules of Fair Practice, receipt of which must be
acknowledged by such firm on the signature page hereof.
1.13 The Subscriber hereby represents that, except as set
forth in the Offering Documents, no representations or warranties have been made
to the Subscriber by the Company or any agent (including, without limitation,
any placement agent or syndicate participant), employee or affiliate of the
Company and in entering into this transaction, the Subscriber is not relying on
any information, other than that contained in the Offering Documents and the
results of independent investigation by the Subscriber.
3
1.14 If the Subscriber is a Georgia resident, the Subscriber hereby acknowledges
that the Securities have been sold in reliance on Paragraph (13) of Code Section
10-5-9 of the Georgia Securities Act of 1973.
1.15 If the Subscriber is a Florida resident, the Subscriber
may have the right, to the extent provided in Section 517.061(11)(a)(5) of the
Florida Securities Act, to withdraw his subscription for the purchase and
receive a full refund of all monies paid. Such right of withdrawal may be
exercised prior to the expiration of three business days after the later to
occur of (A) payment of the purchase has been made to Symbollon or its agent or
(B) communication of the right of withdrawal to the Florida resident. Withdrawal
will be without any further liability to any person. To accomplish this
withdrawal, a Subscriber need only send a letter or telegram to Symbollon at our
address set forth herein indicating his intention to withdraw. Such letter or
telegram should be set and postmarked prior to the end of the aforementioned
third business day. It is advisable to send such letter by certified mail,
return receipt requested, to ensure that it is received and also to evidence the
time it was mailed. If the request is made orally, in person or by telephone to
an officer of Symbollon, a written confirmation that the request has been
received should be requested.
1.16 The Company may pay brokerage commissions, finders' fees
and/or similar compensation to certain third parties (the "Placement Agents" or
"Agents") of up to a 10.0% cash compensation and Warrants equal to 10.0% of the
Warrants issued (the "Placement Agent Warrants"), to the extent permitted by
applicable law. The Agents did not prepare any of the information to be
delivered to prospective investors in connection with the Offering and do not
make any representation or warranty concerning the accuracy or completeness of
such information. Prospective investors are advised to conduct their own review
of the business, properties and affairs of the Company before subscribing to
purchase Securities.
II. REPRESENTATIONS BY THE COMPANY
The Company represents and warrants to the Subscriber that:
(a) The Company is a corporation duly organized,
existing and in good standing
under the laws of the State of Delaware and has the corporate power to conduct
the business which it conducts and proposes to conduct.
(b) The execution, delivery and performance of this
Subscription Agreement by the
Company has been duly approved by the Board of Directors of the Company, and all
other actions required to authorize and effect the offer and sale of the
Securities will have been duly taken and approved.
(c) The Shares and Warrants (including the Shares
issuable upon exercise of the
Warrants) have been duly and validly authorized and when issued and paid for in
accordance with the terms hereof, and of the Warrants, will be fully paid and
nonassessable.
4
(d) The Company will at all times so long as the
Warrants are outstanding have
authorized and reserved a sufficient number of shares of the Common Stock to
provide for exercise of the Warrants into the requisite number of shares of
Common Stock.
(e) The Company has obtained, or is in the process of
obtaining, sufficient
licenses, permits and other governmental authorizations necessary to the conduct
of its business; such licenses, permits and other governmental authorizations
obtained are in full force and effect; and the Company is in all material
respects complying therewith.
(f) Except as disclosed in the Offering Documents,
the Company knows of no pending
or threatened legal or governmental proceedings to which the Company is a party
which could materially adversely affect the business, property, financial
condition or operations of the Company.
(g) The Company is not in violation of or default
under, nor will the execution
and delivery of this Subscription Agreement, the issuance of the Securities and
the consummation of the transactions herein contemplated, result in a violation
of, or constitute a default under, the certificate of incorporation or by-laws
of the Company, in the performance or observance of any material obligations,
agreement, covenant or condition contained in any bond, debenture, note or other
evidence of indebtedness to which the Company is a party or by which it or any
of its properties may be bound or in violation of any material order, rule,
regulations writ, injunction, or decree of any government, governmental
instrumentality or court, domestic or foreign.
(h) The financial information contained in the Annual
Report on Form 10-KSB for
the fiscal year ended December 31, 2003 (audited) and the Quarterly Report on
Form 10-QSB for the three months ended March 31, 2004 (unaudited) furnished by
the Company to the Subscriber present fairly, in all material respects, the
financial condition of the Company as of the date and for the periods indicated.
III. TERMS OF SUBSCRIPTION
3.1 The subscription period will begin on August 2, 2004 and
will terminate upon the earlier to occur of (i) the sale of all of the
Securities or (ii) 11:59 PM Eastern time on September 1, 2004 unless (in the
sole discretion of the Company) extended by the Company for an additional period
or periods or earlier terminated by the Company (the "Termination Date"). The
Securities are offered on a "best efforts" basis, and the acceptance of
subscriptions is at the discretion of the Company. The minimum subscription per
subscriber shall be 20,000 Shares ($13,000); provided, however, that smaller
investments may be accepted at the discretion of the Company.
3.2 Placement of the Securities may be made by the Placement
Agents, who will receive up to (i) a placement fee in the amount of 10% of the
purchase price of the Securities placed by them and (ii) Placement Agent
Warrants equal to 10.0% of the Warrants sold by them.
3.3 Pending the sale of the Securities, all funds paid
hereunder shall be deposited by the Company in its bank account. If the Company,
in its sole discretion, rejects this subscription for purchase of Securities,
then this subscription shall be void and all funds paid hereunder by the
Subscriber, without interest, shall be promptly returned to the Subscriber,
subject to paragraph 3.5 hereof. Sale of the Securities shall occur in one or
more closings. Closings are not subject to the purchase of a minimum number of
Securities.
5
3.4 The Subscriber hereby authorizes and directs the Company
to deliver the Securities to be issued to such Subscriber pursuant to this
Subscription Agreement either to the residential or business address indicated
in the Confidential Purchaser Questionnaire, or as instructed by the Placement
Agents.
3.5 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, including any customer account maintained with the
Placement Agents.
IV. REGISTRATION RIGHTS
4.1 Registration. The Company hereby agrees with the holders
of the Securities, or their permitted transferees (collectively, the "Holders")
who shall have agreed in writing with the Company to be bound by the provisions
hereof applicable to the Holders, to use its commercially reasonable best
efforts to file within six (6) months following the final closing of this
Offering a registration statement under the Act covering the resale of the
Shares included in the Offering and issuable upon exercise of the Warrants (the
"Registrable Securities") by the Holders.
4.2 Registration Procedures. In connection with the
registration of Registrable Securities under the Act pursuant to Section 4.1,
the Company will use its commercially reasonable best efforts to:
(a) prepare and file with the SEC a registration
statement with respect to such
securities, and cause such registration statement to become effective, and to
cause the same to remain effective for such period as may be reasonably
necessary to effect the sale of such securities, provided that such period need
not extend beyond the date that all the Registrable Securities are eligible for
sale under Rule 144 under the Act (the "Registration Termination Date").
(b) prepare and file with the SEC such amendments to
such registration statement
and supplements to the prospectus contained therein as may be necessary to keep
such registration statement effective for such period as may be reasonably
necessary to effect the sale of such securities, but not beyond the Registration
Termination Date.
(c) furnish to the security holders participating in
such registration such
reasonable number of copies of the registration statement, preliminary
prospectus, final prospectus and such other documents as they may reasonably
request in order to facilitate the public offering of such securities;
(d) register or qualify the securities covered by
such registration statement
under such state securities or blue sky laws of such jurisdictions as such
participating holders may reasonably request in writing within ten (10) days
following the original filing of such registration statement, except that the
Company shall not for any purpose be required to execute a general consent to
service of process or to qualify to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified;
6
(e) notify the security holders participating in such
registration, promptly after
it shall receive notice thereof, of the time when such registration statement
has become effective or a supplement to any prospectus forming a part of such
registration statement has been filed;
(f) notify such holders promptly of any request by
the SEC for the amending or supplementing of such registration statement or
prospectus or for additional information;
(g) prepare and file with the SEC, promptly upon the
request of any such holders,
any amendments or supplements to such registration statement or prospectus
which, in the opinion of counsel for such holders (and concurred in by counsel
for the Company), is required under the Act or the rules and regulations
thereunder in connection with the distribution of Common Stock by such holder,
(h) prepare and promptly file with the SEC and
promptly notify such holders of the
filing of such amendment or supplement to such registration statement or
prospectus as may be necessary to correct any statements or omissions if, at the
time when a prospectus relating to such securities is required to be delivered
under the Act, any event shall have occurred as the result of which any such
prospectus or any other prospectus as then in effect would include an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances in which they
were made, not misleading; and
(i) advise such holders, promptly after it shall
receive notice or obtain
knowledge thereof, of the issuance of any stop order by the SEC suspending the
effectiveness of such registration statement or the initiation or threatening of
any proceeding for that purpose and promptly use its best efforts to prevent the
issuance of any stop order or to obtain its withdrawal if such stop order should
be issued.
4.3 Expenses.
--------
(a) With respect to the registration pursuant to
Section 4.1 hereof, all fees,
costs and expenses of and incidental to such registration (as specified in
paragraph (b) below) shall be borne by the Company, provided, however, that any
security holders participating in such registration shall bear their pro rata
share of any underwriting discount and commissions and transfer taxes.
(b) The fees, costs and expenses of registration to
be borne by the Company as
provided in paragraph (a) above shall include, without limitation, all
registration, filing, and NASD fees, printing expenses, fees and disbursements
of counsel and accountants for the Company, and expenses of complying with state
securities or blue sky laws of any jurisdictions in which the securities to be
offered are to be registered and qualified, including blue sky legal fees and
expenses of Company counsel. Fees and disbursements of counsel and accountants
for the selling security holders and any other expenses incurred by the selling
security holders not expressly included above shall be borne by the selling
security holders.
7
4.4 Indemnification.
(a) To the extent permitted by law, the Company will
indemnify and hold harmless
each holder of Registrable Securities which are included in a registration
statement pursuant to the provisions of Section 4.1, its directors and officers,
and any underwriter (as defined in the Act) for such holder and each person, if
any, who controls such holder or such underwriter within the meaning of the Act,
from and against, and will reimburse such holder and each such underwriter and
controlling person with respect to, any and all loss, damage, liability, cost
and expense to which such holder or any such underwriter or controlling person
may become subject under the Act or otherwise, insofar as such losses, damages,
liabilities, costs or expenses are caused by any untrue statement or alleged
untrue statement of any material fact contained in such registration statement,
any prospectus contained therein or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading; provided, however, that the Company will not be liable in any such
case to the extent that any such loss, damage, liability, cost or expenses
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission so made in conformity with information furnished
by such holder, such underwriter or such controlling person in writing
specifically for use in the preparation thereof.
(b) Each holder of Registrable Securities included in
a registration pursuant to
the provisions of Section 4.1 hereof will indemnify and hold harmless the
Company, its directors and officers, any controlling person and any underwriter
and any person which controls such underwriter from and against, and will
reimburse the Company, its directors and officers, any controlling person and
any underwriter and any person which controls such underwriter with respect to,
any and all loss, damage, liability, cost or expense to which the Company or any
controlling person and/or any underwriter or controlling person thereof may
become subject under the Act or otherwise, insofar as such losses, damages,
liabilities, costs or expenses are caused by any untrue statement or alleged
untrue statement of any material fact contained in such registration statement,
any prospectus contained therein or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was so
made in reliance upon and in strict conformity with written information
furnished by or on behalf of such holder specifically for use in the preparation
thereof.
(c) Promptly after receipt by an indemnified party
pursuant to the provisions of
paragraph (a) or (b) of this Section 4.4 of notice of the commencement of any
action involving the subject matter of the foregoing indemnity provisions such
indemnified party will, if a claim thereof is to be made against the
indemnifying party pursuant to the provisions of said paragraph (a) or (b),
promptly notify the indemnifying party of the commencement thereof; but the
omission to so notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than hereunder.
8
In case such action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party shall
have the right to participate in, and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party,
provided, however, if the defendants in any action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or in addition to those available
to the indemnifying party, or if there is a conflict of interest which would
prevent counsel for the indemnifying party from also representing the
indemnified party, the indemnified party or parties have the right to select
separate counsel to participate in the defense of such action on behalf of such
indemnified party or parties. After notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party pursuant to the
provisions of said paragraph (a) or (b) for any legal or other expense
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation, unless (i) the indemnified
party shall have employed counsel in accordance with the provisions of the
preceding sentence, (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after the notice of the commencement of the
action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party.
4.5 Additional Provisions.
(a) Each Holder agrees that, upon receipt of any
notice from the Company of the
happening of any event requiring the preparation of a supplement or amendment to
a prospectus relating to Registrable Securities so that, as thereafter delivered
to the Holders, such prospectus will not contain an untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, each Holder will
forthwith discontinue disposition of Registrable Securities pursuant to a
registration statement contemplated by Section 4.1 until its receipt of copies
of the supplemented or amended prospectus from the Company and, if so directed
by the Company, each Holder shall deliver to the Company all copies, other than
permanent file copies then in such Holder's possession, of the prospectus
covering such Registrable Securities current at the time of receipt of such
notice.
(b) Each Holder agrees to suspend, upon request of
the Company, any disposition of
Registrable Securities pursuant to the Registration Statement and prospectus
contemplated by Section 4.1 during (A) any period not to exceed two 30-day
periods within any one 12-month period the Company requires in connection with a
primary underwritten offering of equity securities and (B) any period, not to
exceed one 60-day period per circumstance or development, when the Company
determines in good faith that offers and sales pursuant thereto should not be
made by reason of the presence of material undisclosed circumstances or
developments with respect to which the disclosure that would be required in such
a prospectus is premature, would have an adverse effect on the Company or is
otherwise inadvisable.
9
(c) As a condition to the inclusion of its
Registrable Securities, each Holder
shall furnish to the Company such information regarding such Holder and the
distribution proposed by such Holder as the Company may request in writing or as
shall be required in connection with any registration, qualification or
compliance referred to in this Article IV.
(d) Each Holder hereby covenants with the Company (1)
not to make any sale of the
Registrable Securities without effectively causing the prospectus delivery
requirements under the Act to be satisfied, and (2) if such Registrable
Securities are to be sold by any method or in any transaction other than on a
national securities exchange, in the over-the-counter market, in privately
negotiated transactions, or in a combination of such methods, to notify the
Company at least five (5) business days prior to the date on which the Holder
first offers to sell any such Registrable Securities.
(e) Each Holder acknowledges and agrees that the
Registrable Securities sold
pursuant to the Registration Statement described in this Article V are not
transferable on the books of the Company unless the stock certificate submitted
to the transfer agent evidencing such Registrable Securities is accompanied by a
certificate reasonably satisfactory to the Company to the effect that (A) the
Registrable Securities have been sold in accordance with such Registration
Statement and (B) the requirement of delivering a current prospectus has been
satisfied.
(f) Each Holder agrees not to take any action with
respect to any distribution
deemed to be made pursuant to such Registration Statement, that constitutes a
violation of Regulation M under the Exchange Act or any other applicable rule,
regulation or law.
(g) At the end of the period during which the Company
is obligated to keep the
Registration Statement current and effective as described above, the Holders of
Registrable Securities included in the Registration Statement shall discontinue
sales of shares pursuant to such Registration Statement upon receipt of notice
from the Company of its intention to remove from registration the shares covered
by such Registration Statement which remain unsold, and such Holders shall
notify the Company of the number of shares registered which remain unsold
immediately upon receipt of such notice from the Company.
V. MISCELLANEOUS
5.1 Any notice or other communication given hereunder shall be
deemed sufficient if in writing and sent by registered or certified mail, return
receipt requested, addressed to the Company, at its address set forth on the
first page hereof, Attention: Xxxx X. Xxxxxxxxx, President and to the Subscriber
at his address indicated on the last page of this Subscription Agreement.
Notices shall be deemed to have been given on the date of mailing, except
notices of change of address, which shall be deemed to have been given when
received.
5.2 This Subscription Agreement shall not be changed, modified
or amended except by a writing signed by the parties to be charged, and this
Subscription Agreement may not be discharged except by performance in accordance
with its terms or by a writing signed by the party to be charged.
10
5.3 This Subscription 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 Subscription Agreement sets forth
the entire agreement and understanding between the parties as to the subject
matter thereof and merges and supersedes all prior discussions, agreements and
understandings of any and every nature among them.
5.4 Notwithstanding the place where this Subscription 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 Commonwealth of Massachusetts. The parties hereby agree that any dispute
which may arise between them arising out of or in connection with this
Subscription Agreement shall be adjudicated before a court located in Boston,
Massachusetts and they hereby submit to the exclusive jurisdiction of the courts
of The Commonwealth of Massachusetts located in Boston, Massachusetts and of the
federal courts in the District of Massachusetts with respect to any action or
legal proceeding commenced by any party, and irrevocably waive any objection
they now or hereafter may have respecting the venue of any such action or
proceeding brought in such a court or respecting the fact that such court is an
inconvenient forum, relating to or arising out of this Subscription Agreement or
any acts or omissions relating to the sale of the securities hereunder, and
consent to the service of process in any such action or legal proceeding by
means of registered or certified mail, return receipt requested, in care of the
address set forth below or such other address as the undersigned shall furnish
in writing to the other.
5.5 This Subscription Agreement may be executed in
counterparts. Upon the execution and delivery of this Subscription Agreement by
the Subscriber, this Subscription Agreement shall become a binding obligation of
the Subscriber with respect to the purchase of Securities as herein provided;
subject, however, to the right hereby reserved to the Company to enter into the
same agreements with other subscribers and to add and/or to delete other persons
as subscribers.
5.6 The holding of any provision of this Subscription
Agreement to be invalid or unenforceable by a court of competent jurisdiction
shall not affect any other provision of this Subscription Agreement, which shall
remain in full force and effect.
5.7 It is agreed that a waiver by either party of a breach of
any provision of this Subscription Agreement shall not operate, or be construed,
as a waiver of any subsequent breach by that same party.
5.8 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
Subscription Agreement.
11
IN WITNESS WHEREOF, the parties have executed this Subscription
Agreement as of the day and year first written above.
__________________________ ______________________________
Signature of Subscriber(s)
__________________________ ______________________________
Name of Subscriber(s)
[please print]
__________________________ ______________________________
Address of Subscriber(s)
__________________________ ______________________________
Social Security of Taxpayer
Identification Number of Subscriber(s)
__________________________ _______________________________
Number of Shares Subscribed For Number of Warrants Subscribed For
* 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
Article 3, Sections 28(a) and (b) of the Rules of Fair Practice.
_________________________
Name of NASD Member Firm
_________________________
By: Authorized Officer
Subscription Accepted:
SYMBOLLON PHARMACEUTICALS, INC.
By:______________________________________
Xxxx X. Xxxxxxxxx,
President and Chief Financial Officer
Date: _______________, 2004
12
EXHIBIT A
WIRE TRANSFER INSTRUCTIONS
Subscribers may also pay the subscription amount by wire transfer to:
Fleet Bank
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Account Number 94762 74622
ABA Routing Number 000000000
For the account of: "Symbollon Pharmaceuticals, Inc."
Name of Subscriber: [Insert Investor Name]
13
