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EXHIBIT 1
NORTH AMERICAN VACCINE, INC.
SUBSCRIPTION AGREEMENT, made as of this ___ day of _____, 1998 between
North American Vaccine, Inc., a corporation organized under the laws of Canada
(the "Company"), and the undersigned (the "Subscriber").
WHEREAS, the Company desires to issue an aggregate of $25,000,000
principal amount of its 4.5% Convertible Secured Notes due 2003 ("Notes") at a
price of 100% of the principal amount thereof on the terms and conditions
hereinafter set forth and the Subscriber desires to acquire the principal amount
of Notes as designated on the signature page hereof.
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 NOTES AND REPRESENTATIONS AND WARRANTIES BY
SUBSCRIBER
Each Subscriber hereby represents and warrants to the Company as follows
as of the date hereof and the Closing Date (as hereinafter defined):
1.1 Subject to the terms and conditions hereinafter set forth,
the Subscriber hereby subscribes for and agrees to purchase from the Company the
principal amount of Notes being offered (the "Offering") as is set forth upon
the signature page hereof at a price equal to 100% of the principal amount
thereof, and the Company agrees to sell such Notes to the Subscriber for said
purchase price subject to the Company's right to sell to the Subscriber such
lesser principal amount of Notes as it may, in its sole discretion, deem
necessary or desirable. In the event that more Notes are subscribed for than the
Company is offering, then Notes subscribed for may be reduced as determined by
the Company in its sole discretion, which shall be conclusive and final. The
purchase price is payable by wire transfer or check made payable to the Company
on the Closing Date. The Notes will be issued by the Company on the Closing
Date. The Subscriber understands, however, that this purchase of Notes is
contingent upon the Company making sales of a minimum of U.S.$25,000,000
aggregate principal amount of Notes prior to the Termination Date, as defined in
Article III hereof.
1.2 The Subscriber recognizes that the purchase of Notes involves
a high degree of risk in that (i) the Company requires substantial funds
represented by 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 Notes; (iii) it may not be
able to liquidate its investment; (iv) transferability of the Notes is limited;
and (v) in the event of a disposition, an investor could sustain the loss of its
entire investment. Such risks are more fully set forth in the Confidential
Offering Circular furnished by the Company to the Subscriber, together with this
Subscription Agreement.
1.3 The Subscriber represents that it 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"), and that it is able to
bear the economic risk of an investment in the Notes.
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1.4 The Subscriber acknowledges that it has prior investment
experience, including investment in non-listed and non-registered securities, or
it has employed the services of an investment advisor, attorney or accountant to
read all of the documents furnished or made available by the Company to it and
to evaluate the merits and risks of such an investment on its behalf, and that
it recognizes the highly speculative nature of this investment.
1.5 The Subscriber acknowledges receipt and careful review of the
Confidential Offering Circular and the attachments thereto (the "Offering
Documents"), and hereby represents that it has been furnished by the Company
during the course of this transaction with all information regarding the Company
that it had requested or desired to know; that all documents which could be
reasonably provided have been made available for its inspection and review; and
that it 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 that it had requested. The Subscriber acknowledges that after
delivery of an executed copy of this Agreement to the Company, subscriptions are
irrevocable until the Termination Date.
1.6 The Subscriber hereby acknowledges that this Offering of
Notes has not been reviewed by the United States Securities and Exchange
Commission ("SEC"), any securities regulators in any province of Canada or any
other regulatory authority, national or foreign, 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 Notes are being
purchased as principal for its own account, for investment and not for
distribution or resale to others, the Notes having an aggregate acquisition cost
of not less than $250,000. The Subscriber agrees that it 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 Notes have not been
registered under the Act by reason of a claimed exemption under the provisions
of the Act that depends, in part, upon its 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 its
representation merely meant that its 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 its 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.
1.8 The Subscriber understands that there is no public market for
the Notes and none is likely to develop. The Subscriber understands that even if
a public market develops for the Notes, 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. In
addition, the Subscriber understands that any resale of the Notes or the shares
of Common Stock into which the Notes may be converted in Canada must be made
through an appropriately registered dealer or in accordance with an exemption
from the registration requirements of applicable securities laws and in
accordance with, or pursuant to an exemption from, the prospectus
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requirements of such laws, which vary depending on the province. The Subscriber
understands and hereby acknowledges that the Company is under no obligation to
register the Notes, or the shares of Common Stock into which the Notes may be
converted, under the Act. The Subscriber agrees that the Company may, if it
desires, permit the transfer of the Notes out of its name only when its 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, the securities laws applicable to the Subscriber or any
applicable state "blue sky" laws (collectively, "Securities Laws").
1.9 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
it contained herein or any sale or distribution by the undersigned Subscriber in
violation of any Securities Laws.
1.10 The Subscriber consents to the placement of a legend on any
certificate or other document evidencing ownership of the Notes stating that
they have not been registered under the Act and setting forth or referring to
the restrictions on transferability and sale thereof.
1.11 The Subscriber understands that the Company will review this
Subscription Agreement and reserves the unrestricted right to reject or limit
any subscription in any manner.
1.12 The Subscriber hereby represents that, except as set forth
in the Offering Documents or in the Indenture governing the Notes or the
Security and Pledge Agreement, no representations or warranties have been made
to the Subscriber by the Company or any agent, 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.
1.13 The Subscriber does not have any agreements or
understandings with any other person, written or tacit, with respect to the
acquisition or disposition of the Notes, other than with the other Subscribers
that are parties to a Subscription Agreement.
1.14 The execution, delivery and performance of this Subscription
Agreement by the Subscriber has been duly approved and authorized by all
necessary corporate and shareholder action.
1.15 The consummation of the transactions contemplated by this
Subscription Agreement will not violate or constitute a default under the
Subscriber's organizational documents or any material agreement to which
Subscriber is a party or by which its properties are bound.
II. REPRESENTATIONS BY THE COMPANY
2.1 The Company represents and warrants to the Subscriber that as
of the date of the Offering Documents and at the Closing Date:
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(a) The Company is a corporation duly organized, existing
and in good standing under the laws of Canada and has the corporate power to
conduct the business that 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 Notes have been duly taken and approved.
(c) The Notes have been duly and validly authorized and
when issued and paid for in accordance with the terms hereof, will be valid and
binding obligations of the Company enforceable in accordance with their
respective terms and entitled to the benefits of the Indenture governing the
Notes.
(d) Except as disclosed in the Confidential Offering
Circular, the Company knows of no pending or threatened legal or governmental
proceedings to which the Company is a party that could materially adversely
affect the business, property, financial condition or operations of the Company.
(e) The Company is not in violation of or default under,
nor will the execution and delivery of this Subscription Agreement, the issuance
of the Notes and the incurrence of the obligations herein and therein set forth
and the consummation of the transactions herein or therein contemplated, result
in a violation of, or constitute a default under, the certificate of
incorporation or by-laws, in the performance or observance of any material
obligations, agreement, covenant, or condition contained in any bond, debenture,
note or other evidence of indebtedness or in any material contract, indenture,
mortgage, loan agreement, lease, joint venture or other agreement or instrument
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, regulation, writ, injunction,
or decree of any government, governmental instrumentality or court, domestic or
foreign.
III. TERMS OF SUBSCRIPTION
3.1 The subscription period will begin as of November 7, 1998 and
will terminate at 11:59 PM Eastern time on November 12, 1998, unless extended
until November 19, 1998 (the "Termination Date") by the Company. The Notes are
being offered on a "minimum" sale basis as more particularly set forth in the
Offering Documents.
3.2 There will be no placement or selling agent involved in the
Offering. The Offering is being conducted directly by the Company.
3.3 If the Company shall not have obtained and accepted
subscriptions (including this subscription) for purchase of U.S.$25,000,000
aggregate principal amount of Notes on or before the Termination Date, which may
be as late as November 19, 1998, then this subscription shall be void. If U.S.
$25,000,000 aggregate principal amount of Notes are accepted by the Company at
or prior to the Termination Date, then all subscriptions accepted by the Company
shall be final and binding.
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3.4 The Subscriber hereby authorizes and directs the Company to
deliver the Notes to be issued to such Subscriber pursuant to this Subscription
Agreement to the address listed on the signature page hereof.
3.5 Upon notice from the Company of the date for payment and
issuance of the Notes ("Closing Date"), which shall be on or before November 19,
1998, the Subscriber shall make payment for the Notes by wire transfer or check
made payable to the Company in same day funds.
IV. MISCELLANEOUS
4.1 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 offices, 00000 Xxx Xxxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxxx-Nabi, and to the
Subscriber at its 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.
4.2 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.
4.3 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.
4.4 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 State of New York. The parties hereby agree that any
dispute that may arise between them arising out of or in connection with this
Subscription Agreement shall be adjudicated before a court located in New York
and they hereby submit to the exclusive jurisdiction of the courts of the State
of New York and of the federal courts therein with respect to any action or
legal proceedings 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 party.
4.5 This Subscription Agreement may be executed in counterparts.
Upon the execution and delivery of this Subscription Agreement by the
Subscriber, this Subscription
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Agreement shall become a binding obligation of the Subscriber with respect to
the purchase of Notes 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.
4.6 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.
4.7 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.
4.8 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.
V. BLUE SKY LEGENDS
NOTICE TO RESIDENTS OF FLORIDA:
If sales pursuant to this Subscription Agreement are made to more
than five (5) persons within the state of Florida, such sales are voidable by
the purchaser thereof within three (3) days after the first tender of
consideration is made by such purchaser to the Company or an agent of the
Company.
IN WITNESS WHEREOF, the parties have executed this Subscription
Agreement as of the day and year first written above.
Subscriber Name:
_________________________ U.S.$________________________
Aggregate principal amount of Notes subscribed for
(Minimum Subscription U.S.$250,000)
Address:
__________________________
__________________________
Taxpayer Identification Number:
TIP:
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Signature of Authorized Officer or Representative:
_______________________________________ _________________________
PLEASE RETURN ALL COMPLETED SUBSCRIPTION
AGREEMENTS TO XXXXXX X. XXXXX-NABI,
00000 XXX XXXXXXXX XXXX,
XXXXXXXX, XXXXXXXX 00000
PLEASE RETAIN A COPY OF THE EXECUTED
SUBSCRIPTION AGREEMENT FOR YOUR RECORDS.
SUBSCRIPTION ACCEPTED:
NORTH AMERICAN VACCINE, INC.
By: ____________________
Date: ______________, 1998
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