SUBSCRIPTION AGREEMENT
Exhibit 10.1
Electro-Optical Sciences, Inc.
0 Xxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxx Xxxx 00000
0 Xxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxx Xxxx 00000
Gentlemen:
The undersigned (the “Investor”) hereby confirms its agreement with Electro-Optical Sciences,
Inc., a Delaware corporation (the “Company”), as follows:
1. This Subscription Agreement, including the Terms and Conditions for Purchase of Shares
attached hereto as Annex I (collectively, this “Agreement”) is made as of the date set
forth below between the Company and the Investor.
2. The Company has authorized the sale and issuance to certain investors of up to an aggregate
of [ ] shares (the “Shares”) of its Common Stock, par value $0.001 per share (the
“Common Stock”), subject to adjustment by the Company’s Board of Directors or a committee thereof,
for a purchase price of $[ ] per share (the “Purchase Price”).
3. The offering and sale of the Shares (the “Offering”) are being made pursuant to (a) an
effective Registration Statement on Form S-3, No. 333-151935 (the “Registration Statement”) filed
by the Company with the Securities and Exchange Commission (the “Commission”), including the
Prospectus contained therein (the “Base Prospectus”), (b) if applicable, certain “free writing
prospectuses” (as that term is defined in Rule 405 under the Securities Act of 1933, as amended
(the “Act”)), that have been or will be filed with the Commission and delivered to the Investor on
or prior to the date hereof (the “Issuer Free Writing Prospectus”), containing certain
supplemental information regarding the Shares, the terms of the Offering and the Company and (c) a
Prospectus Supplement (the “Prospectus Supplement” and, together with the Base Prospectus, the
“Prospectus”) containing certain supplemental information regarding the Shares and terms of the
Offering that has been or will be filed with the Commission and delivered to the Investor (or made
available to the Investor by the filing by the Company of an electronic version thereof with the
Commission).
4. The Company and the Investor agree that the Investor will purchase from the Company and the
Company will issue and sell to the Investor the Shares of Common Stock set forth below for the
aggregate purchase price set forth below. The Shares shall be purchased pursuant to the Terms and
Conditions for Purchase of Shares attached hereto as Annex I and incorporated herein by
this reference as if fully set forth herein. The Investor acknowledges that the Offering is not
being underwritten by the placement agents named in the Prospectus Supplement (the “Placement
Agents”) and that there is no minimum offering amount.
5. The manner of settlement of the Shares purchased by the Investor shall be determined by
such Investor as follows:
Delivery by crediting the account of the Investor’s prime broker (as specified by such
Investor on Exhibit A annexed hereto) with the Depository Trust Company (“DTC”)
through its Deposit/Withdrawal At Custodian (“DWAC”) system, whereby Investor’s prime
broker shall initiate a DWAC transaction on the Closing Date using its DTC participant
identification number, and released by American Stock Transfer & Trust Company, the
Company’s transfer agent (the “Transfer Agent”), at the Company’s direction. NO LATER
THAN ONE (1) BUSINESS DAY AFTER THE EXECUTION OF THIS AGREEMENT BY THE INVESTOR AND THE
COMPANY, THE INVESTOR SHALL:
| (I) | DIRECT THE BROKER-DEALER AT WHICH THE ACCOUNT OR ACCOUNTS TO BE CREDITED WITH THE SHARES ARE MAINTAINED TO SET UP A DWAC INSTRUCTING THE TRANSFER AGENT TO CREDIT SUCH ACCOUNT OR ACCOUNTS WITH THE SHARES, AND | ||
| (II) | REMIT BY WIRE TRANSFER THE AMOUNT OF FUNDS EQUAL TO THE AGGREGATE PURCHASE PRICE FOR THE SHARES BEING PURCHASED BY THE INVESTOR TO THE FOLLOWING ACCOUNT: |
JPMorgan Chase Bank, N.A.
ABA # 000000000
Account Name: [ ]
Account Number: [ ]
Attention: Xxxxxx Xxxxx
Tel: (000) 000-0000
ABA # 000000000
Account Name: [ ]
Account Number: [ ]
Attention: Xxxxxx Xxxxx
Tel: (000) 000-0000
IT IS THE INVESTOR’S RESPONSIBILITY TO (A) MAKE THE NECESSARY WIRE TRANSFER IN A TIMELY MANNER
AND (B) ARRANGE FOR SETTLEMENT BY WAY OF DWAC IN A TIMELY MANNER. IF THE INVESTOR DOES NOT DELIVER
THE AGGREGATE PURCHASE PRICE FOR THE SHARES OR DOES NOT MAKE PROPER ARRANGEMENTS FOR SETTLEMENT IN
A TIMELY MANNER, THE SHARES MAY NOT BE DELIVERED AT CLOSING TO THE INVESTOR OR THE INVESTOR MAY BE
EXCLUDED FROM THE CLOSING ALTOGETHER.
6. The Investor represents that, except as set forth below, (a) it has had no position, office or
other material relationship within the past three years with the Company or persons known to it to
be affiliates of the Company, (b) it is not a member of the Financial Industry Regulatory
Authority, Inc. (“FINRA”)or an Associated Person (as such term is defined under the FINRA
Membership and Registration Rules Section 1011) as of the Closing, and (c) neither the Investor nor
any group of Investors (as identified in a public filing made with the Commission) of which the
Investor is a part in connection with the Offering of the Shares, acquired, or obtained the right
to acquire, 20% or more of the Common Stock (or securities convertible into or exercisable for
Common Stock) or the voting power of the Company on a post-transaction basis. Exceptions:
(If no exceptions, write “none.” If left blank, response will be deemed to be “none.”)
7. The Investor represents that it has received (or otherwise had made available to it by the
filing by the Company of an electronic version thereof with the Commission) the Base Prospectus
which is a part of the Company’s Registration Statement, the documents incorporated by reference
therein, a
preliminary Prospectus Supplement and any free writing prospectus (collectively, the “Disclosure
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Package”), prior to or in connection with the receipt of this Agreement. The Investor acknowledges
that, prior to the delivery of this Agreement to the Company, the Investor will receive certain
additional information regarding the Offering, including pricing information (the “Offering
Information”). Such information may be provided to the Investor by any means permitted under the
Act, including the Prospectus Supplement, a free writing prospectus and oral communications.
8. No offer by the Investor to buy Shares will be accepted and no part of the Purchase Price will
be delivered to the Company until the Investor has received the Offering Information and the
Company has accepted such offer by countersigning a copy of this Agreement, and any such offer may
be withdrawn or revoked, without obligation or commitment of any kind, at any time prior to the
Company (or Xxxxxxx on behalf of the Company) sending (orally, in writing or by electronic mail)
notice of its acceptance of such offer. An indication of interest will involve no obligation or
commitment of any kind until the Investor has been delivered the Offering Information and this
Agreement is accepted and countersigned by or on behalf of the Company.
9. The Company acknowledges that the only material, non-public information relating to the Company
or its subsidiaries that the Company, its employees or agents has provided to the Investor in
connection with the Offering prior to the date hereof is the existence of the Offering, and the
Investor has agreed to maintain the confidentiality of this information until such information has
been publicly disclosed as provided in Section 13 of the Terms and Conditions set forth on
Annex I hereof.
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Number of Shares:
Purchase Price Per Share: $
Aggregate Purchase Price: $
Please confirm that the foregoing correctly sets forth the agreement between us by signing in
the space provided below for that purpose.
| Dated as of: July __, 2009 | ||||||
| INVESTOR | ||||||
| By: | ||||||
| Print Name: | ||||||
| Title: | ||||||
| Address: | ||||||
Agreed and Accepted
this ___ day of July, 2009:
this ___ day of July, 2009:
| ELECTRO-OPTICAL SCIENCES, INC. | ||||
By: |
||||
Title:
|
||||
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ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF SHARES
1. Authorization and Sale of the Shares. Subject to the terms and conditions of this
Agreement, the Company has authorized the sale of the Shares.
2. Agreement to Sell and Purchase the Shares; Placement Agents.
2.1 At the Closing (as defined in Section 3.1), the Company will sell to the Investor,
and the Investor will purchase from the Company, upon the terms and conditions set forth herein,
the number of Shares set forth on the last page of the Agreement to which these Terms and
Conditions for Purchase of Shares are attached as Annex I (the “Signature Page”) for the
aggregate purchase price therefor set forth on the Signature Page.
2.2 The Company proposes to enter into substantially this same form of Subscription Agreement
with certain other investors (the “Other Investors”) and expects to complete sales of Shares to
them. The Investor and the Other Investors are hereinafter sometimes collectively referred to as
the “Investors,” and this Agreement and the Subscription Agreements executed by the Other Investors
are hereinafter sometimes collectively referred to as the “Agreements.”
2.3 Investor acknowledges that the Company has agreed to pay Xxxxxxx & Company, LLC
(“Xxxxxxx”) and Xxxxxxxxxxx & Co. Inc. (“Opco” and, together with Xxxxxxx, the “Placement Agents”)
a fee (the “Placement Fee”) in respect of the sale of Shares to the Investor.
2.4 The Company has entered into a Placement Agency Agreement, dated July [___], 2009 (the
“Placement Agreement”), with the Placement Agents that contains certain representations,
warranties, covenants and agreements of the Company that may be relied upon by the Investor, which
shall be a third party beneficiary thereof.
3. Closings and Delivery of the Shares and Funds.
3.1 Closing. The completion of the purchase and sale of the Shares (the “Closing”)
shall occur at a place and time (the “Closing Date”) to be specified by the Company and Xxxxxxx,
and of which the Investors will be notified in advance by Xxxxxxx, in accordance with Rule 15c6-1
promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). At the
Closing, (a) the Company shall cause the Transfer Agent to deliver to the Investor the number of
Shares set forth on the Signature Page registered in the name of the Investor or, if so indicated
on the Investor Questionnaire attached hereto as Exhibit A, in the name of a nominee
designated by the Investor and (b) the aggregate purchase price for the Shares being purchased by
the Investor will be delivered by or on behalf of the Investor to the Company.
3.2 Conditions to the Obligations of the Parties.
(a) Conditions to the Company’s Obligations. The Company’s obligation to issue and
sell the Shares to the Investor shall be subject to: (i) the receipt by the Company of the purchase
price for the Shares being purchased hereunder as set forth on the Signature Page and (ii) the
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accuracy of the representations and warranties made by the Investor and the fulfillment of those
undertakings of the Investor to be fulfilled prior to the Closing Date.
(b) Conditions to the Investor’s Obligations. The Investor’s obligation to purchase
the Shares will be subject to the accuracy of the representations and warranties made by the
Company and the fulfillment of those undertakings of the Company to be fulfilled prior to the
Closing Date, including without limitation, those contained in the Placement Agreement, and to the
condition that Xxxxxxx shall not have: (i) terminated the Placement Agreement pursuant to the terms
thereof or (ii) determined that the conditions to the closing in the Placement Agreement have not
been satisfied. The Investor’s obligations are expressly not conditioned on the purchase by any or
all of the Other Investors of the Shares that they have agreed to purchase from the Company. The
Investor understands and agrees that, in the event that Xxxxxxx in its sole discretion determines
that the conditions to closing in the Placement Agreement have not been satisfied or if the
Placement Agreement may be terminated for any other reason permitted by such Agreement, then
Xxxxxxx may, but shall not be obligated to, terminate such Agreement, which shall have the effect
of terminating this Subscription Agreement pursuant to Section 14 below.
3.3 Delivery of Funds.
No later than one (1) business day after the execution of this Agreement by the Investor
and the Company, the Investor shall remit by wire transfer the amount of funds equal to the
aggregate purchase price for the Shares being purchased by the Investor to the following account
designated by the Company and Xxxxxxx pursuant to the terms of that certain Escrow Agreement (the
“Escrow Agreement”) dated as of the date hereof, by and among the Company, the Placement Agents and
JPMorgan Chase Bank, N.A. (the “Escrow Agent”):
JPMorgan Chase Bank, N.A.
ABA # 000000000
Account Name: [ ]
Account Number: [ ]
Attention: Xxxxxx Xxxxx
Tel: (000) 000-0000
ABA # 000000000
Account Name: [ ]
Account Number: [ ]
Attention: Xxxxxx Xxxxx
Tel: (000) 000-0000
Such funds shall be held in escrow until the Closing and delivered by the Escrow Agent on
behalf of the Investors to the Company upon the satisfaction, in the sole judgment of Xxxxxxx, of
the conditions set forth in Section 3.2(b) hereof. The Placement Agents shall have no
rights in or to any of the escrowed funds, unless Xxxxxxx and the Escrow Agent are notified in
writing by the Company in connection with the Closing that a portion of the escrowed funds shall be
applied to the Placement Fee. The Company agrees to indemnify and hold the Escrow Agent harmless
from and against any and all losses, costs, damages, expenses and claims (including, without
limitation, court costs and reasonable attorneys fees) (“Losses”) arising under this Section
3.3 or otherwise with respect to the funds held in escrow pursuant hereto or arising under the
Escrow Agreement, unless it is finally, judicially determined that such Losses resulted directly
from the willful misconduct or gross negligence of the Escrow Agent. Anything in this Agreement to
the contrary notwithstanding, in no event shall the Escrow Agent be liable for any special,
indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost
profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and
regardless of the form of action.
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3.4 Delivery of Shares.
No later than one (1) business day after the execution of this Agreement by the Investor
and the Company, the Investor shall direct the broker-dealer at which the account or accounts
to be credited with the Shares being purchased by such Investor are maintained, which broker/dealer
shall be a DTC participant, to set up a DWAC instructing [ ], the Company’s Transfer
Agent, to credit such account or accounts with the Shares. Such DWAC instruction shall indicate
the settlement date for the deposit of the Shares, which date shall be provided to the Investor by
Xxxxxxx. Simultaneously with the delivery to the Company by the Escrow Agent of the funds held in
escrow pursuant to Section 3.3 above, the Company shall direct the Transfer Agent to credit
the Investor’s account or accounts with the Shares pursuant to the information contained in the
DWAC.
4. Representations, Warranties and Covenants of the Investor.
The Investor acknowledges, represents and warrants to, and agrees with, the Company and the
Placement Agents that:
4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is
qualified to make decisions with respect to, investments in shares presenting an investment
decision like that involved in the purchase of the Shares, including investments in securities
issued by the Company and investments in comparable companies, (b) has answered all questions on
the Signature Page and the Investor Questionnaire and the answers thereto are true and correct as
of the date hereof and will be true and correct as of the Closing Date and (c) in connection with
its decision to purchase the number of Shares set forth on the Signature Page, has received and is
relying only upon the Disclosure Package and the documents incorporated by reference therein and
the Offering Information.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by
the Company or the Placement Agents that would permit an offering of the Shares, or possession or
distribution of offering materials in connection with the issue of the Shares in any jurisdiction
outside the United States where action for that purpose is required, (b) if the Investor is outside
the United States, it will comply with all applicable laws and regulations in each foreign
jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or
distributes any offering material, in all cases at its own expense and (c) the Placement Agents are
not authorized to make and has not made any representation, disclosure or use of any information in
connection with the issue, placement, purchase and sale of the Shares, except as set forth or
incorporated by reference in the Base Prospectus or the Prospectus Supplement.
4.3 (a) The Investor has full right, power, authority and capacity to enter into this
Agreement and to consummate the transactions contemplated hereby and has taken all necessary action
to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement
constitutes a valid and binding obligation of the Investor enforceable against the Investor in
accordance with its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting
parties’ rights generally and except as enforceability may be subject to general principles of
equity (regardless of whether such enforceability is considered in a proceeding in equity or at
law) and except as to the enforceability of
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any rights to indemnification or contribution that may
be violative of the public policy underlying any law, rule or regulation (including any federal or
state securities law, rule or regulation).
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the General
disclosure Package, the Offering Information or any other materials presented to the Investor in
connection with the purchase and sale of the Shares constitutes legal, tax or investment advice.
The Investor has consulted such legal, tax and investment advisors and made such investigation as
it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of
Shares.
4.5 Since the date on which a Placement Agent first contacted the Investor about the Offering,
it has not disclosed any information regarding the Offering to any third parties (other than its
legal, accounting and other advisors) and has not engaged in any transactions involving the
securities of the Company (including, without limitation, any Short Sales involving the Company’s
securities). The Investor covenants that it will not engage in any transactions in the securities
of the Company (including Short Sales) prior to the time that the transactions contemplated by this
Agreement are publicly disclosed. The Investor agrees that it will not use any of the Shares
acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so
would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include,
without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under
the Exchange Act, whether or not against the box, and all types of direct and indirect stock
pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent
positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including
on a total return basis), and sales and other transactions through non-US broker dealers or foreign
regulated brokers.
5. Survival of Representations, Warranties and Agreements; Third Party Beneficiary.
Notwithstanding any investigation made by any party to this Agreement or by a Placement Agent, all
covenants, agreements, representations and warranties made by the Company and the Investor herein
will survive the execution of this Agreement, the delivery to the Investor of the Shares being
purchased and the payment therefor. The Placement Agents shall be a third party beneficiary with
respect to the representations, warranties and agreements of the Investor in Section 4
hereof.
6. Notices. All notices, requests, consents and other communications hereunder will be in
writing, will be mailed (a) if within the domestic United States by first-class registered or
certified airmail, or nationally recognized overnight express courier, postage prepaid, or by
facsimile or (b) if delivered from outside the United States, by International Federal Express or
facsimile, and (c) will be deemed given (i) if delivered by first-class registered or certified
mail domestic, three business days after so mailed, (ii) if delivered by nationally recognized
overnight carrier, one business day after so mailed, (iii) if delivered by International Federal
Express, two business days after so mailed and (iv) if delivered by facsimile, upon electric
confirmation of receipt and will be delivered and addressed as follows:
| (a) | if to the Company, to: | ||
| [ ] [ ] |
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| [ ] Attention: Facsimile: [ ] |
|||
| with copies to: | |||
| Attention: Facsimile: [ ] |
(b) if to the Investor, at its address on the Signature Page hereto, or at such
other address or addresses as may have been furnished to the Company in writing.
7. Changes. This Agreement may not be modified or amended except pursuant to an instrument
in writing signed by the Company and the Investor.
8. Headings. The headings of the various sections of this Agreement have been inserted for
convenience of reference only and will not be deemed to be part of this Agreement.
9. Severability. In case any provision contained in this Agreement should be invalid,
illegal or unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein will not in any way be affected or impaired thereby.
10. Governing Law; Jurisdiction; Venue.
This Agreement shall be governed by and construed under the laws of the State of New
York, without regard to conflicts of laws principles, and all rights and remedies hereunder
or with respect hereto shall be governed by such laws.
Any legal action or proceeding with respect to this Agreement or any other document
delivered in connection herewith shall be brought exclusively in any state or federal court
of competent jurisdiction in the state, county and city of New York. By execution and
delivery of this Agreement, each party hereto irrevocably consents to and accepts, for
itself and in respect of its property, generally and unconditionally the exclusive
jurisdiction of such courts. Each party hereto further irrevocably waives any objection,
including any objection to the laying of venue or based on the grounds of forum non
conveniens, which it may now or hereafter have to bringing of any action or proceeding in
such jurisdiction in respect of this Agreement or any other document delivered in connection
herewith.
Each party hereto hereby irrevocably consents to the service of process out of any of
the courts referred to in subsection (b) of this Section in any suit, action or proceeding
by the mailing of copies thereof by registered or certified mail, postage prepaid, to it at
its address set forth in this Agreement. Each party hereto hereby irrevocably waives any
objection to such service of process and further irrevocably waives and agrees not to plead
or claim in any suit, action or proceeding commenced hereunder or under any other document
delivered in connection herewith that service of process was in any way invalid or
ineffective. Nothing
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herein shall affect the right of a party to serve process on the other party in any other
manner permitted by applicable law.
11. Counterparts. This Agreement may be executed in two or more counterparts, each of which
will constitute an original, but all of which, when taken together, will constitute but one
instrument, and will become effective when one or more counterparts have been signed by each
party hereto and delivered to the other parties. The Company and the Investor acknowledge
and agree that the Company shall deliver its counterpart to the Investor along with the
Prospectus Supplement (or the filing by the Company of an electronic version thereof with
the Commission).
12. Confirmation of Sale. The Investor acknowledges and agrees that such Investor’s receipt
of the Company’s signed counterpart to this Agreement, together with the Prospectus
Supplement (or the filing by the Company of an electronic version thereof with the
Commission), shall constitute written confirmation of the Company’s sale of Shares to such
Investor.
13. Press Release. The Company and the Investor agree that the Company shall, prior to the
opening of the financial markets in New York City on the business day immediately after the
date hereof (a) issue a press release announcing the Offering and disclosing all material
information regarding the Offering and (b) file a current report on Form 8-K with the
Securities and Exchange Commission including, but not limited to, a form of this Agreement
as an exhibit thereto.
14. Termination. In the event that the Placement Agreement is terminated by Xxxxxxx
pursuant to the terms thereof, this Agreement shall terminate without any further action on
the part of the parties hereto.
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Exhibit A
ELECTRO-OPTICAL SCIENCES, INC.
INVESTOR QUESTIONNAIRE
Pursuant to Section 3 of Annex I to the Agreement, please provide us with the
following information:
1.
|
The exact name that your Shares are to be registered in. You may use a nominee name if appropriate: | |||
2.
|
The relationship between the Investor and the registered holder listed in response to item 1 above: | |||
3.
|
The mailing address of the registered holder listed in response to item 1 above: | |||
4.
|
The Social Security Number or Tax Identification Number of the registered holder listed in the response to item 1 above: | |||
5.
|
Name of DTC Participant (broker-dealer at which the account or accounts to be credited with the Shares are maintained): | |||
6.
|
DTC Participant Number: | |||
7.
|
Name of Account at DTC Participant being credited with the Shares: | |||
8.
|
Account Number at DTC Participant being credited with the Shares: | |||
