Exhibit 10.14
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT made as of this 10th day of August, 1999
between Symbollon Corporation, 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") a minimum of 100,000 Units
and a maximum of 1,250,000 Units (collectively, the "Units") for a purchase
price of $1.75 per Unit, each Unit consisting of (i) one share of Class A Common
Stock, par value $.001 per share (the "Common Stock"), and (ii) a warrant to
purchase one share of Common Stock (the "Warrants"), substantially in the form
set forth as Attachment V to the Confidential Private Placement Memorandum,
dated May 3, 1999, as it may be supplemented and amended (the "Memorandum"),
relating to an Offering, and the Subscriber desires to acquire the number of
Units set forth on the signature page hereof, on the terms and conditions
hereinafter set forth.
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 Units set forth upon the signature page hereof at a price equal to
$1.75 per Unit, and the Company agrees to sell such number of Units for said
purchase price. The purchase price is payable by (i) certified or bank check
made payable to Rubin, Baum, Xxxxx, Constant & Xxxxxxxx, as Escrow Agent F/B/O
Symbollon Corporation (the "Escrow Agent"), 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 Units is
contingent upon the Company making sales of a minimum of 100,000 Units prior to
the Termination Date as defined in Article III hereof. This subscription is
submitted to the Company in accordance with and subject to the terms and
conditions described in this Agreement and the Memorandum. Further, the
Subscriber understands that the Company intends to submit for stockholder
consideration at the 1999 Annual Meeting of the Stockholders currently scheduled
to be held on May 26, 1999, for purposes of the shareholders approval policy of
the Nasdaq SmallCap Market, a proposal to approve the issuance and sale of any
Units beyond the first 340,000 Units (the "Stockholder Approval"), and
therefore, closings for the final 910,000 Units will not occur until after the
Shareholder Approval or assurance from Nasdaq that such sales are exempt from
the Nasdaq SmallCap Market listing requirements relating to stockholder approval
for certain share issuances.
1.2 The Subscriber recognizes that the purchase of Units
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 Units, (iii) he may
not be able to liquidate his investment; (iv) transferability of the Units and
the components thereof 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 Units.
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 Units 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, 1998 and a Proxy Statement for the 1999 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 Units 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 as part of the Units and the
shares of Common Stock issuable upon exercise of the Warrants collectively shall
be referred to as the "Shares"), comprising the Units 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.
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 Units or
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 comprising the Units
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.
1.14 If the Subscriber is a Georgia resident, the Subscriber hereby acknowledges
that the Units have been sold in reliance on Paragraph (13) of Code Section
10-5-9 of the Georgia Securities Act of 1973.
1.15 The Company has retained Indianapolis Securities, Inc.
(the "Placement Agents"), a NASD member firms as agent in connection with the
Offering of the Units on a "best efforts" basis. Xxxxxxx X. Xxxxx, a principal
and employee of the Placement Agent, is the beneficial owner of more than five
percent (5%) of the Company's Common Stock. Additional NASD member firms may be
invited to participate as syndicate partners (together with the Placement Agent,
herein called the "Agents"). As consideration for its services, the Placement
Agent will receive a ten percent (10.0%) cash commission on Units sold by the
Agents and Warrants equal to 10.0% of the Units sold by the Agents (the
"Placement Agent Warrants"). In turn, the Placement Agent will reallow to the
other Agents 8.0% allocations of both the cash commissions and the Placement
Agent Warrants. 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 Units.
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, subject to the Stockholder Approval, all other
actions required to authorize and effect the offer and sale of the Units will
have been duly taken and approved.
(c) The Shares and Warrants comprising the Units
(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.
(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 Units 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, 1998 (audited)
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 May 3, 1999 and will
terminate upon the earlier to occur of (i) the sale of all of the Units or (ii)
11:59 PM Eastern time on October 30, 1999 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 Units 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 10,000 Units
($17,500); provided, however, that smaller investments may be accepted at the
discretion of the Company.
3.2 Placement of the Units will be made by the Placement
Agent, who will receive (i) a placement fee in the amount of 10% of the purchase
price of the Units placed and (ii) Placement Agent Warrants equal to 10.0% of
the Units sold. The Placement Agent will reallow to other Agents 8.0%
allocations of both the cash commission and the Placement Agent Warrants.
3.3 Pending the sale of the Units, all funds paid hereunder
shall be deposited by the Company in escrow with the Escrow Agent. If the
Company shall not have obtained subscriptions (including this subscription) for
purchases of 100,000 Units, on or before the Termination Date, 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 Units shall occur in one or more closings,
provided at least the minimum number of Units are sold. Unless the Company has
obtained a Nasdaq listing requirements exemption letter, Closings for the final
910,000 Units will not occur prior to the 1999 Annual Meeting of Stockholders
currently scheduled to be held on May 26, 1999 at which meeting the stockholders
will vote upon their issuance and sale.
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
Agent.
3.5 The Subscriber hereby authorizes and directs the Escrow
Agent 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 Agent.
IV. REGISTRATION RIGHTS
4.1 Registration. The Company hereby agrees with the holders
of the Units, 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 eight (8) months following the final closing of this
Offering a registration statement under the Act covering the resale of the
Shares included in the Units 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;
(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.
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.
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.
(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 IV 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, Executive Vice 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.
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 Units 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.
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 Units 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 CORPORATION
By:_____________________________________
Xxxx X. Xxxxxxxxx,
ExecutiveVice President and
Chief Financial Officer
Date: _______________, 1999
EXHIBIT A
WIRE TRANSFER INSTRUCTIONS
Subscribers may also pay the subscription amount by wire transfer to:
Chase Manhattan Bank
0000 Xxxxxxx xx Xxxxxxxx
Xxx Xxxx, XX 00000
Account Number 967-097940
ABA Routing Number 000000000
For the account of: "Xxxxx Xxxx Xxxxx Constant & Xxxxxxxx,
as Escrow Agent F/B/O Symbollon Corporation"
Name of Subscriber: [Insert Investor Name]
