EXHIBIT 4.5
SUBSCRIPTION AGREEMENT
World Diagnostics Inc.
00000 X.X. 00xx. Xxx, Xxxx. X
Xxxxx, XX 00000
Re: SUBSCRIPTION AGREEMENT FOR UNITS OF WORLD DIAGNOSTICS INC.
Gentlemen:
1. The undersigned hereby tenders to World Diagnostics Inc.
(the "Company") this subscription agreement (the "Subscription Agreement"), and
applies to purchase _____ Units at $20,000 per Unit, and tenders herewith
$__________. Each Unit consists of: 1) 20,000 shares of Common Stock of the
Company (the "Common Stock"); 2) 20,000 Common Stock C Purchase Warrants of the
Company, substantially in the form attached hereto as Exhibit A ("C Warrants");
3) 20,000 Common Stock D Purchase Warrants of the Company, substantially in the
form attached hereto as Exhibit B ("D Warrants") (the C Warrants and D Warrants
being referred to collectively as the "Purchase Warrants"); and 4) a promissory
note payable the sooner of 12/31/01, or WDI receiving the proceeds of financing
activities, to the undersigned the sum of $20,000.00 with interest at the rate
of 10 percent simple annual, substantially in the form attached hereto as
Exhibit C "Promissory Note").
2. Representations and Warranties. In order to induce the Company to
accept this subscription, the undersigned hereby represents and warrants to, and
covenants with, the Company as follows:
(i) The undersigned has received and carefully reviewed the
Company's SB-2 effective March 30, 2001 and its most recent business
plan, (the "Reports"), and except for the Reports, the undersigned has
not been furnished with any other materials or literature relating to
the offer and sale of the Units;
(ii) The undersigned has had a reasonable opportunity to ask
questions of and receive answers from the Company concerning the
Company and the offering, and all such questions, if any, have been
answered to the full satisfaction of the undersigned;
(iii) The undersigned has such knowledge and expertise in
financial and business matters that the undersigned is capable of
evaluating the merits and risks involved in an investment in the Units;
(iv) Except as set forth herein, no representations or
warranties have been made to the undersigned by the Company or any
agent, employee or affiliate of the Company and in entering into this
transaction the undersigned is not relying upon any information, other
than that contained in the Reports and the results of independent
investigation by the undersigned;
1
(v) The undersigned understands that (A) neither the Common
Stock nor the Common Stock C and D Purchase Warrants comprising the
Units have been registered under the Act or the securities laws of any
state, based upon an exemption from such registration requirements for
non-public offerings pursuant to exemptions from registration under the
Act; (B) the Units are and will be "restricted securities", as said
term is defined in Rule 144 of the Rules and Regulations promulgated
under the Act; (c) the Units may not be sold or otherwise transferred
unless they have been first registered under the Act and all applicable
state securities laws, or unless exemptions from such registration
provisions are available with respect to said resale or transfer; (D)
except as set forth below, the Company has no obligation to register
the Units under the Act or any state securities laws, or to take any
action to make any exemption from any such registration provisions
available; (E) the certificates for the Common Stock and Warrants will
bear a legend to the effect that the transfer of the securities
represented thereby is subject to the provisions hereof; and (F) stop
transfer instructions will be placed with the transfer agent for the
Common Stock.
(vi) The undersigned is acquiring the Units solely for the
account of the undersigned, for investment purposes only, and not with
a view towards the resale or distribution thereof;
(vii) The undersigned will not sell or otherwise transfer any
of the Units or any interest therein, unless and until (i) said Common
Stock and Purchase Warrants shall have first been registered under the
Act and all applicable state securities laws; or (ii) the undersigned
shall have first delivered to the Company a written opinion of counsel
(which counsel and opinion (in form and substance) shall be reasonably
satisfactory to the Company), to the effect that the proposed sale or
transfer is exempt from the registration provisions of the Act and all
applicable state securities laws;
(viii) The undersigned has full power and authority to execute
and deliver this Subscription Agreement and to perform the obligations
of the undersigned hereunder; and this Subscription Agreement is a
legally binding obligation of the undersigned in accordance with its
terms;
(ix) The undersigned is an "accredited investor," as such term
is defined in Regulation D of the Rules and Regulations promulgated
under the Act; and
3. Registration Rights. In consideration of the purchase in this offering by the
undersigned of one or more Units, and in recognition of the financial benefits
to the Company in connection therewith, the Company hereby agrees that the
undersigned shall have the rights with respect to the registration and sale of
the Common Stock and Purchase Warrants (collectively referred to as
"Securities"), which are set forth in this paragraph 3. In connection with the
rights so provided, the Company will bear the expenses of such registration
other than underwriter discounts and commissions attributable to the Securities
sold by investors thereunder, fees and expenses of counsel for the investors who
sell such Securities, and transfer taxes payable by such sellers. The Company
will indemnify the sellers and any underwriters against claims and losses due to
material misstatements or omissions in the registration statement other than
misstatements or omissions based on information provided by such sellers. Each
seller of Securities will indemnify the Company and the underwriters against
claims and losses due to material misstatements or omissions in the registration
statement based on information provided by such seller.
2
(i) Standing Registration. The Company shall use reasonable
commercial efforts to file, within 30 days after
completion of the closing of the offering of the Units,
with the U.S. Securities and Exchange Commission (the
"SEC"), and applicable state securities regulators, a
registration statement covering the public offering and
sale of all the Securities (both the Common Stock, the
Purchase Warrants, and the Common Stock issuable upon
the exercise of the Purchase Warrants) issued by the
Company in the offering. The Company shall cooperate
with the SEC in its review and approval of such
registration statement, and will use all reasonable
efforts to diligently pursue the effectiveness of such
registration statement at the earliest possible date.
The Company shall use every reasonable commercial effort
to maintain the effectiveness of such registration
statement covering each of the Common Stock and Purchase
Warrants. In furtherance thereof, the Company shall
amend the registration statement from time to time in
accordance with applicable legal requirements, and shall
prepare and file all required public reports under
applicable securities laws. THE COMPANY ACKNOWLEDGES
THAT THE REGISTRATION OF THE SECURITIES, AND THE
CONTINUED STATUS OF THE SECURITIES AS REGISTERED
SECURITIES, IS A MATERIAL FACTOR IN THE DECISION OF THE
UNDERSIGNED TO PURCHASE A UNIT. In furtherance thereof,
the Company will take all reasonable steps which are
required in order for its Common Stock to continue to be
traded in the OTCBB System; for its Purchase Warrants to
be listed on the OTCBB System if and when such warrants
so qualify and the Company agrees to cooperate in the
effort of any holder of Securities to accomplish the
same. In the event the company applies for NASDAQ
listing for its common stock it will also take all
reasonable steps which are required in order for its
warrants to be listed at the same time.
(ii) Registration by Request. Notwithstanding the foregoing
paragraph (i); if at any prior to March 30, 2006, a
registration statement covering all Securities is not
currently in effect under any applicable securities law,
the holder or holders of Units purchased in this
offering may require the Company to promptly prepare and
file a registration or registrations of Securities of
the Company under the Act and under applicable state
securities laws (a "Request for Registration"). Upon
receipt of a Request for Registration, the Company shall
notify all other holders of Units purchased in this
offering of the receipt of such Request for
Registration, and shall include in such registration
statement any Securities of such holders which the
holder(s) request that the Company so register.
(iii) "Piggy-Back" Registration. Notwithstanding the foregoing
paragraphs (i) and (ii), if at any time prior to March
30, 2006 a registration statement covering the
Securities is not currently in effect and the Company
proposes to file any registration statement covering any
Securities, the Company shall notify all other holders
of Units purchased in this offering of its intention to
file such a registration statement. Upon receipt of such
notice of an intent to file a registration statement,
the holder or holders of Units purchased in the offering
may require the Company to include in such registration
statement Common Stock of such holders which the
holder(s) request that the Company so register.
3
(iv) Prevention of Detrimental Impact on Private Placement.
The Company hereby agrees to: while the Purchase
Warrants are outstanding, the Company will not issue
common shares, other warrants or rights to acquire
Common Stock ("Competing Interests") if such issuance
will have a negative economic impact on the value of the
Purchase - Warrants, on the stock issued in this Private
Placement or the Common Stock that could be acquired by
the exercise of such Purchase Warrants. For the purpose
of this paragraph the issuance of a Competing Interest
will be presumed to be detrimental if: (a) the Competing
Interest can be exercised to acquire the Common Stock
while the Purchase Warrants are outstanding; (b) the
trigger price or the exercise price of the Competing
Interest is more advantageous than the comparable price
under the Purchase Warrants, or the number of shares of
Common stock that can be acquired under the Competing
Interest is proportionally more advantageous than the
number that could be acquired for the investment of a
like amount under the Purchase Warrants and (c) shares
are issued for consideration less than $.20 per share.
Notwithstanding the foregoing prohibition, the Company
may issue a Competing Interest if, prior to or
concurrently with such issuance, the Company adjusts the
terms of the Purchase Warrants and adjust the cost basis
of the private placement common shares by issuing
additional shares of common, without additional charge
to the holders of the Purchase Warrants or Private
Placement Common Shares, to provide terns that are no
less advantageous than those of the Competing Interests.
4. The undersigned understands that this subscription is not binding
upon the Company until the Company accepts it, which acceptance is at the sole
discretion of the Company and is to be evidenced by the Company's execution of
this subscription Agreement where indicated. This Subscription Agreement shall
be null and void if the Company does not accept it as aforesaid.
5. The undersigned understands that the Company may, in its sole
discretion, reject this subscription and, in the event that this offering is
oversubscribed, offer partial Units or reduce this subscription in any amount
and to any extent, whether or not pro rata reductions are made of any other
investor's subscription.
6. The undersigned agrees to indemnify the Company and hold it harmless
from and against any and all losses, damages, liabilities, costs and expenses
which it may sustain or incur in connection with the breach by the undersigned
of any representation, warranty or covenant made by it herein.
7. Neither this Subscription Agreement nor any of the rights of the
undersigned hereunder may be transferred or assigned by the undersigned.
4
8. This Subscription Agreement (i) may only be modified by a written
instrument executed by the undersigned and the Company; and (ii) sets forth the
entire agreement of the undersigned and the Company with respect to the subject
matter hereof; and (iii) shall inure to the benefit of, and be binding upon the
Company (upon its acceptance) and the undersigned and its respective heirs,
legal representatives, successors and assigns.
9. Unless the context otherwise requires, all personal pronouns used in
this Subscription Agreement, whether in the masculine, feminine or neuter
gender, shall include all other genders.
10. All notices or other communications hereunder shall be in writing
and shall be deemed to have been duly given if delivered personally or mailed by
certified or registered mail, return receipt requested, postage prepaid, as
follows: if to the undersigned, to the address set forth below; and if to the
Company, to World Diagnostics Inc., 00000 X 00xx Xxx, Xxxx X, , Xxxxx, XX 00000.
IN WITNESS WHEREOF, the undersigned has executed this Subscription
Agreement this day of , 2001.
SUBSCRIBER
-----------------------------------------
Name:
-----------------------------------------
Address
5
