Exhibit 10.1
DEFINITIVE
SUBSCRIPTION AGREEMENT
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SYNOVICS PHARMACEUTICALS, INC.
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To: SYNOVICS PHARMACEUTICALS, INC.
This Subscription Agreement is made between Synovics Pharmaceuticals,
Inc., a Nevada corporation (the "COMPANY"), and the undersigned prospective
purchaser who is subscribing for units (the "UNITS") each comprised of one share
of its common stock, par value $0.001 per share (the "SHARES") and one common
stock purchase warrant (the "WARRANTS") exercisable for an aggregate of one
share of common stock, par value $0.001 per share (the "COMMON STOCK") of the
Company. The purchase price per Unit (the "PURCHASE PRICE") shall be US$1.00 per
Unit. The exercise price of the Warrant shall be $3.00 per share of Common
Stock. This subscription is submitted to you in accordance with, and subject to,
the terms and conditions described in this Subscription Agreement and the
Amended and Restated Confidential Private Placement Memorandum, dated December
11, 2006 (the "MEMORANDUM"), and, together with this Subscription Agreement and
form of Warrant (the "DISCLOSURE MATERIALS"), provided to the undersigned.
A. SUBSCRIPTION
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(1) The undersigned hereby irrevocably subscribes for, and agrees to
purchase, the number of Units indicated on the signature page hereto at a
purchase price per Unit equal to the Purchase Price. Upon execution and delivery
hereof, Purchaser shall deliver to the Company in accordance with the terms
hereof either a check payable to the Company or evidence that a wire transfer
has been made to the Company in accordance with this Subscription Agreement and
the instructions hereto, in the full amount of the Purchase Price for which the
undersigned is subscribing or a check in such amount (the "PAYMENT").
(2) The Payment (or, in the case of rejection of a portion of
Purchaser's subscription, the part of the Payment relating to such rejected
portion) will be returned, without interest, if Purchaser's subscription is
rejected in whole or in part. The Company and the Placement Agent (if the
Company engages, in its sole discretion, a Placement Agent) will hold an initial
closing of the Offering (the "INITIAL CLOSING") at such time as the Company and
the Placement Agent, if any, may together determine following the sale of at
least the minimum number of Units in this Offering, and from time to time
thereafter (each an "ADDITIONAL CLOSING"). The Company and the Placement Agent,
if any, expect to hold Additional Closings from time to time after the Initial
Closing on the basis described herein. The Offering will
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terminate upon the earlier to occur of (i) the sale of all the Units, or (ii) at
any time following the commencement of the Offering in the sole discretion of
the Company and the Placement Agent, if any (the "FINAL CLOSING"). Upon receipt
by the Company of the Payment for Units to be purchased hereunder by subscribers
whose subscriptions are accepted (each, a "PURCHASER") at the Initial Closing or
any Additional Closing (each a "CLOSING"), the subscriber for the Units so
purchased will be registered on the warrant registers of the Company as the
record owner of the securities underlying the Units so purchased and the Company
shall deliver to the Purchaser an executed Warrant in the form included in the
Disclosure Materials.
(3) Purchaser hereby agrees to be bound upon the (i) execution and
delivery to the Company of the signature page to Purchaser's completed
questionnaire submitted by Purchaser (the "QUESTIONNAIRE") and this Subscription
Agreement and (ii) acceptance by the Company of Purchaser's subscription (the
"SUBSCRIPTION").
(4) The undersigned agrees that the Company and the Placement Agent,
if any, may, in their sole and absolute discretion, reduce the undersigned's
subscription to any number of Units that in the aggregate does not exceed the
number of Units hereby subscribed for without any prior notice to, or further
consent by, the undersigned. The undersigned hereby irrevocably constitutes and
appoints the Company, and each officer of the Company, with full power of
substitution, the true and lawful agent and attorney-in-fact of the undersigned,
with full power and authority in the undersigned's name, place, and stead, to
amend this Subscription Agreement and the Questionnaire, including in each case
the undersigned's signature page thereto, to effect any of the foregoing
provisions of this Paragraph A(4).
B. REGISTRATION RIGHTS
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The Purchaser shall be entitled to the registration rights with respect
to the Shares and Common Stock underlying the Warrants as set forth in this
Section B.
(1) As used herein the term "REGISTRABLE SECURITY" means each Share
and each share of Common Stock issuable upon exercise of the Warrants and any
securities issued upon any stock split or stock dividend in respect thereof;
provided, however, that with respect to any particular Registrable Security,
such security shall cease to be a Registrable Security when, as of the date of
determination; (a) it has been effectively registered under the Securities Act
of 1933, as amended (the "SECURITIES ACT") and disposed of pursuant thereto; (b)
registration under the Securities Act is no longer required for subsequent
public distribution of such security; or (c) it has ceased to be outstanding.
(2) As used herein the term "REGISTRATION STATEMENT" means one or
more registration statements of the Company on Form S-3 under the Securities Act
registering all of the Registrable Securities, including any amendments or
supplements thereto.
(3) Within thirty (30) days following Final Closing, the Company
shall file with the SEC a Registration Statement on Form S-3 (or, if Form S-3 is
not available, on such form of Registration Statement as is then available to
effect a registration of all of the Registrable Securities; PROVIDED, that the
Company shall convert such other form to Form S-3, or file a replacement
registration statement on Form S-3 promptly after the first date on which it
meets such requirement), to enable the resale of at least 125% of the
Registrable Securities (the
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"MANDATORY REGISTRATION STATEMENT"). The Mandatory Registration Statement shall
contain, unless otherwise required by applicable law or the SEC, the "Selling
Shareholders" and "Plan of Distribution" section of the Prospectus in a form
customary based upon information provided by the selling shareholder. The
Company shall file the Mandatory Registration Statement and use its best efforts
to cause all of the Registrable Securities to be registered under the Securities
Act, in connection with the sale or other disposition by the Purchasers of the
Registrable Securities so registered. The Company shall use its best efforts to
cause the Mandatory Registration Statement, as amended, to become effective no
later than ninety (90) days after the Final Closing.
(4) If the Mandatory Registration Statement has not been declared or
ordered effective under the Securities Act within one hundred and fifty (150)
days following the Final Closing (such failure being referred to as an "EVENT"
and the date on which the "Event" takes place being referred to as an "EVENT
DATE"), then the Company shall pay to each Purchaser, as liquidated damages and
not as a penalty, an amount equal to 1.5% of the Payment and then until the
Event is cured an amount equal to 1.0% of the Payment for each subsequent thirty
(30) day period (prorated for partial periods) but the foregoing not to exceed
an aggregate of 9% of the Payment. While such Event continues, such liquidated
damages shall be paid not less often than each thirty (30) days on each monthly
anniversary of the Event Date (if the Event shall not have been cured by such
date) until the date on which the Event is cured. The Company shall have the
option to pay any damages in cash or Common Stock valued at Fair Market Value
(as defined in the Warrants).
(5) Expenses incurred by the Company in connection with a
registration of Registrable Securities pursuant to Section B hereof, including
without limitation, all registration, qualification and filing fees, exchange
listing fees, printing expenses, escrow fees, fees and disbursements of counsel
for the Company, blue sky fees and expenses, the expense of any special audits
incident to or required by any such registration, except as otherwise provided
herein or as may otherwise be prohibited by applicable law, shall be borne by
the Company. All selling commissions and stock transfer taxes and the costs,
fees and expenses of any accountants, attorneys or other experts retained by the
Purchasers relating to securities registered on behalf of the Purchasers of
Registrable Securities shall be borne by the Purchasers.
C. REPRESENTATIONS AND WARRANTIES
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Purchaser hereby represents and warrants to, and agrees with, the
Company as follows:
(1) The undersigned has read the Memorandum and fully understands
the Memorandum and the terms of the Offering (as defined in the instructions
attached hereto). With respect to tax and other economic considerations involved
in this investment, the undersigned is not relying on the Company or the
Placement Agent, if any. The undersigned has carefully considered and has, to
the extent the undersigned believes such discussion necessary, discussed with
the undersigned's professional legal, tax, accounting, and financial advisors
the suitability of an investment in the Units for the undersigned's particular
tax and financial situation and has determined that the Units being subscribed
for by the undersigned are a suitable investment for the undersigned.
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(2) The undersigned acknowledges that all documents, records, and
books pertaining to this investment which the undersigned has requested
(including, without limitation, the Disclosure Materials) have been made
available for inspection by the undersigned, the undersigned's attorney,
accountant, or adviser(s).
(3) The undersigned and/or the undersigned's adviser(s) has/have had
a reasonable opportunity to ask questions of, and receive answers from, a person
or persons acting on behalf of the Company concerning the Offering and all such
questions have been answered to the full satisfaction of the undersigned.
(4) The undersigned is not subscribing for Units as a result of, or
subsequent to, any advertisement, article, notice, or other communication
published in any newspaper, magazine, or similar media or broadcast over
television or radio or presented at any seminar or meeting.
(5) The undersigned: (i) has a pre-existing business relationship
with the Company, the Placement Agent, if any, or one of its respective
officers, directors, or controlling persons; AND (ii) by reason of the
undersigned's business or financial experience or the business or financial
experience of the undersigned's professional advisors who are unaffiliated with,
and who are not compensated by, the Company, the Placement Agent, if any, or any
of its respective affiliates, directly or indirectly, can be reasonably assumed
to have the capacity to protect the undersigned's interests in connection with
the investment in the Units.
(6) If the undersigned is a natural person, the undersigned has
reached the age of majority in the state in which the undersigned resides, has
adequate means of providing for the undersigned's current financial needs and
contingencies, is able to bear the substantial economic risks of an investment
in the Units for an indefinite period of time, has no need for liquidity in such
investment, and, at the present time, could afford a complete loss of such
investment.
(7) The undersigned or the undersigned's purchaser representative,
as the case may be, has such knowledge and experience in financial, tax, and
business matters so as to enable the undersigned to utilize the information made
available to the undersigned in connection with the Offering to evaluate the
merits and risks of an investment in the Units and to make an informed
investment decision with respect thereto.
(8) The undersigned will not sell or otherwise transfer the Units
without registration under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), or applicable state securities laws or an exemption
therefrom. The Units have not been registered under the Securities Act or under
the securities laws of any states. The undersigned represents that the
undersigned is purchasing the Units for the undersigned's own account, for
investment, and not with a view to resale or distribution, except in compliance
with the Securities Act. The undersigned has not offered or sold any portion of
the Units being acquired nor does the undersigned have any present intention of
dividing such Units with others or of selling, distributing, or otherwise
disposing of any portion of such Units either currently or after the passage of
a fixed or determinable period of time or upon the occurrence or non-occurrence
of any predetermined event or circumstance in violation of the Securities Act.
Except as otherwise provided in the Disclosure Materials, the Company has no
obligation to register the Units.
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(9) The undersigned recognizes that investment in the Units involves
substantial risks, including loss of the entire amount of such investment.
Further, the undersigned has carefully read and considered the matters set forth
in the Disclosure Materials, and has taken full cognizance of, and understands
all of, the risks related to the purchase of the Units.
(10) The undersigned acknowledges that the certificates representing
the Units shall be stamped or otherwise imprinted with a legend substantially in
the following form and that the Company may issue stop transfer instructions to
the transfer agent of such securities:
"THE SECURITIES REPRESENTED HEREBY AND ISSUABLE UPON EXERCISE
HEREOF HAVE NOT BEEN REGISTERED UNDER UNITED STATES FEDERAL OR
STATE SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD, OR
OTHERWISE DISPOSED OF OR ASSIGNED FOR VALUE, DIRECTLY OR
INDIRECTLY, NOR MAY SUCH SECURITIES BE TRANSFERRED ON THE BOOKS
OF THE CORPORATION, WITHOUT REGISTRATION OF SUCH SECURITIES
UNDER ALL APPLICABLE UNITED STATES FEDERAL AND STATE SECURITIES
LAWS OR COMPLIANCE WITH AN APPLICABLE EXEMPTION THEREFROM, SUCH
COMPLIANCE, AT THE OPTION OF THE CORPORATION, TO BE EVIDENCED BY
AN OPINION OF STOCKHOLDER'S COUNSEL, IN FORM AND SUBSTANCE
ACCEPTABLE TO THE CORPORATION, THAT NO VIOLATION OF SUCH
REGISTRATION PROVISIONS WOULD RESULT FROM ANY PROPOSED TRANSFER
OR ASSIGNMENT."
(11) The undersigned acknowledges and agrees that it shall not be
entitled to seek any remedies with respect to the Offering from any party other
than the Company and the Placement Agent, if any.
(12) If this Subscription Agreement is executed and delivered on
behalf of a partnership, corporation, trust, or estate: (i) such partnership,
corporation, trust, or estate has the full legal right and power and all
authority and approval required (a) to execute and deliver, or authorize the
execution and delivery of, this Subscription Agreement and all other instruments
executed and delivered by, or on behalf of, such partnership, corporation,
trust, or estate in connection with the purchase of its Units, (b) to delegate
authority pursuant to a power of attorney, and (c) to purchase and hold such
Units; (ii) the signature of the party signing on behalf of such partnership,
corporation, trust, or estate is binding upon such partnership, corporation,
trust, or estate; and (iii) such partnership, corporation, or trust has not been
formed for the specific purpose of acquiring such Units, unless each beneficial
owner of such entity is qualified as an "ACCREDITED INVESTOR" within the meaning
of Rule 501(a) of Regulation D promulgated under the Securities Act ("REGULATION
D") and has submitted information substantiating such individual qualification.
(13) If the undersigned is a retirement plan or is investing on
behalf of a retirement plan, the undersigned acknowledges that investment in the
Units poses additional risks, including the inability to use losses generated by
an investment in the Units to offset taxable income.
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(14) The undersigned is an accredited investor, as defined in Rule
501(a) of Regulation D and under state securities of "blue sky" laws, as
indicated in the applicable Questionnaire attached hereto and hereby made a part
hereof.
(15) The undersigned shall indemnify and hold harmless the Company,
the Placement Agent, if any, and each respective officer, director, employee,
agent, representative or control person thereof, who is or may be a party to, or
is or may be threatened to be made a party to, any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
or investigative, by reason of, or arising from, any actual or alleged
misrepresentation or misstatement of facts or omission to represent or state
facts made or alleged to have been made by the undersigned, or omitted or
alleged to have been omitted by the undersigned, concerning the undersigned or
the undersigned's authority to invest or financial position in connection with
the Offering, including, without limitation, any such misrepresentation,
misstatement, or omission contained in the Questionnaire or any other document
submitted by the undersigned, against losses, liabilities, and expenses
(including reasonable attorneys' fees, judgments, fines, and amounts paid in
settlement) actually and reasonably incurred by the Company, the Placement
Agent, if any, and each respective officer, director, employee, agent,
representative or control person thereof, in connection with such action, suit,
or proceeding.
D. UNDERSTANDINGS
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The undersigned understands, acknowledges, and agrees with the Company
and the Placement Agent, if any, as follows:
(1) This Subscription may be rejected, in whole or in part, by the
Company and the Placement Agent, if any, in its sole and absolute discretion, at
any time before the relevant Closing, notwithstanding prior receipt by the
undersigned of notice of acceptance of the undersigned's Subscription.
(2) Except as set forth in paragraph D(1) above, the undersigned
hereby acknowledges and agrees that the subscription hereunder is irrevocable by
the undersigned, that, except as may be provided under applicable laws, the
undersigned is not entitled to cancel, terminate, or revoke this Subscription
Agreement or any agreements of the undersigned hereunder and that this
Subscription Agreement and such other agreements shall survive the death or
disability of the undersigned and shall be binding upon and inure to the benefit
of the parties and their heirs, executors, administrators, successors, legal
representatives, and permitted assigns. If the undersigned is more than one
person, the obligations of the undersigned hereunder shall be joint and several
and the agreements, representations, warranties, and acknowledgments herein
contained shall be deemed to be made by, and be binding upon, each such person
and his/her heirs, executors, administrators, successors, legal representatives,
and permitted assigns.
(3) No federal or state agency has made any finding or determination
as to the accuracy or adequacy of the Disclosure Materials or as to the fairness
of the terms of this Offering for investment nor any recommendation or
endorsement of the Units.
(4) The Offering is intended to be exempt from registration under
the Securities Act by virtue of Section 4(2) of the Securities Act and the
provisions of Regulation D thereunder,
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which is in part dependent upon the truth, completeness, and accuracy of the
statements made by the undersigned herein and in the Questionnaire.
(5) It is understood that in order not to jeopardize the Offering's
exempt status under Section 4(2) of the Securities Act and Regulation D, any
transferee will, at a minimum, be required to fulfill the investor suitability
requirements thereunder.
(6) If engaged by the Company, the Placement Agent will receive
compensation in connection with the Offering, but is not guaranteeing or
assuming responsibility for the operation or possible liability of the Company,
including, without limitation, compliance by the Company with the agreements
entered into in connection with the Offering, and will not supervise or
participate in the operation or management of the Company.
(7) The undersigned acknowledges that the information contained in
the Disclosure Materials is confidential and non-public and agrees that all such
information shall be kept in confidence by the undersigned and neither used by
the undersigned for the undersigned's personal benefit (other than in connection
with this Subscription) nor disclosed to any third party for any reason;
provided, however, that this obligation shall not apply to any such information
that (i) is part of the public knowledge or literature and readily accessible at
the date hereof, (ii) becomes part of the public knowledge or literature and
readily accessible by publication (except as a result of a breach of this
provision), or (iii) is received from third parties (except third parties who
disclose such information in violation of any confidentiality agreements or
obligations, including, without limitation, any Subscription Agreement entered
into with the Company and/or the Placement Agent, if any).
(8) The representations, warranties, and agreements of the
undersigned contained herein and in any other writing delivered in connection
with the transactions contemplated hereby shall be true and correct in all
respects on and as of the date of the Closing as if made on and as of such date
and shall survive the execution and delivery of this Subscription Agreement and
the purchase of the Units.
(9) Insofar as indemnification for liabilities under the Securities
Act may be permitted to directors, officers, or controlling persons of the
Company, the Company has been informed that, in the opinion of the Securities
and Exchange Commission, such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable to such extent.
(10) IN MAKING AN INVESTMENT DECISION, PURCHASERS MUST RELY ON THEIR
OWN EXAMINATION OF THE COMPANY AND THE TERMS OF THE OFFERING, INCLUDING THE
MERITS AND RISKS INVOLVED. THE SECURITIES HAVE NOT BEEN RECOMMENDED BY ANY
FEDERAL OR STATE SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE
FOREGOING AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY
OF THE DISCLOSURE MATERIALS OR THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
(11) THE UNITS MAY NOT BE TRANSFERRED, RESOLD, OR OTHERWISE DISPOSED
OF, EXCEPT AS PERMITTED UNDER THE SECURITIES
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ACT AND APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM. PURCHASERS SHOULD BE AWARE THAT THEY WILL BE REQUIRED TO BEAR THE
FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
(12) SECURITIES LEGENDS:
NASAA UNIFORM LEGEND:
IN MAKING AN INVESTMENT DECISION INVESTORS MUST RELY ON THEIR OWN
EXAMINATION OF THE ISSUER AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS
AND RISKS INVOLVED. THESE SECURITIES HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR
STATE SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING
AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THIS
DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. THESE
SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT
BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION
OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO
BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
FOR RESIDENTS OF ALABAMA, IDAHO, INDIANA, MISSISSIPPI, NORTH CAROLINA, OREGON,
SOUTH CAROLINA, SOUTH DAKOTA, OR TENNESSEE:
IN MAKING AN INVESTMENT DECISION INVESTORS MUST RELY ON THEIR OWN
EXAMINATION OF THE COMPANY AND THE TERMS OF THIS OFFERING, INCLUDING THE MERITS
AND RISKS INVOLVED. THE SECURITIES OFFERED HEREBY AND ISSUABLE UPON EXERCISE
HEREOF HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES COMMISSION
OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING AUTHORITIES HAVE NOT
CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THIS DOCUMENT. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE SECURITIES OFFERED HEREBY AND ISSUABLE UPON EXERCISE HEREOF ARE
SUBJECT TO SIGNIFICANT RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE
TRANSFERRED OR RESOLD EXCEPT AS PERMITTED, AMONG OTHER THINGS, UNDER THE
SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS PURSUANT TO REGISTRATION OR
EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY WILL BE REQUIRED TO
BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
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FOR RESIDENTS OF ARKANSAS:
THE SECURITIES OFFERED HEREBY AND ISSUABLE UPON EXERCISE HEREOF ARE
OFFERED PURSUANT TO A CLAIM OF EXEMPTION UNDER SECTION 23-42-504(a)(14) OF THE
ARKANSAS SECURITIES ACT AND SECTION 4(2) OF THE SECURITIES ACT. A REGISTRATION
STATEMENT RELATING TO THE SECURITIES OFFERED HEREBY HAS NOT BEEN FILED WITH THE
ARKANSAS SECURITIES DEPARTMENT OR WITH THE SECURITIES AND EXCHANGE COMMISSION.
NEITHER THE DEPARTMENT NOR THE SECURITIES AND EXCHANGE COMMISSION HAS PASSED
UPON THE VALUE OF THE SECURITIES OFFERED HEREBY OR ISSUABLE UPON EXERCISE
HEREOF, MADE ANY RECOMMENDATIONS AS TO THEIR PURCHASE, APPROVED OR DISAPPROVED
THE OFFERING, OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS AGREEMENT OR THE
DISCLOSURE MATERIALS. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
FOR RESIDENTS OF CALIFORNIA:
THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA DOES NOT
RECOMMEND OR ENDORSE THE PURCHASE OF THESE SECURITIES. IT IS UNLAWFUL TO
CONSUMMATE A SALE OR TRANSFER OF THE SECURITIES OR ANY INTEREST THEREIN OR TO
RECEIVE ANY CONSIDERATION THEREFOR WITHOUT THE PRIOR CONSENT OF THE COMMISSIONER
OF CORPORATIONS OF THE STATE OF CALIFORNIA EXCEPT AS PERMITTED IN THE
COMMISSIONER'S RULES.
THE SALE OF THE SECURITIES OFFERED HEREBY AND ISSUABLE UPON EXERCISE
HEREOF HAVE NOT BEEN QUALIFIED WITH THE COMMISSIONER OF CORPORATIONS OF THE
STATE OF CALIFORNIA, AND THE ISSUANCE OF SUCH SECURITIES OR THE PAYMENT OR
RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO SUCH QUALIFICATION IS
UNLAWFUL, UNLESS THE SALE OF SUCH SECURITIES IS EXEMPT FROM QUALIFICATION BY
SECTIONS 25100, 25102, OR 25105 OF THE CALIFORNIA CORPORATIONS CODE.
FOR RESIDENTS OF CONNECTICUT:
THE SECURITIES OFFERED HEREBY AND ISSUABLE UPON EXERCISE HEREOF ARE
OFFERED PURSUANT TO A CLAIM OF EXEMPTION AND HAVE NOT BEEN REGISTERED UNDER
SECTION 36-485 OF THE CONNECTICUT UNIFORM SECURITIES ACT. THE SECURITIES OFFERED
HEREBY AND ISSUABLE UPON EXERCISE HEREOF CANNOT, THEREFORE, BE RESOLD OR
TRANSFERRED UNLESS THEY ARE REGISTERED UNDER THAT ACT OR UNLESS AN EXEMPTION
FROM REGISTRATION IS AVAILABLE.
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FOR RESIDENTS OF FLORIDA:
PURSUANT TO SECTION 517.061(11)(a)(5) OF THE FLORIDA SECURITIES ACT,
FLORIDA INVESTORS HAVE A RIGHT TO RESCIND THEIR SUBSCRIPTION AGREEMENTS WITHIN
THREE BUSINESS DAYS AFTER THE DELIVERY OF ANY CONSIDERATION FOR THE SECURITIES.
YOUR WITHDRAWAL WILL BE WITHOUT ANY FURTHER LIABILITY TO YOU. TO ACCOMPLISH SUCH
WITHDRAWAL, YOU NEED ONLY TELEPHONE OR SEND A TELEGRAM (WITHIN SUCH TIME PERIOD)
TO SYNOVICS PHARMACEUTICALS, INC., 0000 XXXX XXXXXXXXX XXXX, XXXXX 000, XXXXXXX,
XXXXXXX 00000, ATTENTION: PRESIDENT. SHOULD YOU MAKE THIS REQUEST ORALLY, YOU
MUST ALSO SEND A TELEGRAM CONFIRMING YOUR REQUEST.
THE FLORIDA DEPARTMENT OF BANKING AND FINANCE HAS NOT REVIEWED THE
OFFERING OR THESE DISCLOSURE MATERIALS AND THE SECURITIES HAVE NOT BEEN
REGISTERED UNDER THE FLORIDA SECURITIES ACT. UNLESS THESE SECURITIES ARE
REGISTERED, THEY MAY NOT BE SOLD OR TRANSFERRED IN FLORIDA, EXCEPT IN A
TRANSACTION THAT IS EXEMPT UNDER SAID ACT.
FOR RESIDENTS OF ILLINOIS:
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECRETARY
OF STATE OF THE STATE OF ILLINOIS OR THE STATE OF ILLINOIS, NOR HAS THE
SECRETARY OF STATE OF THE STATE OF ILLINOIS PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS OFFERING DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
FOR RESIDENTS OF MAINE:
THESE SECURITIES ARE BEING SOLD PURSUANT TO AN EXEMPTION FROM
REGISTRATION WITH THE BANK SUPERINTENDENT OF THE STATE OF MAINE UNDER SECTION
10502(2)(R) OF TITLE 32 OF THE MAINE REVISED STATUTES. THESE SECURITIES MAY BE
DEEMED RESTRICTED AND AS SUCH THE HOLDER MAY NOT BE ABLE TO RESELL THE
SECURITIES UNLESS PURSUANT TO REGISTRATION UNDER STATE OR FEDERAL SECURITIES
LAWS OR UNLESS AN EXEMPTION UNDER SUCH LAWS EXISTS.
FOR RESIDENTS OF MASSACHUSETTS:
THE SECURITIES OFFERED HEREBY AND ISSUABLE UPON EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES LAWS OF MASSACHUSETTS AND MAY NOT BE
TRANSFERRED OR SOLD EXCEPT IN TRANSACTIONS WHICH ARE EXEMPT UNDER THE
MASSACHUSETTS SECURITIES LAWS OR PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT.
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FOR RESIDENTS OF MISSOURI:
THE SECURITIES OFFERED HEREBY AND ISSUABLE UPON EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE MISSOURI UNIFORM SECURITIES ACT AND MAY ONLY BE
DISPOSED OF THROUGH A REGISTERED BROKER-DEALER. IT IS A FELONY TO SELL
SECURITIES IN VIOLATION OF THE MISSOURI SECURITIES ACT.
FOR RESIDENTS OF NEW HAMPSHIRE:
NEITHER THE FACT THAT A REGISTRATION STATEMENT OR AN APPLICATION FOR A
LICENSE HAS BEEN FILED WITH THE STATE OF NEW HAMPSHIRE NOR THE FACT THAT A
SECURITY IS EFFECTIVELY REGISTERED OR A PERSON IS LICENSED IN THE STATE OF NEW
HAMPSHIRE CONSTITUTES A FINDING BY THE SECRETARY OF STATE THAT ANY DOCUMENT
FILED UNDER RSA 421-B IS TRUE, COMPLETE, AND NOT MISLEADING. NEITHER ANY SUCH
FACT NOR THE FACT THAT AN EXEMPTION OR EXCEPTION IS AVAILABLE FOR A SECURITY OR
A TRANSACTION MEANS THAT THE SECRETARY OF STATE HAS PASSED IN ANY WAY UPON THE
MERITS OR QUALIFICATIONS OF, OR RECOMMENDED OR GIVEN APPROVAL TO, ANY PERSON,
SECURITY, OR TRANSACTION. IT IS UNLAWFUL TO MAKE, OR CAUSE TO BE MADE, TO ANY
PROSPECTIVE PURCHASER, CUSTOMER, OR CLIENT ANY REPRESENTATION INCONSISTENT WITH
THE PROVISIONS OF THIS PARAGRAPH.
FOR NEW JERSEY RESIDENTS:
THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY HAS NOT PASSED UPON OR
ENDORSED THE MERITS OF THIS OFFERING. THE FILING OF THIS OFFERING WITH THE
BUREAU OF SECURITIES DOES NOT CONSTITUTE APPROVAL OF THE ISSUE OR THE SALE
THEREOF BY THE BUREAU OF SECURITIES OR THE DEPARTMENT OF LAW AND PUBLIC SAFETY
OF THE STATE OF NEW JERSEY. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
FOR NEW YORK RESIDENTS:
NEITHER THIS AGREEMENT NOR THE DISCLOSURE MATERIALS HAS BEEN REVIEWED BY
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK PRIOR TO ITS ISSUANCE AND USE. THE
ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED UPON OR ENDORSED THE
MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
NEITHER THIS AGREEMENT NOR THE DISCLOSURE MATERIALS CONTAINS AN UNTRUE
STATEMENT OF A MATERIAL FACT OR OMITS TO STATE A MATERIAL FACT NECESSARY TO MAKE
THE STATEMENTS MADE, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE,
NOT MISLEADING. THIS AGREEMENT AND THE DISCLOSURE MATERIALS
11
CONTAIN A FAIR SUMMARY OF THE MATERIAL TERMS AND DOCUMENTS PURPORTED TO BE
SUMMARIZED HEREIN.
FOR RESIDENTS OF PENNSYLVANIA:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE PENNSYLVANIA
SECURITIES ACT. THE SECURITIES PURCHASED HEREBY AND ISSUABLE UPON EXERCISE
HEREOF CANNOT BE SOLD OR OTHERWISE TRANSFERRED, EXCEPT PURSUANT TO A
REGISTRATION UNDER THE PENNSYLVANIA SECURITIES ACT OR UNDER THE SECURITIES ACT.
THE SECURITIES REGULATORY AUTHORITY OF THE COMMONWEALTH OF PENNSYLVANIA HAS NOT
APPROVED OR DISAPPROVED THESE SECURITIES NOR PASSED UPON THE MERITS OF THIS
OFFERING OR THE ACCURACY OR ADEQUACY OF THESE DISCLOSURE MATERIALS, AND ANY
REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
SALES OF THESE SECURITIES TO RESIDENTS OF THE COMMONWEALTH OF
PENNSYLVANIA ARE SUBJECT TO THE FOLLOWING CONDITIONS:
(1) EACH PENNSYLVANIA RESIDENT WHO SUBSCRIBES FOR THESE
SECURITIES MUST AGREE IN WRITING NOT TO SELL OR TRANSFER THESE
SECURITIES FOR A PERIOD OF 12 MONTHS FROM THE DATE OF THE CLOSING OF THE
SALE OF THE SECURITIES OFFERED HEREBY IF SUCH SALE OR TRANSFER WOULD
VIOLATE SECTION 203(D) OF THE PENNSYLVANIA SECURITIES ACT OR THE
REGULATIONS THEREUNDER; AND
(2) EACH PENNSYLVANIA RESIDENT WHO SUBSCRIBES FOR SECURITIES
HAS THE RIGHT, PURSUANT TO SECTION 207(M) OF THE PENNSYLVANIA SECURITIES
ACT OF 1972, TO WITHDRAW HIS SUBSCRIPTION, AND RECEIVE A FULL REFUND OF
ALL MONIES PAID, WITHIN TWO BUSINESS DAYS AFTER THE DATE OF RECEIPT BY
THE ISSUER OF THE INVESTOR'S EXECUTED SUBSCRIPTION AGREEMENT. WITHDRAWAL
WILL BE WITHOUT ANY FURTHER LIABILITY TO ANY PERSON. TO ACCOMPLISH THIS
WITHDRAWAL, A SUBSCRIBER NEED ONLY SEND A LETTER OR TELEGRAM INDICATING
HIS INTENTION TO WITHDRAW TO: SYNOVICS PHARMACEUTICALS, INC., 0000 XXXX
XXXXXXXXX XXXX, XXXXX 000, XXXXXXX, XXXXXXX 00000, ATTENTION: PRESIDENT.
SUCH LETTER OR TELEGRAM SHOULD BE SENT AND POSTMARKED PRIOR TO THE END
OF THE AFOREMENTIONED SECOND BUSINESS DAY. IT IS PRUDENT TO SEND SUCH
LETTER BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO INSURE THAT IT IS
RECEIVED AND ALSO TO EVIDENCE THE TIME WHEN IT WAS MAILED. IF THE
REQUEST IS MADE ORALLY, YOU MUST ALSO SEND A TELEGRAM CONFIRMING YOUR
REQUEST.
12
FOR RESIDENTS OF SOUTH CAROLINA:
IN MAKING AN INVESTMENT DECISION INVESTORS MUST RELY ON THEIR OWN
EXAMINATION OF THE COMPANY AND THE TERMS OF THIS OFFERING, INCLUDING THE MERITS
AND RISKS INVOLVED. THE SECURITIES OFFERED HEREBY AND ISSUABLE UPON EXERCISE
HEREOF HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES COMMISSION
OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING AUTHORITIES HAVE NOT
CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY THESE DISCLOSURE MATERIALS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE SECURITIES OFFERED HEREBY AND ISSUABLE UPON EXERCISE HEREOF ARE
SUBJECT TO SIGNIFICANT RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE
TRANSFERRED OR RESOLD EXCEPT AS PERMITTED, AMONG OTHER THINGS, UNDER THE
SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS PURSUANT TO REGISTRATION OR
EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY WILL BE REQUIRED TO
BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
FOR RESIDENTS OF UTAH:
THE SECURITIES OFFERED HEREBY AND ISSUABLE UPON EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE UTAH UNIFORM SECURITIES ACT AND CANNOT THEREFORE BE
SOLD UNLESS THEY ARE SUBSEQUENTLY REGISTERED UNDER THAT ACT OR AN EXEMPTION FROM
SUCH REGISTRATION IS AVAILABLE.
FOR RESIDENTS OF ALL STATES:
THE SECURITIES OFFERED HEREBY AND ISSUABLE UPON EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES
LAWS OF CERTAIN STATES AND ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS
FROM THE REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH LAWS. THE INTERESTS ARE
SUBJECT IN VARIOUS STATES TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY
NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER SAID ACT AND SUCH LAWS
PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE SECURITIES OFFERED HEREBY
AND ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR OTHER
REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR
ENDORSED THE MERITS OF THIS OFFERING OR THE ACCURACY OF ADEQUACY OF THE
CONFIDENTIAL TERM SHEET. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
13
FOR FOREIGN INVESTORS:
THE SECURITIES BEING OFFERED HEREBY AND ISSUABLE UPON EXERCISE HEROF
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT, AND MAY NOT BE OFFERED OR
SOLD IN THE UNITED STATES (AS DEFINED UNDER REGULATION S UNDER THE SECURITIES
ACT) OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, A U.S. PERSON UNLESS THE
SECURITIES ARE REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IS AVAILABLE.
PROSPECTIVE INVESTORS WILL BE REQUIRED TO REPRESENT THAT THEY ARE NOT
U.S. PERSONS AND ARE NOT ACQUIRING THE SECURITIES FOR THE ACCOUNT OR BENEFIT OF
A U.S. PERSON.
E. MISCELLANEOUS
(1) Capitalized terms used in this Subscription Agreement, if not
otherwise defined herein, shall have the respective meanings attributed to such
terms in the Disclosure Materials. All pronouns and any variations thereof used
herein shall be deemed to refer to the masculine, feminine, impersonal,
singular, or plural, as the identity of the person or persons may require.
(2) Except as set forth in Section A(4) herein, no provision of this
Subscription Agreement shall be waived, modified, changed, discharged,
terminated, revoked, or canceled, except by an instrument in writing signed by
the party effecting the same against whom any change, discharge, or termination
is sought.
(3) Unless otherwise required herein, notices required or permitted
to be given hereunder shall be in writing and shall be deemed to be sufficiently
given when personally delivered or sent by registered mail, return receipt
requested, addressed: (i) if to the Company, at 0000 Xxxx Xxxxxxxxx Xxxx Xxxxx
000, Xxxxxxx, Xxxxxxx 00000, Attention: President, with a copy to the Placement
Agent, if any or (ii) if to the undersigned, at the address for correspondence
set forth in the Questionnaire, or at such other address as may have been
specified by written notice given in accordance with this paragraph E(3).
(4) Failure of the Company to exercise any right or remedy under
this Subscription Agreement or any other agreement between the Company and the
undersigned, or otherwise, or delay by the Company in exercising such right or
remedy, will not operate as a waiver thereof. No waiver by the Company will be
effective unless and until it is in writing and signed by the Company.
(5) This Subscription Agreement and the Disclosure Materials shall
be governed by, and enforced and construed in all respects in accordance with,
the laws of the New York, as such laws are applied by New York courts to
agreements entered into, and to be performed in, New York by and between
residents of New York, and shall be binding upon the undersigned, the
undersigned's heirs, estate, legal representatives, successors, and assigns and
shall inure to the benefit of the Company, its successors and assigns. If any
provision of this Subscription Agreement is invalid or unenforceable under any
applicable statute or rule of law, then such
14
provision shall be deemed inoperative to the extent that it may conflict
therewith and shall be deemed modified to the minimum extent required to conform
with such statute or rule of law. Any provision hereof that may prove invalid or
unenforceable under any law shall not affect the validity or enforceability of
any other provision hereof.
(6) This Subscription Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and may be
amended only by a writing executed by both parties hereto.
F. EXECUTION OF AGREEMENT BY POWER OF ATTORNEY
-------------------------------------------
THE UNDERSIGNED ACKNOWLEDGES THAT THE UNDERSIGNED HAS SIGNED THIS
SUBSCRIPTION AGREEMENT ON THE UNDERSIGNED'S OWN BEHALF, AND NOT BY POWER OF
ATTORNEY, OR, IN THE EVENT THAT THIS AGREEMENT HAS BEEN SIGNED ON THE
UNDERSIGNED'S BEHALF BY POWER OF ATTORNEY, THAT THE UNDERSIGNED REPRESENTS THAT
ATTACHED HERETO IS A TRUE AND COMPLETE COPY OF SUCH POWER OF ATTORNEY.
G. SIGNATURE
---------
The signature of this Subscription Agreement is contained as part of the
applicable Subscription Package, entitled "Signature Page".
15
A. SYNOVICS PHARMACEUTICALS, INC.
INDIVIDUAL INVESTOR QUESTIONNAIRE
Investor Name: _______________
To: Synovics Pharmaceuticals, Inc.
The information contained in this Questionnaire is being furnished in
order to determine whether the undersigned's subscription to purchase the Units
described in the Subscription Booklet may be accepted.
ALL INFORMATION CONTAINED IN THIS QUESTIONNAIRE WILL BE TREATED
CONFIDENTIALLY. The undersigned understands, however, that the Company may
present this Questionnaire to such parties as it deems appropriate if called
upon to establish that the proposed offer and sale of the Units is exempt from
registration under the Securities Act of 1933, as amended, or meets the
requirements of applicable state securities or "blue sky" laws. Further, the
undersigned understands that the offering is required to be reported to the
Securities and Exchange Commission and to various state securities or "blue sky"
regulators.
IF YOU ARE PURCHASING SECURITIES WITH YOUR SPOUSE, YOU MUST BOTH SIGN
THE SIGNATURE PAGE TO THIS QUESTIONNAIRE.
I. PLEASE INDICATE DESIRED TYPE OF OWNERSHIP OF UNITS.
[_] Individual
[_] Joint Tenants (rights of survivorship)
[_] Tenants in Common (no rights of survivorship)
II. PLEASE CHECK ANY OF THE STATEMENTS 1-5 BELOW THAT APPLIES TO YOU.
[_] 1. I have an individual net worth* or joint net worth with my
spouse in excess of $1,000,000.
[_] 2. I have had an individual income* in excess of $200,000 in each
of the last two calendar years, and I reasonably expect an
individual income in excess of $200,000 in the current
calendar year. NOTE: IF YOU ARE BUYING JOINTLY WITH YOUR
SPOUSE, YOU MUST EACH HAVE AN
----------
* For purposes of this Questionnaire, the term "net worth" means the excess of
total assets over total liabilities. In determining income, an investor
should add to his or her adjusted gross income any amounts attributable to
tax-exempt income received, losses claimed as a limited partner in any
limited partnership, deductions claimed for depletion, contributions to XXX
or Xxxxx retirement plan, alimony payments, and any amount by which income
from long-term capital gains has been reduced in arriving at adjusted gross
income.
A-1
INDIVIDUAL INCOME IN EXCESS OF $200,000 IN EACH OF THESE YEARS
IN ORDER TO CHECK THIS BOX.
[_] 3. My spouse and I have had a joint income in excess of $300,000
in each of the last two calendar years, and I reasonably
expect a joint income in excess of $300,000 for the current
calendar year, and I am a resident of Alabama, Arizona,
California, Colorado, Connecticut, Delaware, the District of
Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana,
Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland,
Massachusetts, Michigan, Minnesota, Mississippi, Missouri,
Montana, Nebraska, Nevada, New Hampshire, New Jersey, New
Mexico, New York, North Carolina, North Dakota, Ohio,
Oklahoma, Oregon, Pennsylvania, Puerto Rico, Rhode Island,
South Carolina, South Dakota, Tennessee, Texas, Vermont,
Virginia, Washington, West Virginia, Wisconsin, or Wyoming, or
a country other than the United States of America.
[_] 4. I am a resident of the Commonwealth of Massachusetts, and my
investment in the Units does not exceed 25% of my net worth
or, if I am married, 25% of the combined net worth of my
spouse and me, excluding principal residence and home
furnishings.
[_] 5. I am a director or executive officer of Synovics
Pharmaceuticals, Inc.
III. OTHER CERTIFICATIONS.
By signing the Signature Page, I certify the following (or, if I am
purchasing Units with my spouse as co-owner, each of us certifies the
following):
(a) that I am at least 21 years of age;
(b) that my purchase of Units will be solely for my own account and not
for the account of any other person (other than my spouse, if
co-owner); and
(c) that the name, residence address, and social security or taxpayer
identification number as set forth in this Questionnaire are true,
correct, and complete.
IV. GENERAL INFORMATION.
(a) PURCHASER.
Name:
--------------------------------------------------------------------------------
Social Security or Taxpayer Identification Number:
--------------------------------------------------------------------------------
A-2
Residence Address:
--------------------------------------------------------------------------------
(Number and Street)
--------------------------------------------------------------------------------
(City) (State) (Zip Code)
Residence Telephone Number:
--------------------------------------------------------------------------------
(Area Code) (Number)
Business Name and Address:
--------------------------------------------------------------------------------
(Name of Business)
--------------------------------------------------------------------------------
(Number and Street)
--------------------------------------------------------------------------------
(City) (State) (Zip Code)
Business Telephone Number:
--------------------------------------------------------------------------------
(Area Code) (Number)
I prefer to have correspondence sent to: [_] Residence [_] Business
(b) SPOUSE, IF CO-OWNER.
Name:
--------------------------------------------------------------------------------
Social Security or Taxpayer Identification Number:
--------------------------------------------------------------------------------
A-3
Residence Address
(if different from Purchaser's):
--------------------------------------------------------------------------------
(Number and Street)
--------------------------------------------------------------------------------
(City) (State) (Zip Code)
Residence Telephone Number
(if different from
Purchaser's):
-------------------------------------------------------------------
(Area Code) (Number)
Business Name and Address
(if different from
Purchaser's):
------------------------------------------------------------------
(Business Name)
--------------------------------------------------------------------------------
(Number and Street)
--------------------------------------------------------------------------------
(City) (State) (Zip Code)
Business Telephone Number
(if different from
Purchaser's):
------------------------------------------------------------------
(Area Code) (Number)
I prefer to have correspondence sent to: [_] Residence [_] Business
A-4
SYNOVICS PHARMACEUTICALS, INC.
INDIVIDUAL SIGNATURE PAGE
Your signature on this Individual Signature Page evidences your
agreement to be bound by the QUESTIONNAIRE and the SUBSCRIPTION AGREEMENT.
The undersigned represents that (a) he/she has read and understands
this Subscription Agreement, (b) the information contained in this Questionnaire
is complete and accurate and (c) he/she will telephone Xxxxxx Xxxxxx Xxxxx, of
Xxxxxxx Xxxxx & Xxxxxxxxxx LLC, counsel to the Company at (000) 000-0000
immediately if any material change in any of this information occurs before the
acceptance of his/her subscription and will promptly send the Company written
confirmation of such change.
--------------------------------------- ---------------------------------------
Number of Units applied for Date
---------------------------------------
Signature
---------------------------------------
Name (Please Type or Print)
---------------------------------------
Signature of Spouse if Co-Owner
---------------------------------------
Name of Spouse if Co-Owner
(Please Type or Print)
--------------------------------------------------------------------------------
IF YOU ARE PURCHASING UNITS WITH YOUR SPOUSE, YOU MUST BOTH SIGN THIS
SIGNATURE PAGE.
--------------------------------------------------------------------------------
THE UNITS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED
OR DISPOSED OF UNLESS SUCH SECURITIES ARE INCLUDED IN AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL, CONCURRED IN BY
COUNSEL TO THE COMPANY, HAS BEEN DELIVERED TO THE EFFECT THAT REGISTRATION OF
SUCH SECURITIES IS NOT REQUIRED.
A-5
B. SYNOVICS PHARMACEUTICALS, INC.
TRUST QUESTIONNAIRE
Investor Name: _________________________________
To: Synovics Pharmaceuticals, Inc.
The information contained in this Questionnaire is being furnished in
order to determine whether the undersigned TRUST's subscription to purchase the
Units described in the Subscription Booklet may be accepted.
ALL INFORMATION CONTAINED IN THIS QUESTIONNAIRE WILL BE TREATED
CONFIDENTIALLY. The undersigned TRUST understands, however, that the Company may
present this Questionnaire to such parties as it deems appropriate if called
upon to establish that the proposed offer and sale of the Units is exempt from
registration under the Securities Act of 1933, as amended, or meets the
requirements of applicable state securities or "blue sky" laws. Further, the
undersigned TRUST understands that the offering is required to be reported to
the Securities and Exchange Commission and to various state securities and "blue
sky" regulators.
NOTE: RETIREMENT PLANS SHOULD COMPLETE THE QUESTIONNAIRE IN SECTION E OF
THIS SUBSCRIPTION PACKAGE.
I. PLEASE CHECK STATEMENTS 1 OR 2 BELOW, AS APPLICABLE.
[_] 1. All of the trustees of the TRUST are residents of Alabama,
Arizona, California, Colorado, Connecticut, Delaware, the
District of Columbia, Florida, Georgia, Hawaii, Idaho,
Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland,
Massachusetts, Michigan, Minnesota, Mississippi, Missouri,
Montana, Nebraska, Nevada, New Hampshire, New Jersey, New
Mexico, New York, North Carolina, North Dakota, Pennsylvania,
Ohio, Oklahoma, Oregon, Puerto Rico, Rhode Island, South
Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia,
Washington, West Virginia, Wisconsin, or Wyoming, or a country
other than the United States of America; and
a. the TRUST has total assets in excess of $5,000,000; AND
b. the TRUST was not formed for the specific purpose of
acquiring the Units; AND
c. the purchase by the TRUST is directed by a person who has
such knowledge and experience in financial and business
matters that he/she is capable of evaluating the merits
and risks of an investment in the Units.
[_] 2. The TRUST is a revocable grantor TRUST which the grantor may
revoke at any time without the consent or approval of any
other person; the grantor retains sole investment control over
the assets of the trust; and
B-1
a. the grantor is a natural person whose individual net
worth* or joint net worth with the grantor's spouse
exceeds $1,000,000; or
b. the grantor is a natural person who had an individual
income* in excess of $200,000 in each of the last two
calendar years and who reasonably expects an individual
income in excess of $200,000 in the current calendar year;
or
c. the grantor is a natural person who, together with his or
her spouse, has had a joint income in excess of $300,000
in each of the last two calendar years and who reasonably
expects a joint income in excess of $300,000 in the
current calendar year, and all of the trustees of the
TRUST are residents of Alabama, Arizona, California,
Colorado, Connecticut, Delaware, the District of Columbia,
Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa,
Kansas, Kentucky, Louisiana, Maine, Maryland,
Massachusetts, Michigan, Minnesota, Mississippi, Missouri,
Montana, Nebraska, Nevada, New Hampshire, New Jersey, New
Mexico, New York, North Carolina, North Dakota, Ohio,
Oklahoma, Oregon, Pennsylvania, Puerto Rico, Rhode Island,
South Carolina, South Dakota, Tennessee, Texas, Vermont,
Virginia, Washington, West Virginia, Wisconsin, or
Wyoming, or a country other than the United States of
America; or
d. the grantor is a director or executive officer of Synovics
Pharmaceuticals, Inc.
----------
* For purposes of this Questionnaire, the term "net worth" means the excess of
total assets over total liabilities. In determining income, an investor
should add to his or her adjusted gross income any amounts attributable to
tax-exempt income received, losses claimed as a limited partner in any
limited partnership, deductions claimed for depletion, contributions to XXX
or Xxxxx retirement plan, alimony payments, and any amount by which income
from long-term capital gains has been reduced in arriving at adjusted gross
income.
B-2
IF THE TRUST IS A REVOCABLE GRANTOR TRUST, EACH GRANTOR MUST PHOTOCOPY AND
COMPLETE SECTION II BELOW.
II. FOR REVOCABLE GRANTOR TRUSTS ONLY: PLEASE CHECK ANY OF STATEMENTS 1-5
BELOW THAT APPLY TO THE GRANTOR.
[_] 1. I have an individual net worth or joint net worth with my
spouse in excess of $1,000,000.
[_] 2. I have had an individual income in excess of $200,000 in each
of the last two calendar years, and I reasonably expect an
individual income in excess of $200,000 in the current
calendar year. NOTE: IF YOU ARE BUYING JOINTLY WITH YOUR
SPOUSE, YOU MUST EACH HAVE AN INDIVIDUAL INCOME IN EXCESS OF
$200,000 IN EACH OF THESE YEARS IN ORDER TO CHECK THIS BOX.
[_] 3. My spouse and I have had a joint income in excess of $300,000
in each of the last two calendar years, and I reasonably
expect a joint income in excess of $300,000 in the current
calendar year, and I am a resident of Alabama, Arizona,
California, Colorado, Connecticut, Delaware, the District of
Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana,
Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland,
Massachusetts, Michigan, Minnesota, Mississippi, Missouri,
Montana, Nebraska, Nevada, New Hampshire, New Jersey, New
Mexico, New York, North Carolina, North Dakota, Ohio,
Oklahoma, Oregon, Pennsylvania, Puerto Rico, Rhode Island,
South Carolina, South Dakota, Tennessee, Texas, Vermont,
Virginia, Washington, West Virginia, Wisconsin, or Wyoming, or
a country other than the United States of America.
[_] 4. I am a resident of Massachusetts, and my investment in the
Units does not exceed 25% of my net worth or, if I am married,
25% of the combined net worth of my spouse and me, excluding
principal residence and home furnishings.
[_] 5. I am a director or executive officer of Synovics
Pharmaceuticals, Inc.
------------------------------------------ ---------------------------------
Print Name of Grantor(s) Signature of Grantor(s)
III. OTHER CERTIFICATIONS.
By signing the Signature Page, the undersigned certifies the following:
(a) that the TRUST's purchase of the Units will be solely for the
TRUST's own account and not for the account of any other person;
(b) that the TRUST's purchase of the Units is within the investment
powers and authority of the TRUST (as set forth in the declaration
of trust or other governing instrument) and that all necessary
consents, approvals, and authorizations for such purchase have been
obtained and that each person who signs the Signature Page has
B-3
all requisite power and authority as trustee to execute this
Questionnaire and the Subscription Agreement on behalf of the TRUST;
(c) that the TRUST has not been established in connection with either
(i) an employee benefit plan (as defined in Section 3(3) of Employee
Retirement Income Security Act of 1974, as amended ("ERISA")),
whether or not subject to the provisions of Title I of ERISA, or
(ii) a plan described in Section 4975(e) (i) of the Internal Revenue
Code; and
(d) that the TRUST's name, address, place of formation, and taxpayer
identification number as set forth in this Questionnaire are true,
correct, and complete.
IV. GENERAL INFORMATION.
(a) PROSPECTIVE PURCHASER (THE TRUST).
Name:
---------------------------------------------------------------------------
Address:
-----------------------------------------------------------------------
(Number and Street)
--------------------------------------------------------------------------------
(City) (State) (Zip Code)
Address for Correspondence (if different):
--------------------------------------
(Number and Street)
--------------------------------------------------------------------------------
(City) (State) (Zip Code)
Telephone Number:
--------------------------------------------------------------
(Area Code) (Number)
State in which Formed:
---------------------------------------------------------
Date of Formation:
-------------------------------------------------------------
Taxpayer Identification Number:
------------------------------------------------
(b) TRUSTEE(S) WHO ARE EXECUTING THIS QUESTIONNAIRE ON BEHALF OF THE
TRUST.
Name(s) of
Trustee(s):
-----------------------------------------------------
If Grantor Trust, Name(s) of Grantor(s):
------------------------
B-4
V. ADDITIONAL INFORMATION.
A TRUST MAY BE REQUIRED TO ATTACH A COPY OF THE TRUST AGREEMENT, DECLARATION OF
TRUST, OR OTHER GOVERNING INSTRUMENT, AS AMENDED, AS WELL AS ALL OTHER DOCUMENTS
THAT AUTHORIZE THE TRUST TO INVEST IN THE UNITS. ALL DOCUMENTATION MUST BE
COMPLETE AND CORRECT.
B-5
SYNOVICS PHARMACEUTICALS, INC.
TRUST SIGNATURE PAGE
Your signature on this TRUST Signature Page evidences the agreement by
the Trustee(s), on behalf of the TRUST, to be bound by the Questionnaire and the
Subscription Agreement.
1. The undersigned trustees represent that (a) the information
contained in this Questionnaire is complete and accurate and (b) the TRUST will
telephone Xxxxxx Xxxxxx Xxxxx, of Xxxxxxx Xxxxx & Xxxxxxxxxx LLC, counsel to the
Company at (000) 000-0000 immediately if any material change in any of this
information occurs before the acceptance of the TRUST's subscription and will
promptly send the Company written confirmation of such change.
2. The undersigned trustees hereby certify that they have read and
understand this Subscription Agreement.
3. The undersigned trustees hereby represent and warrant that the
persons signing this Subscription Agreement on behalf of the TRUST are duly
authorized to acquire the Units and sign this Subscription Agreement on behalf
of the TRUST and, further, that the undersigned TRUST has all requisite
authority to purchase such Units and enter into this Subscription Agreement.
--------------------------------------- ---------------------------------------
Number of Units applied for Date
Please Type or Print the Exact Legal
Title of Trust as follows; Trustee's ---------------------------------------
name, as trustee for [Name of Grantor] Title of Trust
under Agreement [or Declaration] of
Trust dated [Date of Trust Formation]
Name of Name of
Trustee:___________________________ Trustee: ______________________________
(Please Type or Print) (Please Type or Print)
By:________________________________ By:____________________________________
(Signature of Trustee) (Signature of Trustee)
B-6
THE UNITS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD, OR OTHERWISE
TRANSFERRED OR DISPOSED OF UNLESS SUCH SECURITIES ARE INCLUDED IN AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL,
CONCURRED IN BY COUNSEL TO THE COMPANY, HAS BEEN DELIVERED TO THE EFFECT THAT
REGISTRATION OF SUCH SECURITIES IS NOT REQUIRED.
B-7
C. SYNOVICS PHARMACEUTICALS, INC.
PARTNERSHIP QUESTIONNAIRE
Investor Name: _________________________________
To: Synovics Pharmaceuticals, Inc.
The information contained in this Questionnaire is being furnished in
order to determine whether the undersigned PARTNERSHIP's subscription to
purchase the Units described in the Subscription Booklet may be accepted.
ALL INFORMATION CONTAINED IN THIS QUESTIONNAIRE WILL BE TREATED
CONFIDENTIALLY. The undersigned PARTNERSHIP understands, however, that the
Company may present this Questionnaire to such parties as it deems appropriate
if called upon to establish that the proposed offer and sale of the Units is
exempt from registration under the Securities Act of 1933, as amended, or meets
the requirements of applicable state securities or "blue sky" laws. Further, the
undersigned PARTNERSHIP understands that the offering is required to be reported
to the Securities and Exchange Commission and to various state securities and
"blue sky" regulators.
I. PLEASE CHECK ANY OF STATEMENTS 1-3 BELOW THAT APPLIES TO THE PARTNERSHIP.
[_] 1. The undersigned PARTNERSHIP: (a) has total assets in excess of
$5,000,000; (b) was not formed for the specific purpose of
acquiring the Units; and (c) has its principal place of
business in Alabama, Arizona, Colorado, Connecticut, Delaware,
the District of Columbia, Florida, Georgia, Hawaii, Idaho,
Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine,
Massachusetts, Michigan, Minnesota, Mississippi, Missouri,
Montana, Nebraska, Nevada, New Hampshire, New Jersey, New
Mexico, New York, North Carolina, North Dakota, Ohio,
Oklahoma, Oregon, Pennsylvania, Puerto Rico, Rhode Island,
South Carolina, South Dakota, Tennessee, Vermont, Virginia,
Washington, West Virginia, Wisconsin, or Wyoming, or a country
other than the United States of America.
[_] 2. Each of the partners of the undersigned PARTNERSHIP is able to
certify that such partner meets at least one of the following
three conditions:
a. the partner is a natural person whose individual net
worth* or joint net worth with his or her spouse exceeds
$1,000,000; or
----------
* For purposes of this Questionnaire, the term "net worth" means the excess of
total assets over total liabilities. In determining income, an investor
should add to his or her adjusted gross income any amounts attributable to
tax-exempt income received, losses claimed as a limited partner in any
limited partnership, deductions claimed for depletion, contributions to XXX
or Xxxxx retirement plan, alimony payments, and any amount by which income
from long-term capital gains has been reduced in arriving at adjusted gross
income.
C-1
b. the partner is a natural person whose individual income*
was in excess of $200,000 in each of the last two calendar
years and who reasonably expects an individual income in
excess of $200,000 in the current calendar year; or
c. the partner is a director or executive officer of Synovics
Pharmaceuticals, Inc.
[_] 3. Each of the partners of the undersigned PARTNERSHIP is able to
certify that such partner is a natural person who, together
with his or her spouse, has had a joint income in excess of
$300,000 in each of the last two calendar years and who
reasonably expects a joint income in excess of $300,000 in the
current calendar year, and the undersigned PARTNERSHIP has its
principal place of business in Alabama, Arizona, California,
Colorado, Connecticut, Delaware, the District of Columbia,
Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa,
Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts,
Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska,
Nevada, New Hampshire, New Jersey, New Mexico, New York, North
Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania,
Puerto Rico, Rhode Island, South Carolina, South Dakota,
Tennessee, Texas, Utah, Vermont, Virginia, Washington, West
Virginia, Wisconsin, or Wyoming, or a country other than the
United States of America.
--------------------------------------------------------------------------------
IF YOU CHECKED STATEMENT 2 OR STATEMENT 3 IN SECTION I AND DID NOT CHECK
STATEMENT 1, YOU MUST PROVIDE A LETTER SIGNED BY A GENERAL PARTNER OF THE
UNDERSIGNED PARTNERSHIP LISTING THE NAME OF EACH PARTNER (WHETHER A GENERAL
OR LIMITED PARTNER) AND THE REASON (UNDER STATEMENT 2 OR STATEMENT 3) SUCH
PARTNER QUALIFIES AS AN ACCREDITED INVESTOR (ON THE BASIS OF NET WORTH,
INDIVIDUAL INCOME, OR JOINT INCOME), OR EACH PARTNER MUST PHOTOCOPY AND
COMPLETE SECTION II BELOW.
--------------------------------------------------------------------------------
C-2
II. IF YOU CHECKED STATEMENT 2 OR STATEMENT 3 IN SECTION I ABOVE, EACH
PARTNER MUST CHECK ANY OF THE STATEMENTS 1-5 BELOW THAT APPLIES TO SUCH
PARTNER AND SIGN WHERE INDICATED.
[_] 1. I have an individual net worth or joint net worth with my
spouse in excess of $1,000,000.
[_] 2. I have had an individual income in excess of $200,000 in each
of the last two calendar years, and I reasonably expect an
individual income in excess of $200,000 in the current
calendar year. NOTE: IF YOU ARE BUYING JOINTLY WITH YOUR
SPOUSE, YOU MUST EACH HAVE AN INDIVIDUAL INCOME IN EXCESS OF
$200,000 IN EACH OF THESE YEARS IN ORDER TO CHECK THIS BOX.
[_] 3. My spouse and I have had a joint income in excess of $300,000
in each of the last two calendar years, and I reasonably
expect a joint income in excess of $300,000 in the current
calendar year, and I am a resident of Alabama, Arizona,
California, Colorado, Connecticut, Delaware, the District of
Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana,
Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland,
Massachusetts, Michigan, Minnesota, Mississippi, Missouri,
Montana, Nebraska, Nevada, New Hampshire, New Jersey, New
Mexico, New York, North Carolina, North Dakota, Ohio,
Oklahoma, Oregon, Pennsylvania, Puerto Rico, Rhode Island,
South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont,
Virginia, Washington, West Virginia, Wisconsin, or Wyoming, or
a country other than the United States of America.
[_] 4. I am a Massachusetts resident, and my investment in the Units
does not exceed 25% of my net worth or, if I am married, 25%
of the combined net worth of my spouse and me, excluding
principal residence and home furnishings.
[_] 5. I am a director or executive officer of Synovics
Pharmaceuticals, Inc.
--------------------------------- -----------------------------------
Print Name of Partner(s) Signature of Partner(s)
III. OTHER CERTIFICATIONS.
By signing the Signature Page, the undersigned certifies the following:
(a) that the PARTNERSHIP's purchase of the Units will be
solely for the PARTNERSHIP's own account and not for the
account of any other person; and
C-3
(b) that the PARTNERSHIP's name, address of principal place of
business, place of formation, and taxpayer identification
number as set forth in this Questionnaire are true,
correct, and complete.
IV. GENERAL INFORMATION.
(a) PROSPECTIVE PURCHASER (THE PARTNERSHIP)
Name:
---------------------------------------------------------------------------
Address:
-----------------------------------------------------------------------
(Number and Street)
--------------------------------------------------------------------------------
(City) (State) (Zip Code)
Address for Correspondence (if different):
--------------------------------------
(Number and Street)
--------------------------------------------------------------------------------
(City) (State) (Zip Code)
Telephone Number:
--------------------------------------------------------------
(Area Code) (Number)
State in which Formed:
---------------------------------------------------------
Date of Formation:
-------------------------------------------------------------
Taxpayer Identification Number:
------------------------------------------------
(b) THE PERSON WHO IS EXECUTING THIS QUESTIONNAIRE ON BEHALF OF THE
PARTNERSHIP
Name:
---------------------------------------------------------------------------
Position or Title:
-------------------------------------------------------------
(c) IF SECTION II HAS BEEN COMPLETED, NAMES OF INDIVIDUAL PARTNERS
WHOSE SIGNATURES MUST APPEAR ON THE SIGNATURE PAGE TO THIS
QUESTIONNAIRE
Name(s) of Individual Partners:
C-4
SYNOVICS PHARMACEUTICALS, INC.
PARTNERSHIP SIGNATURE PAGE
Your signature on this Partnership Signature Page evidences the
agreement by the PARTNERSHIP to be bound by the Questionnaire and the
Subscription Agreement.
1. The undersigned PARTNERSHIP hereby represents that (a) the
information contained in this Questionnaire is complete and accurate and (b) the
PARTNERSHIP will notify Xxxxxx Xxxxxx Xxxxx, of Xxxxxxx Xxxxx & Xxxxxxxxxx LLC,
counsel to the Company at (000) 000-0000 immediately if any material change in
any of this information occurs before the acceptance of the undersigned
PARTNERSHIP's subscription and will promptly send the Company written
confirmation of such change.
2. The undersigned PARTNERSHIP hereby certifies that it has read
and understands this Subscription Agreement.
3. The undersigned PARTNERSHIP hereby represents and warrants that
the person signing this Subscription Agreement on behalf of the PARTNERSHIP is a
general partner of the PARTNERSHIP, has been duly authorized by the PARTNERSHIP
to acquire the Units and sign this Subscription Agreement on behalf of the
PARTNERSHIP, and, further, that the undersigned PARTNERSHIP has all requisite
authority to purchase such Units and enter into this Subscription Agreement.
----------------------------------- ------------------------------------
Number of Units applied for Date
------------------------------------
Name of Partnership
(Please Type or Print)
By:
---------------------------------
(Signature)
Name:
-------------------------------
(Please Type or Print)
Title:
------------------------------
C-5
THE UNITS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD, OR OTHERWISE
TRANSFERRED OR DISPOSED OF UNLESS SUCH SECURITIES ARE INCLUDED IN AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL,
CONCURRED IN BY COUNSEL TO THE COMPANY, HAS BEEN DELIVERED TO THE EFFECT THAT
REGISTRATION OF SUCH SECURITIES IS NOT REQUIRED.
C-6
D. SYNOVICS PHARMACEUTICALS, INC.
CORPORATION QUESTIONNAIRE
Investor Name: _________________________________
To: Synovics Pharmaceuticals, Inc.
The information contained in this Questionnaire is being furnished in
order to determine whether the undersigned CORPORATION'S subscription to
purchase the Units described in the Subscription Booklet may be accepted.
ALL INFORMATION CONTAINED IN THIS QUESTIONNAIRE WILL BE TREATED
CONFIDENTIALLY. The undersigned CORPORATION understands, however, that the
Company may present this Questionnaire to such parties as it deems appropriate
if called upon to establish that the proposed offer and sale of the Units is
exempt from registration under the Securities Act of 1933, as amended, or meets
the requirements of applicable state securities or "blue sky" laws. Further, the
undersigned CORPORATION understands that the offering is required to be reported
to the Securities and Exchange Commission and to various state securities and
"blue sky" regulators.
I. PLEASE CHECK ANY OF STATEMENTS 1-5 BELOW THAT APPLIES TO THE
CORPORATION.
[_] 1. The undersigned CORPORATION: (a) has total assets in excess of
$5,000,000; (b) was not formed for the specific purpose of
acquiring any Units; and (c) has its principal place of business
in Alabama, Arizona, Colorado, Connecticut, Delaware, the
District of Columbia, Florida, Georgia, Hawaii, Idaho, Indiana,
Iowa, Kansas, Kentucky, Louisiana, Maine, Massachusetts,
Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska,
Nevada, New Hampshire, New Jersey, New Mexico, New York, North
Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania,
Puerto Rico, Rhode Island, South Carolina, South Dakota,
Tennessee, Vermont, Virginia, Washington, West Virginia,
Wisconsin, or Wyoming, or a country other than the United States
of America.
[_] 2. The undersigned CORPORATION: (a) has total assets in excess of
$14,000,000; (b) was not formed for the specific purpose of
acquiring any Units; and (c) has its principal place of business
in California.
D-1
[_] 3. Each of the stockholders of the undersigned CORPORATION is able
to certify that such stockholder meets at least one of the
following two conditions:
a. the stockholder is a natural person whose individual net
worth* or joint net worth with his or her spouse exceeds
$1,000,000; or
b. the stockholder is a natural person who had an individual
income* in excess of $200,000 in each of the last two
calendar years and who reasonably expects an individual
income in excess of $200,000 in the current calendar year.
[_] 4. Each of the stockholders of the undersigned CORPORATION is able
to certify that such stockholder is a natural person who,
together with his or her spouse, has had a joint income in
excess of $300,000 in each of the last two calendar years and
who reasonably expects a joint income in excess of $300,000 in
the current calendar year, and the undersigned CORPORATION has
its principal place of business in Alabama, Arizona, California,
Colorado, Connecticut, Delaware, the District of Columbia,
Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa,
Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts,
Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska,
Nevada, New Hampshire, New Jersey, New Mexico, New York, North
Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania,
Puerto Rico, Rhode Island, South Carolina, South Dakota,
Tennessee, Texas, Utah, Vermont, Virginia, Washington, West
Virginia, Wisconsin, or Wyoming, or a country other than the
United States of America.
[_] 5. The undersigned CORPORATION is:
a. a bank as defined in Section 3(a)(2) of the Securities Act;
or
b. a savings and loan association or other institution as
defined in Section 3(a)(5)(A) of the Securities Act whether
acting in its individual or fiduciary capacity; or
c. a broker or dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934, as amended; or
d. an insurance company as defined in Section 2(13) of the
Securities Act; or
e. an investment company registered under the Investment
Company Act of 1940, as amended, or a business development
company as defined in Section 2(a)(48) of the Investment
Company Act of 1940, as amended; or
----------
* For purposes of this Questionnaire, the term "net worth" means the excess of
total assets over total liabilities. In determining income, an Investor
should add to his or her adjusted gross income any amounts attributable to
tax-exempt income received, losses claimed as a limited partner in any
limited partnership, deductions claimed for depletion, contributions to XXX
or Xxxxx retirement plan, alimony payments, and any amount by which income
from long-term capital gains has been reduced in arriving at adjusted gross
income.
D-2
f. a small business investment company licensed by the U.S.
Small Business Administration under Section 301 (c) or (d)
of the Small Business Investment Act of 1958, as amended; or
g. a private business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940, as
amended.
--------------------------------------------------------------------------------
IF YOU CHECKED STATEMENT 3 OR STATEMENT 4 IN SECTION I AND DID NOT CHECK
STATEMENT 1, YOU MUST PROVIDE A LETTER SIGNED BY AN OFFICER OF THE
UNDERSIGNED CORPORATION LISTING THE NAME OF EACH STOCKHOLDER AND THE REASON
(UNDER STATEMENT 3 OR STATEMENT 4) WHY SUCH STOCKHOLDER QUALIFIES AS AN
ACCREDITED INVESTOR (ON THE BASIS OF NET WORTH, INDIVIDUAL INCOME, OR JOINT
INCOME) OR EACH STOCKHOLDER MUST PHOTOCOPY AND COMPLETE SECTION II BELOW.
--------------------------------------------------------------------------------
II. IF YOU CHECKED STATEMENT 3 OR STATEMENT 4 IN I ABOVE, EACH STOCKHOLDER
MUST CHECK ANY OF THE STATEMENTS 1-5 BELOW THAT APPLIES TO SUCH
STOCKHOLDER AND SIGN BELOW WHERE INDICATED.
[_] 1. I have an individual net worth or joint net worth with my
spouse in excess of $1,000,000.
[_] 2. I have had an individual income in excess of $200,000 in each
of the last two calendar years, and I reasonably expect an
individual income in excess of $200,000 in the current
calendar year. NOTE: IF YOU ARE BUYING JOINTLY WITH YOUR
SPOUSE, YOU MUST EACH HAVE AN INDIVIDUAL INCOME IN EXCESS OF
$200,000 IN EACH OF THESE YEARS IN ORDER TO CHECK THIS BOX.
[_] 3. My spouse and I have had a joint income in excess of $300,000
in each of the last two calendar years, and I reasonably
expect a joint income in excess of $300,000 in the current
calendar year, and I am a resident of Alabama, Arizona,
California, Colorado, Connecticut, Delaware, the District of
Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana,
Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland,
Massachusetts, Michigan, Minnesota, Mississippi, Missouri,
Montana, Nebraska, Nevada, New Hampshire, New Jersey, New
Mexico, New York, North Carolina, North Dakota, Ohio,
Oklahoma, Oregon, Pennsylvania, Puerto Rico, Rhode Island,
South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont,
Virginia, Washington, West Virginia, Wisconsin, or Wyoming, or
a country other than the United States of America.
D-3
[_] 4. I am a Massachusetts resident, and my investment in the Units
does not exceed 25% of my net worth or, if I am married, 25%
of the combined net worth of my spouse and me, excluding
principal residence and home furnishings.
[_] 5. I am a director or executive officer of Synovics
Pharmaceuticals, Inc.
-------------------------------------- ------------------------------------
Print Name of Unitholder(s) Signature of Unitholder(s)
III. OTHER CERTIFICATIONS.
By signing the Signature Page, the undersigned certifies the following:
(a) that the CORPORATION's purchase of Units will be solely for the
CORPORATION's own account and not for the account of any other
person or entity; and
(b) that the CORPORATION's name, address of principal place of
business, place of incorporation, and taxpayer identification
number as set forth in this Questionnaire are true, correct, and
complete.
D-4
IV. GENERAL INFORMATION.
(a) PROSPECTIVE PURCHASER (THE CORPORATION)
Name:
---------------------------------------------------------------------------
Principal Place of Business:
----------------------------------------------------
(Number and Street)
--------------------------------------------------------------------------------
(City) (State) (Zip Code)
Address for Correspondence (if different):
--------------------------------------
(Number and Street)
--------------------------------------------------------------------------------
(City) (State) (Zip Code)
Telephone Number:
---------------------------------------------------------------
(Area Code) (Number)
State of Incorporation:
---------------------------------------------------------
Date of Formation:
--------------------------------------------------------------
Taxpayer Identification Number:
-------------------------------------------------
Number of Stockholders:
---------------------------------------------------------
(b) INDIVIDUAL WHO IS EXECUTING THIS QUESTIONNAIRE ON BEHALF OF THE
CORPORATION
Name:
---------------------------------------------------------------------------
Position or Title:
--------------------------------------------------------------
(c) IF SECTION II HAS BEEN COMPLETED, NAMES OF INDIVIDUAL
STOCKHOLDERS WHOSE SIGNATURES MUST APPEAR ON THE SIGNATURE PAGE
TO THIS QUESTIONNAIRE
Name(s) of Unitholders:
---------------------------------------------------------
D-5
SYNOVICS PHARMACEUTICALS, INC.
CORPORATION SIGNATURE PAGE
Your signature on this Corporation Signature Page evidences the
agreement by the CORPORATION to be bound by the Questionnaire and the
Subscription Agreement.
1. The undersigned CORPORATION hereby represents that (a) the
information contained in this Questionnaire is complete and accurate and (b) the
CORPORATION will notify Xxxxxx Xxxxxx Xxxxx, of Xxxxxxx Xxxxx & Xxxxxxxxxx LLC,
counsel to the Company at (000) 000-0000 immediately if any material change in
any of the information occurs prior to the acceptance of the undersigned
CORPORATION's subscription and will promptly send the Company written
confirmation of such change.
2. The undersigned CORPORATION hereby certifies that it has read
and understands this Subscription Agreement.
3. The undersigned CORPORATION hereby represents and warrants that
the person signing this Subscription Agreement on behalf of the CORPORATION has
been duly authorized by all requisite action on the part of the CORPORATION to
acquire the Units and sign this Subscription Agreement on behalf of the
CORPORATION and, further, that the undersigned CORPORATION has all requisite
authority to purchase the Units and enter into this Subscription Agreement.
------------------------------------- ------------------------------------
Number of Units applied for Date
------------------------------------
Name of Corporation
(Please Type or Print)
By:
---------------------------------
(Signature)
Name:
-------------------------------
(Please Type or Print)
Title:
------------------------------
(Please Type or Print)
D-6
THE UNITS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD, OR OTHERWISE
TRANSFERRED OR DISPOSED OF UNLESS SUCH SECURITIES ARE INCLUDED IN AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL,
CONCURRED BY COUNSEL TO THE COMPANY, HAS BEEN DELIVERED TO THE EFFECT THAT
REGISTRATION OF SUCH SECURITIES IS NOT REQUIRED.
D-7
E. SYNOVICS PHARMACEUTICALS, INC.
RETIREMENT PLAN QUESTIONNAIRE
Investor Name: _________________________________
To: Synovics Pharmaceuticals, Inc.
The information contained in this Questionnaire is being furnished in
order to determine whether the undersigned RETIREMENT PLAN's subscription to
purchase the Units described in the Subscription Booklet may be accepted.
ALL INFORMATION CONTAINED IN THIS QUESTIONNAIRE WILL BE TREATED
CONFIDENTIALLY. The undersigned RETIREMENT PLAN understands, however, that the
Company may present this Questionnaire to such parties as it deems appropriate
if called upon to establish that the proposed offer and sale of the Units is
exempt from registration under the Securities Act of 1933, as amended, or meets
the requirements of applicable state securities or "blue sky" laws. Further, the
undersigned RETIREMENT PLAN understands that the offering is required to be
reported to the Securities and Exchange Commission and to various state
securities or "blue sky" regulators.
I. PLEASE CHECK ANY OF THE FOLLOWING STATEMENTS, AS APPLICABLE.
[_] 1. The undersigned RETIREMENT PLAN certifies that it is a Xxxxx
plan or Individual Retirement Account in which each
participant satisfies at least one of the following
conditions:
a. such person's individual net worth* or joint net worth
with his or her spouse exceeds $1,000,000; or
b. such person had an individual income* in excess of
$200,000 in each of the last two calendar years and
reasonably expects an individual income in excess of
$200,000 in the current calendar year; or
c. such person, together with his or her spouse, had a joint
income in excess of $300,000 in each of the last two
calendar years and reasonably expects a joint income in
excess of $300,000 in the current calendar year and is a
resident of
----------
* For purposes of this Questionnaire, the term "net worth" means the excess of
total assets over total liabilities. In determining income, an Investor
should add to his or her adjusted gross income any amounts attributable to
tax-exempt income received, losses claimed as a limited partner in any
limited partnership, deductions claimed for depletion, contributions to XXX
or Xxxxx retirement plan, alimony payments, and any amount by which income
from long-term capital gains has been reduced in arriving at adjusted gross
income.
E-1
Alabama, Arizona, Colorado, Connecticut, Delaware, the
District of Columbia, Florida, Georgia, Hawaii, Idaho,
Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana,
Maine, Massachusetts, Michigan, Minnesota, Mississippi,
Missouri, Montana, Nebraska, Nevada, New Hampshire, New
Mexico, New York, North Carolina, North Dakota, Ohio,
Oklahoma, Oregon, Pennsylvania, Puerto, Rico, Rhode
Island, South Carolina, South Dakota, Tennessee, Vermont,
Virginia, Washington, West Virginia, Wisconsin, or
Wyoming, or a country other than the United States of
America.
2. The undersigned RETIREMENT PLAN certifies that it is an
employee benefit plan within the meaning of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"),
and:
[_] a. The undersigned RETIREMENT PLAN is self-directed, with
investment decisions made solely by persons that are NOT
residents of Alaska, Arkansas, California, Maryland, New
Jersey, Texas, or Utah, AND each such person directing his
account and for whom the investment is being made
satisfies at least one of the following conditions:
(1) such person's individual net worth or joint net worth with
his or her spouse exceeds $1,000,000; or
(2) such person had an individual income in excess of $200,000
in each of the last two calendar years and reasonably
expects an individual income in excess of $200,000 in the
current calendar year; or
(3) such person together with his or her spouse, had a joint
income in excess of $300,000 in each of the last two
calendar years and reasonably expects a joint income in
excess of $300,000 in the current calendar year and is a
resident of Alabama, Arizona, Colorado, Connecticut,
Delaware, the District of Columbia, Florida, Georgia,
Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky,
Louisiana, Maine, Massachusetts, Michigan, Minnesota,
Mississippi, Missouri, Montana, Nebraska, Nevada, New
Hampshire, New Mexico, New York, North Carolina, North
Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Puerto Rico,
Rhode Island, South Carolina, South Dakota, Tennessee,
Vermont, Virginia, Washington, West Virginia, Wisconsin,
or Wyoming, or a country other than the United States of
America.
(4) such person is a director or executive officer of Synovics
Pharmaceuticals, Inc.
E-2
[_] b. The undersigned RETIREMENT PLAN has total assets in excess
of $5,000,000 and such Plan is not maintained in Alaska,
California, or New Jersey; or
[_] c. The investment decisions are made by a plan fiduciary as
defined in Section 3(21) of ERISA that (1) is either a
bank, insurance company, or registered investment adviser
or (2) is located in jurisdictions OTHER THAN Alaska,
Arkansas, California, New Jersey, or Texas AND is a
savings and loan association.
--------------------------------------------------------------------------------
IF YOU CHECKED STATEMENT 1 OR STATEMENT 2(a) IN SECTION I ABOVE, EACH
RETIREMENT PLAN PARTICIPANT FOR WHOSE ACCOUNT THE INVESTMENT IS BEING MADE
MUST PHOTOCOPY AND COMPLETE SECTION II BELOW.
--------------------------------------------------------------------------------
II. IF YOU CHECKED STATEMENT 1 OR STATEMENT 2(A) IN SECTION I ABOVE, EACH
RETIREMENT PLAN PARTICIPANT FOR WHOSE ACCOUNT THE INVESTMENT IS BEING
MADE MUST CHECK ANY OF THE STATEMENTS 1-5 BELOW THAT APPLIES TO SUCH
PARTICIPANT.
[_] 1. I have an individual net worth or joint net worth with my
spouse in excess of $1,000,000.
[_] 2. I have had an individual income in excess of $200,000 in each
of the last two calendar years, and I reasonably expect an
individual income in excess of $200,000 in the current
calendar year. NOTE: IF YOU ARE BUYING JOINTLY WITH YOUR
SPOUSE, YOU MUST EACH HAVE AN INDIVIDUAL INCOME IN EXCESS OF
$200,000 IN EACH OF THESE YEARS IN ORDER TO CHECK THIS BOX.
[_] 3. My spouse and I have had a joint income in excess of $300,000
in each of the last two calendar years, and I reasonably
expect a joint income excess of $300,000 in the current
calendar year, and I am a resident of Alabama, Arizona,
Colorado, Connecticut, Delaware, the District of Columbia,
Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa,
Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan,
Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada,
New Hampshire, New Mexico, New York, North Carolina, North
Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Puerto Rico,
Rhode Island, South Carolina, South Dakota, Tennessee,
Vermont, Virginia, Washington, West Virginia, Wisconsin, or
Wyoming, or a country other than the United States of America.
E-3
[_] 4. I am a Massachusetts resident, and my investment in the Units
does not exceed 25% of my net worth or, if I am married, 25%
of the combined net worth of my spouse and me, excluding
principal residence and home furnishings.
[_] 5. I am a director or executive officer of Synovics
Pharmaceuticals, Inc.
------------------------------------- -------------------------------------
Print Name of Participant Signature of Participant
III. OTHER CERTIFICATIONS.
By signing the Signature Page, the undersigned certifies the following:
(a) that the RETIREMENT PLAN's purchase of Units will be solely
for the RETIREMENT PLAN's own account and not for the account
of any other person or entity;
(b) that the RETIREMENT PLAN's governing documents duly authorize
the type of investment contemplated herein, and the
undersigned is authorized and empowered to make such
investment on behalf of the RETIREMENT PLAN; and
(c) that the RETIREMENT PLAN's name, address, place of formation,
and taxpayer identification number as set forth in this
Questionnaire are true, correct, and complete.
E-4
IV. GENERAL INFORMATION.
(a) PROSPECTIVE PURCHASER (THE RETIREMENT PLAN).
Name:
---------------------------------------------------------------------------
Address:
------------------------------------------------------------------------
(Number and Street)
--------------------------------------------------------------------------------
(City) (State) (Zip Code)
Address for Correspondence (if different):
--------------------------------------------------------------------------------
(Number and Street)
--------------------------------------------------------------------------------
(City) (State) (Zip Code)
Telephone Number:
--------------------------------------------------------------------------------
(Area Code) (Number)
State in which Formed:
----------------------------------------------------------
Date of Formation:
--------------------------------------------------------------
Taxpayer Identification Number:
-------------------------------------------------
(b) INDIVIDUAL WHO IS EXECUTING THIS QUESTIONNAIRE ON BEHALF OF THE
RETIREMENT PLAN (TRUSTEE FOR AN EMPLOYEE BENEFIT PLAN; CUSTODIAN
FOR AN XXX OR XXXXX).
Name:
---------------------------------------------------------------------------
Position or Title:
--------------------------------------------------------------
E-5
V. ADDITIONAL INFORMATION.
--------------------------------------------------------------------------------
THE RETIREMENT PLAN MAY BE REQUIRED TO ATTACH COPIES OF ALL DOCUMENTS
GOVERNING THE PLAN AS WELL AS ALL OTHER DOCUMENTS AUTHORIZING THE RETIREMENT
PLAN TO INVEST IN THE UNITS. INCLUDE, AS NECESSARY, THE TRUST AGREEMENT AND
DOCUMENTS DEFINING PERMITTED INVESTMENTS BY THE RETIREMENT PLAN AND
DEMONSTRATING AUTHORITY OF THE SIGNING INDIVIDUAL TO ACT ON BEHALF OF THE
PLAN. ALL DOCUMENTATION MUST BE COMPLETE AND CORRECT.
--------------------------------------------------------------------------------
E-6
SYNOVICS PHARMACEUTICALS, INC.
RETIREMENT PLAN SIGNATURE PAGE
Your signature on this RETIREMENT PLAN Signature Page evidences the
agreement by the RETIREMENT PLAN to be bound by the Questionnaire and the
Subscription Agreement.
1. The undersigned RETIREMENT PLAN hereby represents that (a) the
information contained in this Questionnaire is complete and accurate and (b) the
RETIREMENT PLAN will notify Xxxxxx Xxxxxx Xxxxx, of Xxxxxxx Xxxxx & Xxxxxxxxxx
LLC, counsel to the Company at (000) 000-0000 immediately if any material change
in any of the information occurs prior to the acceptance of the undersigned
RETIREMENT PLAN's subscription and will promptly send the Company written
confirmation of such change.
2. The undersigned RETIREMENT PLAN hereby certifies that it has
read and understands this Subscription Agreement.
3. The undersigned RETIREMENT PLAN hereby represents and warrants
that the person signing this Subscription Agreement on behalf of the RETIREMENT
PLAN has been duly authorized to acquire the Units and sign this Subscription
Agreement on behalf of the RETIREMENT PLAN and, further, that the undersigned
RETIREMENT PLAN has all requisite authority to purchase the Units and enter into
this Subscription Agreement.
------------------------------------- -------------------------------------
Number of Units applied for Date
-------------------------------------
Name of Retirement Plan
(Please Type or Print)
By:
----------------------------------
(Signature)
Name:
--------------------------------
(Please Type or Print)
Title:
-------------------------------
(Please Type or Print)
E-7
THE UNITS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED
OR DISPOSED OF UNLESS SUCH SECURITIES ARE INCLUDED IN AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL, CONCURRED IN BY
COUNSEL TO THE COMPANY, HAS BEEN DELIVERED TO THE EFFECT THAT REGISTRATION OF
SUCH SECURITIES IS NOT REQUIRED.
E-8
