SUBSCRIPTION AGREEMENT
Exhibit
99.2
Form
of Subscription Agreement
Genelabs
Technologies, Inc.
000
Xxxxxxxxx Xxxxx
Xxxxxxx
Xxxx, Xxxxxxxxxx 00000
Ladies
and Gentlemen:
The
undersigned (the “Investor”)
hereby
confirms and agrees with you as follows:
1. This
Subscription Agreement (this “Agreement”)
is
made as of the date set forth below between Genelabs Technologies, Inc., a
California corporation (the “Company”),
and
the Investor.
2. The
Company has authorized the sale and issuance of (i) up to shares (the
“Shares”)
of the
Company’s common stock, no par value per share (the “Common
Stock”),
and
(ii) warrants to purchase up to shares of Common Stock (the “Warrants”
and
together with the Shares, the “Securities”)
for a
purchase price of $ per unit, with each unit consisting of one Share and 0.
Warrants (the “Offering”).
The
Offering and issuance of the Securities have been registered under the
Securities Act of 1933, as amended (the “Securities
Act”),
pursuant to the Company’s Registration Statement on Form S-3
(No. 333-145497), including all amendments thereto, the exhibits and any
schedules thereto, the documents otherwise deemed to be a part thereof or
included therein by the rules and regulations of the Commission (the
“Rules
and Regulations”)
and
any registration statement relating to the Offering and filed pursuant to Rule
462(b) under the Rules and Regulations (collectively, the “Registration
Statement”).
The
Investor acknowledges that the Company intends to enter into subscription
agreements in substantially the same form as this Agreement with certain other
investors.
3. As
of the
Closing (as defined below) and subject to the terms and conditions hereof,
the
Company and the Investor agree that the Investor will purchase from the Company
and the Company will issue and sell to the Investor such number of Shares and
Warrants as is set forth on the signature page hereto (the “Signature
Page”).
The
Investor acknowledges that the Offering is not a firm commitment underwriting
and that there is no minimum offering amount. Certificates representing the
Shares purchased by the Investor will not be issued to the Investor; instead,
such Shares will be credited to the Investor using customary procedures for
book-entry transfer through the facilities of The Depository Trust Company
(“DTC”).
The
Warrants will be issued by the Company, and delivered to the Investor, in
physical form.
4. The
completion of the purchase and sale of the Securities shall occur at a closing
(the “Closing”)
which,
in accordance with Rule 15c6-1 promulgated under the Securities Exchange Act
of
1934, as amended, is expected to occur on or about , 2007. At the Closing,
(a)
the Company shall cause its transfer agent to release to the Investor the number
of Shares being purchased by the Investor, (b) the Company shall deliver to
the
Investor the Warrants being purchased by the Investor and (c) the aggregate
purchase price for the Securities being purchased by the Investor will be
delivered by or on behalf of the Investor to the Company. If the Investor
chooses to settle via Deposit/Withdrawal At Custodian (“DWAC”)
(by
checking the appropriate space on the Signature Page hereto), the provisions
set
forth in Exhibit
A
hereto
shall be incorporated herein by reference as if set forth fully
herein.
5. The
Company has filed with the Securities and Exchange Commission (the “Commission”)
a
prospectus (the “Base
Prospectus”)
and
will promptly file a final prospectus supplement (collectively with the Base
Prospectus, the “Prospectus”)
with
respect to the Registration Statement in conformity with the Securities Act,
including Rule 424(b) thereunder. The Investor hereby consents to the receipt
of
the Company’s Prospectus in portable document format, or .pdf, via
e-mail.
6. The
Company has entered into a Placement Agency Agreement (the “Placement
Agreement”),
dated
, 2007 with Deutsche Bank Securities, Inc. (the “Placement
Agent”),
which
will act as the Company’s placement agent with respect to the Offering and
receive a fee in connection with the sale of the Securities.
7. The
obligations of the Company and the Investor to complete the transactions
contemplated by this Agreement shall be subject to the following:
(a) The
Company’s obligation to issue and sell the Securities to the Investor shall be
subject to: (i) the receipt by the Company of the purchase price for the Shares
and Warrants being purchased hereunder as set forth on the Signature Page and
(ii) the accuracy of the representations and warranties made by the Investor
and
the fulfillment of those undertakings of the Investor to be fulfilled prior
to
the Closing Date.
(b) The
Investor’s obligation to purchase the Securities will be subject to the
condition that the Placement Agent shall not have: (i) terminated the Placement
Agreement pursuant to the terms thereof or (ii) determined that the conditions
to closing in the Placement Agreement have not been satisfied.
8. The
Company hereby makes the following representations, warranties and covenants
to
the Investor:
(a) The
Company has the requisite corporate power and authority to enter into and to
consummate the transactions contemplated by this Agreement and otherwise to
carry out its obligations hereunder. The execution and delivery of this
Agreement by the Company and the consummation by it of the transactions
contemplated hereunder have been duly authorized by all necessary action on
the
part of the Company. This Agreement has been duly executed by the Company and,
when delivered in accordance with the terms hereof, will constitute the valid
and binding obligation of the Company enforceable against the Company in
accordance with its terms, except as may be limited by any bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other similar
laws affecting the enforcement of creditors’ rights generally or by general
principles of equity.
(b) The
Company shall (i) before the opening of trading on the NASDAQ Capital Market
on
the next trading day after the date hereof, issue a press release, disclosing
all material aspects of the transactions contemplated hereby and (ii) make
such
other filings and notices in the manner and time required by the Commission
with
respect to the transactions contemplated hereby. Upon the issuance of the press
release described in the immediately preceding sentence, the Investor will
not
be in receipt of any material, non-public information provided to it by the
Company, its officers or directors. The Company shall not identify the Investor
by name in any press release or public filing without the Investor’s prior
written consent, unless required by law or the rules and regulations of any
self-regulatory organization or exchange to which the Company or its securities
are subject.
9. The
Investor hereby makes the following representations, warranties and covenants
to
the Company:
(a) The
Investor represents that (i) it has received or had full access to the Base
Prospectus as well as the Company’s periodic reports and other information
incorporated by reference therein, prior to or in connection with its receipt
of
this Agreement, (ii) it is knowledgeable, sophisticated and experienced in
making, and is qualified to make, decisions with respect to investments in
securities representing an investment decision like that involved in the
purchase of the Securities, and (iii) it does not have any agreement or
understanding, directly or indirectly, with any person or entity to distribute
any of the Securities.
(b) The
Investor has the requisite power and authority to enter into this Agreement
and
to consummate the transactions contemplated hereby. The execution and delivery
of this Agreement by the Investor and the consummation by it of the transactions
contemplated hereunder have been duly authorized by all necessary action on
the
part of the Investor. This Agreement has been executed by the Investor and,
when
delivered in accordance with the terms hereof, will constitute a valid and
binding obligation of the Investor enforceable against the Investor in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors’ and contracting parties’ rights generally and except as
enforceability may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law).
(c) The
Investor understands that nothing in this Agreement or any other materials
presented to the Investor in connection with the purchase and sale of the
Securities constitutes legal, tax or investment advice. The Investor has
consulted such legal, tax and investment advisors as it, in its sole discretion,
has deemed necessary or appropriate in connection with its purchase of
Securities.
(d) The
making, execution and performance of this Agreement by the Investor and the
consummation of the transactions contemplated herein will not conflict with
or
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, (i) the charter, bylaws or other organizational
documents of such Investor, as applicable, or (ii) any law, order, rule,
regulation, writ, injunction, judgment or decree of any court, administrative
agency, regulatory body, government or governmental agency or body, domestic
or
foreign, having jurisdiction over such Investor or its properties, except for
any conflict, breach, violation or default which is not reasonably likely to
have a material adverse effect on such Investor’s performance of its obligations
hereunder or the consummation of the transactions contemplated hereby.
(e) The
Investor will maintain the confidentiality of all information regarding the
Company acquired as a result of the transactions contemplated until the earlier
of: (i) the public disclosure of that information by the Company; or (ii)
eighteen months from the date hereof. Notwithstanding the previous sentence,
the
Investor may share such information with its affiliates or to the extent
required by law or regulatory authority. The Investor agrees to comply
with the Investor’s obligations under applicable U.S. and state securities
laws.
(f) Neither
the Investor nor any Person acting on behalf of, or pursuant to any
understanding with or based upon any information received from, the Investor
has, directly or indirectly, engaged in (i) any Short Sales involving the
Company’s securities since the date that is the thirtieth (30th)
trading
day prior to the date of this Agreement, or (ii) engaged in any transactions
in
the securities of the Company since the earlier to occur of (y) the Investor
signing a non-disclosure agreement with the Placement Agent and (z) the time
that the Investor was first contacted by the Placement Agent or the Company
with
respect to the transactions contemplated hereby. “Short Sales” include, without
limitation, all “short sales” as defined in Rule 200 promulgated under
Regulation SHO under the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”),
whether or not against the box, and all types of direct and indirect stock
pledges, forward sale contracts, options, puts, calls, short sales, swaps,
“put
equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and
similar arrangements (including on a total return basis), and sales and other
transactions through non-U.S. broker dealers or foreign regulated brokers.
The
Investor covenants that neither it, nor any Person acting on behalf of, or
pursuant to any understanding with or based upon any information received from,
the Investor will engage in any transactions in the securities of the Company
(including Short Sales) prior to the time that the transactions contemplated
by
this Agreement are publicly disclosed. Notwithstanding the foregoing, in the
case of an Investor and/or its affiliates that is, individually or collectively,
a multi-managed investment bank or vehicle whereby separate portfolio managers
manage separate portions of such Investor's or affiliates assets and the
portfolio managers have no direct knowledge of the investment decisions made
by
the portfolio managers managing other portions of such Investor's or affiliates
assets, the representation set forth above shall only apply with respect to
the
portion of assets managed by the portfolio managers that have knowledge about
the financing transaction contemplated by this Agreement.
(g) The
Investor represents that, except as set forth below, (i) it has had no position,
office or other material relationship within the past three years with the
Company or persons known to it to be affiliates of the Company, (ii) it is
not
a, and it has no direct or indirect affiliation or association with any, member
of the Financial Industry Regulatory Authority (formerly known as the National
Association of Securities Dealers) or an Associated Person (as such term is
defined under the NASD Membership and Registration Rules Section 1011) as of
the
date hereof, and (iii) neither it nor any group of investors (as identified
in a
public filing made with the Commission) of which it is a member, acquired,
or
obtained the right to acquire, 20% or more of the Common Stock (or securities
convertible or exercisable for Common Stock) or the voting power of the Company
on a post-transaction basis. Exceptions:
(If
no
exceptions, write “none.” If left blank, response will be deemed to be
“none.”)
(h) The
Investor acknowledges that the Company will have the authority to issue shares
of Common Stock, in excess of those being issued in connection with the
Offering, and that the Company may issue additional shares of Common Stock
from
time to time. The issuance of additional shares of Common Stock may cause
dilution of the existing shares of Common Stock and a decrease in the market
price of such existing shares.
(i) If
the
Investor is a retirement plan or is investing on behalf of a retirement plan,
the Investor acknowledges that an investment in the Securities poses additional
risks, including the inability to use losses generated by an investment in
the
Securities to offset taxable income.
10. Notwithstanding
any investigation made by any party to this Agreement, all covenants,
agreements, representations and warranties made by the Company and the Investor
herein will survive the execution of this Agreement, the delivery to the
Investor of the Securities being purchased and the payment
therefor.
11. This
Agreement may not be modified or amended except pursuant to an instrument in
writing signed by the Company and the Investor.
12. The
headings of the various sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed to be part of this
Agreement.
13. In
case
any provision contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of
the
remaining provisions contained herein will not in any way be affected or
impaired thereby.
14. This
Agreement will be governed by, and construed in accordance with, the internal
laws of the State of New York, without giving effect to the principles of
conflicts of law that would require the application of the laws of any other
jurisdiction.
15. This
Agreement may be executed in counterparts, each of which will constitute an
original, but all of which, when taken together, will constitute but one
instrument, and will become effective when counterparts have been signed by
each
party hereto and delivered to the other party.
16. The
Investor acknowledges and agrees that such Investor’s receipt of the Company’s
counterpart to this Agreement shall constitute written confirmation of the
Company’s agreement to sell Securities to such Investor. No federal or state
agency or authority has made any finding or determination as to the accuracy
or
adequacy of the Registration Statement or as to the fairness of the terms of
the
Offering nor any recommendation or endorsement of the Securities. Any
representation to the contrary is a criminal offense. In making an investment
decision, Investors must rely on their own examination of the Company and the
terms of the Offering, including the merits and risks involved.
17. In
the
event that before the Closing the Placement Agreement is terminated by the
Placement Agent pursuant to the terms thereof, this Agreement shall terminate
without any further action on the part of the parties hereto.
INVESTOR
SIGNATURE PAGE
Number
of
Shares:______________________________________
Number
of
Warrants:___________________________________
(such
number to be equal to ___% of the number of Shares being purchased by the
Investor)
Purchase
Price Per Unit: $______________________________________
Aggregate
Purchase Price: $____________________________________
Please
confirm that the foregoing correctly sets forth the agreement between us by
signing in the space provided below for that purpose.
Dated
as
of: _____________, 2007
INVESTOR
By:
Print
Name:_______________________
Title:
____________________________
Name
in
which Securities are to be registered: _____________________
Mailing
Address: _____________________________
____________________________
____________________________
Taxpayer
Identification Number: _________________________
Manner
of
Settlement of the Shares (check one):
_______
DWAC (see Exhibit
A
for
explanation and instructions)
_______
DVP (see Exhibit
B
for
explanation and instructions)
Agreed
and Accepted this _____ day of _______________, 2007:
GENELABS
TECHNOLOGIES, INC.
By:
Title:_____________________________
Sales
of the Securities purchased hereunder were made pursuant to a registration
statement or in a transaction in which a final prospectus would have been
required to have been delivered in the absence of Rule 172 promulgated under
the
Securities Act.
Exhibit
A
TO
BE COMPLETED BY INVESTOR
SETTLING
VIA DWAC
Delivery
by electronic book-entry at The Depository Trust Company (“DTC”),
registered in the Investor’s name and address as set forth on the Signature Page
of the Agreement to which this Exhibit
A
is
attached, and released by Mellon Investor Services LLC, the Company’s transfer
agent (the “Transfer
Agent”),
to
the Investor at the Closing.
|
Name
of DTC Participant (broker-dealer at which the account or accounts
to be
credited with the Shares are maintained)
|
_________________________________
|
|
DTC
Participant Number
|
_________________________________
|
|
Name
of Account at DTC Participant being credited with the
Shares
|
_________________________________
|
|
Account
Number at DTC Participant being credited with the Shares
|
_________________________________
|
|
NO
LATER THAN ONE (1) BUSINESS DAY AFTER THE EXECUTION OF THE AGREEMENT
TO
WHICH THIS EXHIBIT
A
IS ATTACHED BY THE INVESTOR AND THE COMPANY, THE INVESTOR SHALL:
|
|
(I)
|
DIRECT
THE BROKER-DEALER AT WHICH THE ACCOUNT OR ACCOUNTS TO BE CREDITED
WITH THE
SHARES ARE MAINTAINED TO SET UP A DEPOSIT/WITHDRAWAL AT CUSTODIAN
(“DWAC”)
ON THE CLOSING DATE INSTRUCTING THE TRANSFER AGENT TO CREDIT SUCH
ACCOUNT
OR ACCOUNTS WITH THE SHARES,
AND
|
|
(II)
|
REMIT
BY WIRE TRANSFER THE AMOUNT OF FUNDS EQUAL TO THE AGGREGATE PURCHASE
PRICE
FOR THE SECURITIES BEING PURCHASED BY THE INVESTOR TO THE FOLLOWING
ACCOUNT:
|
JPMorgan
Chase Bank, NA
ABA#:
000000000
Account
No.: ___________
Account
Name: __________________
Such
funds shall be held in escrow pursuant to an escrow agreement entered into
between JPMorgan Chase Bank, NA (the “Escrow
Agent”),
the
Placement Agent and the Company (the “Escrow
Agreement”)
until
the Closing and delivered by the Escrow Agent on behalf of the Investor to
the
Company upon the satisfaction, in the sole judgment of the Placement Agent,
of
the conditions set forth in Section 7(b) of the Agreement to which this
Exhibit
A
is
attached.
Exhibit
B
TO
BE COMPLETED BY INVESTOR
SETTLING
VIA DVP
Delivery
versus payment (“DVP”)
through DTC (i.e., the Company shall deliver Shares registered in the Investor’s
name and address as set forth on the Signature Page of the Agreement to which
this Exhibit
B
is
attached and released by Mellon Investor Services LLC, the Company’s transfer
agent (the “Transfer
Agent”),
to
the Investor at the Closing directly to the account(s) at the Placement Agent
identified by the Investor and simultaneously therewith payment shall be made
from such account(s) to the Company through DTC). NO
LATER THAN ONE (1) BUSINESS DAY AFTER THE EXECUTION OF THE AGREEMENT TO WHICH
THIS EXHIBIT
B
IS ATTACHED BY THE INVESTOR AND THE COMPANY, THE INVESTOR SHALL:
|
(I)
|
NOTIFY
THE PLACEMENT AGENT OF THE ACCOUNT OR ACCOUNTS AT THE PLACEMENT AGENT
TO
BE CREDITED WITH THE SHARES BEING PURCHASED BY SUCH INVESTOR,
AND
|
|
(II)
|
CONFIRM
THAT THE ACCOUNT OR ACCOUNTS AT THE PLACEMENT AGENT TO BE CREDITED
WITH
THE SHARES BEING PURCHASED BY THE INVESTOR HAVE A MINIMUM BALANCE
EQUAL TO
THE AGGREGATE PURCHASE PRICE FOR THE SECURITIES BEING PURCHASED BY
THE
INVESTOR.
|
If
the
Shares are to be further credited to an account held elsewhere than at the
Placement Agent, please complete the information requested below in order to
facilitate such further credit:
|
Name
of DTC Participant (broker-dealer at which the account or accounts
to be
credited with the Shares are maintained)
|
_____________________________________
|
|
DTC
Participant Number
|
_____________________________________
|
|
Name
of Account at DTC Participant being credited with the
Shares
|
_____________________________________
|
|
Account
Number at DTC Participant being credited with the Shares
|
_____________________________________
|
