FORM OF SUBSCRIPTION AGREEMENT
Exhibit
10.2
FORM
OF SUBSCRIPTION AGREEMENT
THIS
SUBSCRIPTION AGREEMENT (the “Agreement”)
is made
as of this __
day of
_____, 2007, by and among Modigene Inc. (f/k/a LDG, Inc.), a Nevada corporation
(the “Company”),
Modigene Inc., a Delaware corporation (“Modigene”)
and
the investor identified on the signature page to this Agreement (the
“Investor”).
RECITALS:
WHEREAS,
the Company and Modigene contemplate that they will enter into an Agreement
and
Plan of Merger and Reorganization, pursuant to which a wholly-owned subsidiary
of the Company will merge with and into Modigene, with Modigene remaining as
the
surviving entity and a wholly-owned subsidiary of the Company (the “Merger”),
upon
the effective date of the Merger (the “Merger Effective
Date”);
WHEREAS,
as a condition to the consummation of the Merger, and to provide the capital
required by Modigene for working capital and other purposes, the Company is
offering (the “Offering”),
in
compliance with Rule 506 of Regulation D of the Securities Act of 1933, as
amended (the “Securities
Act”),
and
available prospectus exemptions in Canada to accredited investors in a private
placement transaction, a minimum (the “Minimum”)
of
4,000,000 units (the “Units”)
and a
maximum (the “Maximum”)
of
6,666,666 Units, or such greater amount not to exceed 8,666,666 Units as the
Company and Modigene may determine, at a purchase price of $1.50 per Unit,
each
Unit consisting of one share of the Company’s common stock, par value
$0.00001 per
share
(“Common
Stock”)
and a
warrant (the “Investor
Warrants”)
to
purchase one-quarter, or 25%, of a share of Common Stock for five (5) years
at
the exercise price of $2.50 per whole share of Common Stock. A form of Investor
Warrant is included in the Confidential Private Placement Memorandum dated
April
13, 2007;
WHEREAS,
the Investor desires to subscribe for, purchase and acquire from the Company
and
the Company desires to sell and issue to the Investor, the number of Units
set
forth on the signature page of this Agreement (the “Investor’s
Units”)
upon
the terms and conditions and subject to the provisions hereinafter set
forth;
WHEREAS,
in connection with the purchase of the Investor’s Units, the Company and the
Investor will execute a Registration Rights Agreement of even date herewith
pursuant to which the Company will provide certain registration rights to the
Investor (the “Registration
Rights Agreement”);
and
WHEREAS,
the Company, Modigene,, Xxxxxxx Xxxxx Ventures, Inc. (“Xxxxxxx
Xxxxx”)
and
Xxxx Capital Partners, LLC (the “Escrow
Agent”)
have
entered into an Escrow Agreement (the “Escrow
Agreement”)
to
provide for the safekeeping of funds received executed in connection with the
Offering;
NOW,
THEREFORE, for and in consideration of the mutual premises contained herein
and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Purchase
and Sale of the Units.
Subject
to the terms and conditions of this Agreement and the satisfaction of the
conditions to Closing, the Investor subscribes for and agrees to purchase and
acquire from the Company, and the Company agrees to sell and issue to the
Investor the Investor’s Units at the purchase price of $1.50 per Unit (the
“Purchase
Price”);
provided,
that
the Company reserves the right, in its sole discretion and for any reason,
to
reject any Investor’s subscription in whole or in part, or to allot less than
the number of Units subscribed for.
2. The
Closing.
The
Offering will terminate upon the earlier of (i) receipt of acceptable
subscriptions totaling $10,000,000, or such greater amount up to $13,000,000
as
the Company and Modigene may determine, and (ii) the election of the Company
upon receipt of subscriptions totaling $6,000,000; provided,
that
the initial closing of the Offering shall be concurrent with the close of the
Merger (the “Closing,”
the
date on which such Closing occurs hereinafter referred to as the “Closing
Date”)
at the
offices of counsel for the Company. Modigene may elect, in its sole discretion,
not to close the Offering unless the Maximum is sold. On the Closing Date,
the
Escrow Agent shall deliver the funds held in escrow as of the Closing Date
pursuant to the terms of the Escrow Agreement. As soon as practicable after
the
Closing Date, the Company shall issue and deliver, or shall cause the issuance
and delivery of, a stock certificate registered in the name of the Investor
and
representing the shares of Common Stock underlying the Investor’s Units, and a
warrant certificate registered in the name of the Investor representing the
Investor’s right to purchase the number of shares of Common Stock underlying the
Investor’s Warrants purchased in the Offering.
3. Closing
Conditions.
a. Conditions
to Obligations of Investors.
The
respective obligations of the Investors hereunder in connection with the Closing
are subject to the satisfaction (or waiver) of the following conditions: (i)
the
accuracy in all material respects on the Closing Date of the representations
and
warranties of the Company contained herein; and (ii)
all
obligations, covenants and agreements of the Company required to be performed
at
or prior to the Closing Date shall have been performed.
b. Conditions
to Obligations of the Company.
The
obligations of the Company hereunder in connection with the Closing are subject
to the satisfaction (or waiver) of the following conditions: (i) the
accuracy in all material respects when made and on the Closing Date of the
representations and warranties of the Investors contained herein; (ii)
all
obligations, covenants and agreements of the Investors required to be performed
at or prior to the Closing Date shall have been performed;
and
(iii) the delivery by the Investors of the items set forth in Section 4 of
this
Agreement.
4. Subscription
Procedure.
To
complete a subscription for the Units, the Investor must fully comply with
the
subscription procedure provided in this Section on or before 5:00 p.m. Eastern
time on the Closing Date.
a. Transaction
Documents.
Before
5:00 p.m. Eastern time on the Closing Date, the Investor shall review, complete
and execute this Agreement, the Investor Questionnaire attached hereto as
Appendix
A
and the
Registration Rights Agreement (collectively, the “Transaction
Documents”)
and
deliver the Transaction Documents to Xxxxxxx Xxxxx, for the benefit of the
Company, at the address provided below. Executed agreements and questionnaires
may be delivered to Xxxxxxx Xxxxx by facsimile or electronic mail (e-mail)
using
the facsimile number or e-mail address provided below if the Investor
immediately thereafter confirms receipt of such transmission with Xxxxxxx Xxxxx
and delivers the original copies of the agreements and questionnaire to Xxxxxxx
Xxxxx as soon as practicable thereafter.
Xxxxxxx
Xxxxx - Mailing Address and Facsimile Number:
Xxxxxxx
Xxxxx Ventures, Inc.
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
XxXxx Xxxxx, Associate
Facsimile
Number: (000) 000-0000
Telephone
Number: (000) 000-0000, ext. 672
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b. Purchase
Price.
Simultaneously with the delivery of the Transaction Documents to Xxxxxxx Xxxxx
as provided herein, and in any event on or prior to 5:00 p.m. Eastern time
on
the Closing Date, the Investor shall deliver to the Escrow Agent the full
Purchase Price for the Investor’s Units by wire transfer of immediately
available funds pursuant to wire transfer instructions provided
below:
Escrow
Agent - Wire Transfer Instructions:
|
Bank:
|
Signature
|
|
|
ABA#:
|
000000000
|
|
|
Account
Name:
|
Signature
Bank, as Agent For Modigene Inc.
|
|
|
Account#:
|
1500892796
|
|
|
FBO:
|
Investor
Name
|
|
|
Social
Security Number
|
||
|
Address
|
c. Purchaser
Representative.
If the
Investor has retained the services of a purchaser representative to assist
in
evaluating the merits and risks associated with investing in the Units, the
Investor must deliver along with the Transaction Documents, a purchaser
representative certificate in a form acceptable to the Company.
d. Company
Discretion.
The
Company may accept any subscription in whole or in part or reject any
subscription in its sole discretion for any reason and may terminate this
Offering at any time before accepting subscriptions. If the Investor’s
subscription is rejected or if the conditions to closing this Offering,
including the receipt and acceptance of subscriptions representing $6,000,000,
are not satisfied, or if this Offering is otherwise terminated or withdrawn,
funds delivered by the Investor to the Escrow Agent will be returned to the
Investor without interest or deduction.
5. Representations
and Warranties of the Company and Modigene.
In
order to induce the Investor to enter into this Agreement, the Company and,
as
applicable, Modigene represent and warrant to the Investor the
following:
a. Subsidiaries.
The
Company has no direct or indirect subsidiaries other than Modigene Acquisition
Corp., and Liaison Design Group, LLC, and those set forth in the Exchange Act
Documents (as defined in Section 5(g)), or as are necessary or desirable to
consummate the Merger and the transactions contemplated in the Merger Agreement.
Except as disclosed in the Exchange Act Documents, the Company owns, directly
or
indirectly, all of the capital stock of each of its Subsidiaries (as defined
below) free and clear of any and all liens, and all the issued and outstanding
shares of capital stock of each Subsidiary are validly issued and are fully
paid, non-assessable and free of preemptive and similar rights. Modigene has
one
direct subsidiary, ModigeneTech Ltd. Unless the context otherwise indicates,
references to the terms “Subsidiary”
and
“Subsidiaries”
used
herein specifically refer to ModigeneTech Ltd., Modigene Acquisition Corp.,
and
Liaison Design Group, LLC, and those set forth in the Exchange Act Documents,
or
as are necessary or desirable to consummate the Merger and the transactions
contemplated in the Merger Agreement.
b. Organization
and Qualification.
The
Company, Modigene and the Subsidiaries, are each an entity duly incorporated
or
otherwise organized, validly existing and in good standing under the laws of
the
jurisdiction of its incorporation or organization (as applicable), with the
requisite power and authority to own and use its properties and assets and
to
carry on its business as currently conducted. Neither the Company nor Modigene,
nor any Subsidiary, is in violation or default of any of the provisions of
its
respective certificate or articles of incorporation, bylaws or other
organizational or charter documents. Each of the Company, Modigene and the
Subsidiaries is duly qualified to conduct business and is in good standing
as a
foreign corporation or other entity in each jurisdiction in which the nature
of
the business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good standing,
as
the case may be, could not have, or reasonably be expected to result in (i)
a
material adverse effect on the legality, validity or enforceability of any
Transaction Document or Investor Warrant, (ii) a material adverse effect on
the
results of operations, assets, business, prospects or condition (financial
or
otherwise) of the Company, Modigene and the Subsidiaries, taken as a whole,
or
(iii) a material adverse effect on the Company’s or Modigene’s ability to
perform in any material respect on a timely basis its obligations under any
Transaction Document or Investor Warrant (any of (i), (ii) or (iii), a
“Material
Adverse Effect”)
and no
proceeding has been instituted in any such jurisdiction revoking, limiting
or
curtailing or seeking to revoke, limit or curtail such power and authority
or
qualification.
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c. Authorization;
Enforcement.
The
Company and, as applicable, Modigene each has the requisite corporate power
and
authority to enter into and to consummate the transactions contemplated by
each
of the Transaction Documents and the Investor Warrants and otherwise to carry
out its obligations hereunder and thereunder. The execution and delivery of
each
of the Transaction Documents and Investor Warrants by the Company and, as
applicable, Modigene and the consummation of the transactions contemplated
hereby and thereby have been duly authorized by all necessary action on the
part
of the Company and Modigene and no further action is required by the Company
and
Modigene, and their respective boards of directors or stockholders in connection
therewith. Each Transaction Document and Investor Warrant has been (or upon
delivery will have been) duly executed by the Company or Modigene, as
applicable, and, when delivered in accordance with the terms hereof and thereof,
will constitute the valid and binding obligation of the Company or Modigene,
as
applicable, enforceable against the Company or Modigene, as applicable, in
accordance with its terms except (i) as limited by general equitable principles
and applicable bankruptcy, insolvency, reorganization, moratorium and other
laws
of general application affecting enforcement of creditors’ rights generally,
(ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (iii) insofar as
indemnification and contribution provisions may be limited by applicable
law.
d. No
Conflicts.
The
execution, delivery and performance of the Transaction Documents by the Company,
the issuance and sale of the Units and the consummation by the Company or
Modigene, as applicable, of the other transactions contemplated hereby and
thereby do not and will not (i) conflict with or violate any provision of the
Company’s, Modigene’s or any Subsidiary’s certificate or articles of
incorporation, bylaws or other organizational or charter documents, or (ii)
conflict with, or constitute a default (or an event that with notice or lapse
of
time, or both, would become a default) under, result in the creation of any
lien
upon any of the properties or assets of the Company, Modigene or any Subsidiary,
or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any agreement,
credit facility, debt or other instrument (evidencing a Company, Modigene or
Subsidiary debt or otherwise) or other understanding to which the Company,
Modigene or any Subsidiary is a party or by which any property or asset of
the
Company, Modigene or any Subsidiary is bound or affected, or (iii) conflict
with
or result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Company, Modigene or any Subsidiary is subject (including federal
and state securities laws and regulations), or by which any property or asset
of
the Company, Modigene or a Subsidiary is bound or affected; except in the case
of each of clauses (ii) and (iii), such as could not have, or reasonably be
expected to result in, a Material Adverse Effect.
e. Approvals.
The
execution, delivery, and performance by the Company of this Agreement and the
offer and sale of the Units require no consent of, action by or in respect
of,
or filing with, any person, governmental body, agency, or official other than
those consents that have been obtained prior to the Closing and those filings
required to be made pursuant to the Securities Act and any State Acts which
the
Company undertakes to file within the applicable time period or provincial
filings required in connection with sales in Canada.
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f. Capitalization.
Upon
issuance in accordance with the terms of this Agreement against payment of
the
Purchase Price therefor, the shares of Common Stock underlying the Investor’s
Units will be duly and validly issued, fully paid, and nonassessable and free
and clear of all liens imposed by or through the Company, and, assuming the
accuracy of the representations and warranties of the Investor and all other
purchasers of Units in the Offering, will be issued in accordance with a valid
exemption from the registration or qualification provisions of the Securities
Act, and any applicable state securities laws (the “State
Acts”),
or
will be issued in accordance with a valid prospectus exemption in Canada. The
Company has not issued any capital stock since its most
recently filed periodic report under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”),
and
the
rules and regulations thereunder, and no
person
has any right of first refusal, preemptive right, right of participation, or
any
similar right to participate in the transactions contemplated by the Transaction
Documents. All of the outstanding shares of capital stock of the Company are
validly issued, fully paid and nonassessable, have been issued in compliance
with all federal and state securities laws, and none of such outstanding shares
was issued in violation of any preemptive rights or similar rights to subscribe
for or purchase securities. No further approval or authorization of any
stockholder, the board of directors of the Company or others is required for
the
issuance and sale of the Units. There are no stockholders agreements, voting
agreements or other similar agreements with respect to the Company’s capital
stock to which the Company is a party or, to the knowledge of the Company,
between or among any of the Company’s stockholders.
g. Exchange
Act Filing.
During
the 12 calendar months immediately preceding the date of this Agreement, all
reports and statements, including all amendments, required to be filed by the
Company with the Securities and Exchange Commission (the “Commission”)
under
the Exchange Act, have been timely filed. Such filings, together with all
amendments and all documents incorporated by reference therein, are referred
to
as “Exchange
Act Documents.”
Each
Exchange Act Document conformed in all material respects to the requirements
of
the Exchange Act and the rules and regulations thereunder, and no Exchange
Act
Document, at the time each such document was filed, included any untrue
statement of a material fact or omitted to state any material fact required
to
be stated therein or necessary to make the statements therein, in light of
the
circumstances under which they were made, not misleading.
h. Company
Financial Statements. The
audited financial statements, together with the related notes of the Company
as
of December 31, 2006, included in the Company’s Form 10-KSB/A as filed with the
Commission on March 7, 2007 (the “Company
Financial Statements”),
fairly present in all material respects, on the basis stated therein and on
the
date thereof, the financial position of the Company at the respective dates
therein specified and its results of operations and cash flows for the periods
then ended. Such statements and related notes have been prepared in accordance
with generally accepted accounting principles in the United States
(“GAAP”)
applied on a consistent basis except as expressly noted therein.
i. Material
Changes; Undisclosed Events, Liabilities or Developments.
Since
the date of the latest audited financial statements included within the Exchange
Act Documents, except as specifically disclosed in a subsequent Exchange Act
Document filed prior to the date hereof, (i) there has been no event, occurrence
or development that has had or that could reasonably be expected to result
in a
Material Adverse Effect, (ii) the Company has not incurred any liabilities
(contingent or otherwise) other than (A) trade payables and accrued expenses
incurred in the ordinary course of business consistent with past practice and
(B) liabilities not required to be reflected in the Company’s financial
statements pursuant to GAAP or disclosed in filings made with the Commission,
(iii) the Company has not altered its method of accounting, (iv) the Company
has
not declared or made any dividend or distribution of cash or other property
to
its stockholders or purchased, redeemed or made any agreements to purchase
or
redeem any shares of its capital stock and (v) the Company has not issued any
equity securities to any officer, director or affiliate. The Company does not
have pending before the Commission any request for confidential treatment of
information. Except for the issuance of the Securities (as defined in Section
7
hereof) contemplated by this Agreement, no event, liability or development
has
occurred or exists with respect to the Company or its Subsidiaries or their
respective business, properties, operations or financial condition, that would
be required to be disclosed by the Company under applicable securities laws
at
the time this representation is made.
5
j. No
Disputes or Litigation Against the Company or Modigene.
There
is no action, suit, inquiry, notice of violation, proceeding or investigation
pending or, to the knowledge of the Company and Modigene, threatened against
or
affecting the Company and Modigene, any Subsidiary or any of their respective
properties before or by any court, arbitrator, governmental or administrative
agency or regulatory authority (federal, state, county, local or foreign)
(collectively, an “Action”)
which
(i) adversely affects or challenges the legality, validity or enforceability
of
any of the Transaction Documents or the Units or (ii) could, if there were
an
unfavorable decision, have, or reasonably be expected to result in, a Material
Adverse Effect. Neither the Company nor Modigene, nor any Subsidiary, nor any
director or officer thereof, is or has been the subject of any Action involving
a claim of violation of or liability under federal or state securities laws
or a
claim of breach of fiduciary duty. There has not been, and to the knowledge
of
the Company or Modigene, there is not pending or contemplated, any investigation
by the Commission involving the Company and Modigene or any current or former
director or officer of the Company or Modigene. The Commission has not issued
any stop order or other order suspending the effectiveness of any registration
statement filed by the Company or any Subsidiary under the Exchange Act or
the
Securities Act.
k. Labor
Relations.
No
material labor dispute exists or, to the knowledge of the Company and Modigene,
is imminent with respect to any of the employees of the Company which could
reasonably be expected to result in a Material Adverse Effect. None of the
Company’s, Modigene’s or any Subsidiary’s employees is a member of a union that
relates to such employee’s relationship with such company, and neither the
Company nor Modigene, nor any Subsidiary, is a party to a collective bargaining
agreement, and the Company, Modigene and the Subsidiaries believe that their
relationships with their respective employees are good. No executive officer,
to
the knowledge of the Company or Modigene, is, or is now expected to be, in
violation of any material term of any employment contract, confidentiality,
disclosure or proprietary information agreement or non-competition agreement,
or
any other contract or agreement or any restrictive covenant, and the continued
employment of each such executive officer does not subject the Company, Modigene
nor any of their Subsidiaries to any liability with respect to any of the
foregoing matters. The Company, Modigene and the Subsidiaries are in compliance
with all U.S. federal, state, local and foreign laws and regulations relating
to
employment and employment practices, terms and conditions of employment and
wages and hours, except where the failure to be in compliance could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
l. Compliance.
Neither
the Company nor Modigene, nor any Subsidiary, (i) is in default under or in
violation of (and no event has occurred that has not been waived that, with
notice or lapse of time or both, would result in a default by the Company or
Modigene, or any Subsidiary), nor has the Company or Modigene, or any Subsidiary
received notice of a claim that it is in default under or that it is in
violation of, any indenture, loan or credit agreement, or any other agreement
or
instrument to which it is a party or by which it or any of its properties is
bound (whether or not such default or violation has been waived), (ii) is in
violation of any order of any Court, arbitrator, or governmental body, or (iii)
is or has been in violation of any statute, rule or regulation of any
governmental authority, including without limitation all foreign, federal,
state
and local laws relating to taxes, environmental protection, occupational health
and safety, product quality and safety and employment and labor matters, except
in each case as could not, individually or in the aggregate, have or reasonably
be expected to result in a Material Adverse Effect. The Company is in compliance
with the applicable requirements of the Xxxxxxxx-Xxxxx Act of 2002, as amended,
and the rules and regulations thereunder, except where such noncompliance could
not have, or reasonably be expected to result in, a Material Adverse
Effect.
6
m. Regulatory
Permits.
The
Company, Modigene and the Subsidiaries possess all certificates, authorizations
and permits issued by the appropriate federal, state, local or foreign
regulatory authorities necessary to conduct their respective businesses, except
where the failure to possess such permits could not have, or reasonably be
expected to result in, a Material Adverse Effect (“Material
Permits”),
and
neither the Company nor Modigene, nor any Subsidiary, has received any notice
of
proceedings relating to the revocation or modification of any Material
Permit.
n. Title
to Assets.
The
Company and Modigene, and, as applicable, the Subsidiaries have good and
marketable title in fee simple to all real property owned by them that is
material to the business of the Company and Modigene, and good and marketable
title in all personal property owned by them that is material to the business
of
the Company and Modigene, in each case free and clear of all liens, except
for
liens as do not materially affect the value of such property and do not
materially interfere with the use made and proposed to be made of such property
by the Company and Modigene and liens for the payment of federal, state or
other
taxes, the payment of which is neither delinquent nor subject to penalties.
Any
real property and facilities held under lease by the Company and Modigene are
held by them under valid, subsisting and enforceable leases with which the
Company and Modigene are in compliance.
o. Patents
and Trademarks.
The
Company and Modigene, and any of their respective Subsidiaries have, or have
rights to use, all patents, patent applications, trademarks, trademark
applications, service marks, trade names, copyrights, licenses, and other
similar rights that are necessary or material for use in connection with their
respective businesses and which the failure to so have could, individually
or in
the aggregate, have or reasonably be expected to result in a Material Adverse
Effect (collectively, the “Intellectual
Property Rights”).
Neither the Company nor Modigene, nor any of their respective Subsidiaries,
has
received a written notice that the Intellectual Property Rights used by the
Company or Modigene, or any of their respective Subsidiaries, violates or
infringes upon the rights of any person. Except as set forth in the Exchange
Act
Documents, to the knowledge of the Company, all such Intellectual Property
Rights are enforceable and there is no existing infringement by another person
of any of the Intellectual Property Rights, except where such infringement
could
not have, or reasonably be expected to result in, a Material Adverse
Effect.
p. Insurance.
The
Company and Modigene and, as applicable, the Subsidiaries, are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses in which
the
Company and Modigene and the Subsidiaries are engaged, including, but not
limited to, directors’ and officers’ liability coverage. Neither the Company and
Modigene, nor any Subsidiary, has any reason to believe that it will not be
able
to renew its existing insurance coverage as and when such coverage expires
or to
obtain similar coverage from similar insurers as may be necessary to continue
its business without a significant increase in cost.
q. Transactions
With Affiliates and Employees.
Except
as set forth in the Exchange Act Documents, the Confidential Private Placement
Memorandum dated April 13, 2007 (the “Memorandum”)
and
those transactions contemplated by the Transaction Documents, none of the
officers or directors of the Company or Modigene and, to the knowledge of the
Company or Modigene, none of the employees of the Company or Modigene is
presently a party to any transaction with the Company, Modigene or any
Subsidiary (other than for services as employees, officers, and directors),
including any contract, agreement, or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director, or such employee or, to the knowledge of the Company or Modigene,
any
entity in which any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee, or partner.
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r. Internal
Accounting Controls.
The
Company and its Subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed
in
accordance with management’s general or specific authorizations, (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and
to
maintain asset accountability, (iii) access to assets is permitted only in
accordance with management’s general or specific authorization, and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences. The Company has established disclosure controls and procedures
(as
defined in Exchange Act rules 13a-15(e) and 15d-15(e)) for the Company and
designed such disclosure controls and procedures to ensure that material
information relating to the Company and its Subsidiaries is made known to the
Company’s certifying officers by others within those entities, particularly
during the period in which the Company’s Form 10-KSB or 10-QSB, as the case may
be, are being prepared. The Company’s certifying officers have evaluated the
effectiveness of the Company’s controls and procedures as of the end of the
reporting period covered by the Company’s Form 10-KSB and each of the Company’s
Forms 10-QSB filed with the Commission (each such date, the “Evaluation
Date”)
and
presented in each such report their conclusions about the effectiveness of
the
Company’s disclosure controls and procedures based on their evaluations as of
the applicable Evaluation Date. Since the Evaluation Date of the Company’s most
recently filed Form 10-KSB or Form 10-QSB, there have been no significant
changes in the Company’s disclosure controls and procedures, the Company’s
internal control over financial reporting (as defined in Exchange Act Rules
13a-15(f) or 15d-15(f) or, to the Company’s knowledge, in other factors that
could significantly affect the Company’s internal controls over financial
reporting.
s. Solvency.
Based
on the financial condition of the Company as of the Closing Date (and assuming
that the Closing shall have occurred), (i) the Company’s fair saleable value of
its assets exceeds the amount that will be required to be paid on or in respect
of the Company’s existing debts and other liabilities (including known
contingent liabilities) as they mature; (ii) the Company’s assets do not
constitute unreasonably small capital to carry on its business for the current
fiscal year as now conducted and as proposed to be conducted including its
capital needs taking into account the particular capital requirements of the
business conducted by the Company, and projected capital requirements and
capital availability thereof; and (iii) the current cash flow of the Company,
together with the proceeds the Company would receive, were it to liquidate
all
of its assets, after taking into account all anticipated uses of the cash,
would
be sufficient to pay all amounts on or in respect of its debt when such amounts
are required to be paid. The Company does not intend to incur debts beyond
its
ability to pay such debts as they mature (taking into account the timing and
amounts of cash to be payable on or in respect of its debt).
t. Certain
Fees.
Other
than the cash and warrants commissions payable on the Closing, no brokerage
or
finder’s fees or commissions are or will be payable by the Company to any
broker, financial advisor or consultant, finder, placement agent, investment
banker, bank, or other person with respect to the transactions contemplated
by
this Agreement. The Investor shall have no obligation with respect to any claims
(other than such fees or commissions owed by an Investor pursuant to written
agreements executed by the Investor which fees or commissions shall be the
sole
responsibility of such Investor) made by or on behalf of other persons for
fees
of a type contemplated in this Section that may be due in connection with the
transactions contemplated by this Agreement.
8
u. Certain
Registration Matters.
Assuming the accuracy of the Investor’s representations and warranties set forth
in this Agreement and the Transaction Documents, and the representations and
warranties made by all other purchasers of Units in the Offering, no
registration under the Securities Act is required for the offer and sale of
the
Investor’s Units by the Company to the Investor hereunder.
v. Listing
and Maintenance Requirements.
The
Company is, and has no reason to believe that it will not in the foreseeable
future continue to be, in compliance with the listing and maintenance
requirements for continued listing of the Common Stock on the NASD Over the
Counter Bulletin Board.
w. Investment
Company.
Neither
the Company nor Modigene is an “investment company” or an “affiliate” of an
“investment company” within the meaning of the Investment Company Act of 1940,
as amended.
x. No
Additional Agreements.
Neither
the Company nor Modigene has any agreement or understanding with any other
purchasers of the Units in the Offering with respect to the transactions
contemplated by this Agreement on terms that differ substantially from those
set
forth in this Agreement.
y. Disclosure.
The
Investor confirms that in making its decision to enter into this Agreement,
the
Investor has relied on the information contained in the Confidential Private
Placement Memorandum dated April 13, 2007 and on the representations and
warranties set forth in Section 5 of this Agreement, and not on any other
materials that have been furnished by or on behalf of the Company or Modigene.
The information contained in the Memorandum and the representations and
warranties of the Company and Modigene in this Agreement are true and correct
in
all material respects and do not contain any untrue statement of a material
fact
or omit to state any material fact necessary in order to make the statements
made therein, in light of the circumstances under which they were made, not
misleading. The Company and Modigene confirm that neither they nor any person
acting on their behalf has provided the Investor, or its agents or counsel,
with
any information that the Company or Modigene believes would constitute material,
non-public information following the announcement of the Closing and the
transactions contemplated thereby. The Company understands and confirms that
the
Investor will rely on the foregoing representations and covenants in effecting
transactions in securities of the Company.
z. Registration
Rights.
Other
than each of the Investors and the broker-dealers receiving warrants in
connection with the Offering, no person has any right to cause the Company
to
effect the registration under the Securities Act of any securities of the
Company.
aa. No
Integrated Offering.
Assuming
the accuracy of the Investors’ representations and warranties set forth in
Section 6, neither the Company, nor any of its affiliates, nor any person acting
on its or their behalf has, directly or indirectly, made any offers or sales
of
any security or solicited any offers to buy any security, under circumstances
that would cause the Offering of the Units to be integrated with prior offerings
by the Company for purposes of the Securities Act or any applicable stockholder
approval provisions of any Trading Market (hereinafter defined) on which any
of
the securities of the Company are listed or designated. “Trading
Market”
means
the following markets or exchanges on which the Common Stock is listed or quoted
for trading on the date in question: the American Stock Exchange, the Nasdaq
Stock Market, the New York Stock Exchange or the OTC Bulletin
Board.
bb. No
General Solicitation.
Neither
the Company nor any person acting on behalf of the Company has offered or sold
any of the Units by any form of general solicitation or general advertising.
The
Company has offered the Units for sale only to the Investors and certain other
“accredited investors” within the meaning of Rule 501 under the Securities
Act.
9
cc. Acknowledgment
Regarding Investors’ Purchase of Securities.
The
Company and Modigene acknowledge and agree that each of the Investors is acting
solely in the capacity of an arm’s length purchaser with respect to the
Transaction Documents and the transactions contemplated thereby. The Company
and
Modigene further acknowledge that no Investor is acting as a financial advisor
or fiduciary of the Company or Modigene (or in any similar capacity) with
respect to the Transaction Documents and the transactions contemplated thereby,
and any advice given by any Investor or any of their respective representatives
or agents in connection with the Transaction Documents and the transactions
contemplated thereby is merely incidental to the Investors’ purchase of the
Units. The Company and Modigene further represent to each Investor that the
Company’s and Modigene’s decision to enter into this Agreement and the other
Transaction Documents has been based solely on the independent evaluation of
the
transactions contemplated hereby by the Company and Modigene and their
representatives.
6. Representations
and Warranties of the Investor.
In
order to induce the Company and Modigene to enter into this Agreement, the
Investor represents and warrants to the Company and Modigene the
following:
a. Authority.
If a
corporation, partnership, limited partnership, limited liability company, or
other form of entity, the Investor is duly organized or formed, as the case
may
be, validly existing, and in good standing under the laws of its jurisdiction
of
organization or formation. The Investor has all requisite individual or entity
right, power, and authority to execute, deliver, and perform this
Agreement.
b. Enforceability.
The
execution, delivery, and performance of this Agreement by the Investor have
been
duly authorized by all requisite partnership, corporate or other entity action,
as applicable. This Agreement has been duly executed and delivered by the
Investor, and, upon its execution by the Company and Modigene, shall constitute
the legal, valid, and binding obligation of the Investor, enforceable in
accordance with its terms, except to the extent that its enforceability is
limited by bankruptcy, insolvency, reorganization, moratorium, or other laws
relating to or affecting the enforcement of creditors’ rights generally and by
general principles of equity.
c. No
Violations.
The
execution, delivery, and performance of this Agreement by the Investor do not
and will not, with or without the passage of time or the giving of notice,
result in the breach of, or constitute a default, cause the acceleration of
performance, or require any consent under, or result in the creation of any
lien, charge or encumbrance upon any property or assets of the Investor pursuant
to, any material instrument or agreement to which the Investor is a party or
by
which the Investor or its properties may be bound or affected, and, do not
or
will not violate or conflict with any provision of the articles of incorporation
or bylaws, partnership agreement, operating agreement, trust agreement, or
similar organizational or governing document of the Investor, as applicable.
d. Knowledge
of Investment and its Risks.
The
Investor has such knowledge and experience in financial and business matters
so
as to be capable of evaluating the merits and risks of Investor’s investment in
the Units. The Investor understands that an investment in the Company represents
a high degree of risk and there is no assurance that the Company’s business or
operations will be successful. The Investor has considered carefully the risks
attendant to an investment in the Company, and that, as a consequence of such
risks, the Investor could lose Investor’s entire investment in the
Company.
10
e. Investment
Intent.
The
Investor hereby represents and warrants that (i) the Investor’s Units are being
acquired for investment for the Investor’s own account, and not as a nominee or
agent and not with a view to the resale or distribution of all or any part
of
the Investor’s Units, and the Investor has no present intention of selling,
granting any participation in, or otherwise distributing any of the Investor’s
Units within the meaning of the Securities Act, (ii) the Investor’s Units are
being acquired in the ordinary course of the Investor’s business, and (iii) the
Investor does not have any contracts, understandings, agreements, or
arrangements, directly or indirectly, with any person and/or entity to
distribute, sell, transfer, or grant participations to such person and/or entity
with respect to, any of the Investor’s Units. The Investor is not purchasing the
Investor’s Units as a result of any advertisement, article, notice or other
communication regarding the Investor’s Units published in any newspaper,
magazine or similar media or broadcast over television or radio or presented
at
any seminar or any other general solicitation or general
advertisement.
f. Investor
Status.
The
Investor is an “accredited investor” as that term is defined by Rule 501 of
Regulation D promulgated under the Securities Act and the information provided
by the Investor in the Investor Questionnaire, attached hereto as Appendix
A,
is
truthful, accurate, and complete. The Investor is not registered as a
broker-dealer under Section 15 of the Exchange Act or an affiliate of such
broker-dealer, except as otherwise provided in the Investor
Questionnaire.
g. Disclosure.
The
Investor has reviewed the information provided to the Investor by the Company
in
connection with the Investor’s decision to purchase the Investor’s Units,
including but not limited to, the Company’s publicly available filings with the
Commission and the information contained therein. The Company has provided
the
Investor with all the information that the Investor has requested in connection
with the decision to purchase the Investor’s Units. The Investor further
represents that the Investor has had an opportunity to ask questions and receive
answers from the Company regarding the business, properties, prospects, and
financial condition of the Company. All such questions have been answered to
the
full satisfaction of the Investor. Neither such inquiries nor any other
investigation conducted by or on behalf of the Investor or its representatives
or counsel shall modify, amend, or affect the Investor’s right to rely on the
truth, accuracy, and completeness of the disclosure materials and the Company’s
representations and warranties contained herein.
h. No
Registration.
The
Investor understands that Investor may be required to bear the economic risk
of
Investor’s investment in the Company for an indefinite period of time. The
Investor further understands that (i) neither the offering nor the sale of
the Investor’s Units has been registered under the Securities Act or any
applicable State Acts in reliance upon exemptions from the registration
requirements of such laws, (ii) the Investor’s Units must be held by the
Investor indefinitely unless the sale or transfer thereof is subsequently
registered under the Securities Act and any applicable State Acts, or an
exemption from such registration requirements is available, (iii) except as
set
forth in the Registration Rights Agreement, dated as of the date hereof, between
the Company and the Investor, the Company is under no obligation to register
any
of the shares of Common Stock underlying the Investor’s Units on the Investor’s
behalf or to assist the Investor in complying with any exemption from
registration, and (iv) the Company will rely upon the representations and
warranties made by the Investor in this Agreement and the Transaction Documents
in order to establish such exemptions from the registration requirements of
the
Securities Act and any applicable State Acts.
i. Transfer
Restrictions.
The
Investor will not transfer any of the Investor’s Units or the shares of Common
Stock underlying the Investor’s Units or the Investor Warrants unless such
transfer is registered or exempt from registration under the Securities Act
and
such State Acts, and, if requested by the Company in the case of an exempt
transaction, the Investor has furnished an opinion of counsel reasonably
satisfactory to the Company that such transfer is so exempt. The Investor
understands and agrees that (i) the certificates evidencing the shares of Common
Stock underlying the Investor’s Units and the Investor’s Warrants will bear
appropriate legends indicating such transfer restrictions placed upon the Units
and shares of Common Stock and Investor Warrants, (ii) the Company shall have
no
obligation to honor transfers of any of the Investor’s Units, Investor Warrants
or shares of Common Stock underlying the Investor’s Units or Investor Warrants
in violation of such transfer restrictions, and (iii) the Company shall be
entitled to instruct any transfer agent or agents for the securities of the
Company to refuse to honor such transfers.
11
j. No
Solicitation.
The
Investor (i) did not receive or review any advertisement, article, notice or
other communication published in a newspaper or magazine or similar media or
broadcast over television or radio, whether closed circuit, or generally
available, with respect to the Units or (ii) was not solicited by any person,
other than by representatives of the Company, with respect to a purchase of
the
Units.
k. Principal
Address.
The
Investor’s principal residence, if an individual, or principal executive office,
if an entity, is set forth on the signature page of this Subscription
Agreement.
l. Reliance
by the Company and Modigene.
The
Investor acknowledges and consents to the Company’s and Modigene’s reliance on
the Investor’s representations and warranties made above for purposes of
complying with all applicable securities laws and any applicable exemptions
from
registration requirements thereunder and otherwise.
7. Transfer
Restrictions.
a. The
Common Stock and Common Stock issuable upon exercise of the Investor Warrants
(the “Warrant
Shares”)
(the
Common Stock, Investor Warrants and Warrant Shares are collectively referred
to
as the “Securities”)
may
only be disposed of in compliance with state and federal securities laws. In
connection with any transfer of Securities other than pursuant to an effective
registration statement or Rule 144, the Company may require the transferor
thereof to provide to the Company an opinion of counsel selected by the
transferor and reasonably acceptable to the Company, the form and substance
of
which opinion shall be reasonably satisfactory to the Company, to the effect
that such transfer does not require registration of such transferred Securities
under the Securities Act. As a condition of transfer, any such transferee shall
agree in writing to be bound by the terms of this Agreement and shall have
the
rights of an Investor under this Agreement and the Registration Rights
Agreement.
b. The
Investors agree to the imprinting, so long as is required by this Section 7,
of
a legend on any of the Securities in substantially the following
form:
THIS
SECURITY HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR
THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR
TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY.
12
c. Certificates
evidencing the Common Stock and Warrant Shares shall not contain any legend
(including the legend set forth in Section 7(b)), (i) while a registration
statement (including the Registration Statement) covering the resale of such
security is effective under the Securities Act, or (ii) following any sale
of
such Common Stock or Warrant Shares pursuant to Rule 144, or (iii) if such
Common Stock or Warrant Shares are eligible for sale under Rule 144(k), or
(iv)
if such legend is not required under applicable requirements of the Securities
Act (including judicial interpretations and pronouncements issued by the staff
of the Commission). The Company shall cause its counsel to issue a legal opinion
to the Company’s transfer agent promptly after the effective date of the
Registration Statement (the “Effective
Date”)
if
required by the Company’s transfer agent to effect the removal of the legend
hereunder. If all or any portion of an Investor Warrant is exercised at a time
when there is an effective registration statement to cover the resale of the
Warrant Shares, such shares shall be issued free of all legends. The Company
agrees that following the Effective Date or at such time as such legend is
no
longer required under this Section 7(c), it will, five Trading Days
(“Trading
Days”
shall
mean the days on which the Common Stock is traded or quoted on a Trading
Market). following the delivery by an Investor to the Company or the Company’s
transfer agent of a certificate representing Common Stock or Warrant Shares,
as
the case may be, issued with a restrictive legend (such fifth Trading Day,
the
“Legend
Removal Date”),
deliver or cause to be delivered to such Investor a certificate representing
such shares that is free from all restrictive and other legends. The Company
may
not make any notation on its records or give instructions to any transfer agent
of the Company that enlarge the restrictions on transfer set forth in this
Section 7. Upon requests by the Investors, the certificates for Securities
subject to legend removal hereunder shall be transmitted by the transfer agent
of the Company to the Investors by crediting the account of the Investor’s prime
broker with the Depository Trust Company System.
d. In
addition to such Investor’s other available remedies, the Company shall pay to
an Investor, in cash, as partial liquidated damages and not as a penalty, for
each $1,000 of Common Stock or Warrant Shares (based on the VWAP of the Common
Stock on the date such Securities are submitted to the Company’s transfer agent)
delivered for removal of the restrictive legend and subject to Section 7(c),
$10
per Trading Day (increasing to $20 per Trading Day five (5) Trading Days after
such damages have begun to accrue) for each Trading Day after the Legend Removal
Date until such certificate is delivered without a legend. Nothing herein shall
limit such Investor’s right to pursue actual damages for the Company’s failure
to deliver certificates representing any Securities as required by the
Transaction Documents, and such Investor shall have the right to pursue all
remedies available to it at law or in equity including, without limitation,
a
decree of specific performance and/or injunctive relief. For purposes of this
Section 7(d) “VWAP”
means,
for any date, the price determined by the first of the following clauses that
applies: (i) if the Common Stock is then listed or quoted on a Trading Market,
the daily volume weighted average price of the Common Stock for such date (or
the nearest preceding date) on the Trading Market on which the Common Stock
is
then listed or quoted for trading as reported by Bloomberg L.P. (based on a
Trading Day from 9:30 a.m. (New York City time) to 4:00 p.m. (New York City
time); (ii) if the OTC Bulletin Board is not a Trading Market, the volume
weighted average price of the Common Stock for such date (or the nearest
preceding date) on the OTC Bulletin Board; (iii) if the Common Stock is not
then
quoted for trading on the OTC Bulletin Board and if prices for the Common Stock
are then reported in the “Pink Sheets” published by Pink Sheets, LLC (or a
similar organization or agency succeeding to its functions of reporting prices),
the most recent bid price per share of the Common Stock so reported; or
(iv) in all other cases, the fair market value of a share of Common Stock
as determined by an independent appraiser selected in good faith by the Investor
and reasonably acceptable to the Company, the fees and expenses of which shall
be paid by the Company.
e. Each
Investor, severally and not jointly with the other Investors, agrees that the
removal of the restrictive legend from certificates representing Securities
as
set forth in this Section 7 is predicated upon the Company’s reliance that the
Investor will sell any Securities pursuant to either the registration
requirements of the Securities Act, including any applicable prospectus delivery
requirements, or an exemption therefrom, and that if Securities are sold
pursuant to a Registration Statement, they will be sold in compliance with
the
plan of distribution set forth therein.
13
8. Independent
Nature of Investor’s Obligations and Rights.
The
obligations of the Investor under this Agreement and the Transaction Documents
are several and not joint with the obligations of any other purchaser of Units
in the Offering, and the Investor shall not be responsible in any way for the
performance of the obligations of any other purchaser of Units in the Offering
under any Transaction Document. The decision of the Investor to purchase the
Investor’s Units pursuant to the Transaction Documents has been made by the
Investor independently of any other purchaser of Units in the Offering. Nothing
contained herein or in any Transaction Document or Investor Warrant, and no
action taken by any purchaser of Units pursuant thereto, shall be deemed to
constitute such purchasers as a partnership, an association, a joint venture,
or
any other kind of entity, or create a presumption that the purchasers of Units
are in any way acting in concert or as a group with respect to such obligations
or the transactions contemplated by the Transaction Documents. The Investor
acknowledges that no other purchaser of Units has acted as agent for the
Investor in connection with making its investment hereunder and that no other
purchaser of Units will be acting as agent of the Investor in connection with
monitoring its investment in the Units or enforcing its rights under the
Transaction Documents and Investor Warrants. The Investor shall be entitled
to
independently protect and enforce its rights, including without limitation
the
rights arising out of this Agreement or out of the other Transaction Documents
or Investor Warrants, and it shall not be necessary for any other purchaser
of
Units to be joined as an additional party in any proceeding for such
purpose.
9. Prospectus
Delivery Requirement.
The
Investor hereby covenants with the Company not to make any sale of the
Investor’s Units without complying with the provisions hereof and of the
Registration Rights Agreement, and without effectively causing the prospectus
delivery requirement under the Securities Act to be satisfied (unless the
Investor is selling in a transaction not subject to the prospectus delivery
requirement).
10. Stockholder
Approval.
The
Company represents and warrants to the Investor that a vote of the stockholders
of the Company will not be required to approve the issuance of the Investor’s
Units.
11. Indemnification
of Investor.
In
addition to the indemnity provided in the Registration Rights Agreement, the
Company will indemnify and hold the Investor and its directors, officers,
stockholders, members, managers, partners, employees and agents (each, an
“Investor
Party”)
harmless from any and all losses, liabilities, obligations, claims,
contingencies, damages, costs and expenses, including all judgments, amounts
paid in settlements, court costs, and reasonable attorneys’ fees and costs of
investigation (collectively, “Losses”)
that
any such Investor Party may suffer or incur as a result of or relating to any
misrepresentation, breach, or inaccuracy of any representation, warranty,
covenant, or agreement made by the Company in any Transaction Document. In
addition to the indemnity contained herein, the Company will reimburse each
Investor Party for its reasonable legal and other expenses (including the cost
of any investigation, preparation, and travel in connection therewith) incurred
in connection therewith, as such expenses are incurred.
12. Contribution.
If the
indemnification under Section 11 is unavailable to an indemnified party or
insufficient to hold an indemnified party harmless for any Losses, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party, in such proportion as is appropriate to reflect the relative
fault of the indemnifying party and indemnified party in connection with the
actions, statements or omissions that resulted in such Losses as well as any
other relevant equitable considerations. The relative fault of such indemnifying
party and indemnified party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission of a material
fact,
has been taken or made by, or relates to information supplied by, such
indemnifying party or indemnified party, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a result
of any Losses shall be deemed to include, subject to the limitations set forth
in this Agreement, any reasonable attorneys’ or other fees or expenses incurred
by such party in connection with any Action to the extent such party would
have
been indemnified for such fees or expenses if the indemnification provided
for
in this Section was available to such party in accordance with its
terms.
14
13. Integration.
The
Company shall not sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in Section 2 of the Securities
Act) that would be integrated with the offer or sale of the Securities in a
manner that would require the registration under the Securities Act of the
sale
of the Securities to the Investors or that would be integrated with the offer
or
sale of the Securities for purposes of the rules and regulations of any Trading
Market such that it would require stockholder approval prior to the closing
of
such other transaction unless stockholder approval is obtained before the
closing of such subsequent transaction.
14. Non-Public
Information.
Subsequent to the Closing, the Company covenants and agrees that neither it
nor
any other person acting on its behalf will provide Investor or its agents or
counsel with any information that the Company believes constitutes material
non-public information, unless prior thereto the Investor shall have executed
a
written agreement regarding the confidentiality and use of such information.
15. Further
Assurances.
The
parties hereto will, upon reasonable request, execute and deliver all such
further assignments, endorsements, and other documents as may be necessary
in
order to perfect the purchase by the Investor of the Investor’s Units. In
addition, the Company agrees that it will do all such acts necessary to ensure
that Canadian residents holding shares will be able to trade such securities
without resale restrictions under Canadian securities legislation within four
months from the Merger Effective Date, including, if necessary, all acts in
order for the Company to become a reporting issuer in a Canadian province or
territory, which may include the filing and receipting of a prospectus by
Canadian securities regulatory authorities.
16. Entire
Agreement; No Oral Modification.
This
Agreement and the other Transaction Documents and Investor Warrants contain
the
entire agreement among the parties hereto with respect to the subject matter
hereof and supersede all prior agreements and understandings with respect
thereto and this Agreement may not be amended or modified except in a writing
signed by both of the parties hereto.
17. Amendments
and Waivers.
The
provisions of this Agreement may be amended on or before the Closing Date,
and
particular provisions of this Agreement may be waived, with and only with an
agreement or consent in writing signed by the Company and the majority of
Investors, unless such provision is specific to an Investor. The Investors
acknowledge that by the operation of this Section 17, the majority of Investors
may have the right and power to diminish or eliminate all rights of the
Investors under this Agreement.
18. Binding
Effect; Benefits.
This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective heirs, successors and assigns; however, nothing in this
Agreement, expressed or implied, is intended to confer on any other person
other
than the parties hereto, or their respective heirs, successors, or assigns,
any
rights, remedies, obligations, or liabilities under or by reason of this
Agreement.
19. Counterparts.
This
Agreement may be executed in any number of counterparts, for each of which
shall
be deemed to be an original and all of which together shall be deemed to be
one
and the same instrument. In the event that any signature is delivered by
facsimile transmission or electronic mail (e-mail), such signature shall create
a valid and binding obligation of the party executing (or on whose behalf such
signature is executed) with the same force and effect as if such signature
page
were an original thereof.
15
20. Governing
Law.
This
Agreement shall be governed by, and construed and enforced in accordance with,
the laws of the United States of America and the State of New York, both
substantive and remedial, without regard to New York conflicts of law
principles. Any
judicial proceeding brought against any of the parties to this agreement or
any
dispute arising out of this Agreement or any matter related hereto shall be
brought in the courts of the State of New York, New York County, or in the
United States District Court for the Southern District of New York and, by
its
execution and delivery of this agreement, each party to this Agreement accepts
the jurisdiction of such courts.
21. Prevailing
Parties.
In any
action or proceeding brought to enforce any provision of this Agreement, or
where any provision hereof is validly asserted as a defense, the prevailing
party shall be entitled to receive and the nonprevailing party shall pay upon
demand reasonable attorneys’ fees in addition to any other remedy.
22. Notices.
All
communication hereunder shall be in writing and shall be mailed, delivered,
telegraphed or sent by facsimile or electronic mail, and such delivery shall
be
confirmed to the addresses as provided below:
if
to the
Investor:
to
the
address set forth on the signature page of this Agreement
if
to the
Company before the Closing Date:
The
Europa Center
000
Xxxxxx Xx., Xxxxx 000
Xxxxxx
Xxxx, XX 00000-0000
Attn:
Xxxxx X. Xxxxx, Xx., President
Facsimile:
(000) 000-0000
with
copy
to:
Gottbetter
& Partners, LLP
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxxx X. Xxxxxxx, Esq.
Facsimile:
(000) 000-0000
if
to
Modigene or to the Company after the Closing Date, to:
0000
Xxxxxx Xxxxxxxx Xxxxx
Xxxxx
0000
Xxxxxx,
XX 00000
Attention:
Xxxx Xxxxx, President
Facsimile:
(000) 000-0000
16
with
a
copy to:
Barack
Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx LLP
000
Xxxx
Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000
Attn:
Xxxxxxxx Xxxxx, Esq.
Facsimile:
(000) 000-0000
After
June 30, 2007:
000
Xxxx
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000
23. Headings.
The
section headings herein are included for convenience only and are not to be
deemed a part of this Agreement.
[SIGNATURE
PAGES FOLLOW]
17
IN
WITNESS WHEREOF, the parties hereto have executed this Subscription Agreement
as
of the date first written above.
|
MODIGENE
INC.,
a
Nevada corporation
|
||
| |
|
|
| By: | ||
|
Name:
Xxxxx X. Xxxxx, Xx., President
Its: President
|
||
[SIGNATURE
PAGES OF MODIGENE AND INVESTOR FOLLOW]
18
IN
WITNESS WHEREOF, the parties hereto have executed this Subscription Agreement
as
of the date first written above.
|
MODIGENE
INC.,
a Delaware corporation
|
||
| |
|
|
| By: | ||
|
Name:
Xxxx Xxxxx
Its: President
|
||
[SIGNATURE
PAGE OF INVESTOR FOR SUBSCRIPTION AGREEMENT FOLLOWS]
19
IN
WITNESS WHEREOF, the parties hereto have executed this Subscription Agreement
as
of the date first written above.
|
INVESTOR
(individual)
|
INVESTOR
(entity)
|
|
|
Signature
|
Name
of Entity
|
|
|
Print
Name
|
Signature
|
|
|
Address
of Principal Residence:
|
|
Print
Name:
|
|||
|
Title:
|
|
Social
Security Number:
|
Address
of Executive Offices:
|
|
|
Telephone
Number:
|
||
|
Facsimile
Number:
|
IRS
Tax Identification Number:
|
|
|
Telephone
Number:
|
||
|
Facsimile
Number:
|
||
|
Email
Address:
|
||
[SIGNATURE
PAGE OF INVESTOR FOR REGISTRATION RIGHTS AGREEMENT
FOLLOWS]
1
This
Registration Rights Agreement is hereby executed as of the date first above
written.
|
PURCHASER
(Individual)
|
||
|
(Print
Name)
|
||
|
PURCHASER
(Entity)
|
||
|
By:
|
||
|
Name:
|
||
|
Its:
|
(Print
Name)
|
|
|
(Print
Title)
|
||
2
