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APPENDIX II
PALOMAR MEDICAL TECHNOLOGIES, INC.
SUBSCRIPTION AGREEMENT
Name:
Number:
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OFFSHORE STOCK SUBSCRIPTION AGREEMENT
This Stock Subscription Agreement (the "Agreement"), dated _____________,
1995, is entered into by and between Palomar Medical Technologies, Inc., a
Delaware corporation (the "Company", "PMTI," or "Seller"), and
___________________________ a corporation/citizen under the laws of
_______________ (the "Buyer").
The Company has offered for sale outside the United States, (as that term
is defined in Regulation S ("Regulation S") under the United States Securities
Act of 1933, as amended (the "Act") to the Buyer certain securities as set forth
in paragraph 1 below.
The parties hereto agree as follows:
1. AGREEMENT TO SUBSCRIBE; PURCHASE PRICE
(a) Subscription. Upon the basis of the representations and warranties, and
subject to the terms and conditions set forth in this Agreement, the Seller
covenants and agrees to sell to Buyer __________ shares of PMTI Common Stock
(the "Common Stock") for an aggregate amount of ($ US). The purchase price of
the Common Stock shall be 5% below the average closing bid price of the Common
Stock from November 20, 1995 to November 25, 1995, as reported by the National
Association of Securities Dealers Automated Quotation System ("NASDAQ"). For
every two shares of Common Stock purchased, a warrant to purchase one share of
Common Stock (the "Warrant") will be issued expiring in three years at an
exercise price of $5 per share of Common Stock. The shares of Common Stock and
the shares of Common Stock underlying the Warrants (the "Shares") may be sold no
earlier than 180 days after the closing date.
b. Form of Payment and Closing Date. Buyer shall pay the purchase price by
delivering good funds in United States Dollars to "Xxxxx, Xxxx & Xxxxx Client
Funds Account", Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx, XX 00000 as Escrow Agent. The
closing of the offering shall take place on or before November 30, 1995 by
delivery of the Warrants and stock certificates representing the shares of
Common Stock to the Buyer upon notification by the Escrow Agent to the Seller
that payment in full has been received, and the funds have been wired to
Seller's bank account which has been specified to the Escrow Agent.
2. SUBSCRIBER REPRESENTATIONS; ACCESS TO INFORMATION; INDEPENDENT INVESTIGATION.
a. Offshore Transaction. Buyer represents and warrants to Seller as
follows:
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(i) Buyer is not organized under the laws of the United States and
was not formed for the purpose of investing in Regulation S
securities and is not registered under the Securities Act;
(ii) At the time the buy order was originated, Buyer was outside the
United States;
(iii)No offer to purchase the Shares or the Warrants was made in the
United States;
(iv) Buyer is purchasing the Shares and the Warrants for its own
account and for investment purposes and not with a view towards
distribution;
(v) All subsequent offers and sales of the Shares and the Warrants
delivered at the Closing Date in the United States or to U.S.
persons shall be made in compliance with Regulation S pursuant to
registration of securities under the Securities Act of 1933 or
pursuant to an exemption from registration. In any case, the
Common Stock and Warrants delivered at the Closing Date and the
Common Stock issuable upon the exercise of the Warrants shall not
be resold to U.S. persons or within the United States during a
prohibited period of one hundred eighty (180) days commencing on
the date of Closing of the purchase of the Shares;
(vi) Buyer understands that the Shares and the Warrants are being
offered and sold to it in reliance of specific exemptions from
the registration requirements of Federal and State securities
laws and that the Seller is relying upon the truth and accuracy
of the representations, warranties, agreements acknowledgments
and understandings of Buyer set forth herein in order to
determine the applicability of such exemptions and the
suitability of Buyer to acquire the Shares and the Warrants;
(vii)The Buyer understands that no federal or state agency has passed
on or made any recommendation or endorsement of the Common Stock
or the Warrants; and
(viii) The transactions contemplated by this Agreement have not been
pre-arranged with a Buyer located in the United States or who is
a U.S. Person and are not part of a plan or scheme to evade the
registration provisions of the Act.
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(ix) Upon exercise of the Warrant, Buyer will certify in writing that
it is not a U.S. person and the Warrant is not being exercised on
behalf of a U.S. person.
3. SELLER REPRESENTATIONS
a. Reporting Company Status. Seller is a "Reporting Company" as defined by
Rule 902 of Regulation S. For at least the last 12 months, Seller has fully
complied, to the extent applicable, with all reporting obligations under Section
13(d) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"). Seller has registered its Common Stock pursuant to Section 12(b) of the
Exchange Act and the Common Stock trades on NASDAQ SmallCap Market.
b. Current Public Information. Seller has furnished Buyer with copies of
the Company's most recent Annual Report on the Form 10-KSB filed with the
Securities and Exchange Commission and the Forms 10-Q filed thereafter
(collectively the "SEC Filings"), and other publicly available documents.
c. Offshore Transaction.
(i) Seller has not offered the securities which are the subject of
this transaction to any person in the United States, any
identifiable groups of U.S. citizens abroad, or to any U.S.
person as that term is defined in Regulation S.
(ii) At the time the buy order was originated, Seller and/or its
agents reasonably believed Buyer was outside of the United States
and was not a U.S. person.
(iii)Seller and/or its agents reasonably believe that the transaction
has not been pre-arranged with a buyer in the United States.
d. No directed Selling Efforts. In regard to this transaction, neither
Seller nor any person acting on its behalf has conducted any "directed selling
efforts" as that term is defined in Rule 902 of Regulation S nor has Seller or
any such person conducted any general solicitation relating to the offer and
sale of the securities which are the subject of this transaction to persons
resident within the United States or elsewhere.
e. Concerning the Shares. The Common Stock when issued and delivered will
be duly and validly authorized and issued, fully paid and non-assessable and
will not subject the holders thereof to personal liability by reason of being
such holders. There are no preemptive rights of any shareholder of the Company.
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f. Subscription Agreement The Subscription Agreement has been duly
authorized, validly executed and delivered on behalf of the Seller and is a
valid and binding agreement in accordance with its terms, subject to general
principles of equity and to bankruptcy and other laws effecting the enforcement
of creditors rights generally.
g. Non-contravention The execution and delivery of the Subscription
Agreement and the consummation of the issuance of the Shares and the Warrants
and the transactions contemplated by the Subscription Agreement do not and will
not conflict with or result in a breach by the Seller of any of the terms or
provisions of, or constitute a default under, the articles of incorporation or
by-laws of the Seller, or any indenture, mortgage, deed of trust or other
material agreement or instrument to which the Seller is a party or by which it
or any of its properties or assets are bound, or any existing applicable law,
rule or regulation or any applicable decree, judgment or order of any court,
Federal or State regulatory body, administrative agency or other governmental
body having jurisdiction over the Seller or any of its properties or assets.
h. Approvals Seller is not aware of any authorization, approval or consent
of any governmental body.
4. EXEMPTION; RELIANCE ON REPRESENTATIONS
Buyer understands that the offer and sale of the Shares and the Warrants
are not being registered under the 1933 Act. Seller is relying on the rules
governing offers and sales made outside the United States pursuant to Regulation
S.
5. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL
Buyer understands that Seller's obligations to sell the Shares is
conditioned upon:
a. The receipt and acceptance by Seller of this Subscription Agreement for
all of the Shares as evidenced by execution of this Subscription Agreement by
the Seller; and
b. Delivery into escrow by Buyer of good funds as payment in full for the
purchase of the Shares.
6. CONDITIONS TO BUYER'S OBLIGATION TO PURCHASE
Seller understands that Buyer's obligation to purchase the Shares is
conditioned upon:
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a. Acceptance execution by Buyer of this Subscription Agreement for the
sale of Shares; and
b. Delivery of Shares with the restrictions as described herein.
7. GOVERNING LAW
This Agreement shall be governed by and interpreted in accordance with the
laws of the Commonwealth of Massachusetts. A facsimile transmission of this
signed agreement shall be legal and binding on all parties hereto.
8. NOTICES
All communications hereunder shall be in writing, and, if sent to the Buyer
shall be sufficient in all respects if delivered, sent by registered mail, or by
telecopy and confirmed to the Buyer at:
Name:
Address:
City:
Country:
Attention:
or, if sent to the Seller, shall be delivered, sent by registered mail or by
telecopy and confirmed to the Company at:
Palomar Medical Technologies, Inc.
00 Xxxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx, Corporate Controller
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
9. FEES AND EXPENSES
Each of the Buyer and the Seller agrees to pay its own expenses incident on
the performance of its obligations hereunder, including but not limited to, the
fees, expenses and disbursements of such party's counsel.
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IN WITNESS THEREOF, this Offshore Securities Subscription Agreement was
duly executed on the date first written below.
Dated this _____ day of the month of ________________, 1995.
Official Signatory of SELLER
PALOMAR MEDICAL TECHNOLOGIES, INC.
BY:
-----------------------------------------
(Authorized Signature)
-----------------------------------------
(Print Name and Title)
Accepted this ____ day of the month of ________________, 1995.
Official signature of BUYER
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(Authorized Signature)
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(Print Name and Title)
