SUBSCRIPTION AGREEMENT
Exhibit
10.1
THE
SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES MAY NOT
BE
SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND SUCH STATE
LAWS AS MAY BE APPLICABLE, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED. ADDITIONAL RESTRICTIONS ON TRANSFER
OF
THE SECURITIES ARE SET FORTH IN THIS SUBSCRIPTION
AGREEMENT.
THIS
SUBSCRIPTION AGREEMENT
(this “Agreement”),
dated as of ____________, 2008, by and between Lifesciences Opportunities
Incorporated, a
Florida
corporation, located at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx Xxxxx,
XX
00000 (the
“Company”),
and the subscriber identified on the signature pages hereto (“Subscriber”).
WHEREAS,
the
Company has authorized the issuance and sale of a minimum amount (“Minimum
Offering”)
of
8,000 units ($800,000) (the “Units”),
with
an over-allotment option up to an additional 2,000 Units ($200,000)
(“Maximum
Offering”),
at the discretion of the Company,
in a
private placement offering of the Company’s securities more particularly
described hereunder, to meet the Company’s current and future capital
requirements (the “Offering”);
and
WHEREAS,
the Company and the Subscriber are executing and delivering this Agreement
in
reliance upon an exemption from securities registration afforded by the
provisions of Section 4(2), Section 4(6) and/or Regulation D (“Regulation
D”)
as promulgated by the United States Securities and Exchange Commission (the
“Commission”)
under the Securities Act of 1933, as amended (the “1933
Act”).
WHEREAS,
the parties desire that, upon the terms and subject to the conditions contained
herein, the Company shall issue and sell to the Subscriber, as provided herein,
the number of Units set forth on the signature page hereto, with each Unit
consisting of a convertible debenture in the principal amount of $1,000 (the
“Debentures”)
and one thousand (1,000) shares (the “Additional
Shares”)
of the Company’s common stock, par value $.0001 (“Common
Stock”),
which Additional Shares shall be subject to the lock-up agreement dated of
even
date herewith. The Debentures, the Additional Shares and the Common Stock
issuable upon conversion of the Debentures (the “Conversion
Shares”)
are collectively referred to herein as the “Securities.”
NOW,
THEREFORE,
in consideration of the mutual covenants and other agreements contained in
this
Agreement the Company and the Subscriber hereby agree as follows:
1. Conditions
to Closing.
Subject
to the satisfaction or waiver of the terms and conditions of this Agreement
and
any other documents or agreements executed in connection with the transactions
contemplated hereunder (“Transaction
Documents”),
on
the Closing Date (defined hereunder), the Subscriber shall purchase and the
Company shall sell to the Subscriber Securities in the amount designated on
the
signature page hereto. The terms of the Debentures shall be as set forth in
the
Form of Debenture and the Registration Rights Agreement attached hereto, the
terms of which are incorporated herein by reference.
2. Closing
Date.
The
“Closing
Date”
shall
be the day selected by the Company after the Transaction Documents have been
executed and delivered by the Subscriber, and all conditions precedent to the
parties’ obligations under this Agreement have been satisfied or waived,
including the Minimum Offering amount having been reached. Until the Closing
Date, the Subscriber’s funds will be held in a non-interest bearing escrow
account. In the event the Minimum Offering amount has not been obtained on
or
before April 11, 2008 (“Termination
Date”),
all
funds will be returned to the Subscriber, without interest
3. Subscriber’s
Representations and Warranties.
Subscriber hereby represents and warrants to and agrees with the Company
that:
(a) Organization
and Standing of the Subscriber. If the Subscriber is an entity, such
Subscriber is a corporation, partnership or other entity duly incorporated
or
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization and has the requisite
corporate power to own its assets and to carry on its business.
(b) Authorization
and Power. Subscriber has the requisite power and authority to enter into
and perform this Agreement and each other Transaction Document to which
he/she/it is a party or by which he/she/it is bound and to purchase the
Securities being sold hereunder. This Agreement and each other Transaction
Document to which Subscriber is a party or by which Subscriber is bound has
been
duly authorized, executed and delivered by Subscriber and constitutes, or shall
constitute when executed and delivered, a valid and binding obligation of
Subscriber enforceable against the Subscriber in accordance with the terms
hereof and thereof, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating
to
or affecting creditors’ rights generally and to general principles of
equity.
(c) No
Conflicts. The execution, delivery and performance of this Agreement and
each other Transaction Document to which Subscriber is a party or by which
it is
bound and the consummation by Subscriber of the transactions contemplated hereby
or thereby or relating hereto do not and will not (i) conflict with, or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of any material agreement, material
indenture, or material instrument or material obligation to which Subscriber
is
a party or by which its properties or assets are bound, or result in a violation
of any law, rule, or regulation, or any order, judgment or decree of any court
or governmental agency applicable to Subscriber or its properties (except for
such conflicts, defaults and violations as would not, individually or in the
aggregate, have a material adverse effect on Subscriber). Subscriber is not
required to obtain any consent, authorization or order of, or make any filing
or
registration with, any court or governmental agency in order for it to execute,
deliver or perform any of its obligations under this Agreement and each other
Transaction Document to which such Subscriber is a party or by which it is
bound
or to purchase the Units in accordance with the terms hereof, provided that
for
purposes of the representation made in this sentence, Subscriber is assuming
and
relying upon the accuracy of the relevant representations and agreements of
the
Company herein.
(d) Information
on Company. Subscriber has received in writing from the Company such other
information concerning its operations, financial condition and other matters
as
Subscriber has requested in writing (such other information is collectively,
the
“Other Written Information”), and considered all factors the
Subscriber deems material in deciding on the advisability of investing in the
Securities, including but not limited to, the Risk Factors
contained in the Private Placement Memorandum dated March 31, 2008. Subscriber
understands that an investment in the Securities offered hereby is highly
speculative and involves a high degree of risk and an investment should be
made
only by investors who can afford the loss of their entire investment.
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(e) Information
on Subscriber.
Subscriber is, and will be at the time of the receipt of the Conversion Shares,
an “accredited investor”, as such term is defined in Regulation D promulgated by
the Commission under the 1933 Act, is experienced in investments and business
matters, has made investments of a speculative nature and has purchased
securities of United States companies in private placements in the past and,
with its representatives, has such knowledge and experience in financial, tax
and other business matters as to enable Subscriber to utilize the information
made available by the Company to evaluate the merits and risks of and to make
an
informed investment decision with respect to the proposed purchase, which
represents a speculative investment. Subscriber is able to bear the risk of
such
investment for an indefinite period and to afford a complete loss thereof.
The
information set forth on the signature page hereto regarding the Subscriber
is
accurate.
(f) Purchase
of Units.
Subscriber is purchasing the Units as principal for his/her/its own account
for
investment only and not with a view toward, or for resale in connection with,
the public sale or any distribution thereof, but Subscriber does not agree
to
hold the Units for any minimum amount of time.
(g) Compliance
with Securities Act.
Subscriber understands and agrees that the Securities have not been registered
under the 1933 Act or any applicable state securities laws, by reason of their
issuance in a transaction that does not require registration under the 1933
Act
(based in part on the accuracy of the representations and warranties of
Subscriber contained herein), and that such Securities must be held indefinitely
unless a subsequent disposition is registered under the 1933 Act or any
applicable state securities laws or is exempt from such registration.
Notwithstanding anything to the contrary contained in this Agreement, Subscriber
may transfer (without restriction and without the need for an opinion of
counsel) the Securities to its Affiliates (as defined below) provided that
each
such Affiliate is an “accredited investor” under Regulation D and such Affiliate
agrees to be bound by the terms and conditions of this Agreement and each other
Transaction Document to which Subscriber is a party or by which it is bound.
For
the purposes of this Agreement, an
“Affiliate”
means
any Person (as such term is defined below) that, directly or indirectly through
one or more intermediaries, controls or is controlled by or is under common
control with a Person, as such terms are used in and construed under Rule 144
under the 1933 Act. With respect to Subscriber, any investment fund or managed
account that is managed on a discretionary basis by the same investment manager
as such Subscriber will be deemed to be an Affiliate of such Subscriber.
Affiliate,
when employed in connection with the Company, includes each Subsidiary of the
Company (if any). A
“Person”
means
any individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability company, joint
stock company, government (or an agency or subdivision of any thereof) or other
entity of any kind.
(h) Legend.
The Additional Shares shall bear the following or similar legend:
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. THESE SECURITIES MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAW
OR AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION
IS NOT REQUIRED.”
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(i) Debenture
Legend.
The Debenture shall bear the following or similar legend:
“NEITHER
THIS DEBENTURE NOR THE COMMONS STOCK INTO WHICH THIS DEBENTURE IS EXERCISABLE
HAVE 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, 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.”
(j) Communication
of Offer.
Subscriber
is not purchasing the Units as a result of any advertisement, article, notice
or
other communication regarding the Securities 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.
(k) No
Governmental Review.
Subscriber understands that no United States federal or state agency or any
other governmental or state agency has passed on or made recommendations or
endorsement of the Securities or the suitability of the investment in the
Securities nor have such authorities passed upon or endorsed the merits of
the
offering of the Securities.
(l) Correctness
of Representations.
Subscriber represents that the foregoing representations and warranties are
true
and correct in all material respects as of the date hereof and, unless
Subscriber otherwise notifies the Company prior to the Closing Date, shall
be
true and correct as of the Closing Date.
(m) Survival.
The foregoing representations and warranties shall survive the Closing Date
until five (5) years after the Closing Date.
4. Company
Representations and Warranties.
The Company represents and warrants to and agrees with Subscriber that except
as
set forth in the Other Written Information and as otherwise qualified in the
Transaction Documents:
(a) Due
Organization.
The Company is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization and has the
requisite power and authority to own its properties and to carry on its business
as presently conducted.
(b) Due
Authorization; Enforceability. This Agreement and each other Transaction
Document to which the Company is a party or by which it is bound have been
duly
authorized, executed and delivered by the Company and are valid and binding
agreements enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws
of
general applicability relating to or affecting creditors’ rights generally and
to general principles of equity. The Company has full limited liability company
power and authority necessary to enter into and deliver the Transaction
Documents and to perform its obligations thereunder.
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(c) Consents.
No consent, approval, authorization or order of any court, governmental agency
or body or arbitrator having jurisdiction over the Company, or any of its
Affiliates, nor the Company’s members is required for the execution by the
Company of the Transaction Documents and compliance and performance by the
Company of its obligations under the Transaction Documents, including, without
limitation, the issuance and sale of the Securities, other than such consents,
approvals and authorizations as shall have been received by the Company as
of
the Closing Date.
(d) The
Securities.
The Securities upon issuance:
(i) are,
or will be, free and clear of any security interests, liens, claims or other
encumbrances, subject to restrictions upon transfer under the 1933 Act and
any
applicable state securities laws;
(ii) have
been, or will be, duly and validly authorized and on the date of issuance of
the
Additional Shares and Conversion Shares, will be duly and validly issued, fully
paid and nonassessable;
(iii) will
not have been issued or sold in violation of any preemptive or other similar
rights of the holders of any securities of the Company;
(iv) will
have been issued in reliance upon an exemption from the registration
requirements of (unless they have been previously registered pursuant to the
Registration Rights Agreement of even date herewith) and, assuming the
representations and warranties of each of the Subscribers herein are true and
accurate, will have been issued in compliance with Section 4 under the 1933
Act.
(e) Compliance
with Laws.
The
Company is not in violation of, default under, or conflict with, any applicable
order, consent, approval, authorization, registration, declaration, filing,
judgment, injunction, award, decree or writ of any governmental body or court
of
competent jurisdiction or any applicable law, except for any such violations
that would not, individually or in the aggregate, have a material adverse effect
on the Company taken as a whole.
(f) Litigation.
There
are no judicial, governmental, administrative or arbitral actions, claims,
suits
or proceedings or investigations pending or, to the knowledge of the Borrower,
threatened against or involving the Borrower or any of its respective property
or assets. There are no outstanding orders, judgments, injunctions, awards
or
decrees of any court, governmental or regulatory body or arbitration tribunal
against or involving the Borrower.
5. Regulation
D Offering.
The offer and issuance of the Securities to the Subscriber is being made
pursuant to the exemption from the registration provisions of the 1933 Act
afforded by Section 4(2) or Section 4(6) of the 1933 Act and/or Rule 506 of
Regulation D promulgated thereunder.
6. Covenants
of the Company and Subscriber Regarding Indemnification.
(a) The
Company agrees to indemnify, hold harmless, reimburse and defend Subscriber,
Subscriber’s officers, directors, agents, Affiliates, control persons, and
principal shareholders, against any claim, cost, expense, liability, obligation,
loss or damage (including reasonable legal fees) of any nature, incurred by
or
imposed upon the Subscriber or any such person which results, arises out of
or
is based upon (i) any material misrepresentation by Company or material breach
of any warranty by Company in this Agreement or in any Exhibits or Schedules
attached hereto, or other agreement delivered pursuant hereto; or (ii) after
any
applicable notice and/or cure periods, any material breach or default in
performance by the Company of any covenant or undertaking to be performed by
the
Company hereunder, or any other agreement entered into by the Company and
Subscriber relating hereto.
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(b) Subscriber
agrees to indemnify, hold harmless, reimburse and defend the Company and each
of
the Company’s officers, directors, agents, Affiliates, control persons against
any claim, cost, expense, liability, obligation, loss or damage (including
reasonable legal fees) of any nature, incurred by or imposed upon the Company
or
its successor or any such person which results, arises out of or is based upon
any material misrepresentation by such Subscriber in this Agreement or in any
Exhibits or Schedules attached hereto, or other agreement delivered pursuant
hereto.
7. Registration
Rights.
The Subscriber will be entitled to such registration rights with respect to
the
Conversion Shares and Additional Shares as set forth in the Registration Rights
Agreement attached hereto.
8. Miscellaneous.
(a) Notices.
All notices, demands, requests, consents, approvals, and other communications
required or permitted hereunder shall be in writing and, unless otherwise
specified herein, shall be (i) personally served, (ii) deposited in the mail,
registered or certified, return receipt requested, postage prepaid, (iii)
delivered by reputable air courier service with charges prepaid, or (iv)
transmitted by hand delivery, telegram, or facsimile, addressed as set forth
below or to such other address as such party shall have specified most recently
by written notice. Any notice or other communication required or permitted
to be
given hereunder shall be deemed effective (a) upon hand delivery or delivery
by
facsimile, with accurate confirmation generated by the transmitting facsimile
machine, at the address or number designated below (if delivered on a business
day during normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received)
or (b) on the second business day following the date of mailing by express
courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur. The addresses for such
communications shall be the address of Company set forth in the Preamble of
this
Agreement and the address of the Subscriber set forth on such Subscriber’s
signature page hereto.
(b) Entire
Agreement; Assignment.
This Agreement and other Transaction Documents represent the entire agreement
between the parties hereto with respect to the subject matter hereof and may
be
amended only by a writing executed by both parties. Neither the Company nor
the
Subscribers have relied on any representations not contained or referred to
in
this Agreement and the documents delivered herewith. No right or obligation
of
the Company shall be assigned without prior notice to and the written consent
of
the Subscribers and the Company.
(c) Counterparts/Execution.
This Agreement may be executed in any number of counterparts and by the
different signatories hereto on separate counterparts, each of which, when
so
executed, shall be deemed an original, but all such counterparts shall
constitute but one and the same instrument. This Agreement may be executed
by
facsimile signature and delivered by facsimile transmission.
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(d) Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of the
State of Florida without regard to conflicts of laws principles that would
result in the application of the substantive laws of another jurisdiction.
Any
action brought by either party against the other concerning the transactions
contemplated by this Agreement shall be brought only in the civil or state
courts of Florida or in the federal courts located in Florida. The
parties and the individuals executing this Agreement and other agreements
referred to herein or delivered in connection herewith on behalf of the Company
agree to submit to the jurisdiction of such courts and waive trial by
jury.
The prevailing party shall be entitled to recover from the other party its
reasonable attorney’s fees and costs. In the event that any provision of this
Agreement or any other agreement delivered in connection herewith is invalid
or
unenforceable under any applicable statute or rule of law, then such provision
shall be deemed inoperative to the extent that it may conflict therewith and
shall be deemed modified to conform with such statute or rule of law. Any such
provision which may prove invalid or unenforceable under any law shall not
affect the validity or enforceability of any other provision of any
agreement.
(e) Amendment
and Waivers.
Any
term or provision of this Agreement or any Transaction Document may be amended,
and the observance of any term of this Agreement or any Transaction Document
may
be waived (either generally or in a particular instance and either retroactively
or prospectively) by a writing signed by the Company with the consent of the
Subscriber, and such waiver or amendment, as the case may be, shall be binding
upon the Subscriber. The waiver by a party of any breach hereof or default
in
the performance hereof shall not be deemed to constitute a waiver of any other
default or any succeeding breach or default. No amendment shall be effected
to
impact a Subscriber in a disproportionately adverse fashion without the consent
of such individual Subscriber.
(f) Specific
Enforcement, Consent to Jurisdiction.
To the extent permitted by law, the Company and Subscriber acknowledge and
agree
that irreparable damage would occur in the event that any of the provisions
of
this Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that the parties shall not
be
entitled to injunctive relief to prevent or cure breaches of the provisions
of
this Agreement or the transactions contemplated thereby. Subject to Section
8(d)
hereof, each of the Company, Subscriber and any signatory hereto in his personal
capacity hereby waives, and agrees not to assert in any such suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction
of
such court, that the suit, action or proceeding is brought in an inconvenient
forum or that the venue of the suit, action or proceeding is improper. Nothing
in this Section shall affect or limit any right to serve process in any other
manner permitted by law.
(g) Intentionally
Omitted.
(h) Equal
Treatment.
No
consideration shall be offered or paid to any person to amend or consent to
a
waiver or modification of any provision of the Transaction Documents unless
the
same consideration is also offered and paid to all the parties to the
Transaction Documents.
[Signature
Pages Follow]
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SIGNATURE
PAGE TO SUBSCRIPTION AGREEMENT
IN
WITNESS WHEREOF, the undersigned parties have executed this Subscription
Agreement as of the date first above written.
| COMPANY: | ||
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Lifesciences
Opportunities Incorporated
a
Florida corporation
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| By: | ||
| Name: |
Xxxxx Xxxxx |
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| Title: | Chief Executive Officer | |
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OMNIBUS
SUBSCRIBER SIGNATURE PAGE TO
The
undersigned hereby executes and delivers the Subscription Agreement to which
this signature page is attached, which, together with all counterparts of the
Agreement and signature pages of the other parties named in said Agreement,
shall constitute one and the same document in accordance with the terms of
the
Agreement.
| Print Name: | ||
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By: |
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| Name: |
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| Title: |
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| Address: |
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| Telephone: |
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| Facsimile: |
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| SSN/EIN#: |
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| Number of Units Purchased: | |
| Aggregate Purchase Price: |
$ |
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