RESEARCH FRONTIERS INCORPORATED
SUBSCRIPTION AGREEMENT
February 13, 2007
Research Frontiers Incorporated
000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxx, Chairman
Gentlemen:
This Subscription Agreement is made by and between
Research Frontiers Incorporated, a Delaware corporation (the
"Company"), and the undersigned (the "Subscriber"), in
connection with the offering (the "Offering") of certain shares of
common stock of the Company, $.0001 par value per share (the
"Shares"). The Offering and sale of the Shares are being made
pursuant to an effective Registration Statement on Form S-3 SEC
File Number: 333-133858 (including the exhibits thereto, as
amended at the date of this Agreement (the "Registration
Statement"), and the Prospectus contained therein (the "Base
Prospectus"), filed by the Company on May 5, 2006 with the
Securities and Exchange Commission (the "Commission") and a
Prospectus Supplement (the "Prospectus Supplement" containing
certain supplemental information regarding the Shares and terms
of the Offering that will be filed with the Commission and
delivered to the Subscriber along with the Company's counterpart
to this Agreement.
A. Subscription
1. Subscriber hereby irrevocably subscribes to purchase the
number of Shares listed on the signature page hereof at a price per
Share equal to $9.75 (the price per share multiplied by the number
of shares being purchased hereunder being the "Subscription
Price").
2. As part of the subscription, Subscriber herewith tenders:
(a) two copies of this Agreement duly completed and
executed by Subscriber.
(b) payment of the Subscription Price made by wire transfer
of immediately available funds in U.S. Dollars to the
account of Research Frontiers Incorporated at XX
Xxxxxx Chase Bank, 0000 Xxxxxxx Xxxx, Xxxxxxxx,
Xxx Xxxx 00000, Account No.: 000-000-000, ABA
Wire Code No.: 021 000 021.
3. Subscriber understands and agrees that the subscription
contained herein shall not be deemed binding upon the Company
until it is accepted by the Company and that the subscription may
be rejected by the Company in its sole discretion for any reason.
Subscriber further acknowledges and agrees that, subject to
applicable law, this subscription is irrevocable.
4. If this subscription is not accepted by the Company, all
Subscription Funds and the documents herewith delivered to the
Company by Subscriber will be returned promptly to Subscriber.
In such event, all proceeds theretofore received by the Company
from the Subscriber will be refunded in full, without interest or
deduction.
5. If this subscription is accepted by the Company, then the
Company shall promptly countersign both copies of this
Agreement and return one fully executed copy to Subscriber. All
Subscription Funds of Subscriber shall be applied to the purchase
of the Shares which Shares shall then be delivered to the
Subscriber either, as specified by Subscriber, in certificate form or
by electronic book-entry at The Depository Trust Company by
instructing the Company's transfer agent, Continental Stock
Transfer and Trust Company, to make such Shares available to
Subscriber under the Deposit/Withdrawal at Custodian ("DWAC")
system. All Subscription Funds of Subscriber shall be used for
research and development, working capital, acquisitions, and for
general corporate purposes in such amounts as the Company, in its
discretion, deems appropriate. The Company may also, in its
discretion, apply such Subscription Funds towards the
development of products using the Company's technology through
an investment by the Company in one or more joint ventures with
third parties set up for such purposes, or may directly apply
Subscription Funds to product development.
B. Investor Representations
6. In order to induce the Company to accept the subscription
hereby made, and recognizing that the Company will be relying
thereon in determining whether to accept such subscription,
Subscriber hereby represents and warrants to the Company as of
the date of this subscription as follows:
(a) Subscriber understands that the Shares are a highly
speculative investment and that Subscriber's financial
situation is such that (i) Subscriber can afford to hold
the Shares for an indefinite period of time and to sustain
a complete loss of its investment, and (ii) Subscriber has
adequate means of providing for Subscriber's current
needs and possible contingencies and has no need for
liquidity in this investment in the Company.
(b) Subscriber has received and carefully read the
Registration Statement, the Company's 2005 Annual
Report; the Company's Proxy Statement dated April 30,
2006; the Company's Annual Report on Form 10-K for
the fiscal year ending December 31, 2005; and the
Company's Quarterly Report on Form 10-Q for the
fiscal quarters ending March 31, 2006, June 30,2006,
and September 30, 2006 and all other reports filed
with the Commission during the past two years (collectively,
the "Reports"). The Company has also made available to
Subscriber all other documents and information that
Subscriber has requested relating to an investment in the
Company including but not limited to, the Registration
Statement and all documents incorporated therein by reference.
Subscriber represents that it has received the
Registration Statement, prior to or in connection with
the receipt of this Agreement.
(c) By virtue of Subscriber's knowledge and experience in
financial and business matters, Subscriber is capable of
evaluating the merits and risks of an investment in the
Shares. Subscriber has taken full cognizance of and
understands all the risk factors related to the purchase of
the Shares, including, but not limited to, those set forth
in the Company's reports and registration statements
filed with the Securities and Exchange Commission.
(d) Subscriber understands that the Shares are being offered
and sold to Subscriber in reliance on specific provisions
of federal and state securities laws of the United States
of America and that the Company is relying upon the
truth and accuracy of the representations, warranties,
agreements, acknowledgments and understandings of
Subscriber set forth herein in order to determine the
applicability of such provisions. Accordingly,
Subscriber agrees to notify the Company of any events
which would cause the representation and warranties of
Subscriber to be untrue or breached at any time after the
execution of this Agreement by Subscriber. The
Subscriber acknowledges, represents and agrees that no
action has been or will be taken in any jurisdiction
outside the United States by the Company that would
permit an offering of the Shares, or possession or
distribution of offering materials in connection with the
issue of the Shares in any jurisdiction outside the United
States where action for that purpose is required. Each
Subscriber outside the United States will comply with
all applicable laws and regulations in each foreign
jurisdiction in which it purchases, offers, sells or
delivers Shares or has in its possession or distributes any
offering material, in all cases at its own expense. No
party has been authorized to make, and has not made,
any representation or use of any information in
connection with the issue, placement, purchase and sale
of the Shares, except as set forth or incorporated by
reference in the Base Prospectus or the Prospectus
Supplement.
(e) Subscriber is an "accredited investor" as defined in Rule
501 promulgated under the Securities Act of 1933, as
amended.
(f) Subscriber, and any person acting in concert with
Subscriber, currently has no existing short position, and
during the last 20 trading days had no short position,
with respect to the common stock of the Company and
agrees not to enter into any short sales or other hedging
transactions with respect to any securities of the
Company at any time after the execution of this
Agreement by Subscriber and so long as any Shares are
held by or for the benefit of Subscriber or its affiliates or
persons acting in concert with Subscriber or its affiliates.
(g) In evaluating the suitability of an investment in the
Company, Subscriber has not relied upon any
representations or other information (whether oral or
written) from the Company, and its officers, directors,
agents, employees or representatives, other than as set
forth in the Reports. With respect to tax and other
economic considerations of this investment, Subscriber
is not relying for advice on the Company, or any
officers, directors, employees or agents thereof.
(h) Subscriber understands that Subscriber's subscription
hereunder is not transferable or assignable, either before
or after acceptance thereof by the Company, and that
Shares will only be issued in the name of Subscriber and
may not be assigned without the consent of the
Company.
(i) The Shares will be acquired for Subscriber's own
account, for investment purposes only, and not with a
view to distribution, assignment or resale to others.
(j) Subscriber understands that no federal or state agency
has made any finding or determination as to the fairness
of this offering or any recommendation or endorsement
relating to the Shares.
(k) The address heretofore provided to the Company by the
Subscriber is the true and correct residence of the
Subscriber, and Subscriber has no present intention of
becoming a resident of any other state or jurisdiction. (If
a corporation, trust or partnership, the Subscriber has its
principal place of business at the address set forth below
and was not organized for the specific purpose of
acquiring the Shares).
(l) Subscriber acknowledges that any delivery of offering
materials relating to the Shares prior to the
determination by the Company of Subscriber's
suitability as an investor shall not constitute an offer of
Shares until such determination of suitability shall be
made.
(m) This Agreement has been duly authorized, validly
executed, and delivered on behalf of Subscriber and is a
valid and binding agreement enforceable in accordance
with its terms, subject to general principles of equity and
to bankruptcy or other laws affecting the enforcement of
creditors' rights generally.
(n) Subscriber has not taken any action that would cause the
Company to be subject to any claim for commission or
other fee or remuneration by any broker, finder, or other
person and Subscriber hereby indemnifies the Company,
and its officers, directors, shareholders and
representatives, and each of their affiliates against any
such claim caused by the actions of Subscriber or any of
its employees or agents.
(o) Subscriber will not make any offers or sales of the
Shares other than pursuant to a registration statement
under the Securities Act or pursuant to an exemption
from registration under the Securities Act. The
Subscriber will comply with applicable prospectus
delivery requirements under the Exchange Act, and with
all applicable securities laws upon resale of the Shares.
(p) Subscriber will not, directly or through any affiliate or
person acting in concert with Subscriber, (i) create the
lowest reported sales price on the NASDAQ National
Market, (or other exchange or market if the Shares are
traded thereon) for the common stock of the Company
on any trading day or (ii) offer to sell shares of such
common stock at a price lower than the then prevailing
bid price for the common stock on such market.
(q) Subscriber hereby agrees to indemnify and hold
harmless the Company, its directors, officers, agents,
representatives, and each of their affiliates against any
and all loss, liability, claim, damage and expense
(including reasonable fees of attorneys and experts) as
incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment
thereto), in reliance upon and in conformity with
information furnished to the Company by Subscriber.
C. Company Representations and Warranties
7. The Company hereby represents and warrants to the
Subscriber that:
(a) The Company is validly existing and in good standing
under the laws of the State of Delaware and has all
requisite corporate power and authority to enter into and
to carry out and perform its obligations under this
Agreement.
(b) When issued and paid for on the date of closing, the
Shares will be validly issued, fully paid and non-
assessable.
(c) When and if executed by the Company, this Agreement
will have been duly authorized, validly executed, and
delivered on behalf of the Company and will be a valid
and binding agreement enforceable in accordance with
its terms, subject to general principles of equity and to
bankruptcy or other laws affecting the enforcement of
creditors' rights generally.
(d) If this subscription is accepted by the Company, the
Company will issue the Shares in the name of
Subscriber. Nothing in this section shall affect in any
way Subscriber's obligations and agreement to comply
with all applicable securities laws upon resale of the
Shares.
(e) The Company has filed with the Commission a
Registration Statement on Form S-3 (Registration File
No. 333-133858) under the Securities Act of 1933, as
amended (the "Securities Act"), which was declared
effective by the S.E.C. on May 25, 2006, for the
registration under the Securities Act of the Shares. At
the time of such filing, the Company met the
requirements of Form S-3 under the Securities Act.
Such registration statement meets the requirements set
forth in Rule 415(a)(1)(x) under the Securities Act and
complies with said Rule. The Company will file with
the Commission pursuant to Rule 424(b) under the
Securities Act, and the rules and regulations (the "Rules
and Regulations") of the Commission promulgated
thereunder, a supplement to the form of prospectus
included in such registration statement relating to the
placement of the Shares and the plan of distribution
thereof and has advised the Subscriber of all further
information (financial and other) with respect to the
Company required to be set forth therein. The Company
will also use its commercially reasonable efforts to keep
the Registration Statement continuously effective under
the Securities Act until the Shares have been sold
pursuant to the Registration Statement or an exemption
from the registration requirements of the Securities Act,
or may be sold without volume restrictions pursuant to
Rule 144(k) as determined by the counsel to the
Company pursuant to a written opinion letter to such
effect, addressed and reasonably acceptable to the
Company's transfer agent and the Subscriber. Any
reference in the Agreement to the Registration
Statement, the Base Prospectus or the Prospectus
Supplement shall be deemed to refer to and include the
documents incorporated by reference therein (the
"Incorporated Documents") pursuant to Item 12 of Form
S-3 which were filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), on or before
the date of this Agreement, or the issue date of the Base
Prospectus or the Prospectus Supplement, as the case
may be; and any reference in this Agreement to the
terms "amend," "amendment" or "supplement" with
respect to the Registration Statement, the Base
Prospectus or the Prospectus Supplement shall be
deemed to refer to and include the filing of any
document under the Exchange Act after the date of this
Agreement, or the issue date of the Base Prospectus or
the Prospectus Supplement, as the case may be, deemed
to be incorporated therein by reference. All references
in this Agreement to financial statements and schedules
and other information which is "contained," "included,"
"described," "referenced," "set forth" or "stated" in the
Registration Statement, the Base Prospectus or the
Prospectus Supplement (and all other references of like
import) shall be deemed to mean and include all such
financial statements and schedules and other information
which is or is deemed to be incorporated by reference in
the Registration Statement, the Base Prospectus or the
Prospectus Supplement, as the case may be. No stop
order suspending the effectiveness of the Registration
Statement or the use of the Base Prospectus or the
Prospectus Supplement has been issued, and no
proceeding for any such purpose is pending or has been
initiated or, to the Company's knowledge, is threatened
by the Commission.
(f) The Registration Statement (and any further documents
to be filed with the Commission on or prior to the
Closing Date) contains all exhibits and schedules as
required by the Securities Act. Each of the Registration
Statement and any post-effective amendment thereto, at
the time it became effective, complied in all material
respects with the Securities Act and the Exchange Act
and the applicable rules and regulations issued
thereunder, and did not and, as amended or
supplemented, if applicable, will not, contain any untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make
the statements therein not misleading. The Base
Prospectus and the Prospectus Supplement, each as of
its respective date, comply in all material respects with
the Securities Act and the Exchange Act and the
applicable rules and regulations issued thereunder.
Each of the Base Prospectus and the Prospectus
Supplement, as amended or supplemented, did not and
will not contain as of the date thereof any untrue
statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in
light of the circumstances under which they were made,
not misleading. The Incorporated Documents, when
they were filed with the Commission, conformed in all
material respects to the requirements of the Exchange
Act and the applicable Rules and Regulations, and none
of such documents, when they were filed with the
Commission, contained any untrue statement of a
material fact or omitted to state a material fact necessary
to make the statements therein (with respect to
Incorporated Documents incorporated by reference in
the Base Prospectus or Prospectus Supplement, in light
of the circumstances under which they were made) not
misleading; and any further documents so filed an
incorporated by reference in the Base Prospectus or
Prospectus Supplement, when such documents are filed
with the Commission, will conform in all material
respects to the requirements of the Exchange Act and the
applicable Rules and Regulations, as applicable, and
will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under
which they were made, not misleading. Notwithstanding
the foregoing, the Company makes no representations or
warranties as to information, if any, contained in or
omitted from the Prospectus Supplement or any
amendment thereof or supplement thereto in reliance
upon and in conformity with information furnished in
writing to the Company by or on behalf of the
Subscriber specifically for use in the Registration
Statement or the Prospectus Supplement. No post-
effective amendment to the Registration Statement
reflecting any facts or events arising after the date
thereof which represent, individually or in the aggregate,
a fundamental change in the information set forth therein
is required to be filed with the Commission. There are
no documents required to be filed with the Commission
in connection with the transaction contemplated hereby
that (x) have not been filed as required pursuant to the
Securities Act or (y) will not be filed within the requisite
time period. There are no contracts or other documents
required to be described in the Base Prospectus or
Prospectus Supplement, or to be filed as exhibits or
schedules to the Registration Statement, which have not
been described or filed as required.
D. Miscellaneous
8. This Agreement constitutes the entire understanding of the
parties with regard to the subject matter, supersedes all written and
oral agreements with respect to the same and may not be waived,
modified, changed, discharged, terminated, revoked or canceled
except by a writing signed by the party against which enforcement
thereof is sought.
9. Each party shall indemnify the other against any loss, cost
or damages (including reasonable attorney's fees and expenses)
incurred as a result of such parties' breach of any representation,
warranty, or covenant contained in this Agreement.
10. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of New York affecting
contracts made in and to be performed in such State without giving
effect to principles governing choice of laws, irrespective of the
domicile of any party or the place of execution of this Agreement
by any party or the location for performance of any of the terms
hereof, and the parties hereto shall be subject to the exclusive
jurisdiction of the state and federal courts located in Nassau
County, New York, United States of America. Facsimile
signatures to this Agreement or on any notice given hereunder
shall be binding on all parties hereto.
11. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
12. The Subscriber hereby certifies that Subscriber has read
and understands this Subscription Agreement, that the
representations and warranties made by the Subscriber in this
Subscription Agreement are accurate on the date hereof, that
Subscriber recognizes that the Company is relying on such
representations and warranties and covenants and that they shall
remain in effect through the closing of the sale of the Shares to
Subscriber hereunder unless Subscriber notifies the Company
otherwise.
13. All notices required or permitted to be given by either the
Company or the Subscriber pursuant to the terms of this
Agreement shall be in writing and shall be deemed given when
delivered personally or by facsimile, or by overnight or two day
courier addressed to the parties at the last known address of the
party or such other address as a party may request by notifying the
other in writing.
14. The representations, warranties, covenants, indemnities,
and agreements of the parties contained herein shall survive any
termination or expiration of this Agreement.
IN WITNESS WHEREOF, the Subscriber has executed this
Subscription Agreement as of the date above written.
___________________________________________
INVESTOR
By: _______________________________________
Print Name: ________________________________
Title: ______________________________________
Address:____________________________________
____________________________________
____________________________________
Telephone:__________________________________
Facsimile: __________________________________
Number of Shares: ___________________________
Accepted and Agreed To:
RESEARCH FRONTIERS INCORPORATED
By:____________________________________________
Xxxxxx X. Xxxx, Chairman
Date of Acceptance: February 13, 2007
