SUBSCRIPTION AGREEMENT
Exhibit 10.1
Gentlemen:
The undersigned (the “Investor”) hereby confirms its agreement with you as follows:
This Subscription Agreement, including the Terms and Conditions for Purchase of Units attached
hereto as Annex I (collectively, this “Agreement”) is made as of the date set forth
below between Idera Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and the
Investor.
The Company has authorized the sale and issuance to the Investor of up to an aggregate of
4,071,005 units (the “Units”), each consisting of (i) one share (the “Share,”
collectively the “Shares”) of its common stock, par value $0.001 per share (the “Common
Stock”), and (ii) one warrant (the “Warrant,” collectively the “Warrants”) to
purchase .40 of a share of Common Stock (the fractional amount being the “Warrant Ratio”),
for a purchase price of $3.71 per Unit (the “Purchase Price”). The initial exercise price
of the Warrant is $3.71 per whole share. The shares of Common Stock issuable upon the exercise of
the Warrants are referred to herein as the “Warrant Shares.” The Warrants are exercisable
beginning on the date of the Closing (as defined below), and have a term of exercise of five years.
The Warrant Shares, together with the Shares and the Warrants, are referred to herein as the
“Securities”. The form of Warrant is attached hereto as Exhibit A.
The offering and sale of the Units (the “Offering”) are being made pursuant to (1) an
effective Registration Statement on Form S-3 (including the Prospectus contained therein (the
“Base Prospectus”), the “Registration Statement”) filed by the Company with the
Securities and Exchange Commission (the “Commission”), (2) if applicable, certain “free
writing prospectuses” (as that term is defined in Rule 405 under the Securities Act of 1933, as
amended (the “Act”)), that have been or will be filed with the Commission and delivered to
the Investor on or prior to the date hereof, and (3) a Prospectus Supplement (the “Prospectus
Supplement” and together with the Base Prospectus, the “Prospectus”) containing certain
supplemental information regarding the Securities and terms of the Offering that will be filed with
the Commission and delivered to the Investor (or made available to the Investor by the filing by
the Company of an electronic version thereof with the Commission) no later than two (2) days
subsequent to the execution of this Agreement.
The Company and the Investor agree that the Investor will purchase from the Company and the
Company will issue and sell to the Investor the Units set forth below for the aggregate Purchase
Price set forth below. The Units shall be purchased pursuant to the Terms and Conditions for
Purchase of Units attached hereto as Annex I and incorporated herein by this reference as
if fully set forth herein. The Investor acknowledges that the Offering is not being underwritten by
the placement agent (the “Placement Agent”) named in the Prospectus Supplement and that
there is no minimum offering amount.
The Investor represents that, except as set forth below, (a) it has had no position, office or
other material relationship within the past three years with the Company or persons known to it to
be affiliates of the Company, (b) it is not a FINRA member or an Associated Person of any FINRA
member (as defined in FINRA Membership and Registration Rules Section 1011) as of the Closing (as
defined in Annex I), and (c) neither the Investor nor any group of Investors (as identified
in a public filing made
with the Commission) of which the Investor is a part in connection with the Offering of the
Units, has acquired, or has obtained the right to acquire, 20% or more of the Common Stock (or
securities convertible into or exercisable for Common Stock) or the voting power of the Company on
a post-transaction basis. Exceptions:
The completion of the purchase and sale of the Securities shall occur at a closing (the
“Closing”) which, in accordance with Rule 15c6-1 promulgated under the Securities Exchange Act of
1934, as amended, is expected to occur on or about August 5, 2010. At the Closing, (a) the Company
shall cause its transfer agent to release to the Investor the number of Shares being purchased by
the Investor, (b) the Company shall deliver to the Investor the Warrants being purchased by the
Investor by physical delivery and (c) the aggregate purchase price for the Securities being
purchased by the Investor will be released from the escrow account established for the Closing. The
Investor shall settle the Shares via Deposit/Withdrawal At Custodian (“DWAC”) and the provisions
set forth in Exhibit B hereto shall be incorporated herein by reference as if set forth fully
herein, provided, however, if requested by the Investor, settlement shall be via delivery versus
payment (“DVP”), pursuant to the DVP instructions previously provided to the Investor by the
Company.
The Investor represents that it has received (or otherwise can obtain on the Commission’s
XXXXX filing system) the Base Prospectus, dated August 31, 2007, which is a part of the Company’s
Registration Statement, the documents incorporated by reference therein, and any free writing
prospectus (collectively, the “Disclosure Package”), prior to or in connection with the
receipt of this Agreement.
No offer by the Investor to buy Units will be accepted and no part of the Purchase Price will
be delivered to the Company until the Company has accepted such offer by countersigning a copy of
this Agreement, and any such offer may be withdrawn or revoked, without obligation or commitment of
any kind, at any time prior to the Company (or the Placement Agent on behalf of the Company)
sending (orally, in writing or by electronic mail) notice of its acceptance of such offer. An
indication of interest will involve no obligation or commitment of any kind until this Agreement is
accepted and countersigned by or on behalf of the Company.
[Remainder of the page intentionally left blank.]
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Number of Units:
Purchase Price Per Unit: $______
Aggregate Purchase Price: $______
Please check (A) or (B) below:
(A) Investor elects to have 4.99% Maximum Percentage Beneficial Ownership
Limitation in its Warrant: (check here) ______
Or
(B) Investor elects to have no Beneficial Ownership
Limitation
in its Warrant (Section 2(e) of the Warrant will be excluded):
(check here) ______
Please confirm that the foregoing correctly sets forth the agreement between us by signing in the
space provided below for that purpose.
| Dated as of: August 2, 2010 |
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|
INVESTOR |
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| By: | ||||
| Print Name: | ||||
| Title: | ||||
| Address: | ||||
| Email: | ||||
[INVESTOR SIGNATURE PAGE TO IDERA SUBSCRIPTION AGREEMENT]
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| Agreed and Accepted as of August 2, 2010: IDERA PHARMACEUTICALS, INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
[COMPANY SIGNATURE PAGE TO IDERA SUBSCRIPTION AGREEMENT]
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ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF UNITS
Authorization and Sale of the Units. Subject to the terms and conditions of this Agreement,
the Company has authorized the sale of the Units, which consist of the Shares and the Warrants.
Agreement to Sell and Purchase the Units; Placement Agent.
At the Closing (as defined in Section 3.1), the Company will sell to the Investor, and
the Investor will purchase from the Company, upon the terms and conditions set forth herein, the
number of Units set forth on the last page of the Agreement to which these Terms and Conditions for
Purchase of Units are attached as Annex I (the “Signature Page”) for the aggregate
Purchase Price therefor set forth on the Signature Page.
The Company may enter into agreements similar to this Agreement with other investors (the
“Other Investors”) and expects to complete sales of the Units to them. (The Investor and
the Other Investors are hereinafter referred to as the “Investors” and this Agreement and
the agreements executed by the Other Investors are hereinafter collectively referred to as the
“Agreements”). The Company may accept or reject any one or more Agreements in its sole
discretion.
The Company has entered into a Placement Agency Agreement, dated on or about August 2, 2010
(the “Placement Agreement”), with Xxxxxx & Xxxxxxx, LLC (the “Placement Agent”)
that contains certain representations, warranties, covenants and agreements of the Company that may
be relied upon by the Investor, which shall be a third party beneficiary thereof. Investor
acknowledges that the Company has agreed to pay the Placement Agent a fee (the “Placement
Fee”) in respect of the sale of Units to the Investor.
Closings and Delivery of the Units and Funds.
Closing. The completion of the purchase and sale of the Units (the “Closing”)
shall occur at a place and time (the “Closing Date”) and in the manner specified by the
Company and the Placement Agent as provided in the Placement Agreement, and of which the Investor
will be notified in advance by the Placement Agent, in accordance with Rule 15c6-1 promulgated
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). At the
Closing, (a) the Company shall cause its transfer agent to deliver to the Investor the number of
Shares set forth on the Signature Page registered in the name of the Investor or, if so indicated
on the Investor Questionnaire attached hereto as Exhibit B, in the name of a nominee
designated by the Investor and (b) the Company shall cause to be delivered to the Investor a
warrant to purchase a number of whole Warrant Shares determined by multiplying the Number of Shares
(and Units) set forth on the signature page by the Warrant Ratio and rounding down to the nearest
whole number, and (c) the aggregate purchase price for the Units being purchased by the Investor
will be released from the escrow account established for the Closing.
Conditions to the Company’s Obligations. The Company’s obligation to issue and sell
the Units to the Investor shall be subject to: (i) the receipt by the Company of the Purchase Price
for the Units being purchased hereunder as set forth on the Signature Page, (ii) an executed Form
W-9 and (iii) the accuracy of the representations and warranties made by the Investor and the
fulfillment of those undertakings of the Investor to be fulfilled prior to the Closing Date.
Conditions to the Investor’s Obligations. The Investor’s obligation to purchase the
Units will be subject to the condition that the Placement Agent shall not have: (a) terminated the
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Placement Agreement pursuant to the terms thereof or (b) determined that the conditions to the
Closing as set forth in the Placement Agreement have not been satisfied. The Investor’s
obligations are expressly not conditioned on the purchase by any or all of the Other Investors of
the Units that they have agreed to purchase from the Company or the issuance of any minimum amount
of Units by the Company.
Delivery of Funds and Units. The Investor shall settle the Shares via
Deposit/Withdrawal At Custodian (“DWAC”) and the provisions set forth in Exhibit B hereto
shall be incorporated herein by reference as if set forth fully herein, and the Warrants via
physical delivery, and simultaneously therewith or prior thereto, payment shall be made by the
Investor to the escrow account designated by the Company, provided, however, if requested by the
Investor, settlement shall be via delivery versus payment (“DVP”), pursuant to the DVP instructions
previously provided to the Investor by the Company.
Representations, Warranties and Covenants of the Investor.
The Investor acknowledges, represents and warrants to, and agrees with, the Company and the
Placement Agent that:
The Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified
to make decisions with respect to, investments in securities presenting an investment decision like
that involved in the purchase of the Units, including investments in securities issued by the
Company and investments in comparable companies, (b) has answered all questions on the Signature
Page and the Investor Questionnaire and the answers thereto are true and correct as of the date
hereof and will be true and correct as of the Closing Date and (c) in connection with its decision
to purchase the number of Units set forth on the Signature Page, has received and is relying only
upon the Disclosure Package. Other than the issuance of the Units as described in Section 1 of this
Agreement, the Investor acknowledges that it has not received from the Company any information that
the Company has advised the Investor that it deems to be material or non-public concerning the
Company.
(a) No action has been or will be taken in any jurisdiction outside the United States by the
Company or the Placement Agent that would permit an offering of the Securities, or possession or
distribution of offering materials in connection with the issue of the Securities in any
jurisdiction outside the United States where action for that purpose is required, (b) if the
Investor is outside the United States, it will comply with all applicable laws and regulations in
each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its
possession or distributes any offering material, in all cases at its own expense and (c) the
Placement Agent is not authorized to make and has not made any representation, disclosure or use of
any information in connection with the issue, placement, purchase and sale of the Units, except as
set forth or incorporated by reference in the Disclosure Package.
(a) The Investor has full right, power, authority and capacity to enter into this Agreement
and to consummate the transactions contemplated hereby and has taken all necessary action to
authorize the execution, delivery and performance of this Agreement, and (b) this Agreement
constitutes a valid and binding obligation of the Investor enforceable against the Investor in
accordance with its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting
parties’ rights generally and except as enforceability may be subject to general principles of
equity (regardless of whether such enforceability is considered in a proceeding in equity or at
law) and except as to the enforceability of any rights to indemnification or contribution that may
be violative of the public policy underlying any law, rule or regulation (including any federal or
state securities law, rule or regulation).
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The Investor understands that nothing in this Agreement, the Base Prospectus, the Prospectus
Supplement or any other materials presented to the Investor in connection with the purchase and
sale of the Units constitutes legal, tax or investment advice. The Investor has consulted such
legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or
appropriate in connection with its purchase of Units.
Since the date on which a Placement Agent first contacted the Investor about the Offering, the
Investor has kept the Offering confidential and has not engaged in any purchases or sales of the
securities of the Company (including, without limitation, any Short Sales involving the Company’s
securities). The Investor covenants that it will keep the Offering confidential and not engage in
any purchases or sales of the securities of the Company (including Short Sales) prior to the time
that the transactions contemplated by this Agreement are publicly disclosed. Each Investor agrees
that it will not use any of the Securities acquired pursuant to this Agreement to cover any short
position in the Common Stock if doing so would be in violation of applicable securities laws. For
purposes hereof, “Short Sales” include, without limitation, all “short sales” as
defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against
the box, and all types of direct and indirect stock pledges, forward sales contracts, options,
puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h)
under the Exchange Act) and similar arrangements (including on a total return basis), and sales and
other transactions through non-US broker dealers or foreign regulated brokers.
Survival of Representations, Warranties and Agreements; Third Party Beneficiary.
Notwithstanding any investigation made by any party to this Agreement or by the Placement Agent,
all covenants, agreements, representations and warranties made by the Company and the Investor
herein will survive the execution of this Agreement, the delivery to the Investor of the Units
being purchased and the payment therefor. The Placement Agent shall be a third party beneficiary
with respect to the representations, warranties and agreements of the Investor in Section 4 hereof.
Notices. All notices, requests, consents and other communications hereunder will be in
writing, will be mailed (a) if within the domestic United States by first-class registered or
certified airmail, or nationally recognized overnight express courier, postage prepaid, or by
facsimile or (b) if delivered from outside the United States, by International Federal Express or
facsimile, and will be deemed given (i) if delivered by first-class registered or certified mail
domestic, three business days after so mailed, (ii) if delivered by nationally recognized overnight
carrier, one business day after so mailed, (iii) if delivered by International Federal Express, two
business days after so mailed and (iv) if delivered by facsimile, upon electronic confirmation of
receipt and will be delivered and addressed as follows:
| if to the Company, to : |
Idera Pharmaceuticals, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Facsimile: ______________
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Facsimile: ______________
with copies (for information purposes only) to :
Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
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If to the Investor: at its address on the Signature Page hereto, or at such other address or
addresses as may have been furnished to the Company in writing, with copies (for informational
purposes only) to the person(s) identified on the Signature Page hereto.
Changes. This Agreement may not be modified or amended except pursuant to an instrument in
writing signed by the Company and the Investor.
Headings. The headings of the various sections of this Agreement have been inserted for
convenience of reference only and will not be deemed to be part of this Agreement.
Severability. In case any provision contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the remaining provisions
contained herein will not in any way be affected or impaired thereby.
Governing Law. This Agreement will be governed by, and construed in accordance with, the
internal laws of the State of New York, without giving effect to the principles of conflicts of law
that would require the application of the laws of any other jurisdiction.
Counterparts. This Agreement may be executed in two or more counterparts, each of which will
constitute an original, but all of which, when taken together, will constitute but one instrument,
and will become effective when one or more counterparts have been signed by each party hereto and
delivered to the other parties.
Confirmation of Sale. The Investor acknowledges and agrees that the Investor’s receipt of the
Company’s counterpart to this Agreement, together with the Prospectus Supplement (or the filing by
the Company of an electronic version thereof with the Commission), shall constitute written
confirmation of the Company’s sale of Units to the Investor.
Press Release. The Company and the Investor agree that the Company shall issue a press release
announcing the material terms of the Offering prior to the opening of the financial markets in New
York City on the business day immediately after the date hereof to the extent permitted by
applicable law and the rules and regulations of the Commission.
Termination. In the event that the Placement Agreement is terminated by the Placement Agent
pursuant to the terms thereof, this Agreement shall terminate without any further action on the
part of the parties hereto.
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Exhibit A
Form of Warrant
COMMON STOCK PURCHASE WARRANT
| Warrant Shares: ______ | Initial Exercise Date: August ___, 2010 |
THIS COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received,
______ or its assigns (the “Holder”) is entitled, upon the terms and subject to the
limitations on exercise and the conditions hereinafter set forth, at any time on or after the date
hereof (the “Initial Exercise Date”) and on or prior to the close of business on the five
year anniversary of the Initial Exercise Date (the “Termination Date”) but not thereafter,
to subscribe for and purchase from Idera Pharmaceuticals, Inc., a Delaware corporation (the
“Company”), up to ___ shares (as subject to adjustment hereunder, the “Warrant
Shares”) of Common Stock. The purchase price of one share of Common Stock under this Warrant
shall be equal to the Exercise Price, as defined in Section 2(b).
Section 1. Definitions. Capitalized terms used and not otherwise defined
herein shall have the meanings set forth in those certain Subscription Agreements (the
“Purchase Agreement”), dated August 2, 2010, between the Company and the purchasers
signatory thereto.
Section 2. Exercise.
a) Exercise of the purchase rights represented by this Warrant may be made, in whole or
in part, at any time or times on or after the Initial Exercise Date and on or before the
Termination Date by delivery to the Company (or such other office or agency of the Company
as it may designate by notice in writing to the registered Holder at the address of the
Holder appearing on the books of the Company) of a duly executed facsimile copy of the
Notice of Exercise Form annexed hereto. Within three (3) Trading Days following the date of
exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price (as defined
below) for the shares specified in the applicable Notice of Exercise by wire transfer or
cashier’s check drawn on a United States bank unless the cashless exercise procedure
specified in Section 2(c) below is specified in the applicable Notice of Exercise.
Notwithstanding anything herein to the contrary, the Holder shall not be required to
physically surrender this Warrant to the Company in order to effect an exercise hereunder
but shall deliver the original Warrant within three (3) Trading Days (as defined below)
following delivery of the Notice of Exercise. A “Trading Day” shall mean a day on
which the principal trading market on which the Common Stock is listed or quoted for trading
is open for trading. Partial exercises of this Warrant resulting in purchases of a portion
of the total number of Warrant Shares available hereunder shall have the effect of lowering
the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the
applicable number of Warrant Shares purchased. The Holder and the Company shall maintain
records showing the number of Warrant Shares purchased and the date of such purchases. The
Company shall deliver any objection to any Notice of Exercise Form within one (1) Business
Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant,
acknowledge and agree that, by reason of the provisions of this paragraph, following the
purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares
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available for purchase hereunder at any given time may be less than the amount stated
on the face hereof.
b) Exercise Price. The exercise price per share of the Common Stock under this
Warrant shall be $3.71, subject to adjustment hereunder (the “Exercise Price”).
c) Cashless Exercise. If at the time of exercise hereof there is no effective
registration statement registering, or the prospectus contained therein is not available for
the issuance of the Warrant Shares to the Holder and all of the Warrant Shares are not then
registered for resale by Holder into the market at market prices from time to time on an
effective registration statement for use on a continuous basis (or the prospectus contained
therein is not available for use), then this Warrant may also be exercised, in whole or in
part, at such time by means of a “cashless exercise” in which the Holder shall be entitled
to receive a certificate for the number of Warrant Shares equal to the quotient obtained by
dividing [(A-B) (X)] by (A), where:
| (A) | = | the Fair Market Value on the Trading Day immediately preceding the date on which Holder elects to exercise this Warrant by means of a “cashless exercise,” as set forth in the applicable Notice of Exercise; | |
| (B) | = | the Exercise Price of this Warrant, as adjusted hereunder; and | |
| (X) | = | the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise rather than a cashless exercise; |
provided that, in the event that (B) is greater than (A), this Warrant may not be so
exercised by means of a cashless exercise.
“Fair Market Value” means, for any date, the price determined by the first
of the following clauses that applies: (a) if the Common Stock is then listed or quoted on
the NYSE AMEX, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select
Market, or the New York Stock Exchange (each, a “Trading Market”), the closing sales
price for the shares of Common Stock for such date (or the nearest preceding date) on the
principal Trading Market on which the Common Stock is then listed or quoted as reported by
Bloomberg Financial Markets (or a comparable reporting service of national reputation
selected by the Company and reasonably acceptable to the Holder if Bloomberg Financial
Markets is not then reporting sales prices of such security) (collectively,
“Bloomberg”), (b) the last sales price of the Common Stock for such date (or the
nearest preceding date) on the OTC Bulletin Board, (c) if the Common Stock is not then
listed or 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 OTC Markets, Inc. (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 (d) in all other cases, the fair market
value of a share of Common Stock as determined in good faith by the Board of Directors of
the Company.
Notwithstanding anything herein to the contrary, on the Termination Date, this
Warrant shall be automatically exercised via cashless exercise pursuant to this Section 2(c)
to the extent permitted hereunder.
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d) Mechanics of Exercise.
i. Delivery of Certificates Upon Exercise. Certificates for
shares purchased hereunder shall be transmitted by the Company’s transfer
agent to the Holder by crediting the account of the Holder’s prime broker
with The Depository Trust Company through its Deposit or Withdrawal at
Custodian system (“DWAC”) if the Company is then a participant in
such system and either (A) there is an effective registration statement
permitting the issuance of the Warrant Shares to or resale of the Warrant
Shares by Holder or (B) this Warrant is being exercised via cashless
exercise, and otherwise by physical delivery to the address specified by the
Holder in the Notice of Exercise by the date (such date, the “Warrant
Share Delivery Date”) that is three (3) Trading Days after the later of
(A) the delivery to the Company of the Notice of Exercise and (B) payment of
the aggregate Exercise Price as set forth above (including by cashless
exercise, if permitted) (such later date, the “Effective Exercise
Date”). The Warrant Shares shall be deemed to have been issued, and
Holder or any other person designated in the Notice of Exercise to become
the record holder of the Warrant Shares shall be deemed to have become a
holder of record of such shares for all purposes as of the Effective
Exercise Date, provided that all taxes required to be paid by the Holder, if
any, pursuant to Section 2(d)(iv) prior to the issuance of such shares, have
then been paid. If the Company fails for any reason to deliver to the
Holder certificates evidencing the Warrant Shares subject to a Notice of
Exercise by the Warrant Share Delivery Date, the Company shall pay to the
Holder, in cash, as liquidated damages and not as a penalty, for each $1,000
of Warrant Shares subject to such exercise (based on the Fair Market Value
of the Common Stock on the date of the applicable Effective Exercise Date),
$10 per Trading Day (increasing to $20 per Trading Day on the fifth Trading
Day after such liquidated damages begin to accrue) for each Trading Day
after such Warrant Share Delivery Date until such certificates are
delivered.
ii. Delivery of New Warrants Upon Exercise. If this Warrant
shall have been exercised in part, the Company shall, within ten Trading
Days after surrender of this Warrant certificate, deliver to the Holder a
new Warrant evidencing the rights of the Holder to purchase the unpurchased
Warrant Shares called for by this Warrant, which new Warrant shall in all
other respects be identical with this Warrant.
iii. No Fractional Shares or Scrip. No fractional shares or
scrip representing fractional shares shall be issued upon the exercise of
this Warrant. As to any fraction of a share which the Holder would
otherwise be entitled to purchase upon such exercise, the Company shall, at
its election, either pay a cash adjustment in respect of such final fraction
in an amount equal to such fraction multiplied by the Exercise Price or
round up to the next whole share.
iv. Charges, Taxes and Expenses. Issuance of certificates for
Warrant Shares shall be made without charge to the Holder for any issue or
transfer tax or other incidental expense in respect of the issuance of such
certificate, all of which taxes and expenses shall be paid by the Company,
and such certificates shall be issued in the name of the Holder or in such
name or names as may be directed by the Holder; provided,
however, that in the event certificates for Warrant Shares
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are to be issued in a name other than the name of the Holder pursuant
to instructions given in the Notice of Exercise, the Company may require, as
a condition thereto, the payment of a sum sufficient to reimburse it for any
transfer tax incidental thereto.
v. Closing of Books. The Company will not close its
stockholder books or records in any manner which prevents the timely
exercise of this Warrant, pursuant to the terms hereof.
vi. Compensation for Buy-In on Failure to Timely Deliver
Certificates Upon Exercise. In addition to any other rights available
to the Holder, if the Company fails to cause the Transfer Agent to transmit
to the Holder a certificate or the certificates representing the Warrant
Shares pursuant to an exercise on or before the Warrant Share Delivery Date,
and if after such date the Holder, or any third party on behalf of the
Holder or for the Holder’s account, purchases (in an open market transaction
or otherwise) shares of Common Stock to deliver in satisfaction of a sale by
the Holder of the Warrant Shares which the Holder anticipated receiving upon
such exercise (a “Buy-In”), then the Company shall (A) pay in cash
to the Holder the amount, if any, by which (x) the Holder’s total purchase
price (including brokerage commissions, if any) for the shares of Common
Stock so purchased exceeds (y) the amount obtained by multiplying (1) the
number of Warrant Shares that the Company was required to deliver to the
Holder in connection with the exercise at issue times (2) the price at which
the sell order giving rise to such purchase obligation was executed, and (B)
at the option of the Holder, either reinstate the portion of the Warrant and
equivalent number of Warrant Shares for which such exercise was not honored
(in which case such exercise shall be deemed rescinded) or deliver to the
Holder the number of shares of Common Stock that would have been issued had
the Company timely complied with its exercise and delivery obligations
hereunder. For example, if the Holder purchases Common Stock having a total
purchase price of $11,000 to cover a Buy-In with respect to an attempted
exercise of shares of Common Stock with an aggregate sale price giving rise
to such purchase obligation of $10,000, under clause (A) of the immediately
preceding sentence the Company shall be required to pay the Holder $1,000.
The Holder shall provide the Company written notice indicating the amounts
payable to the Holder in respect of the Buy-In and, upon request of the
Company, evidence of the amount of such loss. Nothing herein shall limit a
Holder’s right to pursue any equitable remedies available to it hereunder,
including, without limitation, a decree of specific performance and/or
injunctive relief with respect to the Company’s failure to timely deliver
certificates representing shares of Common Stock upon exercise of the
Warrant as required pursuant to the terms hereof.
e) [Holder’s Exercise Limitations. The Company shall not effect any exercise
of this Warrant, and a Holder shall not have the right to exercise any portion of this
Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such
issuance after exercise as set forth on the applicable Notice of Exercise, the Holder
(together with the Holder’s Affiliates, as defined below), and any other Persons, as defined
below. acting as a group together with the Holder or any of the Holder’s Affiliates), would
beneficially own in excess of the Beneficial Ownership Limitation (as defined below).
“Person” means an individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or
4
other entity of any kind. “Affiliate” of a Person means any other Person that,
directly or indirectly through one or more intermediaries, controls or is controlled by or
is under common control with such Person as such terms are used in and construed under Rule
405 under the Securities Act of 1933, as amended. For purposes of the foregoing sentence,
the number of shares of Common Stock beneficially owned by the Holder and its Affiliates
shall include the number of shares of Common Stock issuable upon exercise of this Warrant
with respect to which such determination is being made, but shall exclude the number of
shares of Common Stock which would be issuable upon (i) exercise of the remaining,
nonexercised portion of this Warrant beneficially owned by the Holder or any of its
Affiliates and (ii) exercise or conversion of the unexercised or nonconverted portion of any
other securities of the Company (including, without limitation, any securities of the
Company or its which would entitle the holder thereof to acquire at any time Common Stock,
including, without limitation, any debt, preferred stock, right, option, warrant or other
instrument that is at any time convertible into or exercisable or exchangeable for, or
otherwise entitles the holder thereof to receive, Common Stock) subject to a limitation on
conversion or exercise analogous to the limitation contained herein beneficially owned by
the Holder or any of its Affiliates. Except as set forth in the preceding sentence, for
purposes of this Section 2(e), beneficial ownership shall be calculated in accordance with
Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it
being acknowledged by the Holder that the Company is not representing to the Holder that
such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is
solely responsible for any schedules required to be filed in accordance therewith. To the
extent that the limitation contained in this Section 2(e) applies, the determination of
whether this Warrant is exercisable (in relation to other securities owned by the Holder
together with any Affiliates) and of which portion of this Warrant is exercisable shall be
in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be
deemed to be the Holder’s determination of whether this Warrant is exercisable (in relation
to other securities owned by the Holder together with any Affiliates) and of which portion
of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation,
and the Company shall have no obligation to verify or confirm the accuracy of such
determination. In addition, a determination as to any group status as contemplated above
shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and
regulations promulgated thereunder. For purposes of this Section 2(e), in determining the
number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding
shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual
report filed with the Commission, as the case may be, (B) a more recent public announcement
by the Company or (C) a more recent written notice by the Company or the Transfer Agent
setting forth the number of shares of Common Stock outstanding. Upon the written or oral
request of a Holder, the Company shall within two Trading Days confirm orally and in writing
to the Holder the number of shares of Common Stock then outstanding. In any case, the
number of outstanding shares of Common Stock shall be determined after giving effect to the
conversion or exercise of securities of the Company, including this Warrant, by the Holder
or its Affiliates since the date as of which such number of outstanding shares of Common
Stock was reported. The “Beneficial Ownership Limitation” shall be 4.99% of the
number of shares of the Common Stock outstanding immediately after giving effect to the
issuance of shares of Common Stock issuable upon exercise of this Warrant. The Holder, upon
not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial
Ownership Limitation provisions of this Section 2(e), provided that the Beneficial Ownership
Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding
immediately after giving effect to the issuance of shares of Common Stock upon exercise of
this Warrant held by the Holder and the provisions of this Section 2(e) shall continue to
apply. Any such increase or decrease will not be effective until the 61st day
after such notice is delivered to the Company. The provisions of this paragraph shall be
construed and implemented in a manner otherwise than
5
in strict conformity with the terms of this Section 2(e) to correct this paragraph (or
any portion hereof) which may be defective or inconsistent with the intended Beneficial
Ownership Limitation herein contained or to make changes or supplements necessary or
desirable to properly give effect to such limitation. The limitations contained in this
paragraph shall apply to a successor holder of this Warrant.]1
Section 3. Certain Adjustments.
a) Stock Dividends and Splits. If the Company, at any time while this Warrant
is outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions
on shares of its Common Stock or any other equity or equity equivalent securities payable in
shares of Common Stock (which, for avoidance of doubt, shall not include any shares of
Common Stock issued by the Company upon exercise of this Warrant), (ii) subdivides
outstanding shares of Common Stock into a larger number of shares, (iii) combines (including
by way of reverse stock split) outstanding shares of Common Stock into a smaller number of
shares, or (iv) issues by reclassification of shares of the Common Stock any shares of
capital stock of the Company, then in each case the Exercise Price shall be multiplied by a
fraction of which the numerator shall be the number of shares of Common Stock (excluding
treasury shares, if any) outstanding immediately before such event and of which the
denominator shall be the number of shares of Common Stock outstanding immediately after such
event, and the number of shares issuable upon exercise of this Warrant shall be
proportionately adjusted such that the aggregate Exercise Price of this Warrant shall remain
unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective
immediately after the record date for the determination of stockholders entitled to receive
such dividend or distribution and shall become effective immediately after the effective
date in the case of a subdivision, combination or re-classification.
b) [RESERVED]
c) Pro Rata Distributions. If the Company, at any time while this Warrant is
outstanding, shall distribute to all holders of Common Stock (and not to the Holder)
evidences of its indebtedness or assets (including cash and cash dividends) or rights or
warrants to subscribe for or purchase any security, then in each such case upon any
subsequent exercise of this Warrant, the Holder shall have the right to receive, for each
Warrant Share that would have been issuable upon such exercise immediately prior to the date
on which a recording taken for the distribution of such evidences of indebtedness, assets,
rights or warrants, such evidences of indebtedness, assets, rights or warrants as would have
been distributed for such Warrant Share had this Warrant been exercised for such Warrant
Share immediately prior to such record date.
d) Fundamental Transaction. If, at any time while this Warrant is outstanding,
(i) the Company, directly or indirectly, in one or more related transactions effects any
merger or consolidation of the Company with or into another Person, (ii) the Company,
directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance
or other disposition of all or substantially all of its assets in one or a series of related
transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer
(whether by the Company or another Person) is completed pursuant to which holders of Common
Stock are permitted to sell, tender or exchange their shares for other securities, cash or
property and has been accepted by the holders of 50% or more of the outstanding Common
Stock, (iv) the Company, directly or indirectly, in one or more related transactions effects
any reclassification, reorganization or recapitalization of the Common Stock or any
compulsory share exchange pursuant to which the Common Stock is
| 1 | Section 2(e) to be excluded if Investor has elected no blocker on its signature page. |
6
effectively converted into or exchanged for other securities, cash or property, (v) the
Company, directly or indirectly, in one or more related transactions consummates a stock or
share purchase agreement or other business combination (including, without limitation, a
reorganization, recapitalization, spin-off or scheme of arrangement) with another Person or
group of Persons whereby such other Person or group acquires more than 50% of the
outstanding shares of Common Stock (not including any shares of Common Stock held by the
other Person or other Persons making or party to, or associated or affiliated with the other
Persons making or party to, such stock or share purchase agreement or other business
combination) (each a “Fundamental Transaction”), then upon any subsequent exercise
of this Warrant, the Holder shall have the right to receive, for each Warrant Share that
would have been issuable upon such exercise immediately prior to the occurrence of such
Fundamental Transaction, such shares of stock, securities or assets as would have been
issuable or payable with respect to or in exchange for such Warrant Share had this Warrant
been exercised for such Warrant Share immediately prior to the consummation of such
Fundamental Transaction (the “Alternate Consideration”). If holders of Common Stock
are given any choice as to the securities, cash or property to be received in a Fundamental
Transaction, then the Holder shall be given the same choice as to the Alternate
Consideration it receives upon any exercise of this Warrant following such Fundamental
Transaction. The Company shall cause any successor entity in a Fundamental Transaction in
which the Company is not the survivor (the “Successor Entity”) to assume in writing
all of the obligations of the Company under this Warrant in accordance with the provisions
of this Section 3(d) and upon the occurrence of any such Fundamental Transaction, the
Successor Entity shall succeed to, and be substituted for (so that from and after the date
of such Fundamental Transaction, the provisions of this Warrant referring to the “Company”
shall refer instead to the Successor Entity), and may exercise every right and power of the
Company and shall assume all of the obligations of the Company under this Warrant with the
same effect as if such Successor Entity had been named as the Company herein.
e) Calculations. All calculations under this Section 3 shall be made to the
nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this
Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a
given date shall be the sum of the number of shares of Common Stock (excluding treasury
shares, if any) issued and outstanding.
f) Notice to Holder.
Whenever any adjustment is made pursuant to any provision of this Section 3,
the Company shall promptly mail to the Holder a notice setting forth such
adjustment and a brief statement of the facts requiring such adjustment.
Section 4. Transfer of Warrant.
a) Transferability. This Warrant and all rights hereunder are transferable, in
whole or in part, upon surrender of this Warrant at the principal office of the Company or
its designated agent, together with a written assignment of this Warrant in the form
attached hereto duly executed by the Holder or its agent or attorney, and funds sufficient
to pay any transfer taxes payable upon the making of such transfer. Upon such surrender
and, if required, such payment, the Company shall execute and deliver a new Warrant or
Warrants in the name of the assignee or assignees, as applicable, and in the denomination or
denominations specified in such instrument of assignment, and shall issue to the assignor a
new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall
promptly be cancelled. The Warrant, if properly
7
assigned in accordance herewith, may be exercised by a new holder for the purchase of
Warrant Shares prior to the issuance of a new Warrant.
b) New Warrants. This Warrant may be divided or combined with other Warrants
upon presentation hereof at the aforesaid office of the Company, together with a written
notice specifying the names and denominations in which new Warrants are to be issued, signed
by the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any
transfer which may be involved in such division or combination, the Company shall execute
and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided
or combined in accordance with such notice. All Warrants issued on transfers or exchanges
shall be dated the initial issuance date of this Warrant and shall be identical with this
Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c) Warrant Register. The Company shall register this Warrant, upon records to
be maintained by the Company for that purpose (the “Warrant Register”), in the name
of the record Holder hereof from time to time. The Company may deem and treat the
registered Holder of this Warrant as the absolute owner hereof for the purpose of any
exercise hereof or any distribution to the Holder, and for all other purposes, absent actual
notice to the contrary.
Section 5. Miscellaneous.
a) No Rights as Stockholder Until Exercise. This Warrant does not entitle the
Holder to any voting rights, dividends or other rights as a stockholder of the Company prior
to the exercise hereof as set forth in Section 2(d)(i).
b) Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants
that upon receipt by the Company of evidence reasonably satisfactory to it of the loss,
theft, destruction or mutilation of this Warrant or any stock certificate relating to the
Warrant Shares, and in case of loss, theft or destruction, of indemnity or security
reasonably satisfactory to it (which, in the case of the Warrant, shall not include the
posting of any bond), and upon surrender and cancellation of such Warrant or stock
certificate, if mutilated, the Company will make and deliver a new Warrant or stock
certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or
stock certificate.
c) Saturdays, Sundays, Holidays, etc. If the last or appointed day for the
taking of any action or the expiration of any right required or granted herein shall not be
a Business Day (as defined below), then, such action may be taken or such right may be
exercised on the next succeeding Business Day. “Business Day” means any day except
any Saturday, any Sunday, any day which is a federal legal holiday in the United States or
any day on which banking institutions in the State of New York are authorized or required by
law or other governmental action to close.
d) Authorized Shares.
The Company covenants that, during the period the Warrant is outstanding, it will
reserve from its authorized and unissued Common Stock a sufficient number of shares
to provide for the issuance of the Warrant Shares upon the exercise of any purchase
rights under this Warrant. The Company further covenants that its issuance of this
Warrant shall constitute full authority to its officers who are charged with the
duty of executing stock certificates to execute and issue the necessary certificates
for the Warrant Shares upon the exercise of the purchase rights under this Warrant.
The Company will take all such reasonable action as may be necessary to assure that
such Warrant Shares may be issued
8
as provided herein without violation of any applicable law or regulation, or of any
requirements of the Trading Market upon which the Common Stock may be listed. The
Company covenants that all Warrant Shares which may be issued upon the exercise of
the purchase rights represented by this Warrant will, upon exercise of the purchase
rights represented by this Warrant and payment for such Warrant Shares in accordance
herewith, be duly authorized, validly issued, fully paid and nonassessable and free
from all taxes, liens and charges created by the Company in respect of the issue
thereof (other than taxes in respect of any transfer occurring contemporaneously
with such issue).
Except and to the extent as waived or consented to by the Holder, the Company
shall not by any action, including, without limitation, amending its certificate of
incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of this
Warrant, but will at all times in good faith assist in the carrying out of all such
terms and in the taking of all such actions as may be necessary or appropriate to
protect the rights of Holder as set forth in this Warrant against impairment.
Without limiting the generality of the foregoing, the Company will (i) not increase
the par value of any Warrant Shares above the amount payable therefor upon such
exercise immediately prior to such increase in par value, (ii) take all such action
as may be necessary or appropriate in order that the Company may validly and legally
issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant
and (iii) use commercially reasonable efforts to obtain all such authorizations,
exemptions or consents from any public regulatory body having jurisdiction thereof,
as may be, necessary to enable the Company to perform its obligations under this
Warrant.
Before taking any action which would result in an adjustment in the number of
Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the
Company shall obtain all such authorizations or exemptions thereof, or consents
thereto, as may be necessary from any public regulatory body or bodies having
jurisdiction thereof.
e) Jurisdiction. All questions concerning the construction, validity,
enforcement and interpretation of this Warrant shall be determined in accordance with the
provisions of the Purchase Agreement.
f) Restrictions. The Holder acknowledges that the Warrant Shares acquired upon
the exercise of this Warrant, if not registered, and if the Holder does not utilize cashless
exercise, will have restrictions upon resale imposed by state and federal securities laws.
g) Nonwaiver and Expenses. No course of dealing or any delay or failure to
exercise any right hereunder on the part of Holder shall operate as a waiver of such right
or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other
provision of this Warrant or the Purchase Agreement, if the Company willfully and knowingly
fails to comply with any provision of this Warrant, which results in any material damages to
the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover
any costs and expenses including, but not limited to, reasonable attorneys’ fees, including
those of appellate proceedings, incurred by the Holder in collecting any amounts due
pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
9
h) Notices. Any notice, request or other document required or permitted to be
given or delivered to the Holder by the Company shall be delivered in accordance with the
notice provisions of the Purchase Agreement.
i) Limitation of Liability. No provision hereof, in the absence of any
affirmative action by the Holder to exercise this Warrant to purchase Warrant Shares, and no
enumeration herein of the rights or privileges of the Holder, shall give rise to any
liability of the Holder for the purchase price of any Common Stock or as a stockholder of
the Company, whether such liability is asserted by the Company or by creditors of the
Company.
j) Remedies. The Holder, in addition to being entitled to exercise all rights
granted by law, including recovery of damages, will be entitled to specific performance of
its rights under this Warrant. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of the provisions of
this Warrant and hereby agrees to waive and not to assert the defense in any action for
specific performance that a remedy at law would be adequate.
k) Successors and Assigns. Subject to applicable securities laws, this Warrant
and the rights and obligations evidenced hereby shall inure to the benefit of and be binding
upon the successors and permitted assigns of the Company and the successors and permitted
assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any
Holder from time to time of this Warrant and shall be enforceable by the Holder or holder of
Warrant Shares.
l) Amendment. This Warrant may be modified or amended or the provisions hereof
waived with the written consent of the Company and the Holder.
m) Severability. Wherever possible, each provision of this Warrant shall be
interpreted in such manner as to be effective and valid under applicable law, but if any
provision of this Warrant shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provisions or the remaining provisions of this Warrant.
n) Headings. The headings used in this Warrant are for the convenience of
reference only and shall not, for any purpose, be deemed a part of this Warrant.
********************
(Signature Page Follows)
10
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer
thereunto duly authorized as of the date first above indicated.
| IDERA PHARMACEUTICALS, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
11
NOTICE OF EXERCISE
(1) The undersigned hereby elects to purchase Warrant Shares of the Company
pursuant to the terms of the attached Warrant (only if exercised in full), and tenders herewith (or
within three Trading Days will tender) payment of the exercise price in full, together with all
applicable transfer taxes, if any.
(2) Payment shall take the form of (check applicable box):
| o | in lawful money of the United States; or | ||
| o | [if permitted] the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in subsection 2(c). |
(3) Please issue a certificate or certificates representing said Warrant Shares in
the name of the undersigned or in such other name as is specified below:
The Warrant Shares shall be delivered to the following DWAC Account Number or by physical delivery
of a certificate to:
| DTC #:
|
||
| FBO:
|
||
| Beneficiary Account #:
|
[SIGNATURE OF HOLDER]
Name of Investing Entity:
|
Signature of Authorized Signatory of Investing Entity:
|
Name of Authorized Signatory:
|
Title of Authorized Signatory:
|
Date:
|
Signature Guaranteed:
NOTE: The signature to this Notice of Exercise must correspond with the name as it appears on the
face of the Warrant, without alteration or enlargement or any change whatsoever, and must be
guaranteed by a bank or trust company. Officers of corporations and those acting in a fiduciary or
other representative capacity should file proper evidence of authority to exercise the foregoing
Warrant.
ASSIGNMENT FORM
(To assign the foregoing warrant, execute
this form and supply required information.
Do not use this form to exercise the warrant.)
this form and supply required information.
Do not use this form to exercise the warrant.)
FOR VALUE RECEIVED, shares of the foregoing Warrant and all rights evidenced
thereby are hereby assigned to
| whose address is |
| . | ||||
Date: ,
Holder’s Signature:
|
||
Holder’s Address:
|
||
Signature Guaranteed:
NOTE: The signature to this Assignment Form must correspond with the name as it appears on the
face of the Warrant, without alteration or enlargement or any change whatsoever, and must be
guaranteed by a bank or trust company. Officers of corporations and those acting in a fiduciary or
other representative capacity should file proper evidence of authority to assign the foregoing
Warrant.
Exhibit B
IDERA PHARMACEUTICALS, INC. INVESTOR QUESTIONNAIRE
AND DWAC SETTLEMENT
Unless delivery of the Shares will be made pursuant to the delivery versus payment (“DVP”)
instructions previously provided to the Investor by the Company, in connection with the delivery of
Shares by electronic book-entry at The Depository Trust Company (“DTC”), registered in the
Investor’s name and address as set forth on the signature page of the Agreement to which this
Exhibit B is attached, and released by the Company’s transfer agent (the “Transfer Agent”), to the
Investor at the Closing, and pursuant to Section 3 of Annex I to the Agreement,
please provide us with the following information:
1.
|
The exact name that your Shares and Warrants are to be registered in. You may use a nominee name if appropriate: | |||
2.
|
The relationship between the Investor and the registered holder listed in response to item 1 above: | |||
3.
|
The mailing address of the registered holder listed in response to item 1 above: | |||
4.
|
The email address of the registered holder listed in response to item 1 above: | |||
5.
|
The Social Security Number or Tax Identification Number of the registered holder listed in the response to item 1 above: | |||
6.
|
Name of DTC Participant (broker-dealer at which the account or accounts to be credited with the Shares are maintained): | |||
7.
|
DTC Participant Number: | |||
8.
|
Name of Account at DTC Participant being credited with the Shares: | |||
9.
|
Account Number at DTC Participant being credited with the Shares: |
NO LATER THAN ONE (1) BUSINESS DAY AFTER THE EXECUTION OF THE AGREEMENT TO WHICH THIS
EXHIBIT B IS ATTACHED BY THE INVESTOR AND THE COMPANY, THE INVESTOR SHALL:
| (I) | DIRECT THE BROKER-DEALER AT WHICH THE ACCOUNT OR ACCOUNTS TO BE CREDITED WITH THE SHARES ARE MAINTAINED TO SET UP A DEPOSIT/WITHDRAWAL AT CUSTODIAN (“DWAC”) ON THE CLOSING DATE INSTRUCTING THE TRANSFER AGENT TO CREDIT SUCH ACCOUNT OR ACCOUNTS WITH THE SHARES, AND | ||
| (II) | REMIT BY WIRE TRANSFER THE AMOUNT OF FUNDS EQUAL TO THE AGGREGATE PURCHASE PRICE FOR THE SECURITIES BEING PURCHASED BY THE INVESTOR TO THE ESCROW ACCOUNT DESIGNATED BY THE COMPANY. |
