SECURITIES PURCHASE AGREEMENT
THIS
SECURITIES PURCHASE AGREEMENT
(this
“Agreement”)
is
made this 12th
day of
April, 2007, by and between the investors listed on Appendix
A
hereto
(the “Investors”),
Modigene Inc., a Nevada corporation (the “Company”),
and
Modigene Inc., a Delaware corporation (“Modigene”);
RECITALS
WHEREAS,
the
Company has an authorized capitalization consisting of 300,000,000 shares of
common stock, par value $0.00001 per share (the “Common
Stock”),
of
which 42,253,972 are currently issued and outstanding as of the date hereof,
and
10,000,000 shares of preferred stock, $0.00001 per share, of which no shares
are
currently outstanding; and
WHEREAS,
the
Company desires to sell to Investors, and Investors desire to purchase from
the
Company, a certain number of shares of Common Stock, as more particularly
described in this Agreement, together with 333,333 five-year warrants to
purchase 25% of a share of Common Stock for an exercise price of $2.50 per
whole
share (the “Warrants”),
all
on the terms and conditions set forth in this Agreement; and
WHEREAS,
the
Company and the Investors are executing and delivering this Agreement in
reliance upon the exemption from securities registration afforded by the
provisions of Regulation D (“Regulation
D”),
as
promulgated by the U.S. Securities and Exchange Commission under the Securities
Act of 1933, as amended (the “Securities
Act”);
and
WHEREAS,
the
Company is currently negotiating a merger transaction pursuant to which Modigene
Acquisition Corporation, a wholly-owned Delaware corporation subsidiary of
the
Company (the “Acquisition
Subsidiary”),
will
merge (the “Merger”)
with
and into and Modigene, with Modigene remaining as the surviving entity after
the
Merger, and whereby the stockholders of Modigene will receive Common Stock
in
exchange for their capital stock of Modigene, as contemplated by the current
draft Agreement of Merger and Reorganization (the “Merger
Agreement”)
being
negotiated among the Company, Acquisition Subsidiary and Modigene;
and
WHEREAS,
in
connection with the Merger, the Company intends to offer (the “Offering”),
in
compliance with Rule 506 of Regulation D and available prospectus exemptions
in
Canada to accredited investors in a private placement transaction, a minimum
(the “Minimum”)
of
4,000,000 units (the “Units”)
and a
maximum (the “Maximum”)
of
6,666,666 Units, or such greater amount not to exceed 8,666,666 Units (including
2,000,000 Units of over-allotment, the “Over-allotment”),
at a
purchase price of $1.50 per Unit, each Unit consisting of one share of Common
Stock and one Warrant, as contemplated by the current draft Confidential Private
Placement Memorandum prepared by the Company and Modigene (the “Memorandum”);
and
WHEREAS,
the
Investors have required Modigene to be a party to this Agreement in order to
make the representations and warranties to the Investors set forth herein;
NOW,
THEREFORE,
for and
in consideration of the mutual premises contained herein and for other good
and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Purchase
and Sale of the Common Stock and Warrants.
Subject
to the terms and conditions of this Agreement and the satisfaction of the
conditions to Closing (as defined below) and subject to the closing of the
Merger and the Offering, the Company agrees to sell to the Investors, and the
Investors agree to purchase from the Company, for an aggregate purchase price
of
$2,000,000 (the “Purchase
Price”)
a
certain number of shares of restricted Common Stock (the “Restricted
Shares”),
as
described in the following sentence, and 333,333 Warrants. The Warrants shall
be
issued pursuant to a Warrant Certificate substantially in the form attached
hereto as Exhibit
A.
The
number of Restricted Shares shall be (a) if the Minimum is raised in the
Offering, 4,833,333 Restricted Shares; (b) if the Maximum or over Maximum
including any Over-allotment is raised in the Offering, 5,533,333 Restricted
Shares; and (c) if more than the Minimum but less than the Maximum is raised
in
the Offering, 4,833,333 Restricted Shares, plus additional Restricted Shares
such that the aggregate number of Restricted Shares and Warrants will represent
a collective ownership of the Investors, on a fully-diluted basis taking into
account the exercise of all outstanding options and warrants, including all
Warrants (whether or not currently exercisable, including the Warrants being
purchased by the Investors hereunder), of 15% of the Common Stock as of the
date
the Restricted Shares are issued. The Common Stock to be sold to the Investors
pursuant to this Section 1 and the 333,333 Warrants shall sometimes be
collectively referred to as the “Purchased
Securities”.
The
Purchased Securities shall be allocated among the Investors based upon the
investment amounts set forth on Appendix
A
hereto.
2. The
Closing.
The
closing of the purchase and sale of the Purchased Securities (the “Closing”)
shall
occur at the offices of Gottbetter & Partners, LLP, 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, 00000 on the same day as the closing of the Merger and the
Offering (the “Closing
Date”).
On
the Closing Date, the Investors shall deliver the Purchase Price to the Company
by wire transfer of immediately available funds and, as soon as practicable
after the Closing Date, the Company shall issue and deliver, or shall cause
the
issuance and delivery of, stock certificates registered in the name of the
Investors and representing the Restricted Shares, and warrant certificates
registered in the name of the Investors representing the Investors’ right to
purchase the number of shares of Common Stock underlying the Warrants purchased
pursuant to this Agreement.
3. Closing
Conditions.
a. Conditions
to Obligations of Investors.
The
respective obligations of the Investors hereunder in connection with the Closing
are subject to the satisfaction (or waiver) of the following conditions: (i)
the
closing of the Merger and the Offering shall have occurred or shall occur
simultaneously with the Closing; (ii) the accuracy in all material respects
on
the Closing Date of the representations and warranties of the Company contained
herein; and (iii)
all
obligations, covenants and agreements of the Company required to be performed
at
or prior to the Closing Date shall have been performed.
b. Conditions
to Obligations of the Company.
The
obligations of the Company hereunder in connection with the Closing are subject
to the satisfaction (or waiver) of the following conditions: (i) the closing
of
the Merger and the Offering shall have occurred or shall occur simultaneously
with the Closing; (ii) the accuracy in all material respects when made and
on
the Closing Date of the representations and warranties of the Investors
contained herein; (iii) all
obligations, covenants and agreements of the Investors required to be performed
at or prior to the Closing Date shall have been performed;
and (iv)
the delivery by the Investors of the lock-up agreement described in Section
4 of
this Agreement.
4. Lock
Up Agreement.
The
Investors acknowledge and agree that the Purchased Securities will not be
registered under the Securities Act or any state securities laws (the
“State
Acts”).
As a
condition to the sale of the Purchased Securities, and without limitation of
the
representations by the Investors in Section 6 of this Agreement and the
provisions of Section 7 of this Agreement, the Investors will enter into an
agreement (the “Lock-Up
Agreement”)
with
the Company, in form and substance reasonably satisfactory to the parties
hereto, providing for certain restrictions on the sale or other disposition
of
the Purchased Securities by the Investors for a term of four (4) years from
the
Closing Date. On the first anniversary of the Closing Date, these restrictions
shall expire with respect to all of the Warrants and the sum of 1,333,333
Restricted Shares, plus 25% of the remainder of the Restricted Shares. On the
second, third and fourth anniversaries of the Closing Date, these restrictions
shall expire with respect to one-third of the Restricted Shares remaining
subject to such restrictions after the first anniversary of the Closing
Date.
5. Representations
and Warranties of the Company and Modigene.
In
order to induce the Investors to enter into this Agreement, the Company and
Modigene, as applicable, represent and warrant to the Investors the
following:
a. Subsidiaries.
The
Company has no direct or indirect subsidiaries other than Modigene Acquisition
Corp., and Liaison Design Group, LLC, and those set forth in the Exchange Act
Documents (as defined in Section 5(g)), or as are necessary or desirable to
consummate the Merger and the transactions contemplated in the Merger Agreement.
Except as disclosed in the Exchange Act Documents, the Company owns, directly
or
indirectly, all of the capital stock of each of its Subsidiaries (as defined
below) free and clear of any and all liens, and all the issued and outstanding
shares of capital stock of each Subsidiary are validly issued and are fully
paid, non-assessable and free of preemptive and similar rights. Modigene has
one
direct subsidiary, ModigeneTech Ltd. Unless the context otherwise indicates,
references to the terms “Subsidiary”
and
“Subsidiaries”
used
herein specifically refer to ModigeneTech Ltd., Modigene Acquisition Corp.,
and
Liaison Design Group, LLC, and those set forth in the Exchange Act Documents,
or
as are necessary or desirable to consummate the Merger and the transactions
contemplated in the Merger Agreement.
b. Organization
and Qualification.
The
Company, Modigene and the Subsidiaries, are each an entity duly incorporated
or
otherwise organized, validly existing and in good standing under the laws of
the
jurisdiction of its incorporation or organization (as applicable), with the
requisite power and authority to own and use its properties and assets and
to
carry on its business as currently conducted. Neither the Company nor Modigene,
nor any Subsidiary, is in violation or default of any of the provisions of
its
respective certificate or articles of incorporation, bylaws or other
organizational or charter documents. Each of the Company, Modigene and the
Subsidiaries is duly qualified to conduct business and is in good standing
as a
foreign corporation or other entity in each jurisdiction in which the nature
of
the business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good standing,
as
the case may be, could not have, or reasonably be expected to result in (i)
a
material adverse effect on the legality, validity or enforceability of this
Agreement or the Warrants, (ii) a material adverse effect on the results of
operations, assets, business, prospects or condition (financial or otherwise)
of
the Company, Modigene and the Subsidiaries, taken as a whole, or (iii) a
material adverse effect on the Company’s or Modigene’s ability to perform in any
material respect on a timely basis its obligations under this Agreement or
the
Warrants (any of (i), (ii) or (iii), a “Material
Adverse Effect”)
and no
proceeding has been instituted in any such jurisdiction revoking, limiting
or
curtailing or seeking to revoke, limit or curtail such power and authority
or
qualification.
c. Authorization;
Enforcement.
The
Company has the requisite corporate power and authority to enter into and to
consummate the transactions contemplated by this Agreement, the Lock-Up
Agreement and the Warrants (collectively, the “Transaction
Documents”)
and
otherwise to carry out its obligations hereunder and thereunder. The execution
and delivery of the Transaction Documents by the Company and the consummation
of
the transactions contemplated hereby and thereby have been duly authorized
by
all necessary action on the part of the Company and no further action is
required by the Company or its board of directors or stockholders in connection
therewith. Each Transaction Document has been (or upon delivery will have been)
duly executed by the Company and, when delivered in accordance with the terms
hereof and thereof, will constitute the valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms except
(i)
as limited by general equitable principles and applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as limited by laws
relating to the availability of specific performance, injunctive relief or
other
equitable remedies and (iii) insofar as indemnification and contribution
provisions may be limited by applicable law.
d. No
Conflicts.
The
execution, delivery and performance of the Transaction Documents by the Company,
the issuance and sale of the Purchased Securities and the consummation by the
Company of the other transactions contemplated hereby and thereby do not and
will not (i) conflict with or violate any provision of the Company’s or any
Subsidiary’s certificate or articles of incorporation, bylaws or other
organizational or charter documents, or (ii) conflict with, or constitute a
default (or an event that with notice or lapse of time, or both, would become
a
default) under, result in the creation of any lien upon any of the properties
or
assets of the Company or any Subsidiary, or give to others any rights of
termination, amendment, acceleration or cancellation (with or without notice,
lapse of time or both) of, any agreement, credit facility, debt or other
instrument (evidencing a Company or Subsidiary debt or otherwise) or other
understanding to which the Company or any Subsidiary is a party or by which
any
property or asset of the Company or any Subsidiary is bound or affected, or
(iii) conflict with or result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court or
governmental authority to which the Company or any Subsidiary is subject
(including federal and state securities laws and regulations), or by which
any
property or asset of the Company or a Subsidiary is bound or affected; except
in
the case of each of clauses (ii) and (iii), such as could not have, or
reasonably be expected to result in, a Material Adverse Effect.
e. Approvals.
The
execution, delivery, and performance by the Company of this Agreement require
no
consent of, action by or in respect of, or filing with, any person, governmental
body, agency, or official other than those consents that have been obtained
prior to the Closing and those filings required to be made pursuant to the
Securities Act and any State Acts which the Company undertakes to file within
the applicable time period or provincial filings required in connection with
sales in Canada.
f. Capitalization.
Upon
issuance in accordance with the terms of this Agreement against payment of
the
Purchase Price therefor, the Restricted Shares will be duly and validly issued,
fully paid, and nonassessable and free and clear of all liens imposed by or
through the Company, and, assuming the accuracy of the representations and
warranties of the Investors, will be issued in accordance with a valid exemption
from the registration or qualification provisions of the Securities Act, and
any
State Acts. The Company has not issued any capital stock since its most
recently filed periodic report under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”),
and
the
rules and regulations thereunder, and no
person
has any right of first refusal, preemptive right, right of participation, or
any
similar right to participate in the transactions contemplated by the Transaction
Documents. All of the outstanding shares of capital stock of the Company are
validly issued, fully paid and nonassessable, have been issued in compliance
with all federal and state securities laws, and none of such outstanding shares
was issued in violation of any preemptive rights or similar rights to subscribe
for or purchase securities. No further approval or authorization of any
stockholder, the board of directors of the Company or others is required for
the
issuance and sale of the Purchased Securities. There are no stockholders
agreements, voting agreements or other similar agreements with respect to the
Company’s capital stock to which the Company is a party or, to the knowledge of
the Company, between or among any of the Company’s stockholders.
g. Exchange
Act Filing.
During
the 12 calendar months immediately preceding the date of this Agreement, all
reports and statements, including all amendments, required to be filed by the
Company with the Securities and Exchange Commission (the “Commission”)
under
the Exchange Act, have been timely filed. Such filings, together with all
amendments and all documents incorporated by reference therein, are referred
to
as “Exchange
Act Documents.”
Each
Exchange Act Document conformed in all material respects to the requirements
of
the Exchange Act and the rules and regulations thereunder, and no Exchange
Act
Document, at the time each such document was filed, included any untrue
statement of a material fact or omitted to state any material fact required
to
be stated therein or necessary to make the statements therein, in light of
the
circumstances under which they were made, not misleading.
h. Company
Financial Statements. The
audited financial statements, together with the related notes of the Company
as
of December 31, 2006, included in the Company’s Form 10-KSB/A as filed with the
Commission on March 7, 2007 (the “Company
Financial Statements”),
fairly present in all material respects, on the basis stated therein and on
the
date thereof, the financial position of the Company at the respective dates
therein specified and its results of operations and cash flows for the periods
then ended. Such statements and related notes have been prepared in accordance
with generally accepted accounting principles in the United States
(“GAAP”)
applied on a consistent basis except as expressly noted therein.
i. Material
Changes; Undisclosed Events, Liabilities or Developments.
Since
the date of the latest audited financial statements included within the Exchange
Act Documents, except as specifically disclosed in a subsequent Exchange Act
Document filed prior to the date hereof, (i) there has been no event, occurrence
or development that has had or that could reasonably be expected to result
in a
Material Adverse Effect, (ii) the Company has not incurred any liabilities
(contingent or otherwise) other than (A) trade payables and accrued expenses
incurred in the ordinary course of business consistent with past practice and
(B) liabilities not required to be reflected in the Company’s financial
statements pursuant to GAAP or disclosed in filings made with the Commission,
(iii) the Company has not altered its method of accounting, (iv) the Company
has
not declared or made any dividend or distribution of cash or other property
to
its stockholders or purchased, redeemed or made any agreements to purchase
or
redeem any shares of its capital stock and (v) the Company has not issued any
equity securities to any officer, director or affiliate. The Company does not
have pending before the Commission any request for confidential treatment of
information. Except for the issuance of the Purchased Securities contemplated
by
this Agreement, no event, liability or development has occurred or exists with
respect to the Company or its Subsidiaries or their respective business,
properties, operations or financial condition, that would be required to be
disclosed by the Company under applicable securities laws at the time this
representation is made.
j. No
Disputes or Litigation Against the Company or Modigene.
There
is no action, suit, inquiry, notice of violation, proceeding or investigation
pending or, to the knowledge of the Company and Modigene, threatened against
or
affecting the Company and Modigene, any Subsidiary or any of their respective
properties before or by any court, arbitrator, governmental or administrative
agency or regulatory authority (federal, state, county, local or foreign)
(collectively, an “Action”)
which
(i) adversely affects or challenges the legality, validity or enforceability
of
any of the Transaction Documents or (ii) could, if there were an unfavorable
decision, have, or reasonably be expected to result in, a Material Adverse
Effect. Neither the Company nor Modigene, nor any Subsidiary, nor any director
or officer thereof, is or has been the subject of any Action involving a claim
of violation of or liability under federal or state securities laws or a claim
of breach of fiduciary duty. There has not been, and to the knowledge of the
Company or Modigene, there is not pending or contemplated, any investigation
by
the Commission involving the Company and Modigene or any current or former
director or officer of the Company or Modigene. The Commission has not issued
any stop order or other order suspending the effectiveness of any registration
statement filed by the Company or any Subsidiary under the Exchange Act or
the
Securities Act.
k. Labor
Relations.
No
material labor dispute exists or, to the knowledge of the Company and Modigene,
is imminent with respect to any of the employees of the Company which could
reasonably be expected to result in a Material Adverse Effect. None of the
Company’s, Modigene’s or any Subsidiary’s employees is a member of a union that
relates to such employee’s relationship with such company, and neither the
Company nor Modigene, nor any Subsidiary, is a party to a collective bargaining
agreement, and the Company, Modigene and the Subsidiaries believe that their
relationships with their respective employees are good. No executive officer,
to
the knowledge of the Company or Modigene, is, or is now expected to be, in
violation of any material term of any employment contract, confidentiality,
disclosure or proprietary information agreement or non-competition agreement,
or
any other contract or agreement or any restrictive covenant, and the continued
employment of each such executive officer does not subject the Company, Modigene
nor any of their Subsidiaries to any liability with respect to any of the
foregoing matters. The Company, Modigene and the Subsidiaries are in compliance
with all U.S. federal, state, local and foreign laws and regulations relating
to
employment and employment practices, terms and conditions of employment and
wages and hours, except where the failure to be in compliance could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
l. Compliance.
Neither
the Company nor Modigene, nor any Subsidiary, (i) is in default under or in
violation of (and no event has occurred that has not been waived that, with
notice or lapse of time or both, would result in a default by the Company or
Modigene, or any Subsidiary), nor has the Company or Modigene, or any Subsidiary
received notice of a claim that it is in default under or that it is in
violation of, any indenture, loan or credit agreement, or any other agreement
or
instrument to which it is a party or by which it or any of its properties is
bound (whether or not such default or violation has been waived), (ii) is in
violation of any order of any Court, arbitrator, or governmental body, or (iii)
is or has been in violation of any statute, rule or regulation of any
governmental authority, including without limitation all foreign, federal,
state
and local laws relating to taxes, environmental protection, occupational health
and safety, product quality and safety and employment and labor matters, except
in each case as could not, individually or in the aggregate, have or reasonably
be expected to result in a Material Adverse Effect. The Company is in compliance
with the applicable requirements of the Xxxxxxxx-Xxxxx Act of 2002, as amended,
and the rules and regulations thereunder, except where such noncompliance could
not have, or reasonably be expected to result in, a Material Adverse
Effect.
m. Regulatory
Permits.
The
Company, Modigene and the Subsidiaries possess all certificates, authorizations
and permits issued by the appropriate federal, state, local or foreign
regulatory authorities necessary to conduct their respective businesses, except
where the failure to possess such permits could not have, or reasonably be
expected to result in, a Material Adverse Effect (“Material
Permits”),
and
neither the Company nor Modigene, nor any Subsidiary, has received any notice
of
proceedings relating to the revocation or modification of any Material
Permit.
n. Title
to Assets.
The
Company and Modigene, and, as applicable, the Subsidiaries have good and
marketable title in fee simple to all real property owned by them that is
material to the business of the Company and Modigene, and good and marketable
title in all personal property owned by them that is material to the business
of
the Company and Modigene, in each case free and clear of all liens, except
for
liens as do not materially affect the value of such property and do not
materially interfere with the use made and proposed to be made of such property
by the Company and Modigene and liens for the payment of federal, state or
other
taxes, the payment of which is neither delinquent nor subject to penalties.
Any
real property and facilities held under lease by the Company and Modigene are
held by them under valid, subsisting and enforceable leases with which the
Company and Modigene are in compliance.
o. Patents
and Trademarks.
The
Company and Modigene, and any of their respective Subsidiaries have, or have
rights to use, all patents, patent applications, trademarks, trademark
applications, service marks, trade names, copyrights, licenses, and other
similar rights that are necessary or material for use in connection with their
respective businesses and which the failure to so have could, individually
or in
the aggregate, have or reasonably be expected to result in a Material Adverse
Effect (collectively, the “Intellectual
Property Rights”).
Neither the Company nor Modigene, nor any of their respective Subsidiaries,
has
received a written notice that the Intellectual Property Rights used by the
Company or Modigene, or any of their respective Subsidiaries, violates or
infringes upon the rights of any person. Except as set forth in the Exchange
Act
Documents, to the knowledge of the Company, all such Intellectual Property
Rights are enforceable and there is no existing infringement by another person
of any of the Intellectual Property Rights, except where such infringement
could
not have, or reasonably be expected to result in, a Material Adverse
Effect.
p. Insurance.
The
Company and Modigene and, as applicable, the Subsidiaries, are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses in which
the
Company and Modigene and the Subsidiaries are engaged, including, but not
limited to, directors’ and officers’ liability coverage. Neither the Company and
Modigene, nor any Subsidiary, has any reason to believe that it will not be
able
to renew its existing insurance coverage as and when such coverage expires
or to
obtain similar coverage from similar insurers as may be necessary to continue
its business without a significant increase in cost.
q. Transactions
With Affiliates and Employees.
Except
as set forth in the Exchange Act Documents, the draft Memorandum and those
transactions contemplated by the Transaction Documents, none of the officers
or
directors of the Company or Modigene and, to the knowledge of the Company or
Modigene, none of the employees of the Company or Modigene is presently a party
to any transaction with the Company, Modigene or any Subsidiary (other than
for
services as employees, officers, and directors), including any contract,
agreement, or other arrangement providing for the furnishing of services to
or
by, providing for rental of real or personal property to or from, or otherwise
requiring payments to or from any officer, director, or such employee or, to
the
knowledge of the Company or Modigene, any entity in which any officer, director,
or any such employee has a substantial interest or is an officer, director,
trustee, or partner.
r. Internal
Accounting Controls.
The
Company and its Subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed
in
accordance with management’s general or specific authorizations, (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and
to
maintain asset accountability, (iii) access to assets is permitted only in
accordance with management’s general or specific authorization, and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences. The Company has established disclosure controls and procedures
(as
defined in Exchange Act rules 13a-15(e) and 15d-15(e)) for the Company and
designed such disclosure controls and procedures to ensure that material
information relating to the Company and its Subsidiaries is made known to the
Company’s certifying officers by others within those entities, particularly
during the period in which the Company’s Form 10-KSB or 10-QSB, as the case may
be, are being prepared. The Company’s certifying officers have evaluated the
effectiveness of the Company’s controls and procedures as of the end of the
reporting period covered by the Company’s Form 10-KSB and each of the Company’s
Forms 10-QSB filed with the Commission (each such date, the “Evaluation
Date”)
and
presented in each such report their conclusions about the effectiveness of
the
Company’s disclosure controls and procedures based on their evaluations as of
the applicable Evaluation Date. Since the Evaluation Date of the Company’s most
recently filed Form 10-KSB or Form 10-QSB, there have been no significant
changes in the Company’s disclosure controls and procedures, the Company’s
internal control over financial reporting (as defined in Exchange Act Rules
13a-15(f) or 15d-15(f) or, to the Company’s knowledge, in other factors that
could significantly affect the Company’s internal controls over financial
reporting.
s. Solvency.
Based
on the financial condition of the Company as of the Closing Date (and assuming
that the Closing shall have occurred), (i) the Company’s fair saleable value of
its assets exceeds the amount that will be required to be paid on or in respect
of the Company’s existing debts and other liabilities (including known
contingent liabilities) as they mature; (ii) the Company’s assets do not
constitute unreasonably small capital to carry on its business for the current
fiscal year as now conducted and as proposed to be conducted including its
capital needs taking into account the particular capital requirements of the
business conducted by the Company, and projected capital requirements and
capital availability thereof; and (iii) the current cash flow of the Company,
together with the proceeds the Company would receive, were it to liquidate
all
of its assets, after taking into account all anticipated uses of the cash,
would
be sufficient to pay all amounts on or in respect of its debt when such amounts
are required to be paid. The Company does not intend to incur debts beyond
its
ability to pay such debts as they mature (taking into account the timing and
amounts of cash to be payable on or in respect of its debt).
t. Certain
Fees.
Other
than the cash and warrants commissions payable on the Closing, no brokerage
or
finder’s fees or commissions are or will be payable by the Company to any
broker, financial advisor or consultant, finder, placement agent, investment
banker, bank, or other person with respect to the transactions contemplated
by
this Agreement. The Investors shall have no obligation with respect to any
claims (other than such fees or commissions owed by the Investors pursuant
to
written agreements executed by the Investors which fees or commissions shall
be
the sole responsibility of such Investors) made by or on behalf of other persons
for fees of a type contemplated in this Section that may be due in connection
with the transactions contemplated by this Agreement.
u. Certain
Registration Matters.
Assuming the accuracy of each of the Investor’s representations and warranties
set forth in this Agreement, no registration under the Securities Act is
required for the offer and sale of the Purchased Securities by the Company
to
the Investors hereunder.
v. Listing
and Maintenance Requirements.
The
Company is, and has no reason to believe that it will not in the foreseeable
future continue to be, in compliance with the listing and maintenance
requirements for continued listing of the Common Stock on the NASD Over the
Counter Bulletin Board.
w. Investment
Company.
Neither
the Company nor Modigene is an “investment company” or an “affiliate” of an
“investment company” within the meaning of the Investment Company Act of 1940,
as amended.
x. Disclosure.
The
Investors confirm that in making their decision to enter into this Agreement,
the Investors have relied on the information contained in the draft Memorandum
and on the representations and warranties set forth in Section 5 of this
Agreement, and not on any other materials that have been furnished by or on
behalf of the Company or Modigene. The information contained in the Memorandum
and the representations and warranties of the Company and Modigene in this
Agreement are true and correct in all material respects and do not contain
any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements made therein, in light of the circumstances
under which they were made, not misleading. The Company and Modigene confirm
that neither they nor any person acting on their behalf has provided any of
the
Investors, or their respective agents or counsel, with any information that
the
Company or Modigene believes would constitute material, non-public information
following the announcement of the Closing and the transactions contemplated
thereby. The Company understands and confirms that the Investors will rely
on
the foregoing representations and covenants in effecting transactions in
securities of the Company.
y. Registration
Rights.
Other
than investors in the Offering and the broker-dealers receiving warrants in
connection with the Offering, no person has any right to cause the Company
to
effect the registration under the Securities Act of any securities of the
Company.
z. No
General Solicitation.
Neither
the Company nor any person acting on behalf of the Company has offered or sold
any of the Purchased Securities by any form of general solicitation or general
advertising. In connection with the Offering, the Company intends to offer
the
Units for sale only to “accredited investors” within the meaning of Rule 501
under the Securities Act.
aa. Acknowledgment
Regarding Investors’ Purchase of Securities.
The
Company and Modigene acknowledge and agree that each of the Investors is acting
solely in the capacity of an arm’s length purchaser with respect to the
Transaction Documents and the transactions contemplated thereby. The Company
and
Modigene further acknowledge that no Investor is acting as a financial advisor
or fiduciary of the Company or Modigene (or in any similar capacity) with
respect to the Transaction Documents and the transactions contemplated thereby,
and any advice given by any Investor or any of their respective representatives
or agents in connection with the Transaction Documents and the transactions
contemplated thereby is merely incidental to the Investors’ purchase of the
Purchased Securities. The Company and Modigene further represent to each
Investor that the Company’s and Modigene’s decision to enter into this Agreement
and the other Transaction Documents has been based solely on the independent
evaluation of the transactions contemplated hereby by the Company and Modigene
and their representatives.
6. Representations
and Warranties of the Investors.
In
order to induce the Company and Modigene to enter into this Agreement, each
of
the Investors, severally and not jointly, represents and warrants to the Company
and Modigene the following:
a. Authority.
If a
corporation, partnership, limited partnership, limited liability company, or
other form of entity, the Investor is duly organized or formed, as the case
may
be, validly existing, and in good standing under the laws of its jurisdiction
of
organization or formation. The Investor has all requisite individual or entity
right, power, and authority to execute, deliver, and perform this
Agreement.
b. Enforceability.
The
execution, delivery, and performance of this Agreement by the Investor have
been
duly authorized by all requisite partnership, corporate or other entity action,
as applicable. This Agreement has been duly executed and delivered by the
Investor, and, upon its execution by the Company and Modigene, shall constitute
the legal, valid, and binding obligation of the Investor, enforceable in
accordance with its terms, except to the extent that its enforceability is
limited by bankruptcy, insolvency, reorganization, moratorium, or other laws
relating to or affecting the enforcement of creditors’ rights generally and by
general principles of equity.
c. No
Violations.
The
execution, delivery, and performance of this Agreement by the Investor do not
and will not, with or without the passage of time or the giving of notice,
result in the breach of, or constitute a default, cause the acceleration of
performance, or require any consent under, or result in the creation of any
lien, charge or encumbrance upon any property or assets of the Investor pursuant
to, any material instrument or agreement to which the Investor is a party or
by
which the Investor or its properties may be bound or affected, and, do not
or
will not violate or conflict with any provision of the articles of incorporation
or bylaws, partnership agreement, operating agreement, trust agreement, or
similar organizational or governing document of the Investor, as applicable.
d. Knowledge
of Investment and its Risks.
The
Investor has such knowledge and experience in financial and business matters
so
as to be capable of evaluating the merits and risks of Investor’s investment in
the Purchased Securities. The Investor understands that an investment in the
Company represents a high degree of risk and there is no assurance that the
Company’s business or operations will be successful. The Investor has considered
carefully the risks attendant to an investment in the Company, and that, as
a
consequence of such risks, the Investor could lose Investor’s entire investment
in the Company.
e. Investment
Intent.
The
Investor hereby represents and warrants that (i) the Investor’s Purchased
Securities are being acquired for investment for the Investor’s own account, and
not as a nominee or agent and not with a view to the resale or distribution
of
all or any part of the Investor’s Purchased Securities, and the Investor has no
present intention of selling, granting any participation in, or otherwise
distributing any of the Investor’s Purchased Securities within the meaning of
the Securities Act, (ii) the Investor’s Purchased Securities are being acquired
in the ordinary course of the Investor’s business, and (iii) the Investor does
not have any contracts, understandings, agreements, or arrangements, directly
or
indirectly, with any person and/or entity to distribute, sell, transfer, or
grant participations to such person and/or entity with respect to, any of the
Investor’s Purchased Securities. The Investor is not purchasing the Investor’s
Purchased Securities as a result of any advertisement, article, notice or other
communication regarding the Investor’s Purchased 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.
f. Investor
Status.
The
Investor is an “accredited investor” as that term is defined by Rule 501 of
Regulation D promulgated under the Securities Act and the information provided
by the Investor in the Investor Questionnaire, attached hereto as Appendix
B,
is
truthful, accurate, and complete. The Investor is not registered as a
broker-dealer under Section 15 of the Exchange Act or an affiliate of such
broker-dealer, except as otherwise provided in the Investor
Questionnaire.
g. Disclosure.
The
Investor has reviewed the information provided to the Investor by the Company
in
connection with the Investor’s decision to purchase the Investor’s Purchased
Securities, including but not limited to, the Company’s publicly available
filings with the Commission and the information contained therein. The Company
has provided the Investor with all the information that the Investor has
requested in connection with the decision to purchase the Investor’s Purchased
Securities. The Investor further represents that the Investor has had an
opportunity to ask questions and receive answers from the Company regarding
the
business, properties, prospects, and financial condition of the Company. All
such questions have been answered to the full satisfaction of the Investor.
Neither such inquiries nor any other investigation conducted by or on behalf
of
the Investor or its representatives or counsel shall modify, amend, or affect
the Investor’s right to rely on the truth, accuracy, and completeness of the
disclosure materials and the Company’s representations and warranties contained
herein.
h. No
Registration.
The
Investor understands that Investor may be required to bear the economic risk
of
Investor’s investment in the Company for an indefinite period of time. The
Investor further understands that (i) neither the offering nor the sale of
the Investor’s Purchased Securities has been registered under the Securities Act
or any applicable State Acts in reliance upon exemptions from the registration
requirements of such laws, (ii) the Investor’s Purchased Securities must be
held by the Investor indefinitely unless the sale or transfer thereof is
subsequently registered under the Securities Act and any applicable State Acts,
or an exemption from such registration requirements is available, (iii) the
Company is under no obligation to register any of the Purchased Securities
on
the Investor’s behalf or to assist the Investor in complying with any exemption
from registration, and (iv) the Company will rely upon the representations
and warranties made by the Investor in this Agreement and the Transaction
Documents in order to establish such exemptions from the registration
requirements of the Securities Act and any applicable State Acts.
i. Transfer
Restrictions.
The
Investor will not transfer any of the Investor’s Purchased Securities unless
such transfer is registered or exempt from registration under the Securities
Act
and such State Acts, and, if requested by the Company in the case of an exempt
transaction, the Investor has furnished an opinion of counsel reasonably
satisfactory to the Company that such transfer is so exempt. The Investor
understands and agrees that (i) the certificates evidencing the Purchased
Securities will bear appropriate legends indicating such transfer restrictions
placed upon the Purchased Securities, (ii) the Company shall have no obligation
to honor transfers of any of the Investor’s Purchased Securities, including any
shares of Common Stock underlying the Warrants, in violation of such transfer
restrictions, and (iii) the Company shall be entitled to instruct any transfer
agent or agents for the securities of the Company to refuse to honor such
transfers.
j. No
Solicitation.
The
Investor (i) did not receive or review any advertisement, article, notice or
other communication published in a newspaper or magazine or similar media or
broadcast over television or radio, whether closed circuit, or generally
available, with respect to the Purchased Securities or (ii) was not solicited
by
any person, other than by representatives of the Company, with respect to a
purchase of the Purchased Securities.
k. Principal
Address.
The
Investor’s principal residence, if an individual, or principal executive office,
if an entity, is set forth on the signature page of this Agreement.
l. Reliance
by the Company and Modigene.
The
Investor acknowledges and consents to the Company’s and Modigene’s reliance on
the Investor’s representations and warranties made above for purposes of
complying with all applicable securities laws and any applicable exemptions
from
registration requirements thereunder and otherwise.
7. Transfer
Restrictions.
a. The
Restricted Shares and Common Stock issuable upon exercise of the Warrants (the
“Warrant
Shares”)
(the
Common Stock, Warrants and Warrant Shares are collectively referred to as the
“Securities”)
may
only be disposed of in compliance with state and federal securities laws. In
connection with any transfer of Securities other than pursuant to an effective
registration statement or Rule 144, the Company may require the transferor
thereof to provide to the Company an opinion of counsel selected by the
transferor and reasonably acceptable to the Company, the form and substance
of
which opinion shall be reasonably satisfactory to the Company, to the effect
that such transfer does not require registration of such transferred Securities
under the Securities Act. As a condition of transfer, any such transferee shall
agree in writing to be bound by the terms of this Agreement and shall have
the
rights of an Investor under this Agreement.
b. The
Investors agree to the imprinting, so long as is required by this Section 7,
of
a legend on any of the Securities in substantially the following
form:
THIS
SECURITY HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR
THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR
TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY.
c. Certificates
evidencing the Common Stock and Warrant Shares shall not contain any legend
(including the legend set forth in Section 7(b)), (i) while a registration
statement covering the resale of such security is effective under the Securities
Act, or (ii) following any sale of such Common Stock or Warrant Shares pursuant
to Rule 144, or (iii) if such Common Stock or Warrant Shares are eligible for
sale under Rule 144(k), or (iv) if such legend is not required under applicable
requirements of the Securities Act (including judicial interpretations and
pronouncements issued by the staff of the Commission). If all or any portion
of
an Investor Warrant is exercised at a time when there is an effective
registration statement to cover the resale of the Warrant Shares, such shares
shall be issued free of all legends. Except as otherwise provided in the Lock-Up
Agreement, the Company agrees that at such time as such legend is no longer
required under this Section 7(c), it will, five Trading Days (“Trading
Days”
shall
mean the days on which the Common Stock is traded or quoted on a Trading
Market). following the delivery by an Investor to the Company or the Company’s
transfer agent of a certificate representing Common Stock or Warrant Shares,
as
the case may be, issued with a restrictive legend (such fifth Trading Day,
the
“Legend
Removal Date”),
deliver or cause to be delivered to such Investor a certificate representing
such shares that is free from all restrictive and other legends. Except as
contemplated by the Lock-Up Agreement, the Company may not make any notation
on
its records or give instructions to any transfer agent of the Company that
enlarge the restrictions on transfer set forth in this Section 7. Upon requests
by the Investors, the certificates for Securities subject to legend removal
hereunder shall be transmitted by the transfer agent of the Company to the
Investors by crediting the account of the Investor’s prime broker with the
Depository Trust Company System.
d. In
addition to such Investor’s other available remedies, the Company shall pay to
an Investor, in cash, as partial liquidated damages and not as a penalty, for
each $1,000 of Common Stock or Warrant Shares (based on the VWAP of the Common
Stock on the date such Securities are submitted to the Company’s transfer agent)
delivered for removal of the restrictive legend and subject to Section 7(c),
$10
per Trading Day (increasing to $20 per Trading Day five (5) Trading Days after
such damages have begun to accrue) for each Trading Day after the Legend Removal
Date until such certificate is delivered without a legend. Nothing herein shall
limit such Investor’s right to pursue actual damages for the Company’s failure
to deliver certificates representing any Securities as required by this
Agreement and the Lock-Up Agreement, and such Investor shall have the right
to
pursue all remedies available to it at law or in equity including, without
limitation, a decree of specific performance and/or injunctive relief. For
purposes of this Section 7(d) “VWAP”
means,
for any date, the price determined by the first of the following clauses that
applies: (i) if the Common Stock is then listed or quoted on a Trading Market,
the daily volume weighted average price of the Common Stock for such date (or
the nearest preceding date) on the Trading Market on which the Common Stock
is
then listed or quoted for trading as reported by Bloomberg L.P. (based on a
Trading Day from 9:30 a.m. (New York City time) to 4:00 p.m. (New York City
time); (ii) if the OTC Bulletin Board is not a Trading Market, the volume
weighted average price of the Common Stock for such date (or the nearest
preceding date) on the OTC Bulletin Board; (iii) if the Common Stock is not
then
quoted for trading on the OTC Bulletin Board and if prices for the Common Stock
are then reported in the “Pink Sheets” published by Pink Sheets, LLC (or a
similar organization or agency succeeding to its functions of reporting prices),
the most recent bid price per share of the Common Stock so reported; or
(iv) in all other cases, the fair market value of a share of Common Stock
as determined by an independent appraiser selected in good faith by the Investor
and reasonably acceptable to the Company, the fees and expenses of which shall
be paid by the Company.
e. Each
of
the Investors agrees that the removal of the restrictive legend from
certificates representing Securities as set forth in this Section 7 is
predicated upon the Company’s reliance that the Investor will sell any
Securities pursuant to either the registration requirements of the Securities
Act, including any applicable prospectus delivery requirements, or an exemption
therefrom, and that if Securities are sold pursuant to a registration statement,
they will be sold in compliance with the plan of distribution set forth
therein.
8. Intentionally
Omitted.
9. Intentionally
Omitted.
10. Stockholder
Approval.
The
Company represents and warrants to the Investors that a vote of the stockholders
of the Company will not be required to approve the issuance of the Purchased
Securities.
11. Indemnification.
a. Company
Indemnification.
The
Company will indemnify and hold the Investors and, if applicable, their
respective directors, officers, stockholders, members, managers, partners,
employees and agents (each, an “Investor
Party”)
harmless from any and all losses, liabilities, obligations, claims,
contingencies, damages, costs and expenses, including all judgments, amounts
paid in settlements, court costs, and reasonable attorneys’ fees and costs of
investigation (collectively, “Losses”)
that
any such Investor Party may suffer or incur as a result of or relating to any
misrepresentation, breach, or inaccuracy of any representation, warranty,
covenant, or agreement made by the Company in this Agreement. In addition to
the
indemnity contained herein, the Company will reimburse each Investor Party
for
its reasonable legal and other expenses (including the cost of any
investigation, preparation, and travel in connection therewith) incurred in
connection therewith, as such expenses are incurred.
b. Investor
Indemnification.
Each of
the Investors, severally and not jointly, will indemnify and hold the Company
and Modigene and their respective directors, officers, stockholders, members,
managers, partners, employees and agents (each, an “Company
Party”)
harmless from any and all Losses that any such Company Party may suffer or
incur
as a result of or relating to any misrepresentation, breach, or inaccuracy
of
any representation, warranty, covenant, or agreement made by such Investor
in
this Agreement. In addition to the indemnity contained herein, each of the
Investors will reimburse each Company Party for its reasonable legal and other
expenses (including the cost of any investigation, preparation, and travel
in
connection therewith) incurred in connection therewith, as such expenses are
incurred.
12. Contribution.
If the
indemnification under Section 11 is unavailable to an indemnified party or
insufficient to hold an indemnified party harmless for any Losses, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party, in such proportion as is appropriate to reflect the relative
fault of the indemnifying party and indemnified party in connection with the
actions, statements or omissions that resulted in such Losses as well as any
other relevant equitable considerations. The relative fault of such indemnifying
party and indemnified party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission of a material
fact,
has been taken or made by, or relates to information supplied by, such
indemnifying party or indemnified party, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a result
of any Losses shall be deemed to include, subject to the limitations set forth
in this Agreement, any reasonable attorneys’ or other fees or expenses incurred
by such party in connection with any Action to the extent such party would
have
been indemnified for such fees or expenses if the indemnification provided
for
in this Section was available to such party in accordance with its
terms.
13. Tax
Consequences.
The
Investors, the Company and Modigene acknowledge that they have discussed their
execution, delivery and performance of this Agreement and the purchase and
sale
of the Purchased Securities with their legal and other advisors. Each of the
Investors, the Company and Modigene agree to treat the purchase of the Purchased
Securities by the Investors consistent with such Investors acting solely in
the
capacity of arm’s length purchasers and not as financial advisors, service
providers, or fiduciaries of the Company or Modigene. Each of the Investors
agrees, severally and not jointly, to indemnify and hold harmless the Company
and Modigene from and against any non-employee reporting penalties arising
or
resulting from such Investor’s purchase of the Purchased Securities. In
addition, the Investors agree that the tax consequences, if any, to each of
the
Investors resulting from their purchase of the Purchased Securities shall be
solely the responsibility of the Investors, and the Investors shall have no
recourse against the Company or Modigene therefore.
14. Board
of Directors.
Subject
to the closing of the Offering and the Merger, immediately following the Closing
Date, the Board of Directors of the Company will consist of nine members, as
follows: seven directors will be designated by Modigene, and will consist of
current directors of Modigene, and the two remaining directors will consist
of
Xxxxxxx Xxxxx, M.D. and Xxxx Xxxxx, Ph.D., M.B.A. All directors of the Company
will hold office in accordance with Nevada law and the Company’s amended and
restated articles of incorporation and bylaws.
15. Further
Assurances.
The
parties hereto will, upon reasonable request, execute and deliver all such
further assignments, endorsements, and other documents as may be necessary
in
order to perfect the purchase by the Investors of the Purchased Securities
pursuant to exemption from securities registration offered by Regulation D
promulgated under the Securities Act, and otherwise consummate the transactions
contemplated by this Agreement.
16. Entire
Agreement; No Oral Modification.
This
Agreement, the Lock-Up Agreement and the Warrants contain the entire agreement
among the parties hereto with respect to the subject matter hereof and supersede
all prior agreements and understandings with respect thereto and this Agreement
may not be amended or modified except in a writing signed by both of the parties
hereto.
17. Amendments
and Waivers.
The
provisions of this Agreement may be amended on or before the Closing Date,
and
particular provisions of this Agreement may be waived, with and only with an
agreement or consent in writing signed by each of the parties hereto.
18. Binding
Effect; Termination; Benefits.
This
Agreement and the obligations created pursuant to this Agreement, including
the
composition of the Company Board of Directors following the Merger, and the
purchase of the Purchased Securities, are subject to the closing of the Merger
and the Offering. This Agreement shall automatically terminate and become void,
and no party shall have any obligation or liability to any other party in
connection with this Agreement, upon the earlier of (i) May 31, 2007 in the
event that the Company and Modigene have not completed negotiations and entered
into a binding Merger Agreement, and (ii) September 30, 2007, in the event
the
closing of the Merger and the Offering has not occurred. Subject to the prior
two sentences, this Agreement shall inure to the benefit of and be binding
upon
the parties hereto and their respective heirs, successors and assigns; however,
nothing in this Agreement, expressed or implied, is intended to confer on any
other person other than the parties hereto, or their respective heirs,
successors, or assigns, any rights, remedies, obligations, or liabilities under
or by reason of this Agreement.
19. Counterparts.
This
Agreement may be executed in any number of counterparts, for each of which
shall
be deemed to be an original and all of which together shall be deemed to be
one
and the same instrument. In the event that any signature is delivered by
facsimile transmission or electronic mail (e-mail), such signature shall create
a valid and binding obligation of the party executing (or on whose behalf such
signature is executed) with the same force and effect as if such signature
page
were an original thereof.
20. Governing
Law.
This
Agreement shall be governed by, and construed and enforced in accordance with,
the laws of the United States of America and the State of New York, both
substantive and remedial, without regard to New York conflicts of law
principles. Any
judicial proceeding brought against any of the parties to this agreement or
any
dispute arising out of this Agreement or any matter related hereto shall be
brought in the courts of the State of New York, New York County, or in the
United States District Court for the Southern District of New York and, by
its
execution and delivery of this agreement, each party to this Agreement accepts
the jurisdiction of such courts.
21. Prevailing
Parties.
In any
action or proceeding brought to enforce any provision of this Agreement, or
where any provision hereof is validly asserted as a defense, the prevailing
party shall be entitled to receive and the nonprevailing party shall pay upon
demand reasonable attorneys’ fees in addition to any other remedy.
22. Notices.
All
communication hereunder shall be in writing and shall be mailed, delivered,
telegraphed or sent by facsimile or electronic mail, and such delivery shall
be
confirmed to the addresses as provided below:
if
to any
Investor:
to
the
address set forth on the signature page of this Agreement
if
to the
Company before the Closing Date:
The
Europa Center
000
Xxxxxx Xx., Xxxxx 000
Xxxxxx
Xxxx, XX 00000-0000
Attn:
Xxxxx X. Xxxxx, Xx., President
Facsimile:
(000) 000-0000
with
copy
to:
Gottbetter
& Partners, LLP
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxxx X. Xxxxxxx, Esq.
Facsimile:
(000) 000-0000
if
to
Modigene or to the Company after the Closing Date, to:
0000
Xxxxxx Xxxxxxxx Xxxxx
Xxxxx
0000
Xxxxxx,
XX 00000
Attention:
Xxxx Xxxxx, President
Facsimile:
(000) 000-0000
with
a
copy to:
Barack
Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx LLP
000
Xxxx
Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000
Attn:
Xxxxxxxx Xxxxx, Esq.
Facsimile:
(000) 000-0000
After
June 30, 2007:
000
Xxxx
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000
23. Headings.
The
section headings herein are included for convenience only and are not to be
deemed a part of this Agreement.
[SIGNATURE
PAGES FOLLOW]
IN
WITNESS WHEREOF, the parties hereto have executed this Securities Purchase
Agreement as of the date first written above.
| MODIGENE INC., a Nevada corporation | ||
| |
|
|
| By: | ||
|
Name: Xxxxx X. Xxxxx, Xx., President |
||
| Its: President | ||
INVESTORS:
|
Frost
Gamma Investments Trust
|
Xxxx
Xxxxx, M.B.A., Ph.D.
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|
By:
Xxxxxxx Xxxxx, M.D., Sole Trustee
|
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Signature
|
Signature
|
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|
|
|
Address
of Principal Place of Business:
|
Address
of Principal Residence:
|
|
|
0000
Xxxxxxxx Xxxxxxxxx
|
0000
Xxxxxxxx Xxxxxxxxx
|
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Xxxxx
0000
|
Xxxxx
0000
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|
Xxxxx,
Xxxxxxx 00000
|
Xxxxx,
Xxxxxxx 00000
|
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Tax
ID number:
|
Social
Security Number:
|
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00-0000000
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Telephone
Number:
|
Telephone
Number:
|
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(000)
000-0000
|
(000)
000-0000
|
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|
Facsimile
Number:
|
Facsimile
Number:
|
|
|
(000)
000-0000
|
(000)
000-0000
|
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Email
Address:
|
Email
Address:
|
|
|
xxxxxxx_xxxxx@xxxxxxx.xxx
|
xx@xxxxxxxxxxx.xxx
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Xxxxxx
X. Xxxxx
|
Xxxxxxxx
Xxxxxxxx
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Signature
|
Signature
|
|
|
|
|
|
|
Address
of Principal Place of Business:
|
Address
of Principal Residence:
|
|
|
0000
Xxxxxxxx Xxxxxxxxx
|
0000
Xxxxxxxx Xxxxxxxxx
|
|
|
Xxxxx
0000
|
Xxxxx
0000
|
|
|
Xxxxx,
Xxxxxxx 00000
|
Xxxxx,
Xxxxxxx 00000
|
|
|
|
|
|
|
Social
Security Number:
|
Social
Security Number:
|
|
|
|
|
|
|
|
|
|
|
Telephone
Number:
|
Telephone
Number:
|
|
|
(000)
000-0000
|
(000)
000-0000
|
|
|
|
|
|
|
Facsimile
Number:
|
Facsimile
Number:
|
|
|
(000)
000-0000
|
(000)
000-0000
|
|
|
|
|
|
|
Email
Address:
|
Email
Address:
|
|
|
xx@xxxxxxxxxxx.xxx
|
xx@xxxxxxxxxxx.xxx
|
EXHIBIT
A
Form
of Warrant
(See
Attached)
Appendix
A
|
Name
|
Investment
Amount
|
|||
|
|
|
|||
|
Frost
Gamma Investments Trust
|
$
|
1,600,000
|
||
|
|
|
|||
|
Xxxx
Xxxxx
|
380,000
|
|||
|
|
|
|||
|
Xxxxxxxx
Xxxxxxxx
|
10,000
|
|||
|
|
|
|||
|
Xxxxxx
X. Xxxxx
|
10,000
|
|||
|
|
|
|||
|
Total
|
$
|
2,000,000
|
||
APPENDIX
B
Investor
Questionnaire
(See
Attached)
