SUBSCRIPTION AGREEMENT
EXHIBIT
4.4
___________________
_____, 2008
Gentlemen:
The
undersigned (the “Investor”) hereby confirms its agreement with you as
follows:
1.
This Subscription Agreement (this “Agreement”) is made as of the date set forth
below between Refinery Science Corp., a Texas corporation (the “Company”), and
the Investor.
2.
The Company has authorized the sale and issuance to certain investors of up
to
an aggregate of 666,667 units (the “Units”), each Unit consisting of
(i) two (2) shares (each a “Share” and collectively, the “Shares”) of its
common stock, par value $0.01 per share (the “Common Stock”) and (ii)
a warrant (“Warrant,” collectively, the “Warrants”) to purchase one (1)
share of Common Stock, subject to adjustment by the Company’s Board of
Directors, or a committee thereof, for a purchase price of Fifteen Dollars
($15.00) per Unit (the “Purchase Price”). The Shares issuable upon exercise of
the Warrants are referred to herein as “Warrant Shares” and, together with the
Units, the Shares and the Warrants, are collectively referred to herein as
the
“Securities.”
3.
The offering and sale of the Units (the “Offering”) is being made pursuant to
(i) an effective Registration Statement on Form S-1 (Registration
No. 333-140647)
(filed
by the Company with the Securities and Exchange Commission (the “Commission”))
(the “Registration Statement”), (ii) if applicable, certain “free writing
prospectuses” (as that term is defined in Rule 405 under the Securities Act
of 1933, as amended), that have or will be filed with the Commission and
delivered to the Investor on or prior to the date hereof, (iii) a
preliminary prospectus dated ____________, 2008 (the “Preliminary Prospectus”),
and (iv) a final prospectus (together with the Preliminary Prospectus, the
“Prospectus”) containing certain supplemental information regarding the Units
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) along with the Company’s
counterpart to this Agreement.
4.
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.
5.
The manner of settlement of the Shares included in the Units purchased by the
Investor shall be determined by such Investor as follows: Delivery by electronic
book-entry at The Depository Trust Company (“DTC”), registered in the Investor’s
name and address as set forth below, and released by OTR Transfer, Inc., the
Company’s transfer agent (the “Transfer Agent”) (telephone: (000) 000-0000 ), to
the Investor at the Closing (as defined in Section 3.1 of Annex
A
hereto).
No later than two (2) business days after the execution of this agreement
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”)
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 units being purchased by the investor to the following
account:
[Refinery
Science Corp. wire instructions here]
It
is the
investor’s responsibility to (a) make the necessary wire transfer or
confirm the proper account balance in a timely manner and (b) arrange for
settlement by way of DWAC in a timely manner. If the investor does not deliver
the aggregate purchase price for the units or does not make proper arrangements
for settlement in a timely manner, the units may not be delivered at closing
to
the investor or the investor may be excluded from the closing
altogether.
6.
The
executed Warrant shall be delivered in accordance with the terms set forth
in
Annex
I
hereto.
7.
The
Investor represents that, except as set forth below, (i) 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, (ii) it
is not a FINRA member or an Associated Person (as such term is defined under
the
FINRA Membership and Registration Rules Section 1011) as of the
Closing, and (iii) 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, acquired, or 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: (If no exceptions, write “none.” If left
blank, response will be deemed to be “none.”)
8.
The
Investor represents that it has received or can obtain on the Commission’s Xxxxx
filing system the Prospectus, which is part of the Company’s Registration
Statement, the Preliminary Prospectus, 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 along with the Company’s counterpart to this
Agreement.
9. 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 a Placement Agent on behalf of the Company) sending (in writing,
facsimile 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.
2
Number
of
Units: __________________
Purchase
Price Per Unit: $15.00
Aggregate
Purchase Price: $_______________
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:
,
2008
|
INVESTOR
By:
_______________________________
Print
Name: _________________________
Title:
______________________________
Address:
___________________________
________________________
|
Agreed
and Accepted this _____ day of _______________, 2008:
By:
_______________________________________
Print
Name: _________________________
Title:
______________________________
3
TERMS
AND CONDITIONS FOR PURCHASE OF UNITS
1.
Authorization
and Sale of the Units; Defined Terms.
1.1
Subject to the terms and conditions of this Agreement, the Company has
authorized the sale of the Units.
1.2
Capitalized terms used herein but not otherwise defined have the meanings
ascribed to them in the Agreement.
|
2.
|
Agreement
to Sell and Purchase the Units; Placement Agent.
|
2.1
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.
2.2
The
Company proposes to enter into substantially this same form of Subscription
Agreement with certain other investors (the “Other Investors”) and expects to
complete sales of Units to them. The Investor and the Other Investors are
hereinafter sometimes collectively referred to as the “Investors,” and this
Agreement and the Subscription Agreements executed by the Other Investors are
hereinafter sometimes collectively referred to as the “Agreements.”
2.3
Investor acknowledges that the Company intends to pay Macquarie Capital Markets
Canada Ltd. or, if the Company retains one, another placement agent (either,
the
“Placement Agent”) a fee (the “Placement Fee”) in respect of the sale of Units
to the Investor.
2.4
The
Company has entered into a placement agency agreement, entitled, Financing
Engagement Agreement, dated August 22, 2007, as amended, (the “Placement
Agreement”), with 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. A copy of the
Placement Agreement is available upon request.
|
3.
|
Closings
and Delivery of the Units and
Funds.
|
3.1
Closing.
The
completion of the purchase and sale of the Units (the “Closing”) shall occur at
a place and time (the “Closing Date”) to be specified by the Placement Agent,
and of which the Investors 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, (i) the
Company shall cause the 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
Schedule A,
in the
name of a nominee designated by the Investor and as contemplated
by
procedures set forth in the Agreement and the Placement Agreement, (ii) the
Company shall cause to be delivered to the Investor a Warrant to purchase a
number of whole Warrant Shares determined by dividing the number of Shares
set
forth on the signature page by two (2) and (iii) the aggregate purchase
price for the Units being purchased by the Investor will be delivered by or
on
behalf of the Investor to the Company.
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3.2
(a)
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 and
(ii) 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.
(b)
Conditions
to the Investor’s Obligations.
The
Investor’s obligation to purchase the Units will be subject to the accuracy of
the representations and warranties made by the Company contained in the
Placement Agreement and the fulfillment of those undertakings of the Company
to
be fulfilled prior to the Closing Date those contained in the Placement
Agreement and the Subscription Agreement, and to the condition that the
Placement Agent shall not have determined that the conditions to the closing
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.
3.3
Delivery
of Funds.
No
later than two (2) business days after the execution of this Agreement by
the Investor and the Company,
the
Investor shall remit by wire transfer the amount of funds equal to the aggregate
purchase price for the Units being purchased by the Investor to the following
account designated by the Company:
[insert
Refinery Science Corp. wire instructions here]
3.4
Delivery
of Shares by Electronic Book-Entry at The Depository Trust
Company.
No
later than two (2) business days after the execution of this Agreement by
the Investor and the Company,
the
Investor shall direct the broker-dealer at which the account or accounts to
be
credited with the Shares being purchased by such Investor are maintained, which
broker/dealer shall be a DTC participant, to set up a Deposit/Withdrawal at
Custodian (“DWAC”)
instructing OTR Transfer, Inc., the Company’s transfer agent, to credit such
account or accounts with the Shares by means of an electronic book-entry
delivery. Such DWAC shall indicate the settlement date for the deposit of the
Shares, which date shall be provided to the Investor by the Placement Agent.
Simultaneously with the delivery to the Company by the Investor of the funds
pursuant to Section 3.3 above, the Company shall direct its transfer agent
to credit the Investor’s account or accounts with the Shares pursuant to the
information contained in the DWAC.
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4.
Representations,
Warranties and Covenants of the Investor.
4.1
The
Investor represents and warrants to, and covenants with, the Company that
(i) the Investor has answered all questions on the Signature Page and the
Investor Questionnaire
for use in preparation of the Prospectus Supplement 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 (ii) the Investor, in connection with its decision to purchase
the number of Units set forth on the Signature Page, is relying only upon the
Disclosure Package and the representations and warranties of the Company
contained herein and the Placement Agency Agreement.
4.2
The
Investor acknowledges, represents and agrees that 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 Units, or possession or
distribution of offering materials in connection with the issue of the Units
in
any jurisdiction outside the United States where action for that purpose is
required. Each Investor outside the United States will comply with all
applicable laws and regulations in each foreign jurisdiction in which it
purchases, offers, sells or delivers Units or has in its possession or
distributes any offering material, in all cases at its own expense. The
Placement Agent is not authorized to make and have not made any representation
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.
4.3
The
Investor further represents and warrants to, and covenants with, the Company
that (i) 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 (ii) 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 the indemnification agreements of the Investors herein may be
legally unenforceable.
4.4
The
Investor understands that nothing in this Agreement, the Prospectus 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.
4.5
Each
Investor represents, warrants and agrees that, since the earlier to occur of
(i) the date on which the Placement Agent first contacted such Investor
about the Offering and (ii) the date of this Agreement, it has not engaged
in any transactions in the securities of the Company (including, without
limitation, any Short Sales involving the Company’s securities). Each Investor
covenants that it will not engage in any transactions in the securities of
the
Company (including Short Sales) prior to the time that the transactions
contemplated by this Agreement have been consummated and are publicly disclosed.
Each Investor agrees that it will not use any of the Units 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.
6
5.
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 beneficiaries
with
respect to representations, warranties and agreements of the Investor in
Section 4 hereof.
6.
Notices.
All
notices, requests, consents and other communications hereunder will be in
writing, will be mailed (i) 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 (ii) if delivered from
outside the United States, by International Federal Express or facsimile, and
will be deemed given (a) if delivered by first-class registered or
certified mail domestic, three business days after so mailed, (b) if
delivered by nationally recognized overnight carrier, one business day after
so
mailed, (c) if delivered by International Federal Express, two business
days after so mailed and (d) if delivered by facsimile, upon electric
confirmation of receipt and will be delivered and addressed as
follows:
(1) if
to the Company, to:
00000
Xxxxxxxx Xxxxx
Xx
Xxxx,
Xxxxx
Facsimile:
(000) 000-0000
Attention:
Xxxxx Xxxxxxx, President and Chief Executive Officer
with
copies to:
Law
Offices of Xxxxxx X. Xxxxx, PLLC.
0000
XX
00xx Xxxxxx
Xxxxxxx,
Xxxxxxxxxx 00000
Facsimile:
(000) 000-0000
Attention:
Xxxxxx X. Xxxxx
(2) 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.
7.
Changes.
This
Agreement may not be modified or amended except pursuant to an instrument in
writing signed by the Company and the Investor.
7
8.
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.
9.
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.
10.
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.
11.
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. The Company
and the Investor acknowledge and agree that the Company shall deliver its
counterpart to the Investor along with the Prospectus and the Prospectus
Supplement (or the filing by the Company of an electronic version thereof with
the Commission).
12.
Confirmation
of Sale.
The
Investor acknowledges and agrees that such Investor’s receipt of the Company’s
counterpart to this Agreement, together with the Prospectus and 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 such Investor.
13.
Termination.
In the
event that the Company decides to terminate Offering prior to Closing, this
Agreement shall terminate without any further action on the part of the parties
hereto and any monies remitted to the Company will be promptly refunded by
the
Company, without interest, to the Investor.
8
SCHEDULE
A TO ANNEX I
INVESTOR
QUESTIONNAIRE
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
Social Security Number or Tax Identification Number of the registered holder
listed in the response to item 1 above:
_________________________
5.
Name
of DTC Participant (broker-dealer at which the account or accounts to be
credited with the Shares are maintained); please include the name and telephone
number of the contract person at the broker-dealer:
________________________________________
________________________________________
________________________________________
________________________________________
6.
DTC
Participant Number: _______________________________
7.
Name
of Account at DTC Participant being credited with the Shares:
__________________________________
__________________________________
Account
Number at DTC Participant being credited with the Shares:
___________________________
9
