Form of Subscription Agreement SUBSCRIPTION AGREEMENT
Exhibit 10.1
Form of Subscription Agreement
May 8, 2008
The undersigned investor (the “Investor”) hereby confirms its agreement with Javelin
Pharmaceuticals, Inc. (the “Company”) as follows:
1. This Subscription Agreement (this “Agreement”) is made as of the date set forth below
between the Company and the Investor.
2. The Company has authorized the sale and issuance to certain investors of up to an aggregate
of [• ] shares (the “Shares”) of its common stock, par value $0.001 per share (the “Common
Stock”), for a purchase price of $2.41 per share (the “Purchase Price”).
3. The offering and sale of the Shares (the “Offering”) is being made pursuant to (1) an
effective Registration Statement on Form S-3 (Registration No. 333-149090) filed by the Company
with the Securities and Exchange Commission (the “Commission”) (the “Registration Statement”),
which contains the base prospectus (the “Base Prospectus”) and was declared effective by the
Commission on February 12, 2008, (2) 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 and (3) a
final prospectus supplement (the “Prospectus Supplement” and together with the Base Prospectus, the
“Prospectus”) containing certain supplemental information regarding the Shares 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 Shares set forth below for the aggregate purchase
price set forth below. The Shares shall be purchased pursuant to the Terms and Conditions for
Purchase of Shares 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 agents (the “Placement Agents”) named in the Prospectus Supplement and that there
is no minimum offering amount.
5. The manner of settlement of the Shares 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 American Stock Transfer &
Trust Company, the Company’s transfer agent (the “Transfer Agent”) (attention: Xxxxxxx
Xxxxx, telephone: (000) 000-0000, to the Investor at the Closing (as defined in Section 3.1
of Annex A hereto). NO LATER THAN ONE (1) BUSINESS DAY 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 SHARES BEING PURCHASED BY THE INVESTOR TO THE FOLLOWING ACCOUNT: |
JPMorgan Chase Bank, N.A.
ABA # 000000000
Account Name: Javelin Pharmaceuticals, Inc.
Account Number: 777130808
Attn: Xxxxxx Xxxxx
Tel: (000) 000-0000
ABA # 000000000
Account Name: Javelin Pharmaceuticals, Inc.
Account Number: 777130808
Attn: Xxxxxx Xxxxx
Tel: (000) 000-0000
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 SHARES OR DOES NOT
MAKE PROPER ARRANGEMENTS FOR SETTLEMENT IN A TIMELY MANNER, THE SHARES MAY NOT BE DELIVERED AT
CLOSING TO THE INVESTOR OR THE INVESTOR MAY BE EXCLUDED FROM THE CLOSING ALTOGETHER.
6. [Intentionally Omitted].
7. 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 NASD member or an Associated Person (as such term
is defined under the NASD Membership and Registration Rules Section 1011) as of the Closing, 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 Shares,
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 Base Prospectus, which is 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 along with the Company’s
counterpart to this Agreement.
9. No offer by the Investor to buy Shares 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 (orally, in writing, or by electronic mail) notice of its acceptance of such offer. An
indication of interest xxxx
Xxxx 2
involve no obligation or commitment of any kind until this Agreement is accepted and
countersigned by or on behalf of the Company.
Number of Shares:
Purchase Price Per Share: $2.41
Aggregate Purchase Price: $
Purchase Price Per Share: $2.41
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 May [• ], 2008
INVESTOR | ||||
By: | ||||
Name: | ||||
Title: | ||||
Address: | ||||
Agreed and accepted this | ||||
day of 2008: | ||||
By: |
||||
Name: |
||||
Title: |
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Page 3
ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF SHARES
1. Authorization and Sale of the Shares. Subject to the terms and conditions of this
Agreement, the Company has authorized the sale of the Shares.
2. Agreement to Sell and Purchase the Shares; Placement Agents.
2.1 At the Closing (as defined in Section 3.1 of this Annex I), 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 Shares set forth on the last page of the Agreement to which these Terms and
Conditions for Purchase of Shares 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 Shares 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 The Investor acknowledges that the Company intends to pay Leerink Xxxxx, LLC and Riverbank
Capital Securities, Inc. (collectively, the “Placement Agents”) a fee (the “Placement Fee”) in
respect of the sale of Shares to the Investor.
2.4
The Company has entered into a Placement Agency Agreement, dated May 8, 2008 (the
“Placement Agreement”), with the Placement Agents 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 Shares and Funds.
3.1 Closing. The completion of the purchase and sale of the Shares (the “Closing”) shall
occur at a place and time (the “Closing Date”) to be specified by the Company and the Placement
Agents, and of which the Investors will be notified in advance by the Placement Agents, 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 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 (b) the aggregate purchase price for the
Shares being purchased by the Investor will be delivered by or on behalf of the Investor to the
Company.
3.2 (a) Conditions to the Company’s Obligations. The Company’s obligation to issue and sell
the Shares to the Investor shall be subject to: (i) the receipt by the Company of the purchase
price for the Shares 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
Shares will be subject to the accuracy of the representations and warranties made by the Company
and the fulfillment of those undertakings of the Company to be fulfilled prior to the Closing Date
that are
Annex I — Page 1
contained in the Placement Agreement and the Subscription Agreement, and to the condition that
the Placement Agents shall not have: (i) terminated the Placement Agreement pursuant to the terms
thereof or (ii) 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 Shares that they have agreed to purchase from the Company or the
issuance of any minimum amount of Shares by the Company.
3.3 Delivery of Funds by Electronic Book-Entry at The Depository Trust Company. No later
than one (1) business day 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 Shares being purchased by the Investor to the following account designated
by the Company and the Placement Agents pursuant to the terms of that certain Escrow Agreement (the
“Escrow Agreement”) dated as of May 8, 2008, by and among the Company, the Placement Agents
and JPMorgan Chase Bank, N.A. (the “Escrow Agent”):
JPMorgan Chase Bank, N.A.
ABA # 000000000
Account Name: Javelin Pharmaceuticals, Inc.
Account Number: 777130808
Attn: Xxxxxx Xxxxx
Tel: (000) 000-0000
ABA # 000000000
Account Name: Javelin Pharmaceuticals, Inc.
Account Number: 777130808
Attn: Xxxxxx Xxxxx
Tel: (000) 000-0000
Such funds shall be held in escrow until the Closing and delivered by the Escrow Agent on
behalf of the Investors to the Company upon the satisfaction, in the reasonable judgment of the
Placement Agents, of the conditions set forth in Section 3.2(b) hereof. The Placement Agents shall
have no rights in or to any of the escrowed funds unless the Placement Agents and the Escrow Agent
are notified in writing by the Company in connection with the Closing that a portion of the
escrowed funds shall be applied to the Placement Fee in accordance with the terms of the Escrow
Agreement. The Company and the Investor agree to indemnify and hold the Escrow Agent and the
Placement Agents harmless from and against any and all losses, costs, damages, expenses and claims
(including, without limitation, court costs and reasonable attorneys fees) (“Losses”) arising under
this Section 3.3 or otherwise with respect to the funds held in escrow pursuant hereto or arising
under the Escrow Agreement, unless it is finally determined that such Losses resulted directly from
the willful misconduct or gross negligence of the Escrow Agent or the Placement Agents. Anything
in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent or the
Placement Agents be liable for any special, indirect or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Escrow Agent or the Placement
Agents have been advised of the likelihood of such loss or damage and regardless of the form of
action.
3.4 Delivery of Shares by Electronic Book-Entry at The Depository Trust Company. No later
than one (1) business day 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 American
Stock Transfer & Trust Company, 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 Agents. Simultaneously with the delivery to the Company by the Escrow Agent of the funds
held in escrow 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.
Annex I — Page 2
4. Representations, Warranties and Covenants of the Investor.
4.1 The Investor represents and warrants to, and covenants with, the Company that (a) the
Investor is knowledgeable, sophisticated and experienced in making, and is qualified to make
decisions with respect to, investments in shares presenting an investment decision like that
involved in the purchase of the Shares, including investments in securities issued by the Company
and investments in comparable companies, and has requested, received, reviewed and considered all
information it deemed relevant in making an informed decision to purchase the Shares, (b) 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 (c) the Investor, in connection
with its decision to purchase the number of Shares set forth on the Signature Page, has reviewed
the Disclosure Package and is relying only upon the Disclosure Package and the representations and
warranties of the Company contained herein and the Placement 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 Agents that would
permit an offering of the Shares, or possession or distribution of offering materials in connection
with the issue of the Shares in any jurisdiction outside the United States where action for that
purpose is required. Each 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
Shares or has in its possession or distributes any offering material, in all cases at its own
expense. The Placement Agents are 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 Shares,
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
(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 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 Shares
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 Shares.
4.5 Each Investor represents, warrants and agrees that, since the earlier to occur of (i) the
date on which any 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 are publicly
disclosed. Each Investor agrees that it will not use any of the Shares 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,
Annex I — Page 3
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.
5. Survival of Representations, Warranties and Agreements; Third Party Beneficiary.
Notwithstanding any investigation made by any party to this Agreement or by the Placement Agents,
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 Shares
being purchased and the payment therefor. The Placement Agents shall be 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 (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 electric confirmation of
receipt and will be delivered and addressed as follows:
6.1 if to the Company, to:
Javelin Pharmaceuticals, Inc.
000 XxxxxxxxxXxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, CFO
Facsimile: (000) 000-0000
000 XxxxxxxxxXxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, CFO
Facsimile: (000) 000-0000
with copies to:
Xxxxx Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxxx xxx 00xx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
000 Xxxx Xxxxxx
Xxxx xxx 00xx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
6.2 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.
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.
Annex I — Page 4
10. Governing Law. This Agreement will be governed by, and construed in accordance with, the
internal laws of the State of Delaware, 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 Base 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 Base 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 Shares to such
Investor.
13. 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.
14. Termination. In the event that the Placement Agreement is terminated by the Placement
Agents pursuant to the terms thereof, this Agreement shall terminate without any further action on
the part of the parties hereto.
Annex I — Page 5
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 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: | |
8. | Account Number at DTC Participant being credited with the Shares: | |
Schedule A to Annex I — Page 1