Form of Subscription Agreement
Exhibit 99.1
Form of Subscription Agreement
StemCells, Inc.
0000 Xxxxxx Xxxxx
Xxxx Xxxx, XX 00000
0000 Xxxxxx Xxxxx
Xxxx Xxxx, XX 00000
Ladies and Gentlemen:
The undersigned, (the “Investor”), hereby confirms its agreement
with you as follows:
1. This Subscription Agreement (the “Subscription Agreement”) is made as of October
28, 2009 between StemCells, Inc., a Delaware corporation (the “Company”), and the Investor.
2. The Company and the Investor have agreed that the Investor will purchase from the Company
and the Company will issue and sell to the Investor 5,000,000 shares (the “Shares”) of
common stock of the Company (the “Common Stock”), at a purchase price of $1.25 per Share,
or an aggregate purchase price of $6,250,000.00 (the “Purchase Price”). In addition, the
Company will issue and sell to each Investor a warrant to purchase 2,000,000 shares of the
Company’s Common Stock issued to such Investor, in substantially the form attached hereto as Annex
I (the “Warrants”). The Shares and the Warrants are collectively referred to herein as the
“Securities.” The Investor acknowledges that the offering of the Securities is not a firm
commitment underwriting.
3. The offering and sale of the Securities (the “Offering”) are being made pursuant to
(i) an effective Registration Statement on Form S-3 (including the Prospectus contained therein
dated July 18, 2008 (the “Basic Prospectus”), the “Registration Statement”) filed
by the Company with the Securities and Exchange Commission (the “Commission”), (ii) if
applicable, certain “free writing prospectuses” (as that term is defined in Rule 405 under the
Securities Act of 1933, as amended (the “Act”)), that have been or will be filed with the
Commission and delivered to the Investor on or prior to the date hereof, and (iii) a Prospectus
Supplement (the “Prospectus Supplement”), containing certain supplemental information
regarding the Securities, the Company and the terms of the Offering that will be filed with the
Commission and delivered to the Investor along with the Company’s counterpart to this Subscription
Agreement (or made available to the Investor by the filing by the Company of an electronic version
thereof with the Commission). The Registration Statement also covers the issuance of the Shares to
be issued on exercise of the Warrants.
4. The completion of the purchase and sale of the Securities (the “Closing”) shall
occur on November 2, 2009. At the Closing, the Company shall deliver to the Investor, using
customary book-entry procedures, the number of Securities as set forth above in Section 2, and the
Investor shall deliver, or cause to be delivered, to the Company by Federal Funds wire transfer the
full amount of the Purchase Price for the Securities being purchased.
5. This Subscription Agreement shall 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.
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6. This Subscription Agreement may be executed in two or more counterparts, each of which
shall constitute an original, but all of which, when taken together, shall constitute but one
instrument, and shall become effective when one or more counterparts have been signed by each party
hereto and delivered to the other parties.
7. A prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as
amended, may be obtained, when available, from the Company at 0000 Xxxxxx Xxxxx, Xxxx Xxxx, XX
00000, Attention: Chief Executive Officer.
8. The Company confirms that it has entered into a Placement Agency Agreement (the
“Placement Agency Agreement”) with Chardan Capital Markets, LLC (the “Placement
Agent”) that contains certain representations, warranties, covenants and agreements of the
Company that may be relied upon by the Investor, which shall be a third party beneficiary thereof.
A copy of the Placement Agency Agreement is available upon request.
9. The Company further confirms and the Investor acknowledges that the Investor’s obligation
to purchase the Securities is subject to the condition that the Placement Agent shall not have (a)
terminated the Placement Agency Agreement or (b) determined that the conditions to closing in the
Placement Agency Agreement have not been satisfied. The Investor confirms that its obligations are
expressly not conditioned on the purchase by any other investors of Securities that they have
agreed to purchase from the Company.
10. The Investor represents that it has received (or otherwise had made available to it by the
filing by the Company of an electronic version thereof with the Commission) the Basic Prospectus,
which is a part of the Company’s Registration Statement and the documents incorporated by reference
therein, prior to or in connection with the receipt of this Subscription Agreement. The Investor
acknowledges that, prior to the delivery of this Subscription Agreement to the Company, the
Investor will receive certain additional information regarding the Offering, including pricing
information (the “Offering Information”). The Offering Information may be provided to the
Investor by any means permitted under the Act, including in the Prospectus Supplement (delivered to
the Investor or made available to it by the filing of an electronic version thereof with the
Commission), a free writing prospectus or oral communications.
11. No offer by the Investor to buy Securities will be accepted and no part of the Purchase
Price will be delivered to the Company until the Investor has received the Offering Information and
the Company has accepted such offer by countersigning a copy of this Subscription Agreement, and
any such offer may be withdrawn or revoked, without obligation or commitment of any kind, at any
time prior to the Company (or the Placement Agent on behalf of the Company) sending (orally, in
writing or by electronic mail) notice of its acceptance of such offer. This Subscription Agreement
will constitute only an indication of interest and will involve no obligation or commitment of any
kind until the Investor has been delivered the Offering Information and this Subscription Agreement
is accepted and countersigned by or on behalf of the Company.
12. The Investor represents that, except as set forth below, (a) it has had no position,
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office or other material relationship within the past three years with the Company or any of
its affiliates, (b) 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 (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:
[The remainder of this page has been intentionally left blank.]
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Number of Shares: |
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Purchase Price Per Share: $
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Aggregate Purchase Price: $
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Please acknowledge that the foregoing correctly confirms the agreement between us by signing in the
space provided below for that purpose.
| Name of Investor: | ||||||
| By: | ||||||
| Title: | ||||||
| Address: | ||||||
| Tax ID No.: | ||||||
| Contact Name: | ||||||
| Telephone: | ||||||
| Name in which book entry should be made: |
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| Contact Name: | ||||||
ACKNOWLEDGED AND AGREED
StemCells, Inc.
| By: | Name: Title |
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