SUBSCRIPTION AGREEMENT December 18, 2007 Advanced Biotherapy, Inc.
EXHIBIT
10.26
December
18, 2007
Advanced
Biotherapy, Inc.
000
Xxxx
Xxxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
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Attention:
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Xxxxxxxxxxx
X. Xxxxx,
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Chief
Executive Officer
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Gentlemen:
The
undersigned (“Investor”) hereby agrees to invest Two Million Dollars
($2.000,000.00) in Advanced Biotherapy, Inc., a Delaware corporation (“Company”)
to purchase shares of Company common stock, $0.001 par value (“Common Stock”) at
a purchase price of $0.011 per share of Common Stock, for an aggregate of
181,818,182 shares of Common Stock (the “Shares”), subject to the terms and
conditions herein.
A. Irrevocable
Subscription.
The
subscription by the Investor set forth in this Agreement is irrevocable by
the
Investor, but will not constitute an agreement between the Company and the
Investor until this Agreement is accepted and executed by the Company, and,
if
not so accepted, the subscription and obligations of the Investor will
terminate.
B. Investor
Representations.
Recognizing that the Company will be relying on the information and on the
representations and warranties set forth herein, the Investor hereby represents
and warrants to, and covenants, with the Company as follows:
1. The
Investor is purchasing the Shares in his own name, and for his own account
for
investment purposes, and not with an intent to sell, or for sale in connection
with any distribution of such Shares.
2. The
Investor has no present intention, and has not agreed, to give any person any
legal or beneficial interest in or right with respect to the Shares or right
in
the future.
3. The
Investor hereby represents that no other person or entity has any legal or
beneficial interest in or right with respect to the Shares.
4. The
Investor acknowledges and understands that as of November 30, 2007, the Company
has authorized 2,000,000,000 shares of Common Stock, of which 985,803,758 shares
of Common Stock are issued and outstanding, excluding outstanding options and
warrants. The Company also has authorized 20,000,000 shares of preferred stock,
none of which has been issued as of November 30, 2007.
5. The
Investor understands that the Shares have not been registered under the federal
Securities Act of 1933, as amended (“Securities Act”), or qualified under
Delaware or Illinois state securities laws, and that any disposition of the
Shares is subject to restrictions imposed by federal and state law.
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6. The
Investor understands that he cannot dispose of any or all of the Shares absent
registration and qualification, or an available exemption from registration
and
qualification, that the instrument or certificate, if any, evidencing the Shares
will bear a legend reflecting these (and any other) restrictions on transfer,
and that the Company need not recognize or register any transfer unless the
Investor provides evidence satisfactory to the Company (which may, at the
Company's discretion, require an opinion of counsel satisfactory in form and
substance to the Company) that all restrictions on and conditions to transfer
are satisfied.
7. The
Investor understands that no government official including, without limitation,
the Delaware Division of Corporations, has made any finding or determination
relating to the fairness of the sale of the Shares offered by the Company and
that such governmental agencies have not and will not recommend or endorse
the
Shares.
8. The
Investor understands that the Company has no obligation to the Investor to
register any of the Shares under federal or state law for resale or
distribution. The Investor understands that the Shares are “restricted
securities” under applicable U.S. federal and state securities laws and that,
pursuant to these laws, the Investor must hold the Shares indefinitely unless
such Shares are registered with the Securities and Exchange Commission and
qualified by state authorities, or an exemption from such registration and
qualification requirements is available. The Investor further acknowledges
that
if an exemption from registration or qualification is available, it may be
conditioned on various requirements including, but not limited to, the time
and
manner of sale, the holding period for the Shares, and on requirements relating
to the Company which are outside of the Investor’s control, and which the
Company is under no obligation and may not be able to satisfy.
9. The
Investor understands that the Company has not agreed with the Investor to comply
with the public information or other provisions of Rule 144 or any other
exemption under federal or state law respecting the resale or other transfer
of
the Shares.
10. The
Investor has not seen or received any advertisement or general solicitation
with
respect to the sale of the Shares.
11. In
deciding whether to acquire the Shares, the Investor has relied exclusively
upon
consultation with the Investor’s respective legal, financial and tax advisors
with respect to acquisition of the Shares pursuant to this Agreement, and the
information concerning the Company set forth in the Disclosure Documents (as
defined below) including, without limitation, the section captioned “Factors
That May Affect The Company” set forth in the Company’s Form 10-KSB for the year
ended December 31, 2006. The Investor is satisfied with its business review
of
the Company, and has received satisfactory information and answers to the extent
Investor availed itself of the opportunity to consult its own legal, financial
and tax advisors regarding the Company and the Investor’s investment in the
Shares.
12. The
Investor hereby acknowledges that he has had access to and has reviewed the
following (collectively the “Disclosure Documents”): (i) the Company’s Annual
Report on Form 10-KSB for the year ended December 31, 2006, including, without
limitation, the section captioned “Factors That May Affect The Company”
regarding risk factors associated with an investment in the Company, (ii) the
Company’s Quarterly Report on Form 10-QSB for the quarter ended March 31, 2007,
June 30, 2007, and September 30, 2007, respectively, and (iii) the Company’s
Form 8-Ks filed during calendar year 2007, all as filed with the Securities
and
Exchange Commission (“SEC”). In making this investment, the Investor has not
relied upon any information not included in the Disclosure Documents. Copies
of
the Disclosure Documents may be inspected and copied at the public reference
facilities maintained by the Securities and Exchange Commission at 000 Xxxxx
Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000. Copies of these materials also can be
obtained by mail at prescribed rates from the Public Reference Section of the
Securities and Exchange Commission, 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X.
00000 or by calling the Securities and Exchange Commission at 1-800-SEC-0330.
The Securities and Exchange Commission maintains a website that contains
reports, proxy statements and other information regarding the Company. The
address of the Securities and Exchange Commission website is
xxxx://xxx.xxx.xxx.
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13. The
Investor acknowledges that the audited financial statements of the Company
as of
and for the years ended December 31, 2006, and 2005, together with the report
thereon by Xxxxxxxx & Xxxxxxx, X.X. do not reflect any events subsequent to
December 31, 2006, except as reflected in the notes to such financial
statements.
14. By
reason
of the business and financial experience of the Investor, including without
limitation Investor’s experience as an investment banker and Investor’s
extensive experience investing for his own account in publicly traded
securities, the Investor is capable of evaluating the merits and risks of this
investment and of protecting its own interests in connection with this
investment. The Investor is aware that an investment in the Company involves
a
high degree of risk.
15. The
Investor is the Chairman of the Board, a director, and the holder of a majority
of the issued and outstanding shares of Common Stock of the
Company.
16. In
reaching the decision to invest in the Shares, the Investor has carefully
evaluated its financial resources and investment position and the risks
associated with this investment, and acknowledges that he is able to bear the
economic risks of this investment.
17. Investor
understands that the Shares of Common Stock may bear the following legends,
among others:
(a) “THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH
A
VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE
OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE MAKER
THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF
1933.”
(b) Any
legend required by the blue sky laws of any state to the extent such laws are
applicable to the shares represented by the certificate so
legended.
18. The
Investor represents to the Company that (a) the information contained herein
is
complete and accurate and may be relied upon by it and (b) Investor will notify
the Company it immediately of any material adverse change in any of such
information.
C. Survival
of Representations; Reliance.
The
representations, warranties and agreements contained herein shall survive the
execution and delivery of this document and the purchase of the Shares, if
any.
The representations and warranties of the Investor may be relied upon by the
Company and its attorneys.
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D. Governing
Law.
This
Agreement and all acts and transactions pursuant hereto shall be governed,
construed and interpreted in accordance with the laws of the State of Delaware,
without giving effect to principles of conflicts of laws.
E. Arbitration.
In the
event of any controversy, dispute or claim arising out of or related to this
Agreement, or the interpretation, breach, termination or validity hereof, the
parties shall submit such controversy, dispute or claim to binding arbitration
hereunder. All arbitration proceedings pursuant to this Section shall take
place
in Xxxx County, State of Illinois, and shall be before a retired judge selected
from the Judicial Arbitration and Mediation Services (“JAMS”) or such other
arbitrator as the parties shall mutually agree upon. In the event that the
parties are unable to agree upon the selection of an arbitrator, any party
may
request the presiding judge of the United States District Court or the Illinois
state court, in each case located in Chicago, Illinois, to appoint such
arbitrator. Arbitration of the dispute shall commence no later than thirty
(30)
days after the selection or appointment of such arbitrator. The arbitrator
shall
be bound by the express terms of this Agreement and shall endeavor to reach
his
decision as quickly as possible, which decision shall be final and binding
on
the parties to this Agreement. The arbitrator shall also have the power to
award
costs and expenses (including, without limitation, reasonable attorneys' fees)
to the prevailing party. Application to enforce the arbitrator's decision can
be
made in any court or other tribunal of competent jurisdiction. The arbitration
procedures of JAMS located in Xxxx County, Illinois shall control.
The
undersigned Investor irrevocably commits to the purchase of the amount of Shares
and hereby delivers to the Company, by wire transfer or check made payable
to
“Advanced Biotherapy, Inc.” the Purchase Price for the Shares.
Shares
of
Common Stock 181,818,182
Total
Purchase Price US$ 2,000,000.00
Forms
of Ownership.
The
Investor requests the following form of ownership for the Shares.
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Individual
(one signature required)
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Joint
Tenants with right survivorship (both parties must
sign)
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Trust
(signature of trustee and additional signatories if required by
trust
instrument)
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Please
PRINT the exact name (registration) that Investor
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desires
for the Shares.
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SIGNATURES
CONTINUED ON FOLLOWING PAGE
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INVESTOR
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Signature
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Social
Security Number
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Print
or Type Name
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Executed
at:
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City
State
Zip
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this
18th day of December, 2007
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ACCEPTED
AND APPROVED BY COMPANY
AS
TO 181,818,182
SHARES OF COMMON STOCK AT AN AGGREGATE PURCHASE PRICE OF
US$
2,000,000.00
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| Advanced
Biotherapy, Inc.,
a
Delaware corporation
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| By: | ||
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Name: Xxxxxxxxxxx X. Xxxxx, President and CEO |
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| Date: | ||
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