EXHIBIT 99.1
SUBSCRIPTION AGENT AGREEMENT
This Subscription Agent Agreement (the "Agreement"), made and entered into
as of this ___ day of July, 2005, by and between ADVANCED BIOPHOTONICS INC., a
Delaware corporation (the "Company"), and CORPORATE STOCK TRANSFER, INC. (the
"Subscription Agent"),
W I T N E S S E T H :
WHEREAS, the Company has filed a Registration Statement on Form SB-2, as
amended (Registration No. 333-122328) with the Securities and Exchange
Commission (the "Registration Statement") in connection with the proposed
offering (the "Rights Offering") of up to 7,000,000 transferable subscription
rights (the "Rights") to purchase 7,000,000 shares of the Company's series B
convertible preferred stock, par value $.01 per share (the "Series B Preferred")
and warrants (the "Warrants") to purchase up to 3,500,000 shares of the
Company's common stock, par value $.001 per share (the "Common Stock"), which
are to be issued to holders of outstanding shares of the Company's Common Stock
(such holders, the "Common Stockholders");
WHEREAS, the Subscription Agent presently serves as transfer agent and
registrar of the Company's Common Stock and will also serve as transfer agent
and registrar for the Rights and the Series B Preferred;
WHEREAS, the Company intends to issue to all Common Stockholders one Right
(the "Basic Subscription Right") for every 4.33 shares of Common Stock held of
record as of July 1, 2005 (the "Record Date"), and intends that the Rights will
be exercisable to purchase (i) one share of Series B Preferred at a subscription
price of $.50 (U.S.) per share (the "Subscription Price"), and (ii) five-year
warrants to purchase that number of shares of common stock of the Company equal
to 50% of the number of shares of Series B Preferred acquired by each Common
Stockholder, for no additional consideration, and that any Rights holder who
exercises all of their Basic Subscription Rights may subscribe for additional
shares of Series B Preferred pursuant to a limited Over-Subscription Right (as
defined herein), and that the Rights will be evidenced by transferable
certificates (the "Rights Certificates") in a form satisfactory to the
Subscription Agent and the Company;
WHEREAS, the Company desires to employ the Subscription Agent to act as a
subscription agent in connection with the Rights Offering, including, but not
limited to, the issuance and delivery of the Rights Certificates, and the
Subscription Agent is willing to act in such capacity:
NOW, THEREFORE, in consideration of the premises and the mutual agreements
hereinafter set forth and for the purpose of defining the terms and provisions
of the Rights and the Rights Certificates and the respective rights and
obligations thereunder of the Company, the holders of Rights Certificates and
the Rights Agent, the parties agree as follows:
ARTICLE I
APPOINTMENT OF SUBSCRIPTION AGENT
1.1 Appointment of Subscription Agent. The Company hereby appoints the
Subscription Agent to act as agent for the Company in accordance with the
instructions set forth in this Agreement, and the Subscription Agent hereby
accepts such appointment.
ARTICLE II
DELIVERY OF DOCUMENTS BY COMPANY
2.1 Delivery of Documents by Company. The Company will cause to be timely
delivered to the Subscription Agent sufficient copies of the following documents
for delivery to all intended recipients of the Rights (the "Rights Offerees"):
(a) the Prospectus;
(b) blank Rights Certificates, including instructions for completion;
(c) a transmittal letter to Rights Offerees (the "Rights Letter");
(d) separate instructions for Rights Offerees who are nominees (the
Nominee Instructions"); and
(e) a notice of guaranteed delivery (the "Notice of Guaranteed Delivery").
2.2 Additional Documents to be Delivered by Company. The Company will also
deliver to the Subscription Agent:
(a) resolutions adopted by the Board of Directors of the Company in
connection with the Rights Offering, certified by the Secretary or Assistant
Secretary of the Company.
ARTICLE III
DETERMINATION OF RIGHTS OFFEREES AND RIGHTS
3.1 Determination of Rights Offerees. On the Record Date, the Subscription
Agent shall create and maintain, from the stock ledger and register it maintains
in its capacities as transfer agent and registrar for the Common Stock, a list
of the names, addresses and taxpayer identification numbers of the Rights
Offerees and the number of Rights each such Rights Offeree is entitled to
receive in the Rights Offering (the "Rights Ledger"). With respect to the Common
Stock held of record by stock depositary trust companies, the Subscription Agent
and the Company shall timely solicit and obtain a list containing similar
information with respect to the broker/dealers or banks for whom such companies
hold such stock as nominee and merge such information with and into the Rights
Ledger. The Rights Offerees shall be established as of the close of business on
the Record Date.
3.2 Determination of Rights. Each Rights Offeree shall receive one Right
for every 4.33 shares of Common Stock held of record as of the Record Date.
Fractional Rights will not be issued by the Company.
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ARTICLE IV
MAILING OF SUBSCRIPTION DOCUMENTS BY SUBSCRIPTION AGENT
4.1 Mailing of Subscription Documents by Subscription Agent. Except as
provided in Section 4.2 below, upon the written advice of the Company, signed by
any of its duly authorized officers, after the date of effectiveness of the
Registration Statement, the Subscription Agent shall mail or cause to be mailed,
via first class mail, to each Rights Offeree a prospectus, Rights Certificate,
including instructions for completion, Rights Letter and Notice of Guaranteed
Delivery (the "Subscription Documents"). Prior to mailing, the Subscription
Agent, as transfer agent and registrar for the Rights, will cause to be issued
Rights Certificates in the names of the Rights Offerees and for the number of
Rights to which they are each entitled, as determined in accordance with Section
3 above. The Subscription Agent shall make reasonable efforts to identify which
of the Rights Offerees are likely to be nominee holders and to include the
Nominee Instructions with such mailing to such Rights Offerees. The Subscription
Agent shall either manually sign or affix a duly authorized facsimile signature
on all Rights Certificates. The signatures of the officers of the Company on the
Rights Certificates shall be facsimile signatures. Immediately after the Rights
Certificates are mailed, the Subscription Agent shall execute and deliver to the
Company a certificate in the form Exhibit A hereto.
4.2 Foreign Stockholders. If requested by the Company, the Subscription
Agent shall airmail or courier the documents required by Section 4.1 to Rights
Offerees whose addresses are outside the United States or Canada and take other
reasonable action requested by the Company to cause the timely delivery of such
documents to such Rights Offerees.
ARTICLE V
SUBSCRIPTION PROCEDURE
5.1 Valid Exercise of Rights. For a valid exercise of Rights to occur, the
Subscription Agent must receive, by mail, hand delivery, and otherwise, prior to
5:00 p.m., New York City time, on August 10, 2005 (the "Expiration Date"), which
time period may not be extended by the Company, the Rights Certificate
pertaining to such Rights, which has been properly completed and endorsed for
exercise, as provided in the instructions on the reverse side of the Rights
Certificate, and payment in full in U.S. dollars of the Subscription Price for
the number of shares of Series B Preferred and Warrants subscribed by check,
bank check, money order or other negotiable instrument payable to the order of
"Corporate Stock Transfer, Inc., as Subscription Agent for Advanced BioPhotonics
Inc."
5.2 Guaranteed Signatures. If a Rights Offeree requests that the Rights
Certificate representing the Series B Preferred to be issued in a name other
than the name of the Rights Offeree or such certificate is to be sent to an
address other than the address shown on such Rights Offeree's Rights
Certificate, the signatures on such Rights Certificate must be guaranteed by a
financial institution (including commercial banks, savings and loan associations
and brokerage houses) that is a member of a recognized signature guarantee or
medallion program within the meaning of Rule l7 Ad-l5 under the Securities
Exchange Act of 1934, as amended (each, an "Eligible Institution").
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5.3 Depository Trust Company. In the case of Rights Offerees of Rights
that are held of record through the Depository Trust Company ("DTC"), exercises
of the Basic Subscription Right may be effected by instructing DTC to transfer
Rights from the DTC account of such Rights Offeree to the DTC account of the
Subscription Agent, together with payment of the Subscription Price for each
Unit subscribed for pursuant to the Basic Subscription Right and the
Over-Subscription Right, as applicable. Alternatively, a Rights Offeree may
exercise the Rights evidenced by the Rights Certificate by effecting compliance
with the procedures for guaranteed delivery set forth in Section 5.4 below.
5.4 Notice of Guaranteed Delivery. If a Rights Offeree wishes to exercise
Rights, but time will not permit such Rights Offeree to cause the Rights
Certificate evidencing such Rights to reach the Subscription Agent on or prior
to the Expiration Date, such Rights may nevertheless be exercised if all of the
following conditions are met (the "Guaranteed Delivery Procedures"): (a) such
Rights Offeree has caused payment in full of the Subscription Price for each
share of Series B Preferred being subscribed for pursuant to the Basic
Subscription Right and the Over-Subscription Right to be received by the
Subscription Agent on or prior to the Expiration Date; (b) the Subscription
Agent receives, on or prior to the Expiration Date, a guarantee notice (a
"Notice of Guaranteed Delivery"), substantially in the form provided with the
Subscription Documents, from an Eligible Institution, stating the name and
address of the Rights Offeree, the Rights Certificate number(s) held by such
Rights Offeree, the number of Rights held by the Rights Certificate or Rights
Certificates held by such Rights Offeree, the number of shares of Series B
Preferred being subscribed for pursuant to the Basic Subscription Right and the
number of shares of Series B Preferred, if any, being subscribed for pursuant to
the Over-Subscription Right, and guaranteeing the delivery to the Subscription
Agent of the Rights Certificate evidencing such Rights at or prior to 5:00 p.m.,
New York City time, on the date three (3) business days following the date of
the Notice of Guaranteed Delivery; and (c) the properly completed Rights
Certificate(s) evidencing the Rights being exercised, with any required
signatures guaranteed, are received by the Subscription Agent, or such Rights
are transferred into the DTC account of the Subscription Agent, at or prior to
5:00 p.m., New York City time, on the date three (3) business days following the
date of the Notice of Guaranteed Delivery relating thereto. The Notice of
Guaranteed Delivery way be delivered to the Subscription Agent in the same
manner as Rights Certificates at the addresses set forth above, or may be
transmitted to the Subscription Agent by telegram or facsimile transmission
(facsimile: (000) 000-0000).
5.5 Deemed Exercises. If a Rights Offeree has not indicated the number of
Rights being exercised, or if the Subscription Price payment forwarded by such
Rights Offeree to the Subscription Agent is not sufficient to purchase the
number of shares of Series B Preferred subscribed for, the Rights Offeree will
be deemed to have exercised the Basic Subscription Right with respect to the
maximum number of Rights which may be exercised for the Subscription Price
delivered to the Subscription Agent and, to the extent that the Subscription
Price payment delivered by such Rights Offeree exceeds the Subscription Price
multiplied by the maximum number of Rights which may be exercised (the
Subscription Excess"), the Rights Offeree will have been deemed to have
exercised its Over-Subscription Right to purchase, except as provided in Section
8.2, that number of shares of Series B Preferred equal to the quotient obtained
by dividing the Subscription Excess by the Subscription Price, up to the maximum
number of shares of Series B Preferred purchasable by such Rights Offeree. The
Subscription Agent, as soon as practicable after the exercise of the Rights,
shall mail to such Rights Offerees any portion of the Subscription Excess not
applied to the purchase of shares of Series B Preferred pursuant to the
Over-Subscription Right, without interest or deduction.
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ARTICLE VI
DELIVERY OF STOCK CERTIFICATES AND WARRANTS
6.1 Delivery of Stock Certificates. As soon as practicable after the
Expiration Date, the Subscription Agent shall mail certificates representing the
shares of Series B Preferred subscribed for by the holders of the Rights. The
certificates shall be mailed via first class mail to the subscribers' address as
shown on the reverse side of the Rights Certificate or, if none, then as listed
on the Subscription Agent's register (except that the Subscription Agent shall
comply with any ancillary written delivery instructions provided by any
subscriber). The Subscription Agent shall maintain a mail loss surety bond
protecting the Company and the Subscription Agent from loss or liability arising
out of non-receipt or non-delivery of such certificates.
ARTICLE VII
FRACTIONAL RIGHTS AND SHARES
7.1 Fractional Rights and Shares. No fractional Rights will be issued by
the Company. A Rights Certificate may not be divided in such a manner as would
permit the holders to subscribe for a greater number of shares of Series B
Preferred than the number for which they would be entitled to subscribe under
the original Rights Certificate. Rights Offerees, such as banks, securities
dealers and brokers, who receive Rights as nominees for one or more beneficial
owners shall be entitled to exercise their Rights Certificates on behalf of the
beneficial owners.
ARTICLE VIII
OVER-SUBSCRIPTION RIGHT
8.1 Over-Subscription Right. If a Rights Offeree exercises his or her
Basic Subscription Right in full, the Rights Offeree may subscribe for
additional shares of Series B Preferred (the "Over-Subscription Right") at the
Subscription Price, on a pro rata basis with Common Stockholders who also
exercise Over-Subscription Rights. The Subscription Agent shall determine the
number of shares of Series B Preferred subscribed for pursuant to the exercise
of all Over-Subscription Rights. If sufficient shares of Series B Preferred in
excess of all shares of Series B Preferred subscribed for pursuant to the
regular exercise of Rights are available to satisfy all exercised
Over-Subscription Rights, the Subscription Agent shall fill all such exercised
Over-Subscription Rights. To the extent, however, that sufficient shares of
Series B Preferred are not available to fill all such exercised
Over-Subscription Rights, the shares of Series B Preferred which are available
will be allocated among those electing to additionally subscribe on a pro rata
basis based on the total number of shares of Common Stock owned by such
over-subscribing Rights Offerees on the Record Date. Unsubscribed Rights as of
the Expiration Date may be subscribed for by those electing to exercise the
Over-Subscription Right. To exercise the Over-Subscription Right, the
appropriate block on the Subscription form must be completed and payment in full
for additional shares of Series B Preferred must accompany the form and be
submitted to the Subscription Agent prior to the Expiration Date.
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8.2 Refund. In the event any holder who exercises his Basic Subscription
Right or Over-Subscription Right does not receive the shares of Series B
Preferred subscribed thereby, the Subscription Agent shall refund the
Subscription Price paid for the shares of Series B Preferred not received,
without interest, to such holder promptly after the Expiration Date.
ARTICLE IX
DEFECTIVE EXERCISE OF RIGHTS; LOST RIGHTS CERTIFICATES
9.1 Defective Exercise of Rights. The Company shall have the right to
reject any defective exercise of Rights or to waive any defect in exercise. If
the Company advises the Subscription Agent that the Company rejects any
defective exercise of Rights (except a failure to pay the full Subscription
Price with respect to such exercise), at the Company's request the Subscription
Agent shall as soon as practicable either (i) telephone the holder of such
Rights (at the telephone number on the reverse side of the Rights Certificate)
to explain the nature of the defect if the defect and the necessary correction
can be adequately explained by telephone and the holder can correct the defect
without possession of the Rights Certificates, or (ii) mail the Rights
Certificate, together with a letter explaining the nature of the defect in
exercise and how to correct the defect. If an exercise is not defective except
that there is a partial payment of the Subscription Price, the Subscription
Agent shall issue only the number of shares of Series B Preferred for which
sufficient payment has been made and seek additional payment for the remaining
number of shares of Series B Preferred for which the exercise of the underlying
Rights had been attempted. Any Rights Certificate with respect to which defects
in exercise are not corrected prior to 5:00 p.m., New York City time, on the
Expiration Date, shall be returned with any applicable tendered funds, without
interest, to the holder of such Rights Certificate.
9.2 Lost Rights Certificates. If any Rights Certificate is alleged to have
been lost, stolen or destroyed, the Subscription Agent should follow the same
procedures followed for lost stock certificates representing shares of Common
Stock of the Company that the Company and the Subscription Agent in its capacity
as transfer agent for the Common Stock use, provided that such procedure must be
completed prior to the Expiration Date in order to be effective.
ARTICLE X
PROOF OF AUTHORITY TO SIGN
10.1 Proof of Authority to Sign. The Subscription Agent need not procure
supporting legal papers, and is authorized to dispense with proof of authority
to sign (including any proof of appointment or authority to sign of any
fiduciary, custodian for a minor, or other person acting in a representative
capacity), and to dispense with the signatures of co-fiduciaries, in connection
with exercise of the Rights in the following cases:
(a) where the Rights Certificate is registered in the name of an executor,
administrator, trustee, custodian for a minor or other fiduciary, and the
subscription form thereof is executed by such executor, administrator, trustee,
custodian for a minor or other fiduciary, and the shares of Series B Preferred
subscribed for are to be issued in the name of the registered holder of the
Rights Certificate, as appropriate;
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(b) where the Rights Certificate is in the name of a corporation and the
subscription form thereof is executed by an officer of such corporation and the
shares of Series B Preferred subscribed for are to be issued in the name of such
corporation;
(c) where the Rights Certificate is executed by a bank or broker as agent
for the registered holder of the Rights Certificate; provided that, the shares
of Series B Preferred subscribed for are to be issued in the name of the
registered holder of the Rights Certificate; and
(d) where the Rights Certificate is registered in the name of a decedent
and the subscription form thereof is executed by a subscriber who purports to
act as the executor or administrator of the estate, provided (i) the
subscription is for not more than $1,000, and (ii) the shares of Series B
Preferred subscribed for are to be registered in the name of the subscriber as
executor or administrator of such estate of the deceased registered holder. In
all of the cases set forth in this Section 10 and notwithstanding anything
contained in this Agreement to the contrary, the check tendered in payment of
the applicable subscription must be drawn for the proper amount, to the order of
the Subscription Agent and otherwise be in proper form, and there must be no
evidence indicating that the subscriber is not the duly authorized
representative he purports to be. In cases other than those set forth above, the
Subscription Agent should procure the necessary legal documents. However, in the
event that all legal requirements for proper exercise of the Rights have not
been met at the Expiration Date, the Subscription Agent may accept approval from
the Company as to whether such Rights Certificates may be accepted and the
shares of Series B Preferred subscribed for thereunder issued.
ARTICLE XI
ESCROW OF FUNDS
11.1 Escrow of Funds. Any funds received by the Subscription Agent as
payment in connection with subscriptions for shares of Series B Preferred
pursuant to the Rights Offering shall be deposited in an escrow account with
Guaranty Bank and Trust Company ("Guaranty Bank") to be held in trust and escrow
by Guaranty Bank (and shall be invested in a non-interest-bearing bank account
or other investment acceptable to the Company) pending receipt of written
disbursement instructions from the Company, at which time the funds shall be
disbursed in accordance with such written instructions from the Company. The
Subscription Agent is hereby authorized and directed to endorse, negotiate and
deposit all subscription payments into the escrow account to be maintained by
Guaranty Bank. The Subscription Agent shall account on a weekly basis to the
Company for all escrowed funds and on a more frequent basis, if requested by the
Company.
ARTICLE XII
REPORTS
12.1 Reports. If requested by the Company, the Subscription Agent shall
notify Xx. Xxxxx X. X'Xxxxxx at the Company (631-244-8244) or his designee, by
telephone on or before 4:00 p.m., New York City time, on each business day
during the period commencing with mailing of the Rights Certificates and ending
at the Expiration Date (and in the case of guaranteed delivery, ending three (3)
business days after the Expiration Date), which notice shall thereafter be
confirmed in writing, of (i) the number of shares of Series B Preferred Stock
validly subscribed for, (ii) the number of shares of Series B Preferred Stock
subject to guaranteed delivery, (iii) the number of shares of Series B Preferred
Stock for which defective subscriptions have been received and the nature of
such defects, (iv) the number of shares of Series B Preferred Stock validly
subscribed for pursuant to the Over-Subscription Rights, and (v) the amounts of
collected and uncollected funds in the subscription escrow account established
under this Agreement. At or before 5:00 p.m., New York City time, on the fifth
business day following the Expiration Date, or upon the request from the Company
from time to time thereafter, the Subscription Agent shall certify in writing to
the Company the cumulative totals through the Expiration Date of all the
information set forth in clauses (i) through (v) above. At or before 5:00 p.m.,
New York City time, on the fifth business day following receipt from the Company
of written instructions to mail the shares of Series B Preferred Stock
subscribed for pursuant to the Rights, the Subscription Agent will execute and
deliver to the Company a certificate in the form of Exhibit B hereto. The
Subscription Agent shall also maintain and update a listing of holders who have
fully or partially exercised their Rights and holders who have not exercised
their Rights. The Subscription Agent shall provide the Company or their
designees with such information compiled by the Subscription Agent pursuant to
this Section 12 as any of them shall request from time to time by telephone or
telecopy. The Subscription Agent hereby represents, warrants and agrees that the
information contained in each notification referred to in this Section 12 shall
be accurate in all material respects.
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ARTICLE XIII
FUTURE INSTRUCTIONS
13.1 Future Instructions. With respect to notices or instructions to be
provided by the Company hereunder, the Subscription Agent may rely and act on
any written instruction signed by any one or more of the following authorized
officers or employees of the Company: Xxxxx X. X'Xxxxxx or Xxxxx Xxxxxxxxx.
ARTICLE XIV
PAYMENT OF EXPENSES
14.1 Payment of Expenses. The Company will pay the Subscription Agent for
its services under this Agreement in accordance with the fees listed on Schedule
I attached hereto, and will reimburse the Subscription Agent for all reasonable
and necessary expenses incurred by it in so acting.
ARTICLE XV
COUNSEL
15.1 Counsel. The Subscription Agent may consult with counsel satisfactory
to it, which may be counsel to the Company, and the written advice or opinion of
such counsel shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by the Subscription Agent hereunder in
good faith and in accordance with such advice or opinion of such counsel.
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ARTICLE XVI
INDEMNIFICATION
16.1 Indemnification. The Company covenants and agrees to indemnify and
hold the Subscription Agent harmless against any costs, expenses (including
reasonable fees for legal counsel), losses or damages, which may be paid,
incurred or suffered by or to which the Subscription Agent may become subject,
arising from or out of, directly or indirectly, any claim or liability resulting
from its actions pursuant to this Agreement and for which the Subscription Agent
is not otherwise reimbursed under the mail loss surety bond; provided that such
covenant and agreement does not extend to such costs, expenses, losses and
damages incurred or suffered by the Subscription Agent as a result of, or
arising out of, any negligence, misconduct or bad faith of the Subscription
Agent or of any employees, agents or independent contractors used by the
Subscription Agent in connection with performance of its duties hereunder.
ARTICLE XVII
MISCELLANEOUS
17.1 Notices. Unless otherwise provided herein, all reports, notices and
other communications required or permitted to be given hereunder shall be in
writing and delivered by hand or telecopy or by first class mail, postage
prepaid, a follows:
(a) If to the Company, to:
Advanced BioPhotonics Inc.
000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. X'Xxxxxx
Facsimile (000) 000-0000
With a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxxxxx Xxxxxxx, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile (000) 000-0000
(b) If to the Subscription Agent, to:
Corporate Stock Transfer, Inc.
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxx
Facsimile (000) 000-0000
17.2 Amendments and Waivers. This Agreement may not be amended or modified
except by a written instrument or document which has been executed by all of the
parties hereto. Any party hereto may waive any of its rights arising under this
Agreement only by a written instrument or document executed by such party, and
any such waiver shall not be construed as a waiver of any subsequent, or other,
right of such party.
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17.3 Invalidity. If one or more of the tents of this Agreement shall for
any reason be held invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect the remaining terms
of this Agreement and this Agreement shall be construed as if such invalid,
illegal or unenforceable term or terms had never been contained herein.
17.4 Binding Effect and Assignments. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective legal
representatives, successors and permitted assigns; provided, however, that,
without the prior written consent of the Company, the Subscription Agent may not
assign any of its interests, rights or obligations arising out of this
Agreement.
17.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the undersigned have hereto set their hands as of the
date first written above.
ADVANCED BIOPHOTONICS INC.
By:
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Name:
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Title:
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CORPORATE STOCK TRANSFER, INC.
By:
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Name:
------------------------------------
Title:
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SCHEDULE I
SUBSCRIPTION AGENT AGREEMENT
FEES AS SUBSCRIPTION AGENT:
$7,500.00
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