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OFFSHORE SECURITIES SUBSCRIPTION AGREEMENT
This Offshore Securities Subscription Agreement ("Agreement") is executed
in reliance upon the transaction exemption afforded by Regulation S
("Regulation S") as promulgated by the Securities and Exchange Commission
("SEC"), under the Securities Act of 1933, as amended ("1933 Act").
This Agreement has been executed by the undersigned in connection with the
private placement of up to $3,000,000 8% Convertible Debentures due January 31,
2000 (hereinafter referred to as the "Debentures") of The Female Health
Company, a corporation organized and existing under the laws of the State of
Wisconsin, U.S.A., American Stock Exchange Symbol "FHC" (hereinafter referred
to as the "COMPANY"). The Debentures being sold pursuant to this Agreement,
and the Shares (as defined below), have not been registered under the 1933 Act
and may not be offered or sold in the United States or to U.S. Persons, other
than distributors (as such terms are defined in Regulation S), unless the
Debentures or the Shares, as the case may be, are registered under the 1933
Act, or an exemption from the registration provisions of the 1933 Act is
available. The terms on which the Debentures may be converted into common
stock (the "Shares") and the other terms of the Debentures are set forth in the
pro forma Debenture in ANNEX I annexed hereto. This subscription and, if
accepted by the COMPANY, the offer and sale of Debentures and the Shares
issuable upon conversion thereof (collectively the "Securities"), are being
made in reliance upon the provisions of Regulation S ("Regulation S") under the
1933 Act.
The undersigned
NAME:____________________________________________________________
(Print Name Exactly As It Will Appear On Debenture And Stock Certificates)
ADDRESS:_________________________________________________________
__________________________________________________________
__________________________________________________________
__________________________________________________________
(Jurisdiction of Organization or residence)
if applicable, a [Corporation][Partnership][Trust] organized under the laws of
__________, a non USA jurisdiction (hereinafter referred to as the "PURCHASER")
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hereby represents and warrants to, and agrees with, the COMPANY as follows:
1. AGREEMENT TO SUBSCRIBE.
a. SUBSCRIPTION AMOUNT. The undersigned hereby subscribes for
$______________ in principal amount of 8% Debentures.
b. FORM OF PAYMENT. The PURCHASER shall pay the purchase price for the
Debentures by delivering good funds in United States Dollars to the
escrow agent identified in the Joint Escrow Instructions attached
hereto as ANNEX II (the "Escrow Agent"). Delivery of such funds to
the COMPANY by the Escrow Agent shall be made against delivery by the
COMPANY of one or more Debentures in accordance with this Agreement.
By signing this Agreement, the PURCHASER and the COMPANY each agrees
to all of the terms and conditions of, and becomes a party to, the
Joint Escrow Instructions attached hereto as ANNEX II, all of the
provisions of which are incorporated herein by this reference as if
set forth in full.
c. METHOD OF PAYMENT. Payment of the purchase price for the Debentures
shall be made by wire transfer of funds to:
Bank of New York
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA# 000000000
for credit to the account of Xxxxxxx & Xxxxxx, Attorneys
Escrow Account No. 105-0000000
Not later than three (3) business days after acceptance and execution
of this Agreement by the COMPANY, the PURCHASER shall deposit with the
Escrow Agent the aggregate subscription price for the Debentures.
2. SUBSCRIBER REPRESENTATIONS AND COVENANTS; ACCESS TO INFORMATION;
INDEPENDENT INVESTIGATION.
a. OFFSHORE TRANSACTION. PURCHASER represents, warrants and
covenants to COMPANY as follows:
(i) PURCHASER is not a U.S. Person as that term is defined
under Regulation S, as set forth in Annex III.
(ii) PURCHASER is outside the United States as of the date of
the execution and delivery of this Agreement.
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(iii) PURCHASER is purchasing the Debentures for its own
account and not on behalf of any U.S. Person, and
PURCHASER is the sole beneficial owner of the
Debentures, and has not pre-arranged any sale with any
purchaser or purchasers in the United States.
(iv) PURCHASER represents and warrants and hereby agrees that
all offers and sales of the Debentures prior to the
expiration of a period commencing on the date of the
receipt of funds by the COMPANY and ending 40 days
thereafter (the "Restricted Period") shall only be made
in compliance with the safe harbor contained in
Regulation S, pursuant to the registration provisions
under the 1933 Act or pursuant to an exemption from
registration, and all offers and sales after the
expiration of the 40-day period shall be made only
pursuant to such registration or to an exemption from
registration.
(v) PURCHASER acknowledges that the purchase of the
Debentures involves a high degree of risk, is aware of
the risks and further acknowledges that it can bear the
economic risk of the purchase of the Debentures,
including the total loss of its investment.
(vi) PURCHASER understands that the Debentures are being
offered and sold to it in reliance on specific
exemptions from the registration requirements of U.S.
securities laws and that the COMPANY is relying upon the
truth and accuracy of the representations, warranties,
agreements, acknowledgements and understandings of
PURCHASER set forth herein in order to determine the
applicability of such exemptions and the suitability of
PURCHASER to acquire the Debentures, and the Shares
issuable upon conversion thereof. PURCHASER represents
and warrants that the information contained herein is
complete and accurate. PURCHASER further represents and
warrants that it will notify the COMPANY immediately
upon the occurrence of any material change therein
occurring prior to the issuance of Shares upon
conversion of the Debenture.
(vii) PURCHASER is sufficiently experienced in financial and
business matters to be capable of evaluating the merits
and risks of its investments, and to make an informed
decision relating thereto.
(viii) In evaluating its investment, PURCHASER has consulted
its own investment and/or legal and/or tax advisors.
PURCHASER is not relying on the COMPANY respecting the
tax and other
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economic considerations of an investment in the
Debentures.
(ix) PURCHASER understands that in the view of the SEC the
statutory basis for the exemption claimed for this
transaction would not be present if the offering of
Debentures, and the Shares issuable upon conversion
thereof, although in technical compliance with
Regulation S, is part of a plan or scheme to evade the
registration provisions of the 1933 Act. PURCHASER is
acquiring the Debentures for investment purposes and has
no present intention to sell the Debentures, or the
Shares issuable upon conversion thereof, in the United
States or to a U.S. Person or for the account or benefit
of a U.S. Person either now or after the expiration of
the Restricted Period.
(x) PURCHASER is not an underwriter of, or dealer in, the
Securities, and PURCHASER is not participating, pursuant
to a contractual agreement, in the distribution of the
Securities.
(xi) During the period commencing on the Closing Date (as
defined herein) and ending on the 45th day following
such date, neither PURCHASER nor any of its affiliates
will, directly or indirectly, maintain any short
position in the securities of the COMPANY.
(xii) During the period commencing on the Closing Date (as
defined herein) and ending on the 45th day following
such date, PURCHASER will not sell, commit or agree to
sell or pledge any shares of Common Stock of the COMPANY
or any other securities convertible into or exercisable
for shares of Common Stock of the COMPANY.
(xiii) PURCHASER has taken no action which would give rise to
any claim by any person for brokerage commission,
finders' fees or the like relating to this Agreement or
the transactions contemplated hereby.
b. CURRENT PUBLIC INFORMATION. PURCHASER acknowledges that
PURCHASER has been furnished with or has acquired copies of the
COMPANY'S Form S-1 Registration Statement Prospectus dated June
17, 1996, its most recent Annual Report on the Form 10-K filed
with the SEC, and its forms 10-Q and 8-K filed thereafter
(collectively the "SEC Filings"). PURCHASER is not relying upon
any representations or other information (whether oral or
written) other than as set forth in the
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SEC filings or in Annex IV.
c. INDEPENDENT INVESTIGATION; ACCESS. PURCHASER acknowledges that
PURCHASER, in making the decision to purchase the Debentures
subscribed for, has relied upon independent investigations made
by it and its representatives, if any, and PURCHASER and such
representatives, if any, have, prior to any sale to it, been
given access and the opportunity to examine all material publicly
available, books and records of the COMPANY, all material
contracts and documents relating to this offering and an
opportunity to ask questions of, and to receive answers from the
COMPANY or any person acting on its behalf concerning the terms
and conditions of this offering. PURCHASER and its advisors, if
any, have been furnished with access to all publicly available
materials relating to the business, finances and operation of the
COMPANY and materials relating to the offer and sale of the
Debentures which have been requested. PURCHASER and its advisors,
if any, have received complete and satisfactory answers to any
such inquiries.
d. NO GOVERNMENT RECOMMENDATION OR APPROVAL. PURCHASER understands
that no federal or state agency has passed on or made any
recommendation or endorsement of the Debentures.
e. ENTITY PURCHASERS. If PURCHASER is a partnership, corporation or
trust, the person executing this Agreement on its behalf
represents and warrants that:
(i) He or she has made due inquiry to determine the
truthfulness of the representations and warranties made
pursuant to this Agreement.
(ii) He or she is duly authorized (if the undersigned is a
trust, by the trust agreement) to make this investment
and to enter into and execute this Agreement on behalf
of such entity.
f. INDIVIDUAL PURCHASERS. PURCHASER, if an individual, represents
that he or she has reached the age of 21 and has adequate means
for providing for his or her current and anticipated financial
needs and possible contingencies for emergencies and has no need
for liquidity in the proposed investment.
g. BINDING COMMITMENT. This Agreement constitutes a legal, valid
and binding obligation of the PURCHASER. The PURCHASER has full
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power, right and authority to enter into and perform this
Agreement. The execution and delivery and performance of this
Agreement will not violate or be in conflict with any order,
judgment, injunction, agreement or controlling document to which
the PURCHASER is a party or by which it is bound. If the
PURCHASER is an entity, it was not formed for the specific
purpose of acquiring the Debenture.
h. FOREIGN LAWS. PURCHASER hereby covenants that it will comply
with all laws and regulations in each foreign jurisdiction in
which it purchases, offers, sells or deliver the Securities, or
has in its possession or distributes any offering material.
3. COMPANY REPRESENTATIONS.
a. REPORTING COMPANY STATUS. The COMPANY is a reporting issuer as
defined by Rule 902 of Regulation S. The COMPANY is in full
compliance, to the extent applicable, with all reporting
obligations under either Section 12(b), 12(g) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
The COMPANY has registered its common stock pursuant to Section
12 of the Exchange Act and the common stock trades on the
AMERICAN STOCK EXCHANGE, and has received no notice, either oral
or written, with respect to its continued eligibility for such
listing.
b. OFFSHORE TRANSACTION. The COMPANY has not offered these
securities to any person in the United States or to any U.S.
Person as that term is defined in Regulation S.
c. NO DIRECTED SELLING EFFORTS. In regard to this transaction, the
COMPANY has not conducted any "directed selling efforts" as that
term is defined in Rule 902 of Regulation S nor has the COMPANY
conducted any general solicitation relating to the offer and sale
of the within securities to persons resident within the United
States or elsewhere.
d. TERMS OF DEBENTURES. The COMPANY will issue the Debentures in
accordance with the terms of ANNEX I attached hereto.
e. LEGALITY. The COMPANY has the requisite corporate power and
authority to enter into this Agreement and to sell and deliver
the Debentures; this Agreement and the issuance of the Debentures
have been duly and validly authorized by all necessary corporate
action by the COMPANY; this Agreement has been duly and validly
executed and
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delivered by and on behalf of the COMPANY, and is a valid and
binding agreement of the COMPANY, enforceable against it in
accordance with its terms, except as enforceability may be
limited by general equitable principles, bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other laws
affecting creditors rights generally.
f. NON-CONTRAVENTION. The execution and delivery of this Agreement
and the consummation of the issuance of the Debentures, and the
consummation of the transactions contemplated by this Agreement
by the COMPANY do not and will not conflict with or result in a
breach by the COMPANY of any of the terms or provisions of, or
constitute a default under, the Articles of Organization or
by-laws of the COMPANY, or any material indenture, mortgage, deed
of trust, or other material agreement or instrument to which the
COMPANY is a party or by which it or any of its properties or
assets are bound or (assuming that the representations and
warranties of the PURCHASER in Section 2 hereof, are true and
correct), any existing applicable U.S. law, rule, or regulation
or any applicable decrees, judgment or order of any U.S. court,
federal or state regulatory body, administrative agency or other
U.S. governmental body having jurisdiction over the COMPANY or
any of its properties or assets, the conflict, breach, violation
or default of or under which would have a material adverse effect
on the COMPANY'S business or financial condition.
g. FILINGS. The COMPANY undertakes and agrees to make all necessary
filings in connection with the sale of the Debentures as required
by United States laws and regulations or any domestic securities
exchange or trading market, with a copy to counsel for
Distributor.
h. ABSENCE OF CERTAIN CHANGES. Since September 30, 1996, there has
been no material adverse development in the assets, liabilities,
business, properties, operations, financial condition or results
of operations of the COMPANY, except as disclosed in the SEC
Filings or in Annex V.
i. The Company has legally available sufficient authorized and
unissued Shares as may be reasonably necessary to effect the
conversion of the Debentures.
4. TRANSFER AGENT INSTRUCTIONS.
a. Debentures. Upon the conversion of the Debentures, the PURCHASER
thereof shall submit such Debenture and the COMPANY's Transfer
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Agent shall, pursuant to Irrevocable Instructions to Transfer
Agent annexed hereto, within three (3) business days of receipt
of such Debenture issue one or more certificates representing
that number of shares of Common Stock into which the Debenture or
Debentures are convertible in accordance with the provisions
regarding conversion set forth in ANNEX I hereto. The COMPANY
shall act as Debenture Registrar and shall maintain an
appropriate ledger containing the necessary information with
respect to each Debenture.
b. Subject to the completeness and accuracy of the PURCHASER'S
representations and warranties herein, upon the conversion of any
Debenture by a person who is a non-U.S. Person, the COMPANY'S
transfer agent shall issue stock certificates without restrictive
legend in the name of PURCHASER (or its nominee (being a non-U.S.
Person) or such non-U.S. Persons as may be designated by
PURCHASER) and in such denominations to be specified at
conversion representing the number of shares of Common Stock
issuable upon such conversion, as applicable; provided, however,
that if the nominee or other non-U.S. Person in whose name a
certificate or certificates for shares are requested to be
registered is other than PURCHASER, or if there has been a
regulatory development including, but not limited to, an
amendment or proposed amendment of Regulation S, or any
"no-action" or interpretive guidance whether oral or written from
the Securities and Exchange Commission, which call into question
the ability of COMPANY to issue to PURCHASER the Securities
without registration under the United States Securities Act of
1933, COMPANY may require prior to issuance of a certificate in
the name of PURCHASER or such other person, that it receive
reasonable transfer documentation including opinions of counsel
acceptable to COMPANY that the issuance of certificates without
restrictive legend and/or in such other name does not and will
not cause a violation of the Act or any applicable state or
foreign securities laws. The COMPANY warrants that no
instructions other than these instructions, instructions to
impose a "stop transfer" instruction with respect to the
Debenture until the end of the Restricted Period and the
Irrevocable Instructions to Transfer Agent annexed hereto have
been or will be given to the transfer agent and that the Shares
will not be subject to any transfer limitations other than those
imposed by applicable securities laws. Nothing in this Section
4, however, shall affect in any way PURCHASER'S or such nominee's
obligations and agreement to comply with all applicable
securities laws upon resale of the Securities.
c. If upon conversion of the Debentures effected by the PURCHASER
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pursuant to the terms of this Agreement and the Form of Debenture
following the expiration of the Restricted Period, the COMPANY
fails to issue certificates for Shares issuable upon such
conversion to the PURCHASER bearing no restrictive legend for any
reason other than the COMPANY'S reasonable good faith belief that
the representations and warranties made by the PURCHASER in this
Agreement were untrue when made, the COMPANY shall pay to the
PURCHASER by wire transfer, as liquidated damages for such
failure and not as a penalty, an amount in cash equal to $50,000
provided, however, that the payment of such liquidated damages
shall not relieve the COMPANY from its obligations to register
the Shares pursuant to Section 9.
5. EXEMPTION; RELIANCE ON REPRESENTATION. PURCHASER understands that the
offer and sale of the Debentures, and the Shares issuable upon conversion
thereof, is not being registered under the 1933 Act. The COMPANY is relying on
the rules governing offers and sales made outside the United States pursuant to
Regulation S. Rules 901 through 904 of Regulation S govern this transaction.
6. CLOSING DATE AND ESCROW AGENT. The date of the issuance of the
Debentures and the sale of the Debentures as evidenced by receipt by the
COMPANY from the Escrow Agent of PURCHASER'S purchase funds (the "Closing
Date") shall be no later than ten (10) business days after execution hereof by
all parties or such other mutually agreed to time. PURCHASER shall, within
three (3) business days after acceptance and execution of this Agreement by the
COMPANY, deliver the necessary funds as indicated in Paragraph 1 to the Escrow
Agent. Debentures will be delivered to the Escrow Agent at the instructions of
the COMPANY. PURCHASER agrees that the Escrow Agent has no liability as a
result of any fraudulent or unlawful conduct of any other party, and agrees to
hold the Escrow Agent harmless for costs arising out of such fraudulent or
unlawful conduct of others.
7. WARRANTS. The Company agrees to issue to PURCHASER within ten (10)
days after the Closing Date, transferable divisible warrants (the
"Warrants") under Regulation S for Shares of Common Stock equal to 10% of the
number of shares of Common Stock into which the Debentures would be convertible
as at such Closing Date. Such Warrants shall bear an exercise price per share
of Common Stock equal to $5.00, and shall be exercisable commencing May 1, 1997
and for a period of 36 months thereafter, in the form annexed hereto as Exhibit
VI.
8. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL. PURCHASER understands
that COMPANY'S obligation to sell the Debentures is conditioned upon:
a. PURCHASER'S and the Company's execution of this Agreement;
b. Delivery to the Escrow Agent by each PURCHASER of good funds
as
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payment in full for the purchase of the Debentures; and
c. The accuracy on the Closing Date of the representations and
warranties of PURCHASER contained in this Agreement and the
performance by PURCHASER on or before the Closing Date of all
covenants and agreements of PURCHASER required to be performed on
or before the Closing Date.
d. There shall not be in effect any law, rule or regulation
prohibiting or restricting the transactions contemplated hereby,
or requiring any consent or approval which shall not have been
obtained.
9. CONDITIONS TO PURCHASER'S OBLIGATION TO PURCHASE. The COMPANY
understands that PURCHASER'S obligation to purchase the Debentures is
conditioned upon:
a. The receipt and acceptance by the COMPANY of this Agreement as
evidenced by execution of this Agreement by the President or any
Vice President of the COMPANY. The acceptance of funds by the
COMPANY shall be deemed to be constructive acceptance of this
Agreement;
b. Delivery of Debentures and Warrants to Escrow Agent as herein
set forth;
c. The accuracy on the Closing Date of the representations and
warranties of the COMPANY contained in this Agreement and the
performance by the COMPANY on or before the Closing Date of all
covenants and agreements of the COMPANY required to be performed
on or before the Closing Date; and
d. Delivery to the Escrow Agent of (a) duly executed Irrevocable
Instructions to Transfer Agent and (b) an opinion of counsel for
the COMPANY, dated the Closing Date and addressed to PURCHASER,
in the form attached hereto as ANNEX III.
10. REGISTRATION OF THE SECURITIES. COMPANY hereby agrees that, upon
demand of a majority in interest of holders of the Securities as a result of a
regulatory development including, but not limited to, an amendment or proposed
amendment of Regulation S, or any "no-action" or interpretive guidance whether
oral or written from the Securities and Exchange Commission, which call into
question the ability of PURCHASER to resell the Securities without registration,
COMPANY will file, and use its reasonable best efforts to cause to become
effective a registration statement on Form S-3 or other appropriate form under
the 1933 Act covering the resale of the Shares issuable upon conversion of the
Debentures. The Company shall use its best efforts to keep any such
registration statement effective for up to twelve (12) months, or until all of
the Securities are sold, whichever is earlier. The
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COMPANY shall provide the PURCHASER with such number of copies of the prospectus
as shall be reasonably requested to facilitate the sale of the Shares issuable
upon conversion of the Debentures. The COMPANY shall bear and pay
all expenses incurred in connection with any such registration, excluding
discounts and commissions.
11. FURTHER OFFERINGS. Other than issuing shares in acquisitions or as
compensation for services rendered by employees and consultants, and in the
exercise of existing options or warrants issued and outstanding as of the date
hereof or issued hereafter, the COMPANY agrees that if all $3 million of
Debentures are sold it will not for a period of 90 days after the Closing Date,
offer for sale or sell any securities other than the Shares issuable upon
conversion of the Debentures issued to the PURCHASER and to other purchasers
contemporaneously herewith. COMPANY hereby warrants that it has not engaged in
any such offering during the six months prior to the Closing Date, except for
the sales pursuant to the Company's public offering under its Form S-1
Registration Statement dated June 17, 1996, a Regulation S offering of 8%
convertible debentures dated September 12, 1996 in the principal amount of
$2,000,000, and certain warrants and bridge loans as disclosed in such
Registration Statement or as otherwise disclosed in ANNEX V hereof.
12. GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of Wisconsin without giving effect to principles
governing the conflicts of laws. Each of the parties consents to the
jurisdiction of the federal courts whose districts encompass any part of
Milwaukee or the state courts of the State of Wisconsin sitting in the City of
Milwaukee in connection with any dispute arising under this Agreement and hereby
waives, to the maximum extent permitted by law, any objection, including any
objection based on forum non coveniens, to the bringing of any such proceeding
in such jurisdictions. A facsimile transmission of this signed Agreement shall
be legal and binding on all parties hereto. This Agreement may be signed in one
or more counterparts, each of which shall be deemed an original. The headings
of this Agreement are for convenience of reference and shall not form part of,
or affect the interpretation of, this Agreement. If any provision of this
Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity
or unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement or the validity or enforceability of this Agreement
in any other jurisdiction. This Agreement may be amended only by an instrument
in writing signed by the party to be charged with enforcement. This Agreement
supersedes all prior agreements and understandings among the parties hereto with
respect to the subject matter hereof.
13. NOTICES. Any notice required or permitted hereunder shall be given
in writing (unless otherwise specified herein) and shall be deemed effectively
given upon personal delivery or three business days after deposit in the United
States Postal Service, by registered or certified mail with postage and fees
prepaid, addressed to each of the other parties thereunto entitled at the
following addresses, or at such other addresses as a party may designate by ten
days advance written notice to each of the other parties hereto.
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COMPANY: The Female Health Company
000 X. Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx
ATT:Chief Financial Officer
PURCHASER: At the address set forth on the first page of this Agreement.
ESCROW AGENT: Xxxxxxx & Xxxxxx, Esqs.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
14. Survival of Representations and Warranties. PURCHASER'S
representations and warranties shall survive the execution and delivery hereof
of this Agreement and the delivery of the Debenture.
15. Each of the parties shall pay its own fees and expenses in connection
with this Agreement and the transactions contemplated hereby whether or not
consummated.
SIGNATURE(S) FOR INDIVIDUAL SUBSCRIBER(S)
IN WITNESS WHEREOF, the undersigned represents that the foregoing
statements are true and correct and that he, she or they have executed this
Offshore Securities Subscription Agreement this ______ day of ______________,
1997.
______________________________________ ___________________________________
Printed Name (exactly as will appear Signature
on Debentures and Shares)
______________________________________
Jurisdiction of Organization or Residence)
_____________________________________ ___________________________________
Printed Name (exactly as will appear Signature
on Debentures and Shares)
_____________________________________
(Jurisdiction of Organization or Residence)
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SIGNATURES FOR ENTITIES
IN WITNESS WHEREOF, the undersigned represents that the foregoing
statements are true and correct and that it has caused this Offshore Securities
Subscription Agreement to be duly executed on its behalf this ________ day of
___________________, 1997.
____________________________________________
Printed Name of Subscriber (Exactly as will appear on
Debentures and Shares)
____________________________________________
(Jurisdiction of Organization or Residence)
By: _________________________________
(Signature of Authorized Person)
_____________________________________
Printed Name and Title
Accepted this __________ day of the month of ___________________, 199___.
THE FEMALE HEALTH COMPANY
By: __________________________________________
Title: _______________________________
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All correspondence and delivery of certificates and confirmations should be
addressed to the above named person and sent by the COMPANY to his _____
business _____ home address (check one).
Capacity of Subscriber (check one):
Individual __________
Corporation __________
Partnership __________
Other __________ (please specify)
Ownership of Debentures (check one):
Individual __________
Joint Tenants, with right of survivorship __________*
Tenants in Common __________*
Tenants in Entirety __________*
Community Property __________*
Country of Citizenship: ______________________________________________
Country of incorporation or formation: _________________________________
* If you are purchasing Debentures with only your spouse as co-owner, both
you and your spouse must sign the signature page. If any co-owner is not
your spouse, all co-owners must sign the signature page.
Name of PURCHASER Representative, if any: ___________________________________
Address: ___________________________________
___________________________________
Telephone: ___________________________________
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FULL NAME AND ADDRESS OF PURCHASER FOR REGISTRATION PURPOSES:
NAME: _______________________________________________________________________
ADDRESS: ____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
TEL. NO. ____________________________________________________________________
FAX. NO. ____________________________________________________________________
CONTACT NAME: _______________________________________________________________
JURISDICTION OF
ORGANIZATION OR
RESIDENCE: _________________________________________________________________
DELIVERY INSTRUCTIONS (IF DIFFERENT FROM REGISTRATION NAME):
NAME: _______________________________________________________________________
ADDRESS: ____________________________________________________________________
________________________________________________________________________
________________________________________________________________________
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TEL. NO. ____________________________________________________________________
FAX. NO. ____________________________________________________________________
CONTACT NAME: _______________________________________________________________
SPECIAL
INSTRUCTIONS: _______________________________________________________________
________________________________________________________________________
________________________________________________________________________
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EXHIBIT B
INDEMNIFICATION AGREEMENT
In consideration of the agreement of European American Securities, Inc.
("Distributor") to act on behalf of THE FEMALE HEALTH COMPANY, INC. (the
"Company") pursuant to the Distribution Agreement (the "Agreement") dated
______________, 1997, the Company agrees to indemnify and hold harmless
Distributor, its affiliates, and each of their respective partners, directors,
officers, agents, consultants, employees and controlling persons (within the
meaning of the Securities Act of 1933) (Distributor and each such other person
or entity are hereinafter referred to as an "Indemnified Person"), from and
against any losses, claims, damages, expenses and liabilities or actions in
respect thereof (collectively "Losses"), as they may be incurred including all
reasonable legal fees and other expenses incurred in connection with
investigating, preparing, defending, paying, settling or compromising any Losses
(whether or not in connection with any pending or threatened litigation in which
any Indemnified Person is a named party) to which any of them may become subject
(including in any settlement effected with the Company's consent) and which are
related to or arise out of any act, omission, transaction or event, required of
the Company as contemplated by the Agreement. The Company will not, however, be
responsible under the foregoing provisions with respect to any Losses (a) from
actions taken or omitted to be taken by an Indemnified Person due to its gross
negligence, bad faith, willful misconduct, violation of the provisions of the
Agreement and related agreements, or breach of the representations or warranties
made by the Indemnified Person in the Agreement or the related agreements, or
(b) resulting from one or more decreases in the market price of the Company's
common stock.
If the indemnity referred to in this agreement should be, for any reason
whatsoever, unenforceable, unavailable or otherwise insufficient to hold such
Indemnified Person harmless, the Company shall pay to or on behalf of each
Indemnified Person contributions for Losses so that each Indemnified Person
ultimately bears only a portion of such Losses as is appropriate (i) to reflect
the relative benefits received by each such Indemnified Person, respectively, on
the one hand and the Company on the other hand in connection with the
transaction, or (ii) if the allocation on that basis is not permitted by
applicable law, to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of each such Indemnified Person,
respectively, and the Company as well as any other relevant equitable
considerations; provided, however, that in no event shall the aggregate
contribution of all Indemnified Persons to all Losses in connection with any
transaction exceed the value of the consideration actually received by
Distributor pursuant to the Agreement. The respective relative benefits
received by Distributor and the Company in connection with any transaction shall
be deemed to be in
18
the same proportion as the aggregate consideration received by Distributor in
connection with the transaction bears to the total consideration of the
transaction. The relative fault of each Indemnified Person and the Company
shall be determined by reference to, among other things, whether the actions or
omissions to act were by such Indemnified Person or the Company, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action or omission to act.
The Company also agrees that no Indemnified Person shall have any liability
to the Company or its affiliates, directors, officers, employees, agents or
shareholders, directly or indirectly, related to or arising out of the
Agreement, except that each Indemnified Person shall indemnify and hold harmless
the Company, its directors, officers, agents, consultants and controlling
persons from and against any Losses, which result from actions taken or omitted
to be taken by such Indemnified Person due to its gross negligence, bad faith,
willful misconduct, violation of the provisions of the Agreement or the related
agreements, or breach of the Indemnified Person's representations and warranties
in the Agreement or the related agreements. In no event, regardless of the
legal theory advanced, shall the Company or any Indemnified Person be liable for
any consequential, indirect, incidental or special damages of any nature.
If any action is brought against any Indemnified Person in respect of which
indemnity may be sought against the Company hereunder, such Indemnified Person
shall promptly notify the Company in writing of such action and the Company
shall be entitled to participate therein and, to the extent the Company shall
wish, assume the defense thereof. Upon the request of an Indemnified Person,
the Company shall retain counsel reasonably satisfactory to such Indemnified
Person (the parties agreeing that the firm of Reinhart, Boerner, Van Deuren,
Xxxxxx & Reiselbach, s.c. is satisfactory) to represent such Indemnified Person
and any others the Company may designate in such action and shall pay the
reasonable fees and expenses of such counsel related thereto as they are
incurred. In any such action, an Indemnified Person shall have the right to
retain its own counsel at its own expense, except that the Company shall pay as
they are incurred the reasonable fees and expenses of counsel retained by the
indemnified party only in the event that (i) the Company and such Indemnified
Person shall have mutually agreed to the retention of such counsel or (ii) the
Company has directed counsel to represent one or more parties in addition to
such Indemnified Person in such action and representation of both such
Indemnified Person and such other party or parties by the same counsel would be
inappropriate, in the reasonable opinion of such Indemnified Person, due to
actual or potential differing interests between them, it being understood that
the Company shall not be liable for the reasonable fees and expenses of more
than one separate firm for all the Indemnified Persons. No indemnification
provided for herein shall be available to any Indemnified Person that fails to
give notice as provided above if the Company was unaware of the action to which
such notice would have related and was substantially prejudiced by such failure
or to any Indemnified Person that retains its own counsel in accordance with the
immediately preceding sentence except in the circumstances set forth in clauses
(i) and (ii) thereof. The Company agrees that without Distributor's prior
written consent, which shall not
19
be unreasonably withheld, it shall not settle, compromise or consent to the
entry of any judgment in any pending or threatened claim, action, suit or
proceeding related to the Distribution Agreement unless the settlement,
compromise or consent also includes an express unconditional release of all
Indemnified Persons from all liability and obligations arising therefrom.
The respective obligations of the Company and the Indemnified Persons
referred to above shall be in addition to any rights that any Indemnified Person
or the Company, as the case may be, may otherwise have and shall be binding upon
and inure to the benefit of any successors, assigns, heirs and personal
representatives of any Indemnified Person and the Company. It is understood
that the respective obligations of the Company and the Indemnified Persons will
remain operative regardless of any termination or completion of Distributor's
services pursuant to the Agreement.
EUROPEAN AMERICAN SECURITIES, INC.
By: _____________________________________
Title: __________________________
THE FEMALE HEALTH COMPANY, INC.
By: _____________________________________
Title: __________________________
