EXHIBIT 99.2
SUBSCRIPTION AGREEMENT
This SUBSCRIPTION AGREEMENT (the "Agreement") made as of the date set
forth on the signature page hereof between Incara Pharmaceuticals Corporation, a
Delaware corporation (the "Company"), and the undersigned (the "Subscriber").
WITNESSETH:
WHEREAS, the Company is offering in a public offering to qualified
institutional buyers or other investors meeting similar financial standards (the
"Offering") up to $10,000,000 of its common stock, $.001 par value per share
(the "Common Stock"), at a price equal to the closing sale price as listed on
the Nasdaq National Market System on the day before the closing (as defined in
Section 2.2). The shares of Common Stock offered hereby are sometimes referred
to as the "Securities;"
WHEREAS, the Subscriber desires to purchase that number of Securities
set forth on the signature page hereof on the terms and conditions hereinafter
set forth; and
WHEREAS, the Company has engaged Petkevich & Partners, LLC (the
"Placement Agent") as placement agent for the Offering on a "best-efforts" basis
and there is no minimum number of shares that must be sold; and
NOW, THEREFORE, in consideration of the premises and the mutual
representations and covenants hereinafter set forth, the parties hereto agree as
follows:
I. SUBSCRIPTION FOR SECURITIES AND REPRESENTATIONS BY SUBSCRIBER
-------------------------------------------------------------
1.1 Subject to the terms and conditions hereinafter set forth, the
Subscriber hereby irrevocably subscribes for and agrees to purchase from the
Company such Securities as is set forth upon the signature page hereof and,
subject to the Company's right to reject in part or in its entirety this
Agreement, as provided in Section 1.2, the Company agrees to sell such
Securities to the Subscriber for said purchase price. The purchase price is
payable by wire transfer of immediately available funds made payable to Incara
Pharmaceuticals Corporation contemporaneously with the execution and delivery of
this Agreement by the Subscriber or within three business days thereafter. If
the Company does not accept this subscription, such purchase price shall be
returned within one (1) business day to the Subscriber. All wires should be sent
to:
Incara Pharmaceuticals Corporation
ABA: ________________
Certificates for the shares of Common Stock will be delivered by the
Company through its transfer agent to the Subscriber promptly following the
Closing (as herein defined).
1.2 The Subscriber understands and agrees that the Company reserves the
unrestricted right, without further documentation or agreement on the part of
the Subscriber, to reject, in
whole or in part, this subscription, or to accept, in whole or in part, this
subscription for Securities. If this subscription is accepted by the Company,
the "Closing" shall occur no later than three (3) business day after receipt
hereof by the Company of this subscription and full payment of the purchase
price to the Company. The purchase price is payable by wire transfer of
immediately available funds made payable as provided in Section 1.1. The
Subscriber hereby authorizes and directs the Company to return any funds related
to unaccepted subscriptions to the same account from which the funds were drawn.
1.3 The Subscriber acknowledges receipt of the preliminary prospectus
dated July ___, 2001, and prospectus supplement dated July ___, 2001, of the
Company relating to the Offering.
1.4 The Subscriber represents that the Subscriber is a "Qualified
Institutional Buyer" as such term is defined in Rule 144A promulgated under the
Securities Act of 1933, as amended (the "Act"), and in that regard the
Subscriber and the circumstances of the proposed investment in the Company by
the Subscriber satisfy one or more of the following requirements. Please check
-----
each category applicable to you as an investor in the Company.
-------------
A Qualified Institutional Buyer is:
[_] Any of the following entities, acting for its own account or the
accounts of other qualified institutional buyers, that in the
aggregate owns and invests on a discretionary basis at least $100
million in securities of issuers that are not affiliated with the
entity:
[_] Any insurance company as defined in section 2(13) of
the Act;
[_] Any investment company registered under the Investment
Company Act or any business development company as
defined in section 2(a)(48) of that Act;
[_] Any Small Business Investment Company licensed by the
U.S. Small Business Administration under section 301(c)
or (d) of the Small Business Investment Act of 1958;
[_] Any plan established and maintained by a state, its
political subdivisions, or any agency or
instrumentality of a state or its political
subdivisions, for the benefit of its employees;
[_] Any employee benefit plan within the meaning of title I
of the Employee Retirement Income Security Act of 1974;
[_] Any trust fund whose trustee is a bank or trust company
and whose participants are exclusively plans of the
types identified in paragraph (a)(1)(i) (D) or (E) of
Rule 144A, except trust funds that include as
participants individual retirement accounts or H.R. 10
plans;
2
[_] Any business development company as defined in section
202(a)(22) of the Investment Advisers Act of 1940;
[_] Any organization described in section 501(c)(3) of the
Internal Revenue Code, corporation (other than a bank as
defined in section 3(a)(2) of the Act or a savings and loan
association or other institution referenced in section
3(a)(5)(A) of the Act or a foreign bank or savings and loan
association or equivalent institution), partnership, or
Massachusetts or similar business trust; and
[_] Any investment adviser registered under the Investment
Advisers Act.
[_] Any dealer registered pursuant to section 15 of the Exchange Act,
acting for its own account or the accounts of other qualified
institutional buyers, that in the aggregate owns and invests on a
discretionary basis at least $10 million of securities of issuers that
are not affiliated with the dealer.
[_] Any dealer registered pursuant to section 15 of the Exchange Act
acting in a riskless principal transaction on behalf of a qualified
institutional buyer.
[_] Any investment company registered under the Investment Company Act,
acting for its own account or for the accounts of other qualified
institutional buyers, that is part of a family of investment companies
which own in the aggregate at least $100 million in securities of
issuers, other than issuers that are affiliated with the investment
company or are part of such family of investment companies.
[_] Any entity, all of the equity owners of which are qualified
institutional buyers, acting for its own account or the accounts of
other qualified institutional buyers.
[_] Any bank as defined in section 3(a)(2) of the Act, any savings and
loan association or other institution as referenced in section
3(a)(5)(A) of the Act, or any foreign bank or savings and loan
association or equivalent institution, acting for its own account or
the accounts of other qualified institutional buyers, that in the
aggregate owns and invests on a discretionary basis at least $100
million in securities of issuers that are not affiliated with it and
that has an audited net worth of at least $25 million as demonstrated
in its latest annual financial statements, as of a date not more than
16 months preceding the date of sale under the Rule in the case of a
U.S. bank or savings and loan association, and not more than 18 months
preceding such date of sale for a foreign bank or savings and loan
association or equivalent institution.
3
II. MISCELLANEOUS
-------------
2.1 Any notice or other communication given hereunder shall be deemed
sufficient in writing and sent by (a) telecopy or facsimile at the address or
number designated below (if delivered on a business day during normal business
hours where such notice is to be received); or (b) registered or certified mail,
return receipt requested, or delivered by hand against written receipt therefor,
addressed to Incara Pharmaceuticals Corporation, 79 X.X. Xxxxxxxxx Drive, 0000
Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxx Xxxxxxxx Xxxx, XX 00000, Facsimile: (919)
544-1245, Attention: Xxxxxxx X. Xxxxxxx, with a copy to Petkevich & Partners,
LLC, 000 Xxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx, XX 00000, Facsimile (415) 489-
2399, Attention: J. Xxxxx Xxxxxxxxx. Notices shall be deemed to have been given
or delivered on the date of mailing, except notices of change of address, which
shall be deemed to have been given or delivered when received.
2.2 This Agreement shall not be changed, modified or amended except by a
writing signed by the parties to be charged, and this Agreement may not be
discharged except by performance in accordance with its terms or by a writing
signed by the party to be charged.
2.3 Upon the execution and delivery of this Agreement by Subscriber, this
Agreement shall become a binding obligation of the Subscriber with respect to
the purchase of Securities as herein provided, subject to acceptance by the
Company; subject, however, to the right hereby reserved to the Company to enter
into the same agreement with other subscribers.
2.4 Notwithstanding the place where this Agreement may be executed by any
of the parties hereto, the parties expressly agree that all the terms and
provisions hereof shall be construed in accordance with and governed by the laws
of the State of Delaware without regard to principles of conflicts of law.
2.5 The holding of any provision of this Agreement to be invalid or
unenforceable by a court of competent jurisdiction shall not affect any other
provision of this Agreement, which shall remain in full force and effect. If any
provision of this Agreement shall be declared by a court of competent
jurisdiction to be invalid, illegal or incapable of being enforced in whole or
in part, such provision shall be interpreted so as to remain enforceable to the
maximum extent permissible consistent with applicable law and the remaining
conditions and provisions or portions thereof shall nevertheless remain in full
force and effect and enforceable to the extent they are valid, legal and
enforceable, and no provisions shall be deemed dependent upon any other covenant
or provision unless so expressed herein.
2.6 It is agreed that a waiver by either part of a breach of any provision
of this Agreement shall not operate, or be construed, as a waiver of any
subsequent breach by that same party.
2.7 The parties agree to execute and deliver all such further documents,
agreements and instruments and take such other and further action as may be
necessary or appropriate to carry out the purposes and intent of this Agreement.
2.8 This Agreement may be executed in two or more counterparts each of
which shall be deemed an original, but all of which shall together constitute
one and the same instrument.
4
2.9 Nothing in this Agreement shall create or be deemed to create any
rights in any person or entity not a party to this Agreement.
2.10 Any pronoun herein shall include all genders and/or the plural or
singular as appropriate from the context.
Subscribed this _____ day of _______________, 2001:
_____________________________ Address: ___________________________
(Name) _______________________________
_______________________________
By: _________________________ Taxpayer ID No.: ____________________
Title: ______________________ No. of Shares Subscribed: ___________
Amount of Wire: $____________________
This Subscription Agreement is agreed to and accepted as of ___________,
2001.
INCARA PHARMACEUTICALS CORPORATION
By: ______________________________
Title: ___________________________
5
