SUBSCRIPTION AGREEMENT
EXHIBIT
10.1
SUBSCRIPTION
AGREEMENT
made as
of this ___ day of ____________, 2007, between Transdel Pharmaceuticals, Inc.,
a
Delaware corporation (the “Company”),
and
the undersigned (the “Subscriber”).
WHEREAS,
pursuant
to a Confidential Offering Memorandum dated July 30, 2007 (the “PPM”),
the
Company is offering in a private placement (the “Offering”)
to
accredited investors up to 50 Units at a purchase price of $100,000 per Unit
for
a maximum aggregate purchase price of $5,000,000 (the “Maximum
Offering”).
Each
Unit consists of 50,000 shares of the Company’s common stock, par value $0.001
per share (the “Common
Stock”),
and a
five-year, redeemable warrant to purchase 12,500 shares of Common Stock at
a
cash exercise price of $4.00 per share and a cashless exercise price of $5.00
per share (the “Warrants”).
As
used herein, the term “Units” means such Units, and all Common Stock and
Warrants underlying the Units), and
WHEREAS,
the
Subscriber desires to subscribe for the number of Units set forth on the
signature page hereof, on the terms and conditions hereinafter set
forth.
NOW,
THEREFORE,
for and
in consideration of the premises and the mutual covenants hereinafter set forth,
the parties hereto do hereby agree as follows:
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I.
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SUBSCRIPTION
FOR AND REPRESENTATIONS AND COVENANTS OF
SUBSCRIBER
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1.1 Subject
to the terms and conditions hereinafter set forth, the Subscriber hereby
subscribes for and agrees to purchase from the Company such number of Units
set
forth upon the signature page hereof, at a price equal to $100,000 per Unit,
and
the Company agrees to sell such to the Subscriber for said purchase price,
subject to the Company’s right to sell to the Subscriber such lesser number of
(or no) Units as the Company may, in its sole discretion, deem necessary or
desirable. The purchase price is payable by wire transfer of immediately
available funds, pursuant to the wire instructions attached as Exhibit
D
to the
PPM or by check payable to Signature Bank, as Escrow Agent to Transdel
Pharmaceuticals, Inc.
1.2 The
Subscriber recognizes that the purchase of Units involves a high degree of
risk
in that (i) an investment in the Company is highly speculative and only
investors who can afford the loss of their entire investment should consider
investing in the Company and the Units; (ii) the Units are not registered under
the Securities Act of 1933, as amended (the “Act”),
or
any state securities law; (iii) there is no trading market for the Units, none
is likely ever to develop, and the Subscriber may not be able to liquidate
his,
her or its investment; (iv) transferability of the Units is extremely limited;
and (v) an investor could suffer the loss of his, her or its entire
investment.
1.3 The
Subscriber is an “accredited investor,” as such term in defined in Rule 501 of
Regulation D promulgated under the Act, and the Subscriber is able to bear
the
economic risk of an investment in the Units.
1.4 The
Subscriber has prior investment experience (including investment in non-listed
and non-registered securities), and has read and evaluated, or has employed
the
services of an investment advisor, attorney or accountant to read and evaluate,
all of the documents furnished or made available by the Company to the
Subscriber and to all other prospective investors in the Units, including the
PPM, as well as the merits and risks of such an investment by the Subscriber.
The Subscriber’s overall commitment to investments which are not readily
marketable is not disproportionate to the Subscriber’s net worth, and the
Subscriber’s investment in the Units will not cause such overall commitment to
become excessive. The Subscriber, if an individual, has adequate means of
providing for his or her current needs and personal and family contingencies
and
has no need for liquidity in his or her investment in the Units. The Subscriber
is financially able to bear the economic risk of this investment, including
the
ability to afford holding the Units for an indefinite period or a complete
loss
of this investment.
1.5 The
Subscriber acknowledges receipt and careful review of the PPM, all supplements
to the PPM, and all other documents furnished in connection with this
transaction by the Company (collectively, the “Offering
Documents”)
and
has been furnished by the Company during the course of this transaction with
all
information regarding the Company which the Subscriber has requested or desires
to know; and the Subscriber has been afforded the opportunity to ask questions
of and receive answers from duly authorized officers or other representatives
of
the Company concerning the terms and conditions of the Offering, and any
additional information which the Subscriber has requested.
1.6 The
Subscriber acknowledges that the purchase of the Units may involve tax
consequences to the Subscriber and that the contents of the Offering Documents
do not contain tax advice. The Subscriber acknowledges that the Subscriber
must
retain his, her or its own professional advisors to evaluate the tax and other
consequences to the Subscriber of an investment in the Units. The Subscriber
acknowledges that it is the responsibility of the Subscriber to determine the
appropriateness and the merits of a corporate entity to own the Subscriber’s
Units and the corporate structure of such entity.
1.7 The
Subscriber acknowledges that this Offering has not been reviewed by the
Securities and Exchange Commission (the “SEC”)
or any
state securities commission, and that no federal or state agency has made any
finding or determination regarding the fairness or merits of the Offering.
The
Subscriber represents that the Units are being purchased for his, her or its
own
account, for investment only, and not with a view toward distribution or resale
to others. The Subscriber agrees that he, she or it will not sell or otherwise
transfer the Units unless they are registered under the Act or unless an
exemption from such registration is available.
1.8 The
Subscriber understands that the provisions of Rule 144 under the Act are not
available for at least one (1) year to permit resales of the Units or the Common
Stock and Warrants comprising the Units and there can be no assurance that
the
conditions necessary to permit such sales under Rule 144 will ever be satisfied.
The Subscriber understands that the Company is under no obligation to comply
with the conditions of Rule 144 or take any other action necessary in order
to
make available any exemption from registration for the sale of the Units or
the
Common Stock and Warrants comprising the Units.
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1.9 The
Subscriber understands that the Units have not been registered under the Act
by
reason of a claimed exemption under the provisions of the Act which depends,
in
part, upon his, her or its investment intention. In this connection, the
Subscriber understands that it is the position of the SEC that the statutory
basis for such exemption would not be present if his, her or its representation
merely meant that his, her or its present intention was to hold such securities
for a short period, such as the capital gains period of tax statutes, for a
deferred sale, for a market rise, assuming that a market develops, or for any
other fixed period. The Subscriber realizes that, in the view of the SEC, a
purchase now with an intent to resell would represent a purchase with an intent
inconsistent with his, her or its representation to the Company and the SEC
might regard such a sale or disposition as a deferred sale, for which such
exemption is not available.
1.10 The
Subscriber agrees to indemnify and hold the Company, its directors, officers
and
controlling persons and their respective heirs, representatives, successors
and
assigns harmless against all liabilities, costs and expenses incurred by them
as
a result of any misrepresentation made by the Subscriber contained herein or
any
sale or distribution by the Subscriber in violation of the Act (including,
without limitation, the rules promulgated thereunder), any state securities
laws, or the Company’s Certificate of Incorporation or By-laws, as amended from
time to time.
1.11 The
Subscriber consents to the placement of a legend on any certificate or other
document evidencing the Common Stock or the Warrants stating that such
securities have not been registered under the Act and setting forth or referring
to the restrictions on transferability and sale thereof.
1.12 The
Subscriber understands that the Company will review and rely on this
Subscription Agreement without making any independent investigation; and it
is
agreed that the Company reserves the unrestricted right to reject or limit
any
subscription and to withdraw the Offering at any time.
1.13 The
Subscriber hereby represents that the address of the Subscriber furnished at
the
end of this Subscription Agreement is the undersigned’s principal residence, if
the Subscriber is an individual, or its principal business address if it is
a
corporation or other entity.
1.14 The
Subscriber acknowledges that if the Subscriber is a Registered Representative
of
a National Association of Securities Dealers, Inc. (“NASD”)
member
firm, the Subscriber must give such firm the notice required by the NASD’s
Conduct Rules, receipt of which must be acknowledged by such firm on the
signature page hereof.
1.15 The
Subscriber hereby acknowledges that neither the Company nor any persons
associated with the Company who may provide assistance or advice in connection
with the Offering (other than the placement agent, if one is engaged by the
Company) are or are expected to be members or associated persons of members
of
the NASD or registered broker-dealers under any federal or state securities
laws.
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1.16 The
Subscriber understands that, pursuant to the terms of the Offering as set forth
in the PPM, the Company must receive subscriptions for 30 Units for an aggregate
purchase price of $3,000,000 (the “Minimum
Offering”)
in
order to close on the sale of any Units and that persons affiliated with the
Company or its consultants, advisors, or placement agents may subscribe for
Common Stock, in which case the Company may accept subscriptions from such
affiliated parties in order to reach the Minimum Offering; and that,
accordingly, no investor should conclude that achieving the Minimum Offering
is
the result of any independent assessment of the merits or advantages of the
Offering or the Company made by Subscribers in the Minimum
Offering.
1.17 The
Subscriber hereby represents that, except as expressly set forth in the Offering
Documents, no representations or warranties have been made to the Subscriber
by
the Company or any agent, employee or affiliate of the Company and, in entering
into this transaction, the Subscriber is not relying on any information other
than that contained in the Offering Documents and the results of independent
investigation by the Subscriber.
1.18 All
information provided by the Subscriber in the Investor Questionnaire attached as
Exhibit
B
to the
PPM is true and accurate in all respects, and the Subscriber acknowledges that
the Company will be relying on such information to its possible detriment in
deciding whether the Company can sell these securities to the Subscriber without
giving rise to the loss of the exemption from registration under applicable
securities laws.
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II.
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REPRESENTATIONS
BY THE COMPANY
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The
Company represents and warrants to the Subscriber that as of the date of the
closing of this Offering (the “Closing
Date”):
(a) The
Company is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and has the corporate power
to
conduct the business which it conducts and proposes to conduct.
(b) The
execution, delivery and performance of this Subscription Agreement by the
Company have been duly authorized by the Company and all other corporate action
required to authorize and consummate the offer and sale of the Units has been
duly taken and approved.
(c) The
Units
and the underlying Common Stock have been duly and validly authorized and
issued.
(d) The
Company has obtained, or is in the process of obtaining, all licenses, permits
and other governmental authorizations necessary for the conduct of its business,
except where the failure to so obtain such licenses, permits and authorizations
would not have a material adverse effect on the Company. Such licenses, permits
and other governmental authorizations which have been obtained are in full
force
and effect, except where the failure to be so would not have a material adverse
effect on the Company, and the Company is in all material respects complying
therewith.
(e) The
Company knows of no pending or threatened legal or governmental proceedings
to
which the Company is a party which would materially adversely affect the
business, financial condition or operations of the Company.
A-4
(f) The
Company is not in violation of or default under, nor will the execution and
delivery of this Subscription Agreement or the issuance of the Common Stock,
or
the consummation of the transactions herein contemplated, result in a violation
of, or constitute a default under, the Company’s Certificate of Incorporation or
By-laws, any material obligations, agreements, covenants or conditions contained
in any bond, debenture, note or other evidence of indebtedness or in any
material contract, indenture, mortgage, loan agreement, lease, joint venture
or
other agreement or instrument to which the Company is a party or by which it
or
any of its properties may be bound or any material order, rule, regulation,
writ, injunction, or decree of any government, governmental instrumentality
or
court, domestic or foreign.
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III.
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COVENANTS
BY THE COMPANY
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3.1 For
a
period of the earlier of (i) twelve (12) months following the Initial Closing
(as defined in the PPM) or (ii) the date that the “resale” registration
statement covering the shares of Common Stock and the shares of Common Stock
underlying the Warrants included within the Units sold in the Offering is
declared effective by the SEC (the “Adjustment
Period”),
in
the event that the Company sells or grants any option to purchase or sells
or
grants any right to reprice, or otherwise disposes of or issues (or announces
any sale, grant or any option to purchase or other disposition), any Common
Stock or Common Stock Equivalents entitling any Person to acquire shares of
Common Stock at an effective price per share that is lower than $2.00 per share
(such lower price, the “Base
Price”
and
such issuances, collectively, a “Dilutive
Issuance”)
(if
the holder of the Common Stock or Common Stock Equivalents so issued shall
at
any time, whether by operation of purchase price adjustments, reset provisions,
floating conversion, exercise or exchange prices or otherwise, or due to
warrants, options or rights per share which are issued in connection with such
issuance, be entitled to receive shares of Common Stock at an effective price
per share that is lower than $2.00 per share, such issuance shall be deemed
to
have occurred for less than the $2.00 per share on such date of the Dilutive
Issuance), then the Company shall issue additional shares of Common Stock to
the
Subscriber in an amount sufficient that the subscription price paid hereunder,
when divided by the total number of shares issued in the Dilutive Issuance
will
result in an actual price paid by the Subscriber per share of Common Stock
equal
to the Base Price. Such adjustment shall be made whenever any Dilutive Issuance
is made within the Adjustment Period. Notwithstanding the foregoing, no
adjustment will be made under this Section 3.1 in respect of an Exempt Issuance.
The Company shall notify the Subscriber in writing, no later than 1 business
day
following a Dilutive Issuance, indicating therein the applicable issuance price,
or applicable reset price, exchange price, conversion price and other pricing
terms (such notice, the “Dilutive
Issuance Notice”).
For
purposes of clarification, whether or not the Company provides a Dilutive
Issuance Notice pursuant to this Section 3.1, upon the occurrence of any
Dilutive Issuance, the Subscriber is entitled to receive a number of shares
based upon the Base Price on or after the date of such Dilutive Issuance.
Notwithstanding anything herein or in any related document to the contrary,
the
foregoing does not convey to the Subscriber any right to participation in any
future financings or offerings now or in the future contemplated or undertaken
by the Company. The Company reserves the right to establish procedures in order
to effectuate the issuance of additional shares in the event of any dilutive
issuance requiring an adjustment to the Base Price, in its sole discretion,
including delivery of such shares to the Subscriber in full and complete
satisfaction of the Company’s obligation upon a Dilutive Issuance.
A-5
“Common
Stock Equivalents”
means
any securities of the Company or any of its subsidiaries which would entitle
the
holder thereof to acquire at any time Common Stock, including, without
limitation, any debt, preferred stock, rights, options, warrants or other
instrument that is at any time convertible into or exercisable or exchangeable
for, or otherwise entitles the holder thereof to receive, Common
Stock.
“Exempt
Issuance”
means
the issuance of (a) shares of Common Stock or options to employees, officers,
directors, or consultants of the Company pursuant to any stock or option plan
duly adopted for such purpose by a majority of the non-employee members of
the
Board of Directors of the Company or a majority of the members of a committee
of
non-employee directors established, (b) securities upon the exercise or exchange
of or conversion of any securities issued hereunder and/or other securities
exercisable or exchangeable for or convertible into shares of Common Stock
issued and outstanding on the date of this Agreement,
provided that such securities have not been amended since the date of this
Agreement to increase the number of such securities or to decrease the exercise,
exchange or conversion price of such securities; and (c) securities issued
pursuant to acquisitions or strategic transactions approved by a majority of
the
disinterested directors of the Company, provided that any such issuance shall
only be to a person which is either an owner
of,
or an entity that is, itself or through its subsidiaries, an operating company
in a business synergistic with the business of the Company and in which the
Company receives benefits in addition to the investment of funds, but shall
not
include a transaction in which the Company is issuing securities primarily
for
the purpose of raising capital or to an entity whose primary business is
investing in securities.
3.2 For
a
period of 18 months following the Initial Closing, the Company shall not file
a
registration statement on any form, including, without limitation, a
Registration Statement on Form S-8, in order to register with the SEC the sale
of any securities issued or issuable under an employee benefit plan of the
Company or any of the Company’s subsidiaries.
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IV.
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TERMS
OF SUBSCRIPTION
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4.1 Subject
to Section 4.2 hereof, the subscription period will begin as of the date of
the
PPM and will terminate at 11:59 PM Eastern Time, on the earlier of the date
on
which the Maximum Offering is sold or the Offering is terminated by the Company
(the “Termination
Date”).
The
minimum subscription amount is $100,000, although the Company may, in its
discretion, accept subscriptions for less than $100,000.
4.2 The
Subscriber has effected a wire transfer in the full amount of the purchase
price
for the Units to the Company’s escrow account in accordance with the wire
instructions attached as Exhibit
D
to the
PPM or has delivered a check in payment of the purchase price for the
Units.
4.3 Pending
the sale of the Units, all funds paid hereunder shall be deposited by the
Company in escrow with the Company’s escrow agent. If the Company shall not have
obtained subscriptions (including this subscription) for the Minimum Offering
on
or before the Termination Date (as such date may be extended by the Company),
then this subscription shall be void and all funds paid hereunder by the
Subscriber shall be promptly returned without interest to the Subscriber, to
the
same account from which the funds were drawn. If subscriptions are received
and
accepted and payment tendered for the Minimum Offering on or prior to the
Termination Date, then all subscription proceeds (less fees and expenses) shall
be paid over to the Company within ten (10) days thereafter or such earlier
date
that is one business day after the amount of good funds in escrow equals or
exceeds $3,000,000. In such event, sales of the Units may continue thereafter
until the earlier of the date on which the Maximum Offering is sold and the
Termination Date, with subsequent releases of funds from time to time at the
discretion of the Company.
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4.4 The
Subscriber hereby authorizes and directs the Company and its escrow agent to
deliver any certificates or other written instruments representing the Units
to
be issued to such Subscriber pursuant to this Subscription Agreement to the
address indicated on the signature page hereof.
4.5 The
Subscriber hereby authorizes and directs the Company and its escrow agent to
return any funds, without interest, for unaccepted subscriptions to the same
account from which the funds were drawn.
4.6 If
the
Subscriber is not a United States person, such Subscriber shall immediately
notify the Company and the Subscriber hereby represents that the Subscriber
is
satisfied as to the full observance of the laws of its jurisdiction in
connection with any invitation to subscribe for the Units or any use of this
Subscription Agreement, including (i) the legal requirements within its
jurisdiction for the purchase of the Units, (ii) any foreign exchange
restrictions applicable to such purchase, (iii) any governmental or other
consents that may need to be obtained, and (iv) the income tax and other tax
consequences, if any, that may be relevant to the purchase, holding, redemption,
sale or transfer of the Units. Such Subscriber’s subscription and payment for,
and continued beneficial ownership of, the Units will not violate any applicable
securities or other laws of the Subscriber’s jurisdiction.
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V.
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MISCELLANEOUS
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5.1 Any
notice or other communication given hereunder shall be deemed sufficient if
in
writing and sent by reputable overnight courier, facsimile (with receipt of
confirmation) or registered or certified mail, return receipt requested,
addressed to the Company, at the address set forth in the first paragraph
hereof, Attention: Chief Executive Officer, facsimile: (000) 000-0000, and
to
the Subscriber at the address or facsimile number indicated on the signature
page hereof. Notices shall be deemed to have been given on the date when mailed
or sent by facsimile transmission or overnight courier, except notices of change
of address, which shall be deemed to have been given when received.
5.2 This
Subscription Agreement shall not be changed, modified or amended except by
a
writing signed by both (a) the Company and (b) subscribers in the Offering
holding a majority of the Units issued in the Offering.
5.3 This
Subscription Agreement shall be binding upon and inure to the benefit of the
parties hereto and to their respective heirs, legal representatives, successors
and assigns. This Subscription Agreement sets forth the entire agreement and
understanding between the parties as to the subject matter hereof and merges
and
supersedes all prior discussions, agreements and understandings of any and
every
nature among them.
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5.4 Notwithstanding
the place where this Subscription 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. The parties hereby agree that any dispute which may arise
between them arising out of or in connection with this Subscription Agreement
shall be adjudicated only before a Federal court located in Kent County, State
of Delaware and they hereby submit to the exclusive jurisdiction of the federal
courts located in Kent County, State of Delaware with respect to any action
or
legal proceeding commenced by any party, and irrevocably waive any objection
they now or hereafter may have respecting the venue of any such action or
proceeding brought in such a court or respecting the fact that such court is
an
inconvenient forum, relating to or arising out of this Subscription Agreement
or
any acts or omissions relating to the sale of the securities hereunder, and
consent to the service of process in any such action or legal proceeding by
means of registered or certified mail, return receipt requested, in care of
the
address set forth below or such other address as the undersigned shall furnish
in writing to the other. The parties further agree that in the event of any
dispute, action, suit or other proceeding arising out of or in connection with
this Subscription Agreement, the PPM or other matters related to this
subscription brought by a Subscriber (or transferee), the Company (and each
other defendant) shall recover all of such party’s attorneys’ fees and costs
incurred in each and every action, suit or other proceeding, including any
and
all appeals or petitions therefrom. As used herein, attorney’s fees shall be
deemed to mean the full and actual costs of any investigation and of legal
services actually performed in connection with the matters involved, calculated
on the basis of the usual fee charged by the attorneys performing such
services.
5.5 This
Subscription Agreement may be executed in counterparts. Upon the execution
and
delivery of this Subscription Agreement by the Subscriber, this Subscription
Agreement shall become a binding obligation of the Subscriber with respect
to
the purchase of Units as herein provided; subject, however, to the right hereby
reserved by the Company to (i) enter into the same agreements with other
subscribers, (ii) add and/or delete other persons as subscribers and (iii)
reduce the amount of or reject any subscription.
5.6 The
holding of any provision of this Subscription Agreement to be invalid or
unenforceable by a court of competent jurisdiction shall not affect any other
provision of this Subscription Agreement, which shall remain in full force
and
effect.
5.7 It
is
agreed that a waiver by either party of a breach of any provision of this
Subscription Agreement shall not operate or be construed as a waiver of any
subsequent breach by that same party.
5.8 The
parties agree to execute and deliver all such further documents, agreements
and
instruments and take such other and further actions as may be necessary or
appropriate to carry out the purposes and intent of this Subscription
Agreement.
[Signature
Pages Follow]
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IN
WITNESS WHEREOF,
the
parties have executed this Subscription Agreement as of the day and year first
written above.
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__________________________
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X
$100,000 for each Unit
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=
$_____________________.
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Number
of Units subscribed for
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Aggregate
Purchase Price
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Manner
in which Title is to be held (Please Check One):
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1.
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____
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Individual
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7.
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____
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Trust/Estate/Pension
or Profit Sharing Plan
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Date
Opened:______________
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2.
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____
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Joint
Tenants with Right of Survivorship
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8.
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____
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As
a Custodian for
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_____________________________
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|||||
| Under the Uniform Gift to Minors Act of the State of | |||||
| _____________________________ | |||||
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3.
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____
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Community
Property
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9.
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____
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Married
with Separate Property
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4.
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____
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Tenants
in Common
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10.
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____
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Xxxxx
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5.
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____
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Corporation/Partnership/
Limited Liability Company
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11.
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____
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Tenants
by the Entirety
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6.
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____
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XXX
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12.
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____
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Foundation
described in Section 501(c)(3) of the Internal Revenue Code of 1986,
as
amended.
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IF
MORE THAN ONE SUBSCRIBER,
EACH SUBSCRIBER MUST SIGN:
· INDIVIDUAL
SUBSCRIBERS MUST COMPLETE PAGE 11
· SUBSCRIBERS
WHICH ARE ENTITIES MUST COMPLETE PAGE 12
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EXECUTION
BY NATURAL PERSONS
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Exact
Name in Which Title is to be Held
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Name
(Please Print)
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Name
of Additional Subscriber
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Residence:
Number and Street
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Address
of Additional Subscriber
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City,
State and Zip Code
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City,
State and Zip Code
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Social
Security Number
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Social
Security Number
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Telephone
Number
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Telephone
Number
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Fax
Number (if available)
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Fax
Number (if available)
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E-Mail
(if available)
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E-Mail
(if available)
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(Signature)
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(Signature
of Additional Subscriber)
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ACCEPTED
this ___ day of _________ 2007, on behalf of Transdel Pharmaceuticals,
Inc.
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By:
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Name:
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Xxxxxx Xxxxx, Ph.D. | ||
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Title:
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Chief Executive Officer | ||
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EXECUTION
BY SUBSCRIBER WHICH IS AN ENTITY
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(Corporation,
Partnership, Trust, Etc.)
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Name
of Entity (Please Print)
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Date
of Incorporation or Organization:
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State
of Principal Office:
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Federal
Taxpayer Identification Number:
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Office
Address
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City,
State and Zip Code
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Telephone
Number
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Fax
Number (if available)
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E-Mail
(if available)
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[seal]
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By:
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Name:
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Attest:
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Title:
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(If
Entity is a Corporation)
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*If
Subscriber is a Registered Representative with an NASD member
firm, have
the following acknowledgement signed by the appropriate
party:
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The
undersigned NASD member firm acknowledges receipt of the notice
required
by Rule 3050 of the NASD Conduct Rules
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ACCEPTED
this ____ day of __________ 2007, on behalf of Transdel
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Name
of NASD Firm
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Pharmaceuticals, Inc. | |||
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By:
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By:
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Name:
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Name:
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Xxxxxx
Xxxxx, Ph.D.
|
||
|
Title:
|
Title:
|
Chief
Executive Officer
|
||
A-11
