SUBSCRIPTION AGREEMENT
Research Frontiers Incorporated
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The undersigned (the "Investor") hereby confirms its agreement
with you as follows:
1. This Subscription Agreement (this "Agreement") is made as
of the date set forth below between Research Frontiers
Incorporated, a Delaware corporation (the "Company"), and the
Investor.
2. The Company has authorized the sale and issuance to certain
investors of up to 1,200,000 Units for a purchase price of $5.00
per Unit (the "Purchase Price"). Each Unit shall consist of one
share (the "Shares") of Common Stock, par value $0.0001 per
share, of the Company (the "Common Stock"), and one-fifth of a
warrant to purchase one share of Common Stock at a warrant
exercise price of $7.50 per share, in the form attached hereto as
Exhibit B (the "Warrants").
3. The Offering and sale of the Units (the "Offering") are being
made pursuant to an effective Registration Statement on Form S-3
(including the exhibits thereto, as amended at the date of this
Agreement (the "Registration Statement"), and the Prospectus
contained therein (the "Base Prospectus"), filed by the Company
on November 8, 2004 with the Securities and Exchange
Commission (the "Commission") and a Prospectus Supplement
(the "Prospectus Supplement') containing certain supplemental
information regarding the Units and terms of the Offering that will
be filed with the Commission and delivered to the Investor along
with the Company's counterpart to this Agreement.
4. The Company and the Investor agree that the Investor will
purchase directly from the Company, and the Company will issue
and sell directly to the Investor, the number of Units set forth
below for the aggregate purchase price set forth below. The Units
shall be purchased pursuant to the Terms and Conditions for
Purchase of Units attached hereto as Annex I and incorporated
herein by this reference as if fully set forth herein.
5. At the Closing, the Company shall deliver to the Investor a
certificate representing the Warrants. The Shares purchased by the
Investor shall be delivered by electronic book-entry at The
Depository Trust Company ("DTC"), registered in the Investor's
name and address as set forth below, and released by Continental
Stock Transfer & Trust Company, the Company's transfer agent
(the "Transfer Agent"), to the Investor at the Closing. NO
LATER THAN ONE (1) BUSINESS DAY AFTER THE
EXECUTION OF THIS AGREEMENT BY THE INVESTOR
AND THE COMPANY, THE INVESTOR SHALL:
(A) DIRECT THE BROKER-DEALER AT WHICH THE
ACCOUNT OR ACCOUNTS TO BE CREDITED WITH
THE SHARES ARE MAINTAINED TO SET UP A
DEPOSIT/WITHDRAWAL AT CUSTODIAN ("DWAC")
INSTRUCTING THE TRANSFER AGENT TO CREDIT
SUCH ACCOUNT OR ACCOUNTS WITH THE
SHARES, AND
(B) REMIT BY WIRE TRANSFER THE AMOUNT OF
FUNDS EQUAL TO THE AGGREGATE PURCHASE
PRICE FOR THE UNITS BEING PURCHASED BY
THE INVESTOR TO THE FOLLOWING ACCOUNT:
JPMorgan Chase Bank
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Account Name: Research Frontiers Incorporated
Account Number: ▇▇▇-▇▇▇-▇▇▇
ABA Wire Code No.: 021 000 021
IT IS THE INVESTOR'S RESPONSIBILITY TO (A) MAKE
THE NECESSARY WIRE TRANSFER IN A TIMELY
MANNER AND (B) ARRANGE FOR SETTLEMENT BY
WAY OF DWAC IN A TIMELY MANNER. IF THE
INVESTOR DOES NOT DELIVER THE AGGREGATE
PURCHASE PRICE FOR THE UNITS OR DOES NOT
MAKE PROPER ARRANGEMENTS FOR SETTLEMENT
IN A TIMELY MANNER, THE UNITS MAY NOT BE
DELIVERED AT CLOSING TO THE INVESTOR OR THE
INVESTOR MAY BE EXCLUDED FROM THE CLOSING
ALTOGETHER.
6. The Investor represents that, except as set forth below, (a) it
has had no position, office or
other material relationship within the past three years with the
Company or any of its affiliates and (b) it has no plan or intention
to distribute the Shares and/or Warrants through a NASD member.
Exceptions:
(If no exceptions, write "none." If left blank, response will be
deemed to be "none.")
7. The Investor represents that it has received the Registration
Statement, prior to or in connection with the receipt of this
Agreement.
8. Investor understands and agrees that the subscription
contained herein shall not be deemed binding upon the Company
until it is accepted by the Company and that the subscription may
be rejected by the Company in its sole discretion for any reason.
Subscriber further acknowledges and agrees that, subject to
applicable law, this subscription is irrevocable.
Number of Units: _________________________
Purchase Price Per Unit: $5.00
Aggregate Purchase Price: $__________________
Please confirm that the foregoing correctly sets forth the
agreement between us by signing in the space provided below for
that purpose.
Dated as of: February ____, 2005
___________________________________
INVESTOR
By: ________________________________
Print Name: _________________________
Title: ______________________________
Address:____________________________
____________________________
____________________________
Telephone:__________________________
Facsimile: __________________________
Agreed and Accepted
this 11th day of February, 2005:
RESEARCH FRONTIERS INCORPORATED
By: ______________________________
Title: _____________________________
ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF UNITS
1. Authorization and Sale of the Units. Subject to the terms
and conditions of this Agreement, the Company has authorized the
sale of the Units.
2. Agreement to Sell and Purchase the Units.
2.1 At the Closing (as defined in Section 3.1), the Company
will sell directly to the Investor, and the Investor will purchase
directly from the Company, upon the terms and conditions set forth
herein, the number of Units set forth on the last page of the
Agreement to which these Terms and Conditions for Purchase of
Units are attached as Annex I (the "Signature Page") for the
aggregate purchase price therefor set forth on the Signature Page.
2.2 The Company proposes to enter into substantially this
same form of Subscription Agreement with certain other investors
(the "Other Investors") and expects to complete sales of Units to
them. The Investor and the Other Investors are hereinafter
sometimes collectively referred to as the "Investors," and this
Agreement and the Subscription Agreements executed by the other
Investors are hereinafter sometimes collectively referred to as the
"Agreements."
3. Closings and Delivery of the Shares, Warrants and Funds.
3.1 Closing. The completion of the purchase and sale of the
Units (the "Closing") will occur at a place and time (the"Closing
Date") to be specified by the Company, who shall notify the
Investors in advance. At the Closing, (a) the Company will cause
the Transfer Agent to deliver to the Investor the number of Units
set forth on the Signature Page registered in the name of the
Investor or, if so indicated on the Investor Questionnaire attached
hereto as Exhibit A, in the name of a nominee designated by the
Investor and (b) the aggregate purchase price for the Units being
purchased by the Investor will be delivered by or on behalf of the
Investor to the Company.
3.2 (a) Conditions to the Company's Obligations. The
Company's obligation to issue the Units to the Investor will be
subject to the receipt by the Company of the purchase price for the
Units being purchased hereunder as set forth on the Signature Page
and the accuracy of the representations and warranties made by the
Investor and the fulfillment of those undertakings of the Investor
to be fulfilled prior to the Closing Date.
(b) Conditions to the Investor's Obligations. The
Investor's obligation to purchase the Units will be subject to the
accuracy of the representations and warranties made by the
Company and the fulfillment of those undertakings of the
Company to be fulfilled prior to the Closing Date, including,
without limitation, those contained in the Subscription Agreement
(collectively, the "Company Closing Conditions"). The Investor's
obligations are expressly not conditioned on the purchase by any
or all of the other Investors of the Units that they have agreed to
purchase from the Company.
3.3 Delivery of Funds. No later than one (1) business day
after the execution of this Agreement by the Investor and the
Company, the Investor shall remit by wire transfer the amount of
funds equal to the aggregate purchase price for the Units being
purchased by the Investor as specified in the Subscription
Agreement. Investor shall also furnish to the Company a
completed W-9 form (or, in the case of an Investor who is not a
United States citizen or resident, W-8 form).
3.4 Delivery of Shares and Warrants. No later than one
(1) business day after the execution of this Agreement by the
Investor and the Company, the Investor shall direct the broker-
dealer at which the account or accounts to be credited with the
Shares being purchased by such Investor are maintained, which
broker/dealer shall be a DTC participant to set up a
Deposit/Withdrawal at Custodian ("DWAC") instructing
Continental Stock Transfer & Trust Company, the Company's
transfer agent, to credit such account or accounts with the Shares
by means of an electronic book-entry delivery. Such DWAC shall
indicate the settlement date for the deposit of the Shares, which
date shall be provided to the Investor by the Company.
Simultaneously with the delivery to the Company of the Investor's
subscription funds, the Company shall direct its transfer agent to
credit the Investor's account or accounts with the Shares pursuant
to the information contained in the DWAC, and will also issue and
deliver to the address specified by the Investor, the Warrants.
4. Representations, Warranties and Covenants of the
Investor.
4.1 The Investor represents and warrants to, and covenants
with, the Company that (a) the Investor is knowledgeable,
sophisticated and experienced in making, and is qualified to make
decisions with respect to, investments in shares presenting an
investment decision like that involved in the purchase of the Units,
including investments in securities issued by the Company and
investments in comparable companies, and has requested, received,
reviewed and considered all information it deemed relevant in
making an informed decision to purchase the Units, including but
not limited to, the Company's Registration Statement and all
documents incorporated therein by reference, (b) the Investor has
answered all questions on the Signature Page for use in preparation
of the Prospectus Supplement and the answers thereto are true and
correct as of the date hereof and will be true and correct as of the
Closing Date, (c) the Investor, in connection with its decision to
purchase the number of Units set forth on the Signature Page,
relied only upon the Base Prospectus, the Prospectus Supplement,
the Documents incorporated therein by reference, the Company's
regular reports on Forms 10-K, 10-Q and 8-K as filed by the
Company with the Commission, and the representations and
warranties of the Company contained herein, and (d) the Investor
is an "accredited investor" within the meaning of Rule 501(a)(1),
(2) or (3) under the Securities Act of 1933, as amended (the
"Securities Act").
4.2 The Investor acknowledges, represents and agrees that
no action has been or will be taken in any jurisdiction outside the
United States by the Company that would permit an offering of the
Units, or possession or distribution of offering materials in
connection with the issue of the Units in any jurisdiction outside
the United States where action for that purpose is required. Each
Investor outside the United States will comply with all applicable
laws and regulations in each foreign jurisdiction in which it
purchases, offers, sells or delivers Shares or Warrants or has in it
possession or distributes any offering material, in all cases at its
own expense. No party has been authorized to make, and have not
made, any representation or use of any information in connection
with the issue, placement, purchase and sale of the Units, except
as set forth or incorporated by reference in the Base Prospectus or
the Prospectus Supplement.
4.3 The Investor further represents and warrants to, and
covenants with, the Company that (a) the Investor has full right,
power, authority and capacity to enter into this Agreement and to
consummate the transactions contemplated hereby and has taken
all necessary action to authorize the execution, delivery and
performance of this Agreement, and (b) this Agreement constitutes
a valid and binding obligation of the Investor enforceable against
the Investor in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and
contracting parties rights generally and except as enforceability
may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity
or at law) and except as the indemnification agreements of the
Investors herein may be legally unenforceable.
4.4 The Investor understand that nothing in this Agreement
or any other materials presented to the Investor in connection with
the purchase and sale of the Units constitutes legal, tax or
investment advice. The Investor has consulted such legal, tax and
investment advisors as it, in its sole discretion, has deemed
necessary or appropriate in connection with its purchase of Units.
4.5 The Investor represents, warrants and agrees that, since
the date on which the Investor was first contacted about the
Offering until the time that the material terms of the transaction
hereunder are publicly disclosed in a press release or a filing with
the Commission, it has not engaged, and will not engage, in any
short selling of the Company's securities, or established or
increased any "put equivalent position" as defined in Rule 16(a)-
1(h) under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") with respect to the Company's securities.
5. Representations, Warranties and Covenants of the
Company. The Company represents and warrants to, and agrees
with, the Investor that:
5.1 The Company has filed with the Commission a
Registration Statement on Form S-3 (Registration File No. 333-
115052) under the Securities Act, which was declared effective by
the S.E.C. on November 9, 2004, for the registration under the
Securities Act of the Shares (and any shares issuable upon exercise
of the Warrants). At the time of such filing, the Company met the
requirements of Form S-3 under the Securities Act. Such
registration statement meets the requirements set forth in Rule
415(a)(1)(x) under the Securities Act and complies with said Rule.
The Company will file with the Commission pursuant to Rule
424(b) under the Securities Act, and the rules and regulations (the
"Rules and Regulations") of the Commission promulgated
thereunder, a supplement to the form of prospectus included in
such registration statement relating to the placement of the Units
and the plan of distribution thereof and has advised the Investors
of all further information (financial and other) with respect to the
Company required to be set forth therein. The Company will also
use its commercially reasonable efforts to keep the Registration
Statement continuously effective under the Securities Act until the
date when all shares of common stock issuable pursuant to the
exercise of the Warrants have been sold pursuant to the
Registration Statement or an exemption from the registration
requirements of the Securities Act, or may be sold without volume
restrictions pursuant to Rule 144(k) as determined by the counsel
to the Company pursuant to a written opinion letter to such effect,
addressed and reasonably acceptable to the Company's transfer
agent and the Investor. Any reference in the Agreement to the
Registration Statement, the Base Prospectus or the Prospectus
Supplement shall be deemed to refer to and include the documents
incorporated by reference therein (the "Incorporated Documents")
pursuant to Item 12 of Form S-3 which were filed under the
Exchange Act, on or before the date of this Agreement, or the issue
date of the Base Prospectus or the Prospectus Supplement, as the
case may be; and any reference in this Agreement to the terms
"amend," "amendment" or "supplement" with respect to the
Registration Statement, the Base Prospectus or the Prospectus
Supplement shall be deemed to refer to an include the filing of any
document under the Exchange Act after the date of this Agreement,
or the issue date of the Base Prospectus or the Prospectus
Supplement, as the case may be, deemed to be incorporated therein
by reference. All references in this Agreement to financial
statements and schedules and other information which is
"contained," "included," "described," "referenced," "set forth" or
"stated" in the Registration Statement, the Base Prospectus or the
Prospectus Supplement (and all other references of like import)
shall be deemed to mean and include all such financial statements
and schedules and other information which is or is deemed to be
incorporated by reference in the Registration Statement, the Base
Prospectus or the Prospectus Supplement, as the case may be. No
stop order suspending the effectiveness of the Registration
Statement or the use of the Base Prospectus or the Prospectus
Supplement has been issued, and no proceeding for any such
purpose is pending or has been initiated or, to the Company's
knowledge, is threatened by the Commission.
5.2 The Registration Statement (and any further documents
to be filed with the Commission on or prior to the Closing Date)
contains all exhibits and schedules as required by the Securities
Act. Each of the Registration Statement and any post-effective
amendment thereto, at the time it became effective, complied in all
material respects with the Securities Act and the Exchange Act and
the applicable Rules and Regulations and did not and, as amended
or supplemented, if applicable, will not, contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading. The Base Prospectus and the Prospectus Supplement,
each as of its respective date, comply in all material respects with
the Securities Act and the Exchange Act and the applicable Rules
and Regulations. Each of the Base Prospectus and the Prospectus
Supplement, as amended or supplemented, did not and will not
contain as of the date thereof any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading. The Incorporated Documents, when
they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act and the
applicable Rules and Regulations, and none of such documents,
when they were filed with the Commission, contained any untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein (with respect to
Incorporated Documents incorporated by reference in the Base
Prospectus or Prospectus Supplement, in light of the circumstances
under which they were made) not misleading; and any further
documents so filed an incorporated by reference in the Base
Prospectus or Prospectus Supplement, when such documents are
filed with the Commission, will conform in all material respects to
the requirements of the Exchange Act and the applicable Rules and
Regulations, as applicable, and will not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
Notwithstanding the foregoing, the Company makes no
representations or warranties as to information, if any, contained
in or omitted from the Prospectus Supplement or any amendment
thereof or supplement thereto in reliance upon and in conformity
with information furnished in writing to the Company by or on
behalf of the Investors specifically for use in the Registration
Statement or the Prospectus Supplement. No post-effective
amendment to the Registration Statement reflecting any facts or
events arising after the date thereof which represent, individually
or in the aggregate, a fundamental change in the information set
forth therein is required to be filed with the Commission. There
are no documents required to be filed with the Commission in
connection with the transaction contemplated hereby that (x) have
not been filed as required pursuant to the Securities Act or (y) will
not be filed within the requisite time period. There are no
contracts or other documents required to be described in the Base
Prospectus or Prospectus Supplement, or to be filed as exhibits or
schedules to the Registration Statement, which have not been
described or filed as required.
5.3 The Company has been duly organized and are validly
existing as corporations or other legal entities in good standing (or
the equivalent thereof, if any) under the laws of their respective
jurisdictions of incorporation, are duly qualified to do business and
are in good standing (or the equivalent thereof, if any) as foreign
corporations in each jurisdiction in which their respective
ownership or lease of property or the conduct of their respective
businesses requires such qualification, and have all power and
authority necessary to own or hold their respective businesses
requires such qualification, and have all power and authority
necessary to own or hold their respective properties and to conduct
the businesses in which they are engaged, except where the failure
to be so qualified and in good standing or have such power or
authority would not have, singularly or in the aggregate, a material
adverse effect on the condition (financial or otherwise), results of
operations, business, properties or prospects of the Company and
its subsidiaries taken as a whole (a "Material Adverse Effect").
5.4 The Shares to be issued and sold by the Company under
this Agreement (and shares of Common Stock issuable pursuant to
the exercise of the Warrants) have been duly and validly
authorized and, when issued and delivered against payment
therefor as provided herein or therein, will be duly and validly
issued, fully paid and nonassessable and free of any preemptive or
similar rights. The Shares and Warrants conform to the description
thereof contained in the Base Prospectus and the Prospectus
Supplement.
5.5 As of the Closing Date and excluding any Securities
issued pursuant to the Offering, the Company has 12,812,559
shares of its Common Stock outstanding, as well as outstanding
options and warrants to purchase 2,678,400 shares of Common
Stock, and options or other equity awards for 528,822 shares
available for future issuance pursuant to the Company's 1998
Stock Option Plan. All of the issued and outstanding shares of
capital stock of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable, have been
issued in compliance with federal and state securities laws, and
conform to the description thereof contained in the Base
Prospectus and the Prospectus Supplement. None of the
outstanding shares of Common Stock was issued in violation of
any preemptive rights, rights of first refusal or other similar rights
to subscribe for or purchase securities of the Company. There are
no authorized or outstanding options, warrants, preemptive rights,
rights of first refusal or other rights to purchase, or equity or debt
securities convertible into or exchangeable or exercisable for, any
capital stock of the Company or any of its subsidiaries that have
been granted by the Company other than those accurately
described herein or in the Base Prospectus and the Prospectus
Supplement. The description of the Company's stock option,
stock bonus and other stock plans or arrangements, and the options
or other rights granted thereunder, as described in the Base
Prospectus and the Prospectus Supplement accurately and fairly
present the information required to be shown with respect to such
plans, arrangements, options and rights.
5.6 The Company has the full right, power and authority to
enter into this Agreement and to perform and to discharge its
obligations hereunder; and this Agreement has been duly
authorized, executed and delivered by the Company, and
constitutes a valid and binding obligation of the Company
enforceable in accordance with its terms, except as limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting the enforcement of
creditors' rights generally, (ii) general principles of equity,
regardless of whether asserted in a proceeding at equity or law, and
may be limited by federal or state securities laws and public policy
considerations in respect thereof.
5.7 The execution, delivery and performance of this
Agreement by the Company and the consummation of the
transactions contemplated hereby will not conflict with or result in
a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the
Company is a party or by which the Company is bound or to which
any of the property or assets of the Company is subject, nor will
such actions result in any violation of the provisions of the charter
or by-laws of the Company or any statute, law, rule or regulation
or any judgment, order or decree of any court or governmental
agency or body having jurisdiction over the Company or any of its
properties or assets, except for such breach, violation or default
that, singularly or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect.
5.8 No consent, approval, authorization, filing with or order
of or registration with, any court or governmental agency or body
is required in connection with the transactions contemplated
herein, except such as have been obtained or made under the
Securities Act or the Exchange Act and such as may be required
under the securities, or blue sky, laws of any jurisdiction in
connection with the offer and sale of the Shares or Warrants by the
Company in the manner contemplated herein and in the Base
Prospectus and the Prospectus Supplement.
5.9 The financial statements, together with the related notes
and schedules, of the Company included in the Base Prospectus,
the Prospectus Supplement or the Registration Statement, or
incorporated by reference therein, as the case may be, present fairly
the financial condition, results of operations and cash flows of the
Company and its consolidated subsidiaries and other consolidated
entities as of the dates and for the periods indicated, comply in all
material respects with the Securities Act and the Rules and
Regulations thereunder, and have been prepared in conformity
with generally accepted accounting principles applied on a
consistent basis throughout the periods involved. No other
financial statements or supporting schedules or exhibits are
required by the Securities Act or the Rules and Regulations
thereunder to be included in the Base Prospectus, the Prospectus
Supplement or the Registration Statement, or incorporated by
reference therein, as the case may be.
5.10 Except as set forth in the Base Prospectus and the
Prospectus Supplement, there is no legal or governmental
proceeding pending to which the Company is a party or of which
any property or assets of the Company is the subject which is
required to be described in the Base Prospectus or the Prospectus
Supplement and is not described therein, or which, singularly or in
the aggregate, if determined adversely to the Company, would
have a Material Adverse Effect or would prevent or adversely
affect the ability of the Company to perform its obligations under
this Agreement; and to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
5.11 The Company has made all filings, applications and
submissions required by, and possesses all approvals, licenses,
certificates, certifications, clearances, consents, exemptions, marks,
notifications, orders, permits and other authorizations issued by,
the appropriate federal, state or foreign regulatory authorities, and
any other foreign, federal, state or local government or businesses
(collectively, "Permits"), except for such Permits which the failure
to obtain would not have a Material Adverse Effect (the
"Immaterial Permits"), and is in compliance in all material
respects with the terms and conditions of all such Permits other
than the Immaterial permits (the "Required Permits"); all of such
Required Permits held by the Company are valid and in full force
and effect; there is no pending or, to the Company's knowledge,
threatened action, suit, claim or proceeding which may cause any
such Required Permit to be limited, revoked, cancelled, suspended,
modified or not renewed and the Company has not received any
notice of proceedings relating to the limitation, revocation,
cancellation, suspension, modification or non-renewal of any such
Required Permit which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would have a Material
Adverse Effect, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated
by the Base Prospectus or the Prospectus Supplement.
6. Survival of Representations, Warranties and Agreements.
Notwithstanding any investigation made by any party to this
Agreement, all covenants, agreements, representations and
warranties made by the Company and the Investor herein will
survive for two years after the Closing.
7. Notices. All notices, requests, consents and other
communications hereunder will be in writing, will be mailed (a) if
within the domestic United States by first-class registered or
certified airmail, or nationally recognized overnight express
courier, postage prepaid, or by facsimile or (b) if delivered from
outside the United States, by International Federal Express or
facsimile, and will be deemed given (i) if delivered by first-class
registered or certified mail domestic, three business days after so
mailed, (ii) if delivered by nationally recognized overnight carrier,
one business day after so mailed, (iii) if delivered by International
Federal Express, two business days after so mailed and (iv) if
delivered by facsimile, upon electric confirmation of receipt and
will be delivered and addressed as follows:
(a) if to the Company, to:
Research Frontiers Incorporated
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Attention: President
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Investor, at its address on the Signature Page hereto,
or at such other address or addresses as may have been
furnished to the Company in writing.
8. Changes. This Agreement may not be modified or amended
except pursuant to an instrument in writing signed by the Company
and the Investor.
9. Headings. The headings of the various sections of this
Agreement have been inserted for convenience of reference only
and will not be deemed to be part of this Agreement.
10. Severability. In case any provision contained in this
Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining
provisions contained herein will not in any way be affected or
impaired thereby.
11. Governing Law. This Agreement will be governed by, and
construed in accordance with, the internal laws of the State of New
York, without giving effect to the principles of conflicts of law that
would require the application of the laws of any other jurisdiction.
12. Counterparts. This Agreement may be executed in two or
more counterparts, each of which will constitute an original, but all
of which, when taken together, will constitute but one instrument,
and will become effective when one or more counterparts have
been signed by each party hereto and delivered to the other parties.
The Company and the Investor acknowledge and agree that the
Company shall deliver its counterpart to the Investor along with
the Prospectus Supplement. Copies of this Agreement sent by fax
shall be effective as if they were originals.
13. Confirmation of Sale. The Investor acknowledges and
agrees that such Investor's receipt of the Company's counterpart
to this Agreement, together with the Prospectus Supplement, shall
constitute written confirmation of the Company's sale of Shares to
such Investor.
EXHIBIT A
RESEARCH FRONTIERS INCORPORATED
INVESTOR QUESTIONNAIRE
Pursuant to Section 3 of Annex I to the Agreement, please
provide us with the following information.
1. The exact name that your Shares and Warrants are to be
registered in. You may use a nominee name if appropriate:
2. The relationship between the Investor and the
registered holder listed in response to item 1 above:
3. The mailing address of the registered holder listed
in response to item 1 above:
4. The Social Security Number or Tax Identification
Number of the registered holder listed in the
response to item 1 above:
5. Name of DTC Participant (broker-dealer at which
the account or accounts to be credited with the
Shares are maintained)
6. DTC Participant Number
7. Name of Account at DTC Participant being credited
8. Account Number at DTC Participant being credited
with the Shares
Exhibit B
[FORM OF WARRANT]
THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED PURSUANT TO THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT
BE SOLD, TRANSFERRED, HYPOTHECATED OR
OTHERWISE DISPOSED OF UNLESS THERE IS A
REGISTRATION STATEMENT THEN IN EFFECT COVERING
SUCH SECURITIES OR AN EFFECTIVE EXEMPTION FROM
SUCH REGISTRATION OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT UNDER THE
CIRCUMSTANCES REGISTRATION IS NOT NECESSARY.
RESEARCH FRONTIERS INCORPORATED
COMMON STOCK PURCHASE WARRANT
THIS CERTIFIES that, for value received, [INVESTOR],
hereinafter called "Warrantholder"), is entitled to purchase from
Research Frontiers Incorporated, a Delaware corporation
(hereinafter called the "Company"), [NUMBER OF SHARES
EQUAL TO 20% OF SHARES SUBSCRIBED FOR] shares of
common stock, par value $.0001 per share (hereinafter called the
"Shares") of the Company at a warrant exercise price of $7.50 per
share (such price per share and the number of shares of common
stock so purchasable being subject to adjustment as provided
below) at any time on or before 4:30 p.m. New York time on
February 11, 2010 (the "Expiration Date"), all in accordance with
the terms hereof.
1. Exercise of Warrants and Holding of Underlying Stock.
1.1 The Warrants evidenced by this Warrant Certificate may
be exercised prior to 4:30 p.m. New York time on the Expiration
Date in whole at any time or in part from time to time during such
period by the surrender of this Warrant Certificate, along with a
Notice of Exercise in the form attached hereto duly executed and
completed by Warrantholder, at the office of the Company, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
together with payment in full in lawful money of the United States,
of the Warrant exercise price payable at the time of such exercise
in respect of the Warrants being exercised. Such payment shall be
made by wire transfer of immediately available funds to the
account of Research Frontiers Incorporated at JPMorgan Chase
Bank, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account
Number: ▇▇▇-▇▇▇-▇▇▇, ABA Wire Code No.: 021 000 021, or to
such other account or place, as the Company may specify. If less
than all of the Warrants represented by this Warrant Certificate are
being exercised, the Company will, upon such exercise, deliver to
Warrantholder a new certificate (dated the date hereof) evidencing
the Warrants not so exercised.
1.2 Certificates representing Shares issued hereunder shall be
stamped or otherwise imprinted with a legend substantially in the
following form (in addition to any legend required under any
applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED PURSUANT TO THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY
NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR
OTHERWISE DISPOSED OF UNLESS THERE IS A
REGISTRATION STATEMENT THEN IN EFFECT
COVERING SUCH SHARES OR AN EFFECTIVE
EXEMPTION FROM SUCH REGISTRATION OR AN
OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT UNDER THE CIRCUMSTANCES
REGISTRATION IS NOT NECESSARY.
Provided, however, that if the issuance of the Shares pursuant to
the exercise of this Warrant are subject to an effective registration
statement pursuant to Section 5 of the Securities Act of 1933, as
amended, certificates representing the Shares shall not bear any
restrictive legend.
1.3 Limitations on Exercise.
(a) Notwithstanding anything to the contrary contained
herein, the number of Shares that may be acquired by the
Warrantholder upon any exercise of this Warrant (or otherwise in
respect hereof) shall be limited to the extent necessary to insure
that, following such exercise (or other issuance), the total number
of shares of common stock of the Company then beneficially
owned by such Warrantholder and its affiliates and any other
person or entity whose beneficial ownership of such common stock
would be aggregated with the Warrantholder's for purposes of
Section 13(d) of the Securities Exchange Act of 1934 (the
"Exchange Act"), does not exceed 4.999% of the total number of
issued and outstanding shares of common stock of the Company
(including for such purpose the shares of common stock issuable
upon such exercise). For such purposes, beneficial ownership shall
be determined in accordance with Section 13(d) of the Exchange
Act and the rules and regulations promulgated thereunder. This
provision shall not restrict the number of shares of common stock
which a Warrantholder may receive or beneficially own in order to
determine the amount of securities or other consideration that such
Warrantholder may receive in the event of a transaction
contemplated by Section 2.1 of this Warrant. By written notice to
the Company, a Warrantholder may waive the provisions of this
Section 1.3(a) as to itself but any such waiver will not be effective
until the 61st day after delivery thereof and such waiver shall have
no effect on any other person or entity.
(b) Notwithstanding anything to the contrary contained
herein, the number of Shares that may be acquired by the
Warrantholder upon any exercise of this Warrant (or otherwise in
respect hereof) shall be limited to the extent necessary to insure
that, following such exercise (or other issuance), the total number
of shares of common stock of the Company then beneficially
owned by such Warrantholder and its affiliates and any other
person or entity whose beneficial ownership of such common stock
would be aggregated with the Warrantholder's for purposes of
Section 13(d) of the Exchange Act, does not exceed 9.999% of the
total number of issued and outstanding shares of common stock of
the Company (including for such purpose the shares of common
stock issuable upon such exercise). For such purposes, beneficial
ownership shall be determined in accordance with Section 13(d)
of the Exchange Act and the rules and regulations promulgated
thereunder. This provision shall not restrict the number of shares
of Common Stock which a Warrantholder may receive or
beneficially own in order to determine the amount of securities or
other consideration that such Warrantholder may receive in the
event of a transaction contemplated by Section 2.1 of this Warrant.
This restriction may not be waived.
2. Reclassification, Consolidation or Merger.
2.1 In the event that the outstanding Shares are hereafter
changed by reason of reorganization, merger, consolidation,
recapitalization, reclassification, stock split-up, combination or
exchange of Shares and the like, or dividends payable in Shares,
an appropriate adjustment shall be made by the Board of Directors
of the Company in the number of Shares and price per Share
subject to this Warrant Certificate. If the Company shall be
reorganized, consolidated, or merged with another corporation, or
if all or substantially all of the assets of the Company shall be sold
or exchanged, the Warrantholder shall at the time of issuance of
the stock under such a corporate event, be entitled to receive upon
the exercise of the vested Warrants evidenced by this Warrant
Certificate the same number and kind of shares of stock or the
same amount of property, cash or securities as he would have been
entitled to receive upon the occurrence of any such corporate event
as if he had been, immediately prior to such event, the holder of
the number of Shares so exercised.
2.2 Any adjustment under this Paragraph 2 in the number of
Shares subject to this Warrant Certificate shall apply
proportionately to only the unexercised portion hereunder and
shall not have any retroactive effect with respect to Warrants
theretofore exercised. If fractions of a Share would result from any
such adjustment, the adjustment shall be revised to the next lower
whole number of Shares.
2.3 No adjustment of the exercise price shall be made if the
amount of such adjustment shall be less than $.01 per Share, but
in such case any adjustment that would otherwise be required then
to be made, shall be carried forward and shall be made at the time
and together with the next subsequent adjustment which, together
with any adjustment so carried forward, shall amount to no less
than $.01 per share.
2.4 No fractional shares of common stock shall be issued
upon the exercise of any Warrants evidenced hereby, but in lieu
thereof the number of shares of common stock that are issuable
upon any exercise shall be rounded up or down to the nearest
whole share.
2.5 When any adjustment is required to be made in the
exercise price or number of Shares subject to this Warrant
Certificate, initial or adjusted, the Company shall within sixty (60)
days after the date when the circumstances giving rise to the
adjustment occurred mail to the Warrantholder a statement
describing in reasonable detail any method used in calculating
such adjustment.
3. Prior Notice as to Certain Events.
The Company shall mail to Warrantholder not less than ten
(10) days prior to the date on which (a) a record will be taken for
the purpose of determining the holders of Capital Stock entitled to
subscription rights, or (b) a record will be taken (or in lieu thereof,
the transfer books will be closed) for the purpose of determining
the holders of Capital Stock entitled to notice of and to vote at the
meeting of stockholders at which any consolidation, merger,
dissolution, liquidation, winding up or sale of the Company shall
be considered and acted upon.
4. Reservation and Issuance of Shares.
4.1 The Company covenants and agrees that all Shares which
may be issued upon the exercise of the rights represented by this
Warrant Certificate will be duly authorized, legally issued and
when paid for in accordance with the terms hereof, fully paid and
non-assessable, and free from all liens and charges with respect to
the issue thereof to the Warrantholder.
4.2 The Company will reserve at all times such number of
Shares as may be issuable pursuant to the exercise of Warrants
evidenced by this Warrant Certificate.
5. Investment Representation.
By accepting delivery of this Warrant Certificate and by
exercising any Warrants evidenced hereby, the Warrantholder
represents that the Warrantholder is acquiring the Warrants and the
Shares issuable upon the exercise of the Warrants for investment
and not for resale or distribution.
6. Miscellaneous.
6.1 The Warrantholder shall not be entitled to any rights
whatsoever as a stockholder of the Company by virtue of its
ownership of this Warrant Certificate.
6.2 This Warrant Certificate is being executed and delivered
in the State of New York, and this Warrant Certificate shall be
interpreted under, and the Warrantholder and the Company subject
to, the laws and jurisdiction of the state and federal courts of the
State of New York, United States of America. The parties hereby
consent to such jurisdiction.
6.3 Subject to the provisions of Section 1.2 hereof, this
Warrant Certificate may be exercised at any time after the date
hereof and prior to its expiration as of 4:30 p.m. New York time on
the Expiration Date, and shall be void and of no effect after 4:30
p.m. New York time on the Expiration Date.
6.4 By accepting delivery of this Warrant Certificate, the
Warrantholder acknowledges that the Warrants granted hereunder
shall be in full satisfaction of all obligations to issue Warrants to
the Warrantholder pursuant to the Subscription Agreement dated
February 10, 2005 between the Company and the Warrantholder.
IN WITNESS WHEREOF, the Company and the
Warrantholder have executed this Warrant Certificate this 11th day
of February, 2005 by each of their duly authorized officers.
RESEARCH FRONTIERS INCORPORATED
By:______________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇, Chairman
[INVESTOR]
By:____________________________________________
Managing Director
[Form of Notice of Exercise]
The undersigned hereby irrevocably elects to exercise the
warrants we currently hold to purchase ____________ shares of
common stock, $0.0001 par value per share, of Research Frontiers
Incorporated (the "Company") at an exercise price of $7.50 per
share. Attached to this notice is the original Warrant certificate
evidencing the aforementioned warrants. We have delivered to the
Company US$_______________ representing the aggregate
exercise price for the warrants exercised hereunder. A certificate
representing the shares issuable upon exercise should be issued in
the undersigned's name.
The undersigned hereby represents and warrants to the
Company that the representations and warranties and
acknowledgments made by the undersigned in the Subscription
Agreement dated February 10, 2005 between the undersigned and
the Company are still true and correct as if made on the date of this
Notice of Exercise, and that the undersigned has carefully read any
reports or statements filed with the Securities and Exchange
Commission regarding the Company after February 10, 2005, and
that the Company has also made available to the undersigned all
other documents and information that the undersigned has
requested relating to an investment in the Company.
Dated: ________ __, _____
[INVESTOR]
By:__________________________________
Name:
Title: