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EXHIBIT 10.11
BIOFACTORS, INC.
UNIT SUBSCRIPTION AGREEMENT
BioFactors, Inc.
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Ladies and Gentlemen:
1. Purchase and Sale of the Units. BioFactors, Inc. ("BioFactors"
or the "Company") has authorized the issuance and sale of up to 10 Units to the
purchasers hereunder (individually, a "Purchaser," and collectively, the
"Purchasers") pursuant to the terms of the offer set forth in this Unit
Subscription Agreement (this "Agreement") dated as of October 3, 1996.
1.1 Subscription. The undersigned hereby tenders this
Agreement and applies for the purchase of the number of Units indicated on page
9 hereof, at a purchase price of Fifty Thousand Dollars ($50,000.00) per Unit
(the "Purchase Price"). Simultaneously with delivery of this Agreement, the
undersigned is delivering funds, in the full amount of the Purchase Price for
the Units for which he is subscribing, by wire transfer to the Escrow Account
as instructed by the Escrow Agent.
1.2 Description of the Units. Each Unit consists of:
(a) A promissory note of the Company in the
principal amount of Fifty Thousand Dollars ($50,000), bearing simple interest
at the rate of 10% per annum from the Closing (as defined below) (computed on
the basis of a 360-day year consisting of twelve 30-day months), substantially
in the form set forth in Exhibit A hereto (herein referred to individually as a
"Note" and collectively as the "Notes," which terms shall also include any
notes delivered in exchange or replacement therefor). The Notes shall mature
and the principal and all accrued interest payable thereon shall become due and
payable in full on March 31, 1997 (the "Maturity Date"); provided, however,
that, in the event the proposed IPO (defined in Section 2) is consummated prior
to the Maturity Date, the Note shall be paid within five (5) business days of
the date of disbursement of the proceeds of the IPO. The terms of the Notes
may be amended by Purchasers holding in the aggregate 50% or more of the
outstanding principal amount of the Notes.
(b) A warrant to purchase 50,000 shares ("Warrant
Shares") of the Company's common stock, $0.01 par value per share ("Common
Stock"), exercisable at any time commencing on the later of June 30, 1997 or
one year after the effective date of the Registration Statement (defined below)
relating to the IPO (the "IPO Effective Date") and terminating thirty-six (36)
months thereafter, at a price (as from time to time adjusted) per share of 120%
of the price per share to the public of the Common Stock at the IPO (the "IPO
Price"), substantially in the form set forth in Exhibit B hereto (herein
referred to as a "Warrant" and collectively as the "Warrants") (a Note and a
Warrant, together, being a "Unit"). The portion of the Purchase Price
allocated to each Warrant
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Share shall be $0.10 (being an aggregate of Five Thousand Dollars ($5,000.00)
on a Warrant to purchase 50,000 Warrant Shares), which is hereby agreed to be
the fair market value of such Warrant. The exercise price and the number of
Warrant Shares are subject to adjustment in the event of a split-up of shares
of the Company, the issuance by the Company of a stock dividend or similar
event as more fully set forth therein.
1.3 Agreement to Purchase. Subject to the terms and
conditions of this Agreement, each Purchaser agrees, severally, but not
jointly, to purchase at the Closing (as defined in Section 1.5), and the
Company agrees to sell and issue to each Purchaser at the Closing, Units as set
forth opposite each such Purchaser's name on the Schedule of Purchasers
attached hereto as Schedule A at the aggregate Purchase Price set forth
thereon.
1.4 Acceptance or Rejection. The undersigned understands
and agrees that the Company reserves the right to reject this subscription for
the Units in whole or in part in any order, if, in its sole discretion, it
deems such action in the best interest of the Company, at any time prior to the
Closing, notwithstanding prior receipt by the undersigned of notice of
acceptance of the undersigned's subscription. In the event of rejection of
this subscription, or in the event the sale of the Units subscribed for by the
undersigned is not consummated by the Company for any reason (in which event
this Subscription Agreement shall be deemed to be rejected), this Subscription
Agreement and any other agreement entered into between the undersigned and the
Company relating to this subscription shall thereafter have no force or effect
and the Company shall promptly return or cause to be returned to the
undersigned the purchase price remitted to the Company by the undersigned,
without interest thereon or deduction therefrom, in exchange for the Units.
1.5 Closing. The closing of this offering shall take
place at 10:00 a.m., Denver time, on October 11, 1996, at the offices of ▇▇▇▇▇,
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at such other date, time and place as shall be designated by the Company (the
"Closing"). At or promptly after the Closing, the Company will execute and
deliver the Notes and the Warrants, each dated the date of the Closing, to each
Purchaser against receipt of the full Purchase Price.
2. Planned Initial Public Offering; Warrant Adjustment.
2.1 Initial Public Offering. The term "IPO" as used
herein shall mean the proposed underwritten initial public offering of the
Company's securities, or the securities of a holding company formed to hold the
capital stock of BioFactors, pursuant to an effective registration statement
filed under the Securities Act of 1933, as amended (the "Securities Act"). The
undersigned understands and agrees that there can be no assurances that a
registration statement ("Registration Statement") will be filed or, if filed,
will be declared effective by the Securities and Exchange Commission (the
"Commission") or, if the Registration Statement is declared effective by the
Commission, that the Company, or the holding company as the case may be, will
be able to consummate such IPO.
2.2 Warrant Adjustments. If, prior to or concurrently
with the IPO, BioFactors is merged with another entity (the "Merger") for the
purposes of forming a holding company to hold the capital stock of BioFactors
("Newco"), wherein Newco is the registrant in the IPO and, if upon such
Merger, the exchange ratio of BioFactors Common Stock to Newco common stock is
not one-to-one, then the number of shares of BioFactors Common Stock for which
each Warrant is exercisable immediately prior to the Merger shall be adjusted
such that upon the Merger exchange the Warrant
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shall be exercisable for the same number of shares of Newco common stock as it
would have been exercisable for BioFactors Common Stock but for the Merger.
3. Registration Rights. The Company agrees to enter into a
registration rights agreement substantially in the form set forth in Exhibit C
hereto (the "Rights Agreement") with each of the Purchasers.
4. Representations and Warranties of the Purchasers. Each
Purchaser severally, but not jointly, hereby represents and warrants to, and
agrees with, the Company that:
4.1 Such Purchaser is aware that the investment in the
Units involves a high degree of risk of loss of his or its entire investment.
4.2 Such Purchaser has received the Executive Summary of
the Company's business plan dated October 3, 1996, the unaudited balance sheets
of the Company as of December 31, 1995 and as of June 30, 1996, and the
unaudited income statement for the year ended December 31, 1995 and for the
period ended June 30, 1996 (collectively, the "Financial Statements"), and
understands and acknowledges that there is no assurance that the business plan
will be accomplished or as to the future performance of the Company.
4.3 The undersigned represents and warrants that he
understands that, as a result of certain subsequent events, the information
contained in the Company's Confidential Private Offering Memorandum dated
September 12, 1996 is stale, materially incorrect and cannot be relied upon in
making an investment decision. The undersigned further represents and warrants
that he has not relied upon the information contained in the Company's
Confidential Private Offering Memorandum dated September 12, 1996 in making his
decision on whether or not to invest in the Units.
4.4 Such Purchaser understands and acknowledges that
there may be certain adverse tax consequences to him or it in connection with
his or its purchase of the Units (including, but not limited to, the tax
consequences described in Section 7), that the Company is not giving and has
not given any advice on the tax consequences of the investment and that the
Company has advised all the Purchasers to seek the advice of their own experts
in such areas prior to making this investment.
4.5 This Agreement has been duly executed and delivered
by such Purchaser and constitutes such Purchaser's valid and legally binding
obligations, enforceable in accordance with its terms. Each Purchaser
represents that he or it has full power and authority to enter into this
Agreement.
4.6 The Confidential Investor Questionnaire being
delivered by the Purchaser to the Company simultaneously herewith is true,
complete and correct in all material respects; and the Purchaser understands
that the Company has determined that the exemption of the Units from the
registration provisions of the Securities Act pursuant to Regulation D thereof,
which is available for non-public offerings, is applicable to the offer and
sale of the Units, and that such determination is based in part upon the
representations, warranties and agreements made by the Purchaser herein and in
the Purchaser's Confidential Investor Questionnaire.
4.7 The Note and the Warrant to be received by such
Purchaser pursuant to the terms hereof (collectively, the "Securities"), will
be acquired for investment for such Purchaser's own account, not as a nominee
or agent, and not with a view to the resale or distribution of any part
thereof,
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and such Purchaser has no present intention of selling, granting any
participation in, or otherwise distributing the same. Notwithstanding such
representations, the undersigned realizes that the basis for the exemption may
not be present if the undersigned has in mind merely acquiring the Securities
for a fixed or determined period in the future, or for a market rise, or for
sale if the market does not rise. The undersigned does not have any such
intention.
4.8 Such Purchaser understands that the Securities he or
it is receiving hereunder are characterized as "restricted securities" under
the federal securities laws inasmuch as they are being acquired from the
Company in a transaction not involving a public offering and that under such
laws and applicable regulations such securities may be resold without
registration under the Securities Act of 1933, as amended (the "Act"), only in
certain limited circumstances, in particular, the Securities may not be sold
pursuant to Rule 144 promulgated under the Act ("Rule 144") unless all of the
conditions of Rule 144 are met. The undersigned also understands that, except
as otherwise provided herein, the Company is under no obligation to register
the Units or any of the components of the Units on his or its behalf or to
assist him or it in complying with any exemption from registration under the
Securities Act or applicable state securities laws. The undersigned further
understands that sales or transfers of the Units and the components of the
Units are further restricted by state securities laws and the provisions of
this Agreement.
4.9 The undersigned's overall commitment to investments
which are not readily marketable is not disproportionate to the undersigned's
net worth, and an investment in the Units will not cause such overall
commitment to become excessive.
4.10 The undersigned is not relying on the Company, or its
affiliates, with respect to economic considerations involved in this
investment. The undersigned represents and warrants that he or it has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Units and has obtained,
in his or its own judgment, sufficient information from the Company to evaluate
the merits and risks of an investment in the Company. The undersigned further
represents and warrants that he or it has not utilized any person as a
purchaser representative as such term is defined in Regulation D in connection
with evaluating such merits and risks, but rather has relied solely upon his or
its own investigation in making a decision to invest in the Company.
4.11 No representations or warranties have been made to
the Purchaser by the Company or any of its directors, agents, employees or
affiliates; and in entering into this transaction the Purchaser is not relying
upon any information other than that contained in the Financial Statements
distributed and the results of independent investigations, if any, by the
Purchaser.
4.12 The undersigned represents and warrants that he or it
has had a reasonable opportunity to ask questions and to receive satisfactory
answers concerning the offering and other matters pertaining to his or its
investment and all such questions have been answered to the Purchaser's full
satisfaction; the Purchaser further represents and warrants that he or it has
had reasonable opportunity to obtain all the information he or it considers
necessary or appropriate for deciding whether to purchase the Units.
4.13 The undersigned represents and warrants that he or it
is an "Accredited Investor" within the meaning of Rule 501(a) of Regulation D,
promulgated under the Act.
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4.14 The undersigned represents and warrants that he or it
is not a "member," an "affiliate" of a member, or a "person associated with a
member" of the National Association of Securities Dealers, Inc. (the "NASD")
within the meaning of Section 3 of the NASD Bylaws.
4.15 The address set forth on the signature page hereto is
the Purchaser's true and correct domicile, and the Purchaser has no present
intention of becoming a resident of any other state or jurisdiction.
4.16 Without in any way limiting the representations set
forth above, such Purchaser further agrees not to make any disposition of the
Securities unless there is then in effect a registration statement under the
Act covering such proposed disposition and such disposition is made in
accordance with such registration statement; or such Purchaser shall have
notified the Company of the proposed disposition and shall have furnished the
Company with a statement of the circumstances surrounding the proposed
disposition, and, if reasonably requested by the Company, such Purchaser shall
have furnished the Company with an opinion of counsel, reasonably satisfactory
to the Company, that such disposition will not require registration of such
shares under the Act. It is agreed that the Company will not require opinions
of counsel for transactions made pursuant to Rule 144 except if reasonably
requested by the Company.
4.17 It is understood that the Securities may bear one or
all of the following legends:
(a) "THESE SECURITIES HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER
ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED,
HYPOTHECATED, ASSIGNED OR TRANSFERRED IN THE ABSENCE OF A REGISTRATION
STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR APPLICABLE
STATE SECURITIES LAWS PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT, BUT ONLY UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE
WRITTEN OPINION OF COUNSEL TO THE CORPORATION, OR OTHER COUNSEL REASONABLY
ACCEPTABLE TO THE CORPORATION THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH
ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT, AS WELL AS ANY APPLICABLE
"BLUE SKY" OR SIMILAR SECURITIES LAW."
(b) Any legend required by the laws of the State
of Delaware or applicable state securities laws.
5. Conditions of Purchaser's Obligations at Closing. The
obligations of each Purchaser under Section 1 of this Agreement are subject to
the fulfillment on or before the Closing of each of the following conditions,
the waiver of which shall not be effective against any Purchaser who does not
consent in writing thereto:
5.1 Performance. The Company shall have performed and
complied with all agreements, obligations, and conditions contained in this
Agreement that are required to be performed or complied with, and shall have
obtained all necessary consents, approvals and waivers as are necessary or
appropriate for consummation of the transactions contemplated by this
Agreement, on or before the Closing.
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5.2 Qualifications. The Company shall have obtained all
necessary Blue Sky law permits and qualifications, or secured exemptions
therefrom, required by any state for the offer and sale of the Units.
5.3 Minimum Subscription. The Company shall have
accepted subscriptions, and received cleared funds, for the purchase of at
least six (6) units offered pursuant hereto.
5.4 Rights Agreement. The Company and the Purchasers
shall have executed the Rights Agreement.
6. Conditions of the Company's Obligations at Closing. The
obligations of the Company to the Purchasers under this Agreement are subject
to the fulfillment on or before the Closing of the following conditions:
6.1 Representations and Warranties. The representations
and warranties of the Purchasers contained in Section 4 shall be true on and as
of the Closing.
6.2 Payment of Purchase Price. The Purchasers shall have
delivered the aggregate Purchase Price for the Units as specified in Section
1.1.
6.3 Minimum Subscription. The Company shall have
accepted subscriptions, and received cleared funds, for the purchase of at
least six (6) units offered pursuant hereto.
7. Certain Tax Consequences. Each Purchaser hereby acknowledges
that for federal income tax purposes the purchase price of each Unit is
required to be allocated between the Note and the Warrant, that the amount
allocable to the Note will be less than the principal amount of the Note, and
that the allocation of consideration made herein between the Note and the
Warrant (being $45,000 and $5,000, respectively, per Unit) shall be binding
upon each Purchaser unless such Purchaser explicitly discloses on his tax
return that it is making a different allocation. It is further understood that
such allocation does not bind the Internal Revenue Service ("IRS"), and in the
event the IRS determines that the fair market value of the Warrant is greater
than the amount of the Purchase Price allocated to the Warrant based on the
fair market value per Warrant Share set forth in Section 1.2(b), the cost basis
of the Note would have to be reduced by the amount of such excess and the Note
would be deemed to be issued at a further discount. Individual cash basis
holders of Notes must report the difference between the allocated cost of the
Notes and the aggregate principal and interest received as ordinary income upon
payment of the Notes. Gain on the sale or exchange of a discounted Note will
be ordinary income up to the accrued portion of the discount and interest.
Other Note holders are subject to the rules under Internal Revenue Code
Sections 1281-1283 regarding the ratable accrual of the discount and interest
on short-term obligations.
8. Indemnity. The undersigned agrees to indemnify and hold
harmless the Company, its officers and directors, employees and its affiliates
and each other person, if any, who controls any thereof, against any loss,
liability, claim, damage and expense whatsoever (including, but not limited to,
any and all expenses whatsoever reasonably incurred in investigating, preparing
or defending against any litigation commenced or threatened or any claim
whatsoever) arising out of or based upon any false representation or warranty
or breach or failure by the undersigned to comply with any covenant or
agreement made by the undersigned herein or in any other document furnished by
the undersigned to any of the foregoing in connection with this transaction.
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9. Miscellaneous.
9.1 Survival of Warranties. The warranties,
representations, and covenants of the Company and the Purchasers contained in
or made pursuant to this Agreement shall survive the execution and delivery of
this Agreement and the Closing and shall in no way be affected by any
investigation of the subject matter thereof made by or on behalf of the
Purchasers or the Company.
9.2 Successors and Assigns. Except as otherwise provided
herein, the terms and conditions of this Agreement shall inure to the benefit
of and be binding upon the respective successors and assigns of the parties.
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
9.3 Governing Law. This Agreement shall be governed by
and construed under the laws of the State of Colorado, disregarding any
Colorado principles of conflicts of laws that otherwise would provide for the
application of the substantive laws of another jurisdiction.
9.4 Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same Agreement.
9.5 Titles and Subtitles. The titles and subtitles used
in this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
9.6 Finder's Fee. Except for fees, if any, paid by the
Company to selected agents employed by the Company in connection with the sale
of the Units, each party represents that it neither is nor will be obligated
for any finder's fee or commission in connection with this transaction. The
Purchaser agrees to indemnify and to hold harmless the Company from any
liability for any commission or compensation in the nature of a finder's fee
(and the costs and expenses of defending against such liability or asserted
liability) for which the Purchaser or any of its officers, partners, employees
or representatives is responsible.
9.7 Notices. Unless otherwise provided, all notices,
offers, acceptances and any other acts required or permitted under this
Agreement shall be given in writing and shall be deemed effectively given upon
personal delivery to the party to be notified, upon receipted delivery by
facsimile transmission, one (1) day after deposit with Federal Express or
similar air courier, two (2) days in the case of non-U.S. purchasers, or four
(4) days after deposit with the United States Post Office, by registered or
certified mail, postage prepaid, and addressed to the party to be notified at
the address indicated below for such party, or at such other address as such
party may designate by ten (10) days' advance written notice to the other, as
follows:
Purchaser: At the address designated on the appropriate
signature page of this Agreement.
The Company: BioFactors, Inc.
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Attn: General Counsel
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9.8 Entire Agreement; Amendments and Waivers. This
Agreement and the Notes constitute the full and entire understanding and
agreement between the parties with regard to the subject matter hereof and
thereof. Any term of this Agreement may be amended and the observance of any
term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of the Company and the holders of Notes representing a majority of the
aggregate principal amount of all of the Notes then outstanding. Any amendment
or waiver effected in accordance with this Section 9.8 shall be binding upon
each holder of any securities acquired under this Agreement at the time
outstanding (including securities, if any, for which any such securities are
convertible or exercisable), each future holder of all such securities, and the
Company.
9.9 Severability. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
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BIOFACTORS, INC.
UNIT SUBSCRIPTION AGREEMENT
DATED AS OF OCTOBER 3, 1996
ALL SUBSCRIBERS MUST COMPLETE THIS PAGE
x $50,000 Per Unit = $
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# Units Subscribed For Purchase Price
Manner in which Title is to be held (Please Check One):
[ ] Individual [ ] Trust/Estate/Pension or Profit
Sharing Plan
Date Opened:
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[ ] Joint Tenants with Right of [ ] As a Custodian for
Survivorship ------------------------------------
Under the Uniform Gift to Minors Act
of the State of
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[ ] Community Property [ ] Married with Separate Property
[ ] Tenants in Common [ ] ▇▇▇▇▇
[ ] Corporation/Partnership/ [ ] Tenants by the Entirety
Limited Liability Company
[ ] ▇▇▇
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IF MORE THAN ONE SUBSCRIBER, EACH SUBSCRIBER MUST SIGN.
INDIVIDUAL SUBSCRIBERS MUST COMPLETE PAGES 10 AND 11.
SUBSCRIBERS WHICH ARE ENTITIES MUST COMPLETE PAGES 12 AND 13.
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BIOFACTORS, INC.
UNIT SUBSCRIPTION AGREEMENT
DATED AS OF OCTOBER 3, 1996
EXECUTION BY NATURAL PERSONS
IN WITNESS WHEREOF, the undersigned has executed this Agreement on the
day of , 1996.
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Print Exact Name in Which Title is to be Held
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Name (Please Print) Name of Additional Purchaser
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Residence: Number and Street Address of Additional Purchaser
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City, State and Zip Code City, State and Zip Code
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Social Security Number Social Security Number
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(Signature) (Signature of Additional Purchaser)
ACCEPTED this 5 day of November, 1996, on behalf of the Company.
BIOFACTORS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President & CEO
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BIOFACTORS, INC.
UNIT SUBSCRIPTION AGREEMENT
DATED AS OF OCTOBER 3, 1996
EXECUTION BY NATURAL PERSONS
IN WITNESS WHEREOF, the undersigned has executed this Agreement on the
31st day of October, 1996.
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Print Exact Name in Which Title is to be Held
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Name (Please Print) Name of Additional Purchaser
14 Hunter Ridge
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Residence: Number and Street Address of Additional Purchaser
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City, State and Zip Code City, State and Zip Code
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Social Security Number Social Security Number
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(Signature) (Signature of Additional Purchaser)
ACCEPTED this 5th day of November, 1996, on behalf of the Company.
BIOFACTORS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President & CEO
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BIOFACTORS, INC.
UNIT SUBSCRIPTION AGREEMENT
DATED AS OF OCTOBER 3, 1996
EXECUTION BY NATURAL PERSONS
IN WITNESS WHEREOF, the undersigned has executed this Agreement on the
14th day of October, 1996.
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Print Exact Name in Which Title is to be Held
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Name (Please Print) Name of Additional Purchaser
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Residence: Number and Street Address of Additional Purchaser
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City, State and Zip Code City, State and Zip Code
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Social Security Number Social Security Number
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(Signature) (Signature of Additional Purchaser)
ACCEPTED this 5th day of November, 1996, on behalf of the Company.
BIOFACTORS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President & CEO
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BIOFACTORS, INC.
UNIT SUBSCRIPTION AGREEMENT
DATED AS OF OCTOBER 3, 1996
EXECUTION BY NATURAL PERSONS
IN WITNESS WHEREOF, the undersigned has executed this Agreement on the
day of , 1996.
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Print Exact Name in Which Title is to be Held
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Name (Please Print) Name of Additional Purchaser
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Residence: Number and Street Address of Additional Purchaser
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City, State and Zip Code City, State and Zip Code
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Social Security Number Social Security Number
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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(Signature) (Signature of Additional Purchaser)
ACCEPTED this 5th day of November, 1996, on behalf of the Company.
BIOFACTORS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President & CEO
-10-
14
BIOFACTORS, INC.
UNIT SUBSCRIPTION AGREEMENT
DATED AS OF OCTOBER 3, 1996
EXECUTION BY NATURAL PERSONS
IN WITNESS WHEREOF, the undersigned has executed this Agreement on the
5th day of November, 1996.
▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------------------------------------------------
Print Exact Name in Which Title is to be Held
▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------- ------------------------------------------
Name (Please Print) Name of Additional Purchaser
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------- ------------------------------------------
Residence: Number and Street Address of Additional Purchaser
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------------------------- ------------------------------------------
City, State and Zip Code City, State and Zip Code
###-##-####
------------------------------------------- ------------------------------------------
Social Security Number Social Security Number
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------- ------------------------------------------
(Signature) (Signature of Additional Purchaser)
ACCEPTED this 5th day of November, 1996, on behalf of the Company.
BIOFACTORS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President & COO
-10-
15
BIOFACTORS, INC.
UNIT SUBSCRIPTION AGREEMENT
DATED AS OF OCTOBER 3, 1996
EXECUTION BY NATURAL PERSONS
IN WITNESS WHEREOF, the undersigned has executed this Agreement on the
10th day of October, 1996.
Low Keng Tee
--------------------------------------------------------------------------------
Print Exact Name in Which Title is to be Held
Low Keng Tee
------------------------------------------- ------------------------------------------
Name (Please Print) Name of Additional Purchaser
BIK. ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇. 8,
------------------------------------------- ------------------------------------------
Residence: Number and Street Address of Additional Purchaser
#07-1209, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------- ------------------------------------------
City, State and Zip Code City, State and Zip Code
------------------------------------------- ------------------------------------------
Social Security Number Social Security Number
/s/ Low Keng Tee
------------------------------------------- ------------------------------------------
(Signature) (Signature of Additional Purchaser)
ACCEPTED this 5th day of November, 1996, on behalf of the Company.
BIOFACTORS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President & CEO
-10-
16
BIOFACTORS, INC.
UNIT SUBSCRIPTION AGREEMENT
DATED AS OF OCTOBER 3, 1996
EXECUTION BY NATURAL PERSONS
IN WITNESS WHEREOF, the undersigned has executed this Agreement on the
1st day of November, 1996.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
Print Exact Name in Which Title is to be Held
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------- ------------------------------------------
Name (Please Print) Name of Additional Purchaser
40 ▇▇▇▇▇▇ Dr.
------------------------------------------- ------------------------------------------
Residence: Number and Street Address of Additional Purchaser
▇. ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------------------------- ------------------------------------------
City, State and Zip Code City, State and Zip Code
###-##-####
------------------------------------------- ------------------------------------------
Social Security Number Social Security Number
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------- ------------------------------------------
(Signature) (Signature of Additional Purchaser)
ACCEPTED this 5th day of November, 1996, on behalf of the Company.
BIOFACTORS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President & CEO
-10-
17
BIOFACTORS, INC.
UNIT SUBSCRIPTION AGREEMENT
DATED AS OF OCTOBER 3, 1996
EXECUTION BY NATURAL PERSONS
IN WITNESS WHEREOF, the undersigned has executed this Agreement on the
31st day of October, 1996.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, JTWRS
--------------------------------------------------------------------------------
Print Exact Name in Which Title is to be Held
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------- ------------------------------------------
Name (Please Print) Name of Additional Purchaser
▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
------------------------------------------- ------------------------------------------
Residence: Number and Street Address of Additional Purchaser
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------------------------- ------------------------------------------
City, State and Zip Code City, State and Zip Code
###-##-#### ###-##-####
------------------------------------------- ------------------------------------------
Social Security Number Social Security Number
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------- ------------------------------------------
(Signature) (Signature of Additional Purchaser)
ACCEPTED this 5th day of November, 1996, on behalf of the Company.
BIOFACTORS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President & CEO
-10-
18
BIOFACTORS, INC.
UNIT SUBSCRIPTION AGREEMENT
DATED AS OF OCTOBER 3, 1996
EXECUTION BY NATURAL PERSONS
IN WITNESS WHEREOF, the undersigned has executed this Agreement on the
2nd day of November, 1996.
▇▇▇▇▇▇ ▇. & ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, JTWROS
--------------------------------------------------------------------------------
Print Exact Name in Which Title is to be Held
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------- ------------------------------------------
Name (Please Print) Name of Additional Purchaser
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ Terr.
------------------------------------------- ------------------------------------------
Residence: Number and Street Address of Additional Purchaser
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------------------------- ------------------------------------------
City, State and Zip Code City, State and Zip Code
###-##-#### ###-##-####
------------------------------------------- ------------------------------------------
Social Security Number Social Security Number
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------- ------------------------------------------
(Signature) (Signature of Additional Purchaser)
ACCEPTED this 5th day of November, 1996, on behalf of the Company.
BIOFACTORS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President & CEO
-10-
19
BIOFACTORS, INC.
UNIT SUBSCRIPTION AGREEMENT
DATED AS OF OCTOBER 3, 1996
EXECUTION BY NATURAL PERSONS
IN WITNESS WHEREOF, the undersigned has executed this Agreement on the
5th day of November, 1996.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------------------------------------------------
Print Exact Name in Which Title is to be Held
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------- ------------------------------------------
Name (Please Print) Name of Additional Purchaser
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
------------------------------------------- ------------------------------------------
Residence: Number and Street Address of Additional Purchaser
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------------------------- ------------------------------------------
City, State and Zip Code City, State and Zip Code
###-##-####
------------------------------------------- ------------------------------------------
Social Security Number Social Security Number
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------- ------------------------------------------
(Signature) (Signature of Additional Purchaser)
ACCEPTED this 5th day of November, 1996, on behalf of the Company.
BIOFACTORS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President & CEO
-10-
20
BIOFACTORS, INC.
UNIT SUBSCRIPTION AGREEMENT
DATED AS OF OCTOBER 3, 1996
EXECUTION BY SUBSCRIBER WHICH IS AN ENTITY
(Corporation, Partnership, Trust, Etc.)
IN WITNESS WHEREOF, the undersigned has executed this Agreement on the
30th day of October, 1996.
Admiral Capital Corporation
--------------------------------------------------------------------------------
Name of Entity (Please Print)
Date of Incorporation or Organization: May 26, 1993
State of Principal Offices: California
Federal Taxpayer Identification: ▇▇-▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
[seal]
Admiral Capital Corp.
------------------------------------ ------------------------------
(If Entity is a Corporation) ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
------------------------------
Address
▇▇-▇▇▇▇▇▇▇
------------------------------
Taxpayer Identification Number
ACCEPTED this 5th day of November, 1996, on behalf of the Company.
BIOFACTORS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President & COO
-12-
21
BIOFACTORS, INC.
UNIT SUBSCRIPTION AGREEMENT
DATED AS OF OCTOBER 3, 1996
EXECUTION BY SUBSCRIBER WHICH IS AN ENTITY
(Corporation, Partnership, Trust, Etc.)
IN WITNESS WHEREOF, the undersigned has executed this Agreement on the
31st day of October, 1996.
Voice Plus, Inc.
--------------------------------------------------------------------------------
Name of Entity (Please Print)
Date of Incorporation or Organization: 1987
State of Principal Offices: California
Federal Taxpayer Identification: 22 2710213
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
[seal]
39899 Balentine D.
------------------------------------ ------------------------------
(If Entity is a Corporation) ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------------
Address
###-##-####
------------------------------
Taxpayer Identification Number
ACCEPTED this 5th day of November, 1996, on behalf of the Company.
BIOFACTORS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President & CEO
-12-
22
BIOFACTORS, INC.
UNIT SUBSCRIPTION AGREEMENT
DATED AS OF OCTOBER 3, 1996
SCHEDULE A
SCHEDULE OF PURCHASERS
NAME OF NUMBER OF AGGREGATE
PURCHASER UNITS PURCHASE PRICE
--------- ----- --------------
A-1
23
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES LAWS. THEY MAY
NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED
IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE
SECURITIES UNDER SUCH ACT OR APPLICABLE STATE SECURITIES LAWS PURSUANT TO A
SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, BUT ONLY UPON A
HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL TO THE
CORPORATION, OR OTHER COUNSEL REASONABLY ACCEPTABLE TO THE CORPORATION THAT THE
PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE
SECURITIES ACT, AS WELL AS ANY APPLICABLE "BLUE SKY" OR SIMILAR SECURITIES LAW.
No. of Shares of Common Stock: Warrant No.
------------ --------------
BIOFACTORS, INC.
COMMON STOCK
PURCHASE WARRANT
THE TRANSFERABILITY OF THIS WARRANT IS
RESTRICTED AS PROVIDED IN SECTION 3
THIS IS TO CERTIFY THAT ________________, or registered assigns, is entitled to
purchase from BioFactors, Inc., a Delaware corporation (hereinbelow called the
"Issuer" or the "Company"), at any time commencing on the one-year anniversary
of the IPO Effective Date, but not later than 5:00 p.m. Denver time, on the
four-year anniversary of the IPO Effective Date (the "Expiration Date"),
_________shares of Common Stock, in whole or in part, at an initial exercise
price equal to 120% of the IPO Price (subject to adjustment as provided
herein), ____________, all on the terms and conditions hereinbelow provided.
Section 1. Certain Definitions. As used in this Warrant,
unless the context otherwise requires:
"Common Stock" shall mean the Issuer's authorized Common
Stock, par value $0.01 per share.
24
"Common Stock Warrants" shall mean this Warrant and those
other Warrants for the purchase of up to 500,000 shares, in the aggregate, of
Common Stock, which were issued by the Issuer pursuant to the Unit Subscription
Agreement dated as of October 3, 1996 by and among the Company and the
Purchasers named therein (the "Agreement").
"Exercise Price" shall mean the purchase price per share of
Common Stock as set forth on the first page of this Warrant, as adjusted from
time to time pursuant to Section 4 hereof.
"IPO" shall mean the underwritten initial public offering of
securities of the Company or the Registrant (as defined in the Agreement)
pursuant to a registration statement filed with the Securities and Exchange
Commission of 1933, as amended "the "Securities Act").
"IPO Effective Date" shall mean the effective date of the
registration statement filed in connection with the IPO.
"IPO Price" shall mean the price at which a share of Common
Stock is offered to the public in the IPO.
"Marketable Securities" shall mean securities registered under
the Securities Act and, if such securities are held by an affiliate of the
Issuer, which are permitted to be sold under Rule 144 in a single ninety-day
period.
"Warrant Stock" shall mean the shares of Common Stock
purchasable by the holder of a Warrant upon the exercise of such Warrant.
"Warrant" shall mean this Warrant and all additional or new
warrants issued upon division or combination of, or in substitution for, this
Warrant. All such additional or new warrants shall at all times be identical
as to terms and conditions and date, except as to the number of shares of
Common Stock for which they may be exercised.
Section 2. Exercise of Warrant. The holder of this Warrant
may, at any time commencing on the one-year anniversary of the IPO Effective
Date, but not later than the Expiration Date, exercise this Warrant in whole at
any time or in part from time to time for the number of shares of Common Stock
which such holder is then entitled to purchase hereunder.
The holder of this Warrant may exercise this Warrant, in whole
or in part by delivering to the Issuer at its office maintained for such
purpose pursuant to Section 16, (i) a written notice of such holder's election
to exercise this Warrant, which notice shall specify the number of shares of
Common Stock to be purchased, (ii) this Warrant and (iii) a sum equal to the
aggregate Exercise Price for such shares of Common Stock in immediately
available funds.
Such notice shall be in the form of Subscription set out at
the end of this Warrant. Upon delivery thereof, the Issuer shall cause to be
executed and delivered to such holder within ten business days a certificate or
certificates representing the aggregate number of fully-paid and nonassessable
shares of Common Stock issuable upon such exercise.
-2-
25
Subject to the restrictions in Sections 12 and 13, the stock
certificate or certificates for Warrant Stock so delivered shall be in such
denominations as may be specified in said notice and shall be registered in the
name of such holder or such other name or names as shall be designated in said
notice. Such certificate or certificates shall be deemed to have been issued
and such holder or any other person so designated to be named therein shall be
deemed to have become a holder of record of such shares, including to the
extent permitted by law the right to vote such shares or to consent or to
receive notice as a stockholder, as of the time said notice is delivered to the
Issuer as aforesaid. If this Warrant shall have been exercised only in part,
the Issuer shall, at the time of delivery of said certificate or certificates,
deliver to such holder a new Warrant dated the date it is issued, evidencing
the rights of such holder to purchase the remaining shares of Common Stock
called for by this Warrant, which new Warrant shall in all other respects be
identical with this Warrant, or, at the request of such holder, appropriate
notation may be made on this Warrant and the Warrant shall be returned to such
holder.
The Issuer shall pay all expenses, taxes and other charges
payable in connection with the preparation, issue and delivery of stock
certificates under this Section 2.
All shares of Common Stock issuable upon the exercise of this
Warrant in accordance with the terms hereof shall be validly issued, fully paid
and nonassessable, and free from all liens and other encumbrances thereon,
other than liens or other encumbrances created by the holder hereof.
The Issuer will not close its books in any manner which
interferes with the timely exercise of this Warrant. The Issuer will from time
to time take all such action as may be necessary to assure that the par value
per share of the unissued Common Stock acquirable upon exercise of this Warrant
is at all times equal to or less than the Exercise Price then in effect.
In no event shall any fractional share of Common Stock of the
Issuer be issued upon any exercise of this Warrant.
Section 3. Restrictions Upon Transferability. Neither this
Warrant nor any Warrant Stock issuable upon exercise hereof has been registered
under the Securities Act, and none of such securities may be offered, sold,
pledged, hypothecated, assigned or transferred except (i) pursuant to a
registration statement under such Act which has become effective and is current
with respect to such securities, or (ii) pursuant to a specific exemption from
registration under the Securities Act, but only upon a holder thereof first
having obtained the written opinion of counsel to the Issuer, or other counsel
reasonably acceptable to the Issuer, that the proposed disposition is
consistent with all applicable provisions of the Securities Act, as well as any
applicable "blue sky" or other state securities law. Upon exercise, in part or
in whole, of this Warrant, each certificate issued representing shares of
Warrant Stock underlying this Warrant shall bear a legend to the foregoing
effect.
-3-
26
Section 4. Adjustment of Exercise Price and Warrant Stock.
If the Issuer shall at any time prior to the Expiration Date subdivide its
outstanding Common Stock, by split-up or otherwise, or combine its outstanding
Common Stock, or issue additional shares of its Common Stock in payment of a
stock dividend in respect of its Common Stock, the number of shares of Warrant
Stock then issuable on the exercise of the unexercised portion of this Warrant
shall forthwith be proportionately increased in the case of a subdivision or
stock dividend, or proportionately decreased in the case of a combination, and
the Exercise Price then applicable to shares covered by the unexercised portion
of this Warrant shall forthwith be proportionately decreased in the case of a
subdivision or stock dividend, or proportionately increased in the case of a
combination, but in all cases without regard to fractions. Whenever the
Exercise Price is adjusted as herein provided, the Issuer shall promptly
deliver to the registered holder of this Warrant a certificate of its principal
financial officer setting forth the Exercise Price after such adjustment and a
brief statement of the facts requiring such adjustment.
Section 5. Division and Combination. This Warrant, subject
to Sections 12 and 13, may be divided or combined with other Warrants upon
presentation at the aforesaid office of the Issuer, together with a written
notice specifying the names and denominations in which new Warrants are to be
issued, signed by the holder hereof or its agent or attorney. The Issuer shall
pay all expenses, taxes and other charges incurred by the Issuer in the
performance of its obligations in connection with the preparation, issue and
delivery of Warrants under this Section 5. The Issuer agrees to maintain at
its aforesaid office books for the registration of the Warrants.
Section 6. Reclassification, Etc. In case of any
reclassification or change of the outstanding Common Stock of the Issuer (other
than as a result of a subdivision, combination or stock dividend), or in case
of any consolidation of the Issuer with, or merger of the Issuer into, another
corporation or other business organization (other than a consolidation or
merger in which the Issuer is the continuing corporation and which does not
result in any reclassification or change of the outstanding Common Stock of the
Issuer), at any time prior to the expiration of this Warrant, then, as a
condition of such reclassification, reorganization, change, consolidation or
merger, lawful provision shall be made, and duly executed documents evidencing
the same from the Issuer or its successor shall be delivered to the registered
holder of this Warrant, so that the registered holder of this Warrant shall
have the right prior to the expiration of this Warrant to purchase, at a total
price not to exceed that payable upon the exercise of the unexercised portion
of this Warrant, the kind and amount of shares of stock and other securities
and property receivable upon such reclassification, reorganization, change,
consolidation or merger by a holder of the number of shares of Common Stock of
the Issuer which might have been purchased by the registered holder of this
Warrant immediately prior to such reclassification, reorganization, change,
consolidation or merger, and in any such case appropriate provisions shall be
made with respect to the rights and interest of the registered holder of this
Warrant to the end that the provisions hereof (including without limitation,
provisions for the adjustment of the Exercise Price and of the number of shares
purchasable upon exercise of this Warrant) shall thereafter be applicable in
relation to any shares of stock and other securities and property thereafter
deliverable upon exercise hereof. Notwithstanding the foregoing, if pursuant
to the terms of such
-4-
27
consolidation or merger, the consideration to be received by the holders of
Common Stock of the Issuer is cash and/or Marketable Securities, this Warrant
shall expire to the extent unexercised on the closing of such merger or
consolidation.
Section 7. Certain Notices. If at any time prior to the
expiration or exercise of this Warrant, the Issuer shall pay any dividend or
make any distribution upon its Common Stock or shall make any subdivision or
combination of or other change in its Common Stock, the Company shall cause
notice thereof to be mailed, first class, postage prepaid, to the registered
holder of this Warrant at least ten days prior to the date as of which holders
of Common Stock who shall participate in such dividend, distribution,
subdivision, combination or other change are to be determined. Such notice
shall also specify the time as of which holders of Common Stock who shall
participate in such event are to be determined. The Company shall also provide
to the registered holder of this Warrant at least ten days prior written notice
of the closing of the sale of shares of Common Stock in an underwritten public
offering pursuant to an effective registration statement under the Securities
Act. Failure to give any such notice, or any defect therein, shall not affect
the legality or validity of any such event.
Section 8. Reservation and Authorization of Common Stock;
Registration with or Approval of any Governmental Authority. The Issuer shall
at all times reserve and keep available for issuance upon the exercise of
Warrants such number of its authorized but unissued shares of Common Stock as
will be sufficient to permit the exercise in full of all outstanding Warrants.
Section 9. Stock and Warrant Books. The Issuer will not at
any time, except upon dissolution, liquidation or winding up, close its stock
books or Warrant books so as to result in preventing or delaying the exercise
of any Warrant.
Section 10. Elimination of Fractional Interests. The Issuer
shall not be required to issue certificates representing fractions of shares on
the exercise of this Warrant, nor shall it be required to issue scrip or pay
cash in lieu of fractional interests, it being the intent of the parties that
all fractional interests shall be eliminated.
Section 11. No Voting Rights. This Warrant shall not entitle
the holder hereof to any voting rights or other rights as a stockholder of the
Issuer.
Section 12. Transfer. This Warrant and all rights hereunder
is not transferable in whole or in part, except, in the case of a corporation
or partnership, by distribution to shareholders or partners of the holder, and,
in the case of an individual, to an immediate family member or by will or the
laws of descent and distribution or pursuant to a domestic relations order. A
permitted transfer shall be made at the office or agency of the Issuer at which
this Warrant is exercisable, by the registered holder hereof in person or by
duly authorized attorney, upon surrender of this Warrant together with the
assignment hereof properly endorsed, and promptly thereafter a new warrant
shall be issued and delivered by the Issuer, registered in the name of the
assignee. Until registration of transfer hereof on the books of the Issuer,
the Issuer may treat the registered holder hereof as the owner hereof for all
purposes.
-5-
28
Section 13. Investment Representations; Restrictions on
Transfer of Warrant Stock. Unless a current registration statement under the
Securities Act, shall be in effect with respect to the Warrant Stock to be
issued upon exercise of this Warrant, the registered holder hereof, by
accepting this Warrant, covenants and agrees that, at the time of exercise
hereof, and at the time of any proposed transfer of securities acquired upon
exercise hereof, such registered holder will deliver to the Issuer a written
statement that the securities acquired by the registered holder upon exercise
hereof are for the account of the registered holder or are being held by the
registered holder as trustee, investment manager, investment advisor or as any
other fiduciary for the account of the beneficial owner or owners for
investment and are not acquired with a view to, or for sale in connection with,
any distribution thereof (or any portion thereof) and with no present intention
(at any such time) of offering and distributing such securities (or any portion
thereof). Further, the registered holder shall comply with such provisions of
applicable state securities laws as counsel to the Issuer or other counsel
reasonably acceptable to the Issuer shall advise.
Section 14. Loss, Destruction of Warrant Certificates. Upon
receipt of evidence reasonably satisfactory to the Issuer of the loss, theft,
destruction or mutilation of any Warrant and, in the case of any such loss,
theft or destruction, upon receipt of indemnity and/or security satisfactory to
the Issuer, and reimbursement to the Issuer of all reasonable expenses
incidental thereto, and upon surrender and cancellation of such Warrant, if
mutilated, the Issuer will make and deliver, in lieu of such lost, stolen,
destroyed or mutilated Warrant, a new Warrant of like tenor and representing
the right to purchase the same aggregate number of shares of Common Stock.
Section 15. Amendments. The terms of this Warrant may be
amended, and the observance of any term herein may be waived, but only with the
written consent of the Issuer as authorized by its Board of Directors and the
holder of this Warrant or the holders of Common Stock Warrants then exercisable
for a majority of the shares of Common Stock issuable upon exercise of all of
the then outstanding Common Stock Warrants.
Section 16. Office of the Issuer. So long as any of the
Warrants remains outstanding, the Issuer shall maintain an office in Colorado
where the Warrants may be presented for exercise, transfer, division or
combination as in this Warrant provided. Such office shall be at ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, unless and until the Issuer
shall designate and maintain some other office for such purposes and deliver
written notice thereof to the holders of all outstanding Warrants.
Section 17. Notices Generally. Any notice, demand or
delivery pursuant to the provisions hereof shall be sufficiently delivered or
made if sent by first class mail, postage prepaid, addressed to any holder of a
Warrant at its last known address appearing on the books of the Issuer, or,
except as herein otherwise expressly provided, to the Issuer at its principal
executive office at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, or
such other address as shall have been furnished to the party giving or making
such notice, demand or delivery.
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Section 18. Successors and Assigns. This Warrant shall bind
and inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns, and, without limiting the generality of the
foregoing, shall inure to the benefit of and be enforceable by each person who
shall from time to time be a holder of any of the Warrants.
Section 19. Governing Law. This Warrant shall be governed by
and construed in accordance with the laws of the State of Delaware.
[The rest of this page intentionally left blank.]
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IN WITNESS WHEREOF, the Issuer has caused this Warrant to be
signed in its name by its President or a Vice President and its corporate seal
to be impressed hereon and attested by its Secretary or an Assistant Secretary.
Dated: October 3, 1996
BIOFACTORS, INC.,
a Delaware corporation
By:
-------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
Its: President and Chief Executive Officer
[SEAL]
ATTEST:
-------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Its: Vice President/Secretary and
Chief Financial Officer
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SUBSCRIPTION FORM
(to be executed only upon exercise of Warrant)
The undersigned registered owner of this Warrant irrevocably
exercises this Warrant for and purchases _______ shares of the Common Stock of
BioFactors, Inc., a Delaware corporation, purchasable with this Warrant, and
herewith makes payment therefor (by check in the amount of $___________), all
at the price and on the terms and conditions specified in this Warrant and
requests that certificates for the shares of Common Stock hereby purchased (and
any securities or other property issuable upon such exercise) be issued in the
name of and delivered to _______________________________ whose address is
_______________________________ and, if such shares of Common Stock shall not
include all of the shares of Common Stock issuable as provided in this Warrant
that a new Warrant of like tenor and date for the balance of the Common Stock
issuable hereunder be delivered to the undersigned.
Dated:
__________________________________________
(Signature of Registered Owner)
__________________________________________
(Street Address)
__________________________________________
(City) (State) (Zip Code)
NOTICE: The signature to the subscription must correspond with the
name as written upon the face of the within Warrant in every
particular, without alteration or enlargement or any change
whatever.
The signature to this subscription must be guaranteed by a
bank or trust company or by a firm having membership on the
New York Stock Exchange.
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FORM OF ASSIGNMENT
For value received hereby sell, assign and
-------------------------------
transfer unto
------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Warrant, and do hereby irrevocably constitute and appoint
----------
attorney to transfer the within
----------------------------------------
Warrant on the books of the within named Company with full power of
substitution in the premises.
Dated:
--------------------
-----------------------------------------
In the presence of:
-------------------
33
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES LAWS. THEY MAY
NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED
IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE
SECURITIES UNDER SUCH ACT OR APPLICABLE STATE SECURITIES LAWS PURSUANT TO A
SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, BUT ONLY UPON A
HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL TO THE
CORPORATION, OR OTHER COUNSEL REASONABLY ACCEPTABLE TO THE CORPORATION, THAT
THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE
SECURITIES ACT, AS WELL AS ANY APPLICABLE "BLUE SKY" OR SIMILAR SECURITIES LAW.
BIOFACTORS, INC.
PROMISSORY NOTE
THE TRANSFERABILITY OF THIS NOTE IS
RESTRICTED AS PROVIDED IN SECTION 3
$ No.
-------- --------
, 1996
-------------
FOR VALUE RECEIVED, the undersigned, BIOFACTORS, INC., a
Delaware corporation ("Maker" or the "Company"), hereby promises to pay to the
order of ______________________________, or registered assigns ("Holder") at
such place as the Holder may from time to time designate in writing, the
principal sum of ___________________ THOUSAND DOLLARS ($____________________),
in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts,
together with simple interest thereon (computed on the basis of a 360-day year
consisting of twelve 30-day months) at the rate of ten percent (10%) per annum,
at the principal office of the Company on the Maturity Date as set forth in the
Unit Agreement (as defined in Section 1).
1. The Notes. This Note is one of several promissory notes made
and issued by the Company in an aggregate principal amount of up to $500,000
(individually, a "Note," and collectively, the "Notes") pursuant to, and
subject to and entitled to the benefit of, that certain Unit Subscription
Agreement dated as of October 3, 1996, by and among the Company and the
Purchasers named therein, as the same may be amended, modified or supplemented
from time to time as permitted thereby (as amended, the "Unit Agreement").
Reference is made to the Unit Agreement for agreements of the parties
applicable to this Note. Capitalized terms used herein without definition
shall have the meaning set forth in the Unit Agreement.
34
2. Prepayment. The Company may prepay this Note in whole at any
time, or in part from time to time, without penalty or premium, upon thirty
(30) days' written notice to the Holder. Each partial prepayment shall first
be applied to interest accrued through the date of prepayment and then to
principal.
3. Restrictions Upon Transferability. This Note has not been
registered under the Securities Act, and may not be offered, sold, pledged,
hypothecated, assigned or transferred except (i) pursuant to a registration
statement under such Act which has become effective and is current with respect
to this Note, or (ii) pursuant to a specific exemption from registration under
the Securities Act, but only upon a Holder hereof first having obtained the
written opinion of counsel to the Company, or other counsel reasonably
acceptable to the Company, that the proposed disposition is consistent with all
applicable provisions of the Act as well as any applicable "blue sky" or other
state securities law.
4. Registered Note. This Note is a registered Note and is
transferable only by surrender thereof at the principal offices of the Company,
duly endorsed or accompanied by a written instrument of transfer duly executed
by the registered holder of this Note or his attorney duly authorized in
writing. The Maker may treat the person whose name appears in the Note
register as the owner hereof for the purpose of receiving payment as herein
provided. Transfers are subject to the restrictions set forth in the Unit
Agreement.
5. Waiver of Demand, Protest, etc. Maker hereby waives
diligence, presentment, demand, protest and notice of any kind whatsoever.
Maker promises to pay costs of collection and reasonable attorneys' fees if
default is made in the payment of this Note. The right to plead any and all
statutes of limitation as a defense to this Note or to any agreement to pay the
same, is hereby expressly waived by the undersigned to the full extent
permitted by law.
6. Notice. Any notice required or permitted hereunder shall be
given in accordance with the Unit Agreement.
7. Governing Law. THE MAKER AND THE HOLDER AGREE THAT THIS NOTE
AND THE LEGAL RELATIONS BETWEEN THE MAKER AND THE HOLDER, AND ALL RIGHTS AND
OBLIGATIONS HEREUNDER, INCLUDING MATTERS OF CONSTRUCTION, VALIDITY, AND
PERFORMANCE, SHALL BE GOVERNED BY AND INTERPRETED, CONSTRUED, APPLIED, AND
ENFORCED IN ACCORDANCE WITH THE LAW OF THE STATE OF COLORADO WITHOUT REFERENCE
TO THE LAW OF ANOTHER JURISDICTION.
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8. Severability. If any provision of this Note is invalid,
illegal, or unenforceable, the balance of this Note shall remain in effect, and
if any provision is inapplicable to any person or circumstance, it shall
nevertheless remain applicable to all other persons and circumstances. The
rate of interest on this Note is subject to any limitations imposed by
applicable usury laws.
IN WITNESS WHEREOF, the Maker has caused this Note to be signed in its
corporate name by a duly authorized officer and to be dated as of the date
first above written.
MAKER:
BIOFACTORS, INC.
By:
-------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
Its: President and Chief Executive Officer
ATTEST:
-------------------------
Secretary
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