APRO BIO PHARMACEUTICAL CORPORATION SUBSCRIPTION AGREEMENT
Exhibit
10.5
THE
SECURITIES REFERRED TO IN THIS SUBSCRIPTION AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT
BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT COVERING SUCH SECURITIES OR THE
COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER REASONABLY SATISFACTORY TO
THE COMPANY STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS
EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE
SECURITIES ACT.
APRO
BIO PHARMACEUTICAL CORPORATION
THIS
SUBSCRIPTION AGREEMENT (this "Agreement"), dated as of May
15 2006, is
by and between APRO Bio Pharmaceutical Corporation, a Utah corporation (the
"Company"), and
University License Equity Holdings, Inc., a Colorado nonprofit corporation (the
"Investor").
Recital
The
Investor desires to acquire 406,000 shares of the Company's Common Stock, par
value $0.001 per share (the "Company Stock"), in partial
consideration for the grant of an exclusive license by The Regents of The
University of Colorado, a constitutional body corporate, to the Company of
certain patent rights under that certain License Agreement, dated of even date
herewith (the "License
Agreement"), and the Company desires to issue such shares of Company
Stock to the Investor in connection with consideration for the grant of the
exclusive license under the License Agreement, upon the terms and conditions set
forth herein.
Agreement
NOW, THEREFORE, in
consideration of the foregoing recital and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Subscription.
At or prior to the Effective Date (as such term is defined in the License
Agreement), subject to the terms and conditions hereof, the following shall
occur:
a. The
Investor and the Company shall execute this Agreement;
b. The
Company shall issue to the Investor 406,000 restricted shares of Company Stock
(the "Shares") and shall
deliver to the Investor a stock certificate evidencing its ownership of the
Shares; and
c. The
Investor and the Company shall execute the License Agreement.
2. Representations
and Warranties of the Company. The Company hereby represents
and warrants to the Investor that as of the date of this Agreement, immediately
prior to issuing the Shares:
a. Organization; Corporate Power.
The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Utah. The
Company has all requisite corporate power and authority to own and operate its
properties and assets, to execute and deliver this Agreement, to carry out the
provisions of this Agreement, to issue and sell the Shares and to carry on its
business as presently conducted and as presently proposed to be conducted. The
Company is duly qualified and is authorized to do business and is in good
standing as a foreign corporation in all
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jurisdictions
in which the nature of its activities and of its properties (both owned and
leased) makes such qualification necessary.
b. Capitalization.
Other than as set forth on Schedule
A attached hereto, the Company does not have any other shares of capital
stock authorized. Schedule
A attached hereto sets forth the type and number of shares of
capital stock authorized by the Company, all of the Company's issued and
outstanding capital stock and all securities of the Company convertible into or
exchangeable for shares of capital stock or voting securities of the Company or
warrants, subscription rights, options, stock appreciation rights, phantom
equity or other rights to acquire from the Company, or other obligation of the
Company to issue, any capital stock, voting securities or securities convertible
into or exchangeable for capital stock or voting securities of the Company and
the name of each record holder thereof. Schedule
A sets forth all equity, option, incentive and stock purchase plans and
all other plans or arrangements under which the Company may issue any capital
stock or securities of the Company and the number of shares of capital stock
authorized to be issued under such plans or arrangements. All issued and
outstanding securities of the Company are set forth on Schedule
A attached hereto and (i) have been duly authorized and validly issued,
(ii) are fully paid and nonassessable, and (iii) were issued in compliance with
all applicable state and federal laws concerning the issuance of securities.
When issued in compliance with the provisions of this Agreement, the Shares will
be validly issued, fully paid and non-assessable and free of any liens or
encumbrances and will not violate or be subject to any preemptive rights or
rights of first refusal granted by the Company. The Shares will be issued in
compliance with all applicable federal and state securities laws. The Shares
represent four percent (4%) of the issued and outstanding capital stock of the
Company, calculated pursuant to Section 5(a) below.
c. Due Authorization; Enforceability.
All corporate action on the part of the Company, its officers, directors
and stockholders necessary for the authorization of this Agreement, the
performance of all of the Company's obligations hereunder, and the
authorization, sale, issuance and delivery of the Shares pursuant hereto has
been taken. This Agreement, when executed and delivered, constitutes the legal,
valid and binding obligation of the Company enforceable against the Company in
accordance with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general application
affecting enforcement of creditors' rights and (ii) general principles of equity
that restrict the availability of equitable remedies. No authorization,
approval, consent or license of any third party, court or governmental
regulatory body or authority is required on the part of the Company in
connection with the execution and delivery of this Agreement and the valid
issuance and sale of the Shares or the consummation of any other transaction
contemplated hereby.
d. Intellectual Property. The
Company owns or possesses no patents, trademarks, service marks, trade names,
copyrights, trade secrets, licenses, information or other proprietary rights and
processes other than the intellectual property rights licensed to the Company
from The Regents of the University of Colorado pursuant to the License
Agreement.
e. Litigation. There is no
action, suit, proceeding or investigation pending or, to the Company's
knowledge, threatened against the Company that questions the
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validity
of any of this Agreement or the right of the Company to enter into this
Agreement, or to consummate the transactions contemplated hereby, or which would
reasonably be expected to result, either individually or in the aggregate, in
any material adverse change in the assets, properties, condition, affairs,
business or operations of the Company, financially or otherwise, or any change
in the current equity ownership of the Company. The Company is not a party or,
to the best of its knowledge, subject to the provisions of any order, writ,
injunction, judgment or decree of any arbitration panel or tribunal, court or
government agency or instrumentality.
f. Compliance with Laws; Permits.
The Company is not in violation of any applicable statute, rule,
regulation, order or restriction of any domestic or foreign government or any
instrumentality or agency thereof in respect of the conduct of its business or
the ownership of its properties which violation would materially and adversely
affect the business, operations, assets, properties, liabilities, financial
condition or operations of the Company.
g. Consents. All consents,
approvals, orders, or authorizations of, or registrations, qualifications,
designations, declarations, or filings with, any third parties or governmental
authority, required on the part of the Company in connection with the valid
execution and delivery of this Agreement, the offer, sale or issuance of the
Shares or the consummation of the transactions contemplated hereby have been
obtained and are effective as of the date hereof, except for notices required or
permitted to be filed with certain state and federal securities commissions,
which required notices will be filed on a timely basis.
h. Newly Formed Entity. The
Company was formed with the Utah Secretary of State on February 28, 2006 and
since that time has conducted no business operations and has not incurred any
liabilities or acquired any assets, other than as contemplated in connection
with the transaction contemplated by the License Agreement and in connection
with the sale of Company Stock.
i. Full Disclosure. The Company
has provided Investor with all information requested by the Investor in
connection with its decision to purchase the Shares. To the Company's knowledge,
none of this Agreement, any attachments hereto, or any other information
delivered by the Company to the Investor or its attorneys or agents in
connection herewith or therewith contain any untrue statement of a material fact
nor, to the Company's knowledge, omit to state a material fact necessary in
order to make the statements contained herein or therein not
misleading.
j. Defaults. The Company is not
in violation or default of any term of (i) its articles of incorporation or
bylaws, or (ii) any judgment, decree, order, or writ applicable to the Company.
The Company is not a party to any material mortgage, indenture, contract,
agreement or instrument. The execution, delivery, and performance of and
compliance with this Agreement and the issuance and sale of the Shares, will
not, with or without the passage of time or the giving of notice, result in any
such violations, or be in conflict with or constitute a default under any of the
foregoing, or result in the creation of any mortgage, pledge, lien, encumbrance
or charge upon any of the properties or assets of the Company or the suspension,
revocation, impairment, forfeiture or nonrenewal of any permit license,
authorization or approval applicable to the Company.
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k. Exemption. The offer,
issuance, and sale of the Shares are being made in reliance
on exemptions from the registration and prospectus delivery requirements of the
Securities
Act of 1933, as amended (the "Act"), and applicable state
securities laws.
1. Broker Fees. The Company has
not employed any broker, finder or agent, or agreed
to pay or incurred any brokerage fee, finder's fee or commission with respect to
the transactions contemplated by this Agreement, and has not dealt with anyone
purporting to act in the capacity of a broker, finder or agent with respect
hereto as a result of which any claim for a fee can or will be made against the
Investor.
3. Representations
and Warranties of the Investor. The Investor hereby represents
and warrants as of the date hereof to the Company as follows:
a. Experience; Investigation;
Investment. The Investor has such knowledge
and experience in financial and business matters that it is capable of
evaluating the merits and risks of an investment in the Shares. The Investor
understands that the Company is a newly formed corporation, that it has no
significant assets or operations and that intends to enter into the License
Agreement and raise additional debt or equity capital to fund the development of
products and processes licensed under the License Agreement. The Company has
made all requested information available to the Investor and the Investor has
received sufficient information to enable it to evaluate the merits and risks of
its investment. The Investor understands that its investment in the Company is
speculative and any return on the investment is highly uncertain. The Investor
is able to bear the economic risk of the investment and has the ability to hold
the Shares indefinitely and the ability to suffer a complete loss of its
investment. The Investor is purchasing the Shares for investment for its own
account, for investment purposes only, and not with a view towards their
distribution.
b. Transfer Restrictions. The
Investor will not sell, offer for sale, assign, pledge, hypothecate or otherwise
transfer or encumber all or any part of its interest in the Shares in the
absence of either (i) an effective registration statement covering such
transaction under the Securities Act of 1933, as amended (the "Securities Act"), and
effective qualification or registration under all applicable state securities
laws and regulations, or (ii) an opinion of counsel reasonably satisfactory to
the Company to the effect that registration under the Securities Act is not
required and qualification or registration under any such state securities laws
and regulations is not required (or that any applicable state qualification or
registration requirements have been satisfied in full); provided,
however, that the Company agrees that the Investor may transfer the
Shares to any entities or organizations that are control affiliates of the
Investor ("Exempt Transfer") and who agrees to
be bound by the terms and conditions of this Agreement to the same extent as if
it had been an original party hereto. The Investor understands and agrees that
the following legend (or one substantially similar) will be placed on the
certificates for the Shares:
"THE
SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO
AN
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EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR
PURSUANT TO AN APPLICABLE EXEMPTION TO THE REGISTRATION REQUIREMENTS OF SUCH ACT
OR SUCH LAWS."
c. Registration.
The Investor acknowledges that neither (i) the United States Securities
and Exchange Commission nor the securities regulatory agency of any state or
other federal agency has made any determination as to the merits of purchasing
the Shares; and (ii) the purchase of the Shares involves a high degree of risk.
The Investor understands that the Shares are being issued and sold in reliance
upon exemptions provided in the Securities Act. The Investor understands that
the Company is under no obligation to register the Shares or to assist the
Investor in complying with any exemption from registration if the Investor
should at a later date wish to dispose of such Shares. The Investor understands
that the Shares may not qualify for sale or other disposition under Rule 144
promulgated under the Securities Act.
d. Market
Standoff and Lock-Up/Leak-Out Agreements.
(i) In
the event the Company files a registration statement under the Securities Act
with respect to an initial public offering by the Company, and if required by
the underwriter(s) of such offering, Investor hereby agrees to enter into a
customary market standoff agreement with such underwriter providing that during
a period of up to one hundred eighty (180) days following the effective date of
such registration statement, Investor will not, without the prior consent of the
underwriter, sell or otherwise transfer, make any short sale of, grant any
option for the purchase of, or enter into any hedging or similar transaction
with the same economic effect as a sale, of any shares of Common Stock (or other
securities of the Company) held by it; provided, that all officers and directors
of the Company and holders of at least five percent (5%) of the Company's voting
securities enter into similar agreements.
(ii) In
the event the Company should engage in a transaction other than a registered
initial public offering pursuant to which a public trading market develops for
the Company's securities, Investor will, if requested by the Company, enter into
a lockup/leak out agreement providing that it will not, without the prior
consent of the Company, sell any of its shares of Company Stock (or the shares
received by it in exchange for such shares in connection with such transaction)
in any public trading market during a period not to exceed one year (the "Lock-Up
Period") following the date of the closing of such transaction and that
thereafter it will limit its sales of the Company Stock (or the shares received
by it in exchange for such shares in connection with such transaction) in any
public trading market to an amount that is not more than 1/24 of its total
holdings during each calendar month occurring during a period of not more than
two years following the expiration of the Lock-Up Period; provided, that all
officers and directors of the Company and holders of at least five percent (5%)
of the Company's outstanding voting securities enter into similar
agreements.
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4. Indemnity.
The Company agrees to indemnify and hold harmless the Investor, its directors,
officers, stockholders, agents and employees from and against any claim, demand,
loss, liability and expense (including, without limitation, reasonable
attorneys' fees and disbursements) incurred as a result of any misrepresentation
or breach of any agreement, representation, warranty or covenant made by the
Company herein.
5. Anti-Dilution and Preemptive
Rights Covenant.
a. Calculation. The Company
agrees to maintain the Investor's ownership percentage of the Company's total
outstanding capital stock at four percent (4%) (the "Investor's Ownership Interest"),
subject to adjustment downward if the Investor transfers stock (as
discussed below), as calculated in this Section 5(a). The calculation of the
Company's total outstanding capital stock shall include the Company's issued and
outstanding common stock, the Shares, any additional shares of stock issued to
the Investor pursuant to this Section 5, and any other outstanding shares of
capital stock of the Company. This calculation shall not include (i) any (I)
shares of restricted stock or (II) shares issued upon the exercise of options,
each as granted to the Company's employees, directors or consultants pursuant to
any stock purchase, restricted stock or stock option plans or other similar
compensatory arrangements that are approved by the Company's board of directors
("Board of Directors");
(ii) any shares of stock issued by the Company in a public offering of
such stock pursuant to a registration statement filed under the Securities Act
(a "Public Offering");
or (iii) any shares of stock issued by the Company in connection with an
acquisition or merger with an unaffiliated third party that is approved by the
Board of Directors (an "Approved Merger")
(collectively, the "Excluded Securities"). The
Company shall maintain the Investor's Ownership Interest by issuing to the
Investor additional securities (the "Additional Securities") of
the same type of security that triggers this provision (the "Triggering Issuance"). Upon
the occurrence of a Triggering Issuance, for any and all purposes the Additional
Securities shall (y) automatically and without any further action be deemed to
have been issued by the Company to Investor with Investor being the owner of
record of the Additional Securities on the books and records of the Company, and
(z) be deemed issued and outstanding securities of the Company. The Company
shall issue to Investor certificates representing all Additional Securities
issued during each calendar quarter within ten (10) days after the end of each
calendar quarter. If the Investor transfers any of the Shares, or any additional
shares issued to the Investor under this Section 5 (other than in an Exempt
Transfer), the Investor's Ownership Interest shall be reduced proportionately
and the Company's anti-dilution obligation under this Section 5 shall be
proportionately reduced.
b. Notice. If the Investor is
entitled to receive additional securities pursuant to Section 5(a) above, the
Company shall provide the Investor with prompt written notice thereof. A
capitalization table showing the new capitalization of the Company, including
the adjustment in the number of securities issued to the Investor, shall be
provided with such notice. The Company shall promptly deliver to the Investor
the additional securities, and the Investor shall not be obligated to pay any
additional consideration for such additional securities received.
c. Termination. The Investor's
rights under Section 5(a) shall terminate on the earliest to occur of the
following: (i) immediately prior to a sale of all or substantially all of the
assets of the Company, (ii) immediately prior to any issuance or exchange
of
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stock in
connection with an Approved Merger in which the stockholders of the Company
immediately prior to such transaction own less than 50% of the Company's or
other surviving entity's voting power immediately following such transaction;
(iii) upon the completion of equity financings which result in the Company
having received a cumulative total of at least three million dollars
($3,000,000) since its inception (the "Threshold Amount") and shall
not apply to any equity issued in any financing in excess of the Threshold
Amount (regardless of whether the Threshold Amount is exceeded in the equity
financing in which the Threshold Amount is reached); or (iv) immediately prior
to the effective date of any Public Offering.
d. Preemptive Rights. If the
Investor's rights pursuant to Section 5(a) are terminated
pursuant to Section 5(c)(iii), from and after that time, the Investor shall
immediately have the preemptive right to purchase its pro rata share of New
Securities (as defined below) which the Company may, from time to time, sell
and/or issue at the price at which such New Securities are to be issued
(including in an equity financing in which the Threshold Amount is reached),
such pro rata share to be determined in the same manner as the Investor's
Ownership Percentage (the "Preemptive Share"). In the
event the Company proposes to undertake an issuance of New Securities, it shall
give the Investor written notice of its intention, describing the type of New
Securities, the price and the general terms and conditions upon which the
Company proposes to issue the New Securities (the "Issuance Notice"). The
Investor shall have fifteen (15) business days from the date of receipt of the
Issuance Notice (the "Exercise
Period") to agree to purchase all or a portion of the Investor's
Preemptive Share of such New Securities for the price and upon the general terms
specified in the Issuance Notice by giving written notice to the Company, which
notice shall state the quantity of New Securities to be purchased by the
Investor (the "Preemptive
Notice"). The
Company shall have 90 after the expiration of the Exercise Period (the "Offering Period") to sell the
New Securities which are not purchased pursuant to the Preemptive Notice (the
"Remaining New Securities")
at a price and upon general terms no more favorable to the purchasers
thereof than specified in the Issuance Notice. In the event the Company has not
sold the Remaining New Securities within the Offering Period, the Company shall
not thereafter issue or sell any New Securities without first complying with
this Section 5(d). For purposes of this Section 5(d), "New Securities" shall mean
any equity securities of the Company whether or not now authorized and any
securities convertible, exchangeable or exercisable for any equity security of
the Company other than (i) Excluded Securities, or (ii) securities issuable upon
the exercise, conversion or exchange of derivative securities which were
originally issued as New Securities in accordance with Section 5(d). The
Investor's rights under this Section 5(d) shall terminate upon the completion of
equity financings which result in the Company having received a total of at
least twenty million dollars ($20,000,000) in the aggregate since its inception
(the "Preemptive Threshold
Amount") and shall not apply to any equity issued in any financing in
excess of the Preemptive Threshold Amount (regardless of whether the Preemptive
Threshold Amount is exceeded in the equity financing in which the Preemptive
Threshold Amount is reached).
6. Other
Covenants. The Company agrees that, so long as the Investor owns the
Shares or
any additional shares issued to the Investor under Section 5
above:
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a. Corporate Existence. The
Company will preserve, renew and keep in full force and effect, its corporate
existence.
b. Compliance with Laws. The
Company will comply with all applicable laws, ordinances, rules, regulations,
and requirements of governmental authorities except where the necessity of
compliance therewith is contested in good faith by appropriate proceedings or
where such noncompliance would not, individually or in the aggregate, have a
material adverse effect on the business, operations, prospects or financial
condition of the Company.
c. Books and Records. The Company
will maintain true books and records of account in which full and correct
entries will be made of all its business transactions pursuant to a system of
accounting established and administered in accordance with United States
generally accepted accounting principles consistently applied (except as noted
therein), and will set aside on its books all such proper accruals and reserves
as shall be required under United States generally accepted accounting
principles consistently applied.
d. Information
Delivery Requirements.
(i) The
Company shall deliver to Investor no later than ninety (90) days after the close
of its fiscal year, an audited income statement, balance sheet and statement of
cash flows prepared in accordance with United States generally accepted
accounting principles consistently applied and a summary of corporate events,
each for the preceding fiscal year.
(ii) The
Company shall deliver to Investor all minutes of meetings of and resolutions and
written consents adopted by of the Board of Directors and stockholders of the
Company, including all exhibits thereto, within ten (10) days after the date of
any such meeting or the effective date of any such resolutions or consents, as
the case may be. The Company may request the return of any and all documents and
materials provided to Investor pursuant to this Section 6(d)(ii) other than
documents and materials which Investor would otherwise be entitled to receive as
a stockholder of the Company. If the Company requests the return of any such
documents or materials, the Company shall prominently and clearly ▇▇▇▇ the
documents and materials for which it is requesting return to the Company and
shall include a self-addressed envelope for the return of such documents and
materials by Investor. Investor shall use its reasonable efforts to return all
such documents and materials to the Company within fourteen (14) business days
from the date of receipt by Investor.
7. Miscellaneous.
a. Remedy. In addition to other
remedies to the Investor may be entitled for a material breach by the Company of
this Agreement by contract, by law or otherwise, the Investor shall also be
entitled to terminate the License Agreement.
b. Confidentiality. Subject to
Section ▇▇-▇▇-▇▇▇, et. seq., of the Colorado Revised Statutes, the Investor
agrees that it will hold in strict confidence any information that is disclosed,
delivered or made available to it in connection with or pursuant to this
Agreement (the "Company
Confidential Information") and shall not disclose nor
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permit
disclosure of any such information to anyone, except to employees or agents of
the Investor to whom disclosure is necessary, and shall not use such information
for any purpose other than to monitor its investment in the Company.
Notwithstanding the foregoing, the Investor may disclose such information to the
transferee in any Exempt Transfer (an "Exempt Transferee") so long
as such Exempt Transferee agrees, subject to Section ▇▇-▇▇-▇▇▇, et. seq., of the
Colorado Revised Statutes, to keep any such information confidential under terms
no less stringent than is required pursuant to this Agreement. Notwithstanding
anything in this Agreement to the contrary, the Investor shall have no
obligation to preserve the confidential nature of any Company Confidential
Information which: (i) is or becomes generally available to the public by other
than unauthorized disclosure, (ii) was or is independently discovered by
Investor or its employees or affiliates after the date of the this Agreement, or
(iii) is disclosed to the Investor by a party under no duty of confidentiality
with respect to such information. Disclosure of Confidential Information shall
not be precluded if disclosure is: (i) required by law or (ii) is in response to
a valid order of a court or other governmental body of the United States
(provided the Investor first gives written notice to the Company and makes a
reasonable effort to obtain a protective order requiring the Company
Confidential Information be used solely for the purpose for which the original
order was issued).
c. Entire Agreement. This
Agreement contains the entire agreement among the parties with respect to the
subject matter hereof. This Agreement may be modified only in writing by the
parties hereto.
d. Governing Law. The terms of
this Agreement shall be construed in accordance with the laws of the State of
Colorado, as applied to contracts entered into by Colorado residents within the
State of Colorado and to be performed entirely within the State of Colorado,
without regard to the law of conflicts of the State of Colorado. The Company
hereby (i) submits to the non-exclusive jurisdiction of the courts of the State
of Colorado and the Federal courts of the United States sitting in the State of
Colorado for the purpose of any action or proceeding arising out of or relating
to this Agreement, (ii) agrees that all claims in respect of any such action or
proceeding may be heard and determined in such courts, (iii) irrevocably waives
(to the extent permitted by applicable law) any objection which it now or
hereafter may have to the laying of venue of any such action or proceeding
brought in any of the foregoing courts in and of the State of Colorado, and any
objection on the ground that any such action or proceeding in any such court has
been brought in an inconvenient forum, and (iv) agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner permitted by
law.
e. Successors and Assigns. This
Agreement shall be binding upon the successors and assigns of the parties
hereto.
f. Severability. If any provision
of this Agreement shall be held invalid, illegal or unenforceable for any
reason, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
g. Counterparts; Facsimile Signatures.
This Agreement may be executed in multiple counterparts, each of which
need not contain the signatures of more than one party, but all such
counterparts taken together will constitute one and the same
Agreement.
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This
Agreement may be executed by delivery of an original executed counterpart
signature page by facsimile transmission.
h. Notice. Any and all notices,
requests, consents and demands required or permitted to be given hereunder shall
be given in writing and shall be deemed to have been duly given and received (i)
upon personal delivery, (ii) upon the first business day following delivery to a
nationally recognized overnight delivery service, (iii) the next business day
after delivery to reputable overnight courier addressed as set forth below, or
(iv) upon the third business day after deposit in the United States first class
mail, postage prepaid and addressed as set forth below. Any party hereto may by
notice so given change its address for future notices hereunder. Notices shall
be sent to the addresses specified below:
If to the
Investor:
University
License Equity Holdings, Inc. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ Campus ▇▇▇
▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attn:
▇▇▇▇▇ ▇. ▇▇▇▇▇
If to the
Company:
APRO Bio
Pharmaceutical Corporation ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Atten:
▇▇▇▇▇ ▇. Floor
i. Headings. 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.
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IN
WITNESS WHEREOF, the parties have executed this Subscription Agreement as
of the date first above written.
INVESTOR:
University
License Equity Holdings, Inc.
By: /s/▇.▇.
▇▇▇▇▇▇▇, ▇▇.
Its:
Chairman
COMPANY:
APRO
Bio Pharmaceutical Corporation
By: /s/ ▇▇▇▇▇ Floor
Its:
Executive V.P.
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Schedule
A
CAPITALIZATION
As of the
date hereof, the authorized capital consists of 10,000,000 shares of preferred
stock, par value $0.001, none of which is issued or outstanding, and 90,000,000
shares of common stock, par value $0.001, of which 10,150,000 shares are issued
and outstanding. As of the date hereof, there are no outstanding options,
warrants, convertible securities or other rights entitling the holders to
acquire shares of the Company's capital stock.
Attached
hereto is the shareholder list of the Company as of the date
hereof.
Page 12
of 15
Confidential
APRO
BIO PHARMACEUTICAL CORPORATION
List of Stockholders
5-15-06
Page 13
of 15
AMENDMENT
TO SUBSCRIPTION AGREEMENT
This Agreement, dated March 17, 2009,
is between Apro Bio Pharmaceutical Corporation (”Company”) and University
License Equity Holdings, Inc., a Colorado nonprofit corporation (the
“Investor”), and amends a Subscription Agreement dated May 15, 2006 (the
“Subscription Agreement”) between the Company and the Investor.
WHEREAS, Section 5 of the Subscription
Agreement provided certain anti-dilution protections to the Investor in the
event the Company issued or sold any capital stock following the date of the
Subscription Agreement, except in certain circumstances; and
WHEREAS, Section 5 of the Subscription
Agreement could prevent the Company from engaging in financing transactions for
the purpose of advancing the Company’s business; and
WHEREAS, the parties have agreed that
Section 5 should be replaced with a provision which will allow the Company to
engage in future financing transactions.
NOW THEREFORE, the parties, for good
and valuable consideration, the receipt of which is hereby acknowledged, agree
as follows:
1. Section 5
of the Subscription Agreement shall be deleted in its
entirety.
2. The
Company hereby agrees that, in lieu of Section 5 of the Subscription
Agreement, the Company shall issue to Investor within
thirty (30) days of the effective date of the Company’s proposed merger with
Across America Financial Services, Inc. (the “Merger”), shares of the Company's
common stock representing two percent (2%) of all outstanding shares of capital
stock of Company on a fully diluted basis at the closing of Company’s Merger,
which calculation shall include all Placement Agent Warrants, Units, and Shares
issued in connection with the closing of the Merger, as described in the Merger
term sheet. The shares shall be issued to University License
Equity Holdings, Inc., a Colorado nonprofit corporation ("ULEHI"), pursuant to
ULEHI's standard form stock subscription agreement.
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of 15
3. In all
other respects, the Subscription Agreement shall remain in full force and
effect.
INVESTOR:
University
License Equity Holdings, Inc.
/s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇
By: ▇▇▇▇▇
▇. ▇▇▇▇▇
Its:
Secretary
COMPANY:
Apro Bio
Pharmaceutical Corporation
/s/ ▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇
By: ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇
Its:
Chairperson
Page 15 of 15