EXHIBIT 10.3
MEDICAL SCIENCE SYSTEMS, INC.
SUBSCRIPTION AGREEMENT made as of this ____ day of ________, 1999
between Medical Science Systems, Inc., a Texas corporation with its principal
offices at ▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the
"Company") and the undersigned (the "Subscriber").
WHEREAS, the Company desires to issue, in a private placement (the
"Offering"), a minimum of $2,500,000 (the "Minimum Offering") and a maximum of
$5,000,000 (the "Maximum Offering") in aggregate purchase price of Series A
Preferred Stock, no par value (the "Shares"), with each Share being convertible
into five (5) shares of the Company's common stock, no par value (the "Common
Stock"), on the terms and conditions hereinafter set forth and the Subscriber
desires to acquire that number of Shares set forth on the signature page hereof.
NOW, THEREFORE, for and in consideration of the premises and the
mutual covenants hereinafter set forth, the parties hereto do hereby agree as
follows:
I. SUBSCRIPTION FOR SHARES AND REPRESENTATIONS BY AND
COVENANTS OF SUBSCRIBER
1.1 Subject to the terms and conditions hereinafter set forth,
the Subscriber hereby subscribes for and agrees to purchase from the Company
such number of Shares as is set forth upon the signature page hereof at a price
of $2.50 per Share. The Company agrees to sell such Shares to the Subscriber for
said purchase price. The purchase price is payable by certified or bank check
made payable to United States Trust Company of New York, Special Account Re:
Medical Science Systems, Inc., or by wire transfer of funds, contemporaneously
with the execution and delivery of this Subscription Agreement. The certificates
for the Shares will be delivered by the Company within ten (10) days following
each Closing of this offering as set forth in Article III hereof. The Subscriber
understands however, that this purchase of Shares is contingent upon the Company
making sales of at least $2,500,000 in aggregate purchase price of the Shares
prior to the Termination Date as defined in Article III hereof.
1.2 The Subscriber recognizes that the purchase of Shares
involves a high degree of risk in that (i) the Company will need additional
capital but has no assurance of additional necessary capital; (ii) conversion of
the Shares into Common Stock is not assured and is subject to approval by the
Company's common shareholders; (iii) an investment in the Company is highly
speculative and only investors who can afford the loss of their entire
investment should consider investing in the Company and the Shares; (iv) an
investor may not be able to liquidate his investment; (v) transferability of the
securities comprising the Shares is extremely limited; and (vi) an investor
could sustain the loss of his entire investment, as well as other risk factors,
as more fully set forth herein and in the Private Placement Memorandum dated
April 14, 1999 and any supplements thereto (the "Offering Memorandum").
1.3 The Subscriber represents that he is an "accredited
investor" as such term is defined in Rule 501 of Regulation D promulgated under
the Securities Act of 1933, as amended (the "Act"), as indicated by his
responses to the Investor Questionnaire, and that he is able to bear the
economic risk of an investment in the Shares.
1.4 The Subscriber acknowledges that he has prior investment
experience, including investment in non-listed and non-registered securities, or
he has employed the services of an investment advisor, attorney or accountant to
read all of the documents furnished or made available by the Company both to him
and to all other prospective investors in the Shares and to evaluate the merits
and risks of such an investment on his behalf, and that he recognizes the highly
speculative nature of this investment.
1.5 The Subscriber acknowledges receipt and careful review of
the Offering Memorandum and the attachments thereto (the "Offering Documents")
and hereby represents that he has been furnished by the Company during the
course of this transaction with all information regarding the Company which he
had requested or desired to know; that all documents which could be reasonably
provided have been made available for his inspection and review; that he has
been afforded the opportunity to ask questions of and receive answers from duly
authorized officers or other representatives of the Company concerning the terms
and conditions of the Offering, and any additional information which he had
requested.
1.6 The Subscriber acknowledges that this offering of Shares
may involve tax consequences, and that the contents of the Offering Documents do
not contain tax advice or information. The Subscriber acknowledges that he must
retain his own professional advisors to evaluate the tax and other consequences
of an investment in the Shares.
1.7 The Subscriber acknowledges that this offering of Shares
has not been reviewed by the United States Securities and Exchange Commission
("SEC") because of the Company's representations that this is intended to be a
nonpublic offering pursuant to Sections 4(2) or 3(b) of the Act. The Subscriber
represents that the Shares are being purchased for his own account, for
investment and not for distribution or resale to others. The Subscriber agrees
that he will not sell or otherwise transfer such securities unless they are
registered under the Act or unless an exemption from such registration is
available.
1.8 The Subscriber understands that the Shares have not been
registered under the Act by reason of a claimed exemption under the provisions
of the Act which depends, in part, upon his investment intention. In this
connection, the Subscriber understands that it is the position of the SEC that
the statutory basis for such exemption would not be present
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if his representation merely meant that his present intention was to hold such
securities for a short period, such as the capital gains period of tax statutes,
for a deferred sale, for a market rise, assuming a market develops, or for any
other fixed period. The Subscriber realizes that, in the view of the SEC, a
purchase now with an intent to resell would represent a purchase with an intent
inconsistent with his representation to the Company, and the SEC might regard
such a sale or disposition as a deferred sale to which such exemptions are not
available.
1.9 The Subscriber understands that there is no public market
for the securities comprising the Shares. The Subscriber understands that even
if a public market exists for the Common Stock issuable upon conversion of the
Shares, Rule 144 (the "Rule") promulgated under the Act requires, among other
conditions, a one year holding period prior to the resale (in limited amounts)
of securities acquired in a non-public offering without having to satisfy the
registration requirements under the Act. The Subscriber understands that the
Company makes no representation or warranty regarding its fulfillment in the
future of any reporting requirements under the Securities Exchange Act of 1934,
as amended, or its dissemination to the public of any current financial or other
information concerning the Company, as is required by Rule 144 as one of the
conditions of its availability. The Subscriber understands and hereby
acknowledges that the Company is under no obligation to register the securities
comprising the Shares under the Act, with the exception of certain registration
rights set forth in Article IV herein. The Subscriber consents that the Company
may, if it desires, permit the transfer of the securities comprising the Shares
or issuable upon conversion thereof out of his name only when his request for
transfer is accompanied by an opinion of counsel reasonably satisfactory to the
Company that neither the sale nor the proposed transfer results in a violation
of the Act or any applicable state "blue sky" laws (collectively "Securities
Laws"). The Subscriber agrees to hold the Company and its directors, officers
and controlling persons and their respective heirs, representatives, successors
and assigns harmless and to indemnify them against all liabilities, costs and
expenses incurred by them as a result of any misrepresentation made by him
contained herein or in the Investor Questionnaire or any sale or distribution by
the undersigned Subscriber in violation of any Securities Laws.
1.10 The Subscriber consents to the placement of one or more
legends on any certificate or other document evidencing his Shares and the
Common Stock issuable upon conversion of such Shares stating that they have not
been registered under the Act and setting forth or referring to the restrictions
on transferability and sale thereof.
1.11 The Subscriber understands that the Company will review
this Subscription Agreement and the Investor Questionnaire and is hereby given
authority by the undersigned to call his bank or place of employment or
otherwise review the financial standing of
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the Subscriber; and it is further agreed that the Company reserves the
unrestricted right to reject or limit any subscription and to close the offer at
any time.
1.12 The Subscriber hereby represents that the address of
Subscriber furnished by him at the end of this Subscription Agreement is the
undersigned's principal residence if he is an individual or its principal
business address if it is a corporation or other entity.
1.13 The Subscriber acknowledges that if he is a Registered
Representative of a National Association of Securities Dealers, Inc. ("NASD")
member firm, he must give such firm the notice required by the NASD Conduct
Rules, or any applicable successor rules of the NASD receipt of which must be
acknowledged by such firm on the signature page hereof.
1.14 The Subscriber hereby represents that, except as set
forth in the Offering Documents, no representations or warranties have been made
to the Subscriber by the Company or any agent, employee or affiliate of the
Company and in entering into this transaction, the Subscriber is not relying on
any information, other than that contained in the Offering Documents and the
results of independent investigation by the Subscriber.
1.15. The Subscriber agrees that he will purchase securities
in the Offering only if his intent at such time is to make such purchase for
investment purposes and not with a view toward resale.
1.16 If the undersigned Subscriber is a partnership,
corporation, trust or other entity, such partnership, corporation, trust or
other entity further represents and warrants that: (i) it was not formed for the
purpose of investing in the Company; (ii) it is authorized and otherwise duly
qualified to purchase and hold the Shares; and (iii) that this Subscription
Agreement has been duly and validly authorized, executed and delivered
constitutes the legal, binding and enforceable obligation of the undersigned.
II. REPRESENTATIONS BY THE COMPANY
The Company represents and warrants to the Subscriber that
prior to the consummation of this Offering and at the date of the closing of
this offering (which date, the "Closing Date"):
(a) The Company is a corporation duly organized, existing and
in good standing under the laws of the State of Texas and has the corporate
power to conduct the business which it conducts and proposes to conduct.
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(b) The execution, delivery and performance of this
Subscription Agreement by the Company will have been duly approved by the Board
of Directors of the Company and all other actions required to authorize and
effect the offer and sale of the Shares and the securities contained therein
will have been duly taken and approved, except for the approval by the Company's
stockholders of (i) the conversion of the Shares, and (ii) an amendment to the
Company's Articles of Incorporation increasing the number of authorized shares
of Common Stock to a number sufficient to allow the issuance of all shares of
Common Stock reserved for issuance, including the Common Stock to be issued upon
conversion of the Shares, and the filing and effectiveness of such amendment.
The Company will use all reasonable efforts to promptly obtain the foregoing
approvals.
(c) The Shares have been duly and validly authorized and when
issued and paid for in accordance with the terms hereof, will be valid and
binding obligations of the Company enforceable in accordance with their
respective terms.
(d) Assuming approval by the Company's Stockholders of the
conversion of the Shares and assuming approval by the stockholders of an
amendment to the Company's Articles of Incorporation increasing the number of
authorized shares of Common Stock to a number sufficient to allow the issuance
of all shares of Common Stock reserved for issuance, including, the Common Stock
to be issued upon conversion of the Shares, and upon the effectiveness of such
amendment, when issued and delivered, the shares of Common Stock issuable upon
conversion of the Shares will be validly issued and outstanding, fully paid and
nonassessable. The Company will use all reasonable efforts to promptly obtain
the foregoing approvals.
(e) The Company has obtained, or is in the process of
obtaining, all licenses, permits and other governmental authorizations necessary
to the conduct of its business; such licenses, permits and other governmental
authorizations obtained are in full force and effect; and the Company is in all
material respects complying therewith.
(f) Other than as described in the Offering Documents, the
Company knows of no pending or threatened legal or governmental proceedings to
which the Company is a party which could materially adversely affect the
business, property, financial condition or operations of the Company.
(g) The Company is not in violation of or default under, nor
will the execution and delivery of this Subscription Agreement, the issuance of
the Shares, and the incurrence of the obligations herein and therein set forth
and the consummation of the transactions
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herein or therein contemplated, result in a violation of, or constitute a
default under, the articles of incorporation or by-laws, in the performance or
observance of any material obligations, agreement, covenant or condition
contained in any bond, debenture, note or other evidence of indebtedness or in
any material contract, indenture, mortgage, loan agreement, lease, joint venture
or other agreement or instrument to which the Company is a party or by which it
or any of its properties may be bound or in violation of any material order,
rule, regulation, writ, injunction, or decree of any government, governmental
instrumentality or court, domestic or foreign, other than violations, breaches
or defaults as may result from the issuance of shares of Common Stock prior to
the Company's Articles of Incorporation being amended to increase the authorized
number of shares of Common Stock to a number sufficient to allow the issuance of
all of the Company's Common Stock currently reserved for issuance, including the
Common Stock to be issued upon conversion of the Shares.
(h) The financial information contained in the Offering
Documents is accurate in all material respects. The Company's Form 10-KSB for
the year ended December 31, 1998 contains the Company's (i) Balance Sheets at
December 31, 1998 (the "Balance Sheet Date"), (ii) Statements of Operations for
each of the last two years ending December 31, 1997 and December 31, 1998, and
(iii) Statements of Cash Flows for each of the last two years ending December
31, 1997 and December 31, 1998 (such financial statements attached to the
Offering Documents hereinafter referred to collectively as the "Financial
Statements"). The Financial Statements have been prepared in conformity with
generally accepted accounting principles consistently applied and show all
material liabilities, absolute or contingent, of the Company required to be
recorded thereon and present fairly the financial position and results of
operations of the Company as of the dates and for the periods indicated.
III. TERMS OF SUBSCRIPTION
3.1 The subscription period will begin as of April 14, 1999
and will terminate (if the Closing Date has not earlier occurred) at 11:59 PM
Eastern time on July 14, 1999, unless extended by the Placement Agent for up to
an additional thirty (30) days (the "Termination Date"). The Shares will be
offered on a "best efforts" minimum-maximum basis as more particularly set forth
in the Offering Memorandum. The minimum subscription per subscriber shall be at
least $50,000 in aggregate purchase price of Shares, provided, however, that a
lesser amount may be accepted at the discretion of the Placement Agent and the
Company.
3.2 Placement of the Shares will be made by Fine Equities,
Inc. (the "Placement Agent"), which will receive (i) a placement fee in the
amount of 10% of the purchase price of the Shares placed; (ii) warrants to
purchase such number of shares of Common Stock of the Company equal to 10% of
the number of Shares sold in the Offering for assisting the
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Company in the placement and (iii) reimbursement for expenses and other
compensation as summarized in the Offering Memorandum.
3.3 Pending the sale of the Shares, all funds paid hereunder
shall be deposited by the Company in escrow with United States Trust Company of
New York. If the Company shall not have obtained subscriptions (including this
subscription) for purchases of Shares for an aggregate purchase price of
$2,500,000 on or before the Termination Date, then this subscription shall be
void and all funds paid hereunder by the Subscriber, without interest, shall be
promptly returned to the Subscriber, subject to paragraph 3.5 hereof. If at
least $2,500,000 in aggregate purchase price of the Shares is sold at or prior
to the Termination Date, then all subscription proceeds shall be paid over to
the Company within ten days thereafter (the "Initial Closing") and subsequent
closings (together with the Initial Closing, each a "Closing") may take place
thereafter until the sale of the Maximum Offering (the date of such final
closing, the "Final Closing Date"). In such event, placements of additional
Shares may continue until the Termination Date, with subsequent releases of
funds to be at the mutual consent of the Company and the Placement Agent.
3.4 The Subscriber hereby authorizes and directs the Company
to deliver the securities to be issued to such Subscriber pursuant to this
Subscription Agreement to the residential or business address indicated in the
Confidential Purchaser Questionnaire.
3.5 The Subscriber hereby authorizes and directs the Company
to return any funds for unaccepted subscriptions to the same account from which
the funds were drawn, including any customer account maintained with the
Placement Agent.
3.6 The Subscriber acknowledges that at such time, if ever, as
any of the Shares or underlying shares of Common Stock (collectively, the
"Securities") are registered, sales of such Securities will be subject to state
securities laws, including those of states which may require any securities sold
therein to be sold through a registered broker-dealer or in reliance upon an
exemption from registration.
3.7 If the Subscriber is not a United States person, such
Subscriber hereby represents that it has satisfied itself as to the full
observance of the laws of its jurisdiction in connection with any invitation to
subscribe for the Shares or any use of this Agreement, including (i) the legal
requirements within its jurisdiction for the purchase of the Securities, (ii)
any foreign exchange restrictions applicable to such purchase, (iii) any
governmental or other consents that may need to be obtained, and (iv) the income
tax and other tax consequences, if any, that may be relevant to the purchase,
holding, redemption, sale or transfer of the Securities. Such
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Subscriber's subscription and payment for, and his or her continued beneficial
ownership of the Securities, will not violate any applicable securities or other
laws of the Subscriber's jurisdiction.
IV. REGISTRATION RIGHTS
4.1 REQUIRED REGISTRATION. The Company hereby agrees with the
holders of the Shares or their transferees (collectively, the "Holders") to
prepare and file with the SEC thirty (30) days after the Final Closing Date of
the Offering a registration statement under the Act covering the resale of the
shares of Common Stock issuable upon conversion of the Shares (the "Registrable
Securities") and to use all reasonable efforts to cause such registration
statement to become effective as soon as practicable hereafter.
The obligation of the Company under this Section 4.1 shall be
limited to one registration statement. The Company shall pay the expenses
described in Section 4.3 for the registration statement filed pursuant to this
Section 4.1, except for underwriting discounts and commissions and legal fees of
the Holders, which shall be borne by the Holders.
4.2 REGISTRATION PROCEDURES. If and whenever the Company is
required by the provisions of Section 4.1 to effect the registration of
Registrable Securities under the Act, the Company will:
(a) prepare and file with the SEC a registration
statement with respect to such securities, and use all reasonable efforts to
cause such registration statement to become and remain effective until the
earlier of (i) twelve months from the date of effectiveness thereof or (ii) the
date when all such securities are sold pursuant to such registration statement;
(b) prepare and file with the SEC such amendments to
such registration statement and supplements to the prospectus contained therein
as may be necessary to keep such registration statement effective until the
earlier of (i) twelve months from the date of effectiveness thereof or (ii) the
date when all such securities are sold pursuant to such registration statement;
(c) furnish to the security holders participating in
such registration and to the underwriters of the securities being registered
such reasonable number of copies of the registration statement, preliminary
prospectus, final prospectus and such other documents as such underwriters may
reasonably request in order to facilitate the public offering of such
securities;
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(d) use all reasonable efforts to register or qualify
the securities covered by such registration statement under such state
securities or blue sky laws of such jurisdictions as such participating holders
may reasonably request in writing within twenty (20) days following the original
filing of such registration statement, except that the Company shall not for any
purpose be required to execute a general consent to service of process or to
qualify to do business as a foreign corporation in any jurisdiction wherein it
is not so qualified;
(e) notify the security holders participating in such
registration, promptly after it shall receive notice thereof, of the time when
such registration statement has become effective or a supplement to any
prospectus forming a part of such registration statement has been filed;
(f) notify such holders promptly of any request by the
SEC for the amending or supplementing of such registration statement or
prospectus or for additional information;
(g) prepare and file with the SEC, promptly upon the
request of any such holders, any amendments or supplements to such registration
statement or prospectus which, in the opinion of counsel for such holders (and
concurred in by counsel for the Company), is required under the Act or the rules
and regulations thereunder in connection with the distribution of Common Stock
by such holder;
(h) prepare and promptly file with the SEC and promptly
notify such holders of the filing of such amendment or supplement to such
registration statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus relating to such
securities is required to be delivered under the Act, any event shall have
occurred as the result of which any such prospectus or any other prospectus as
then in effect would include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances in which they were made, not misleading; and
(i) advise such holders, promptly after it shall receive
notice or obtain knowledge thereof, of the issuance of any stop order by the SEC
suspending the effectiveness of such registration statement or the initiation or
threatening of any proceeding for that purpose and promptly use all reasonable
efforts to prevent the issuance of any stop order or to obtain its withdrawal if
such stop order should be issued.
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4.3 EXPENSES.
(a) With respect to the registration required pursuant
to Section 4.1 hereof, all fees, costs and expenses of and incidental to such
registration, inclusion and public offering (as specified in paragraph (b)
below) in connection therewith shall be borne by the Company, provided, however,
that any securityholders participating in such registration shall bear their pro
rata share of the underwriting discount and commissions and transfer taxes.
(b) The fees, costs and expenses of registration to be
borne by the Company as provided in paragraph (a) above shall include, without
limitation, all registration, filing, and NASD fees, printing expenses, fees and
disbursements of counsel and accountants for the Company, and all legal fees and
disbursements and other expenses of complying with state securities or blue sky
laws of any jurisdictions in which the securities to be offered are to be
registered and qualified (except as provided in 4.4(a) above). Fees and
disbursements of counsel and accountants for the selling securityholders and any
other expenses incurred by the selling securityholders not expressly included
above shall be borne by the selling securityholders.
4.4 INDEMNIFICATION.
(a) The Company will indemnify and hold harmless each
holder of Registrable Securities which are included in a registration statement
pursuant to the provisions of Section 4.1 hereof, its directors and officers,
and any underwriter (as defined in the Act) for such holder and each person, if
any, who controls such holder or such underwriter within the meaning of the Act,
from and against, and will reimburse such holder and each such underwriter and
controlling person with respect to, any and all loss, damage, liability, cost
and expense to which such holder or any such underwriter or controlling person
may become subject under the Act or otherwise, insofar as such losses, damages,
liabilities, costs or expenses are caused by any untrue statement or alleged
untrue statement of any material fact contained in such registration statement,
any prospectus contained therein or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading; provided, however, that the Company will not be liable in any such
case to the extent that any such loss, damage, liability, cost or expenses
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission so made in conformity with information furnished
by such holder, such underwriter or such controlling person in writing
specifically for use in the preparation thereof.
(b) Each holder of Registrable Securities included in a
registration pursuant to the provisions of Section 4.1 hereof will indemnify and
hold harmless the
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Company, its directors and officers, any controlling person and any underwriter
from and against, and will reimburse the Company, its directors and officers,
any controlling person and any underwriter with respect to, any and all loss,
damage, liability, cost or expense to which the Company or any controlling
person and/or any underwriter may become subject under the Act or otherwise,
insofar as such losses, damages, liabilities, costs or expenses are caused by
any untrue statement or alleged untrue statement of any material fact contained
in such registration statement, any prospectus contained therein or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was so made in reliance upon and in
strict conformity with written information furnished by or on behalf of such
holder specifically for use in the preparation thereof.
(c) Promptly after receipt by an indemnified party
pursuant to the provisions of paragraph (a) or (b) of this Section 4.4 of notice
of the commencement of any action involving the subject matter of the foregoing
indemnity provisions such indemnified party will, if a claim thereof is to be
made against the indemnifying party pursuant to the provisions of said paragraph
(a) or (b), promptly notify the indemnifying party of the commencement thereof;
but the omission to so notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than
hereunder. In case such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party shall have the right to participate in, and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party,
provided, however, if the defendants in any action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or in addition to those available
to the indemnified party, or if there is a conflict of interest which would
prevent counsel for the indemnifying party from also representing the
indemnified party, the indemnified party or parties have the right to select
separate counsel to participate in the defense of such action on behalf of such
indemnified party or parties. After notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party pursuant to the
provisions of said paragraph (a) or (b) for any legal or other expense
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation, unless (i) the indemnified
party shall have employed counsel in accordance with the provisions of the
preceding sentence, (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after the notice of the commencement of the action or (iii)
the indemnifying party
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has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party.
V. MISCELLANEOUS
5.1 Any notice or other communication given hereunder shall be
deemed sufficient if in writing and sent by registered or certified mail, return
receipt requested, addressed to the Company, at its registered office, ▇▇▇ ▇.▇.
▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: U. ▇▇▇▇▇▇▇ ▇▇▇▇▇ and
to the Subscriber at his address indicated on the signature page of this
Subscription Agreement. Notices shall be deemed to have been given on the date
of mailing, except notices of change of address, which shall be deemed to have
been given when received.
5.2 Unless at least 50% of the holders of Securities have
given their approval, which approval shall be binding on all holders of
Securities, this Subscription Agreement shall not be changed, modified or
amended and may not be discharged except by performance in accordance with its
terms.
5.3 This Subscription Agreement shall be binding upon and
inure to the benefit of the parties hereto and to their respective heirs, legal
representatives, successors and assigns. This Subscription Agreement sets forth
the entire agreement and understanding between the parties as to the subject
matter hereof and merges and supersedes all prior discussions, agreements and
understandings of any and every nature among them.
5.4 Notwithstanding the place where this Subscription
Agreement may be executed by any of the parties hereto, the parties expressly
agree that all the terms and provisions hereof shall be construed in accordance
with and governed by the laws of the State of New York. The parties hereby agree
that any dispute which may arise between them arising out of or in connection
with this Subscription Agreement shall be adjudicated before a court located in
New York City and they hereby submit to the exclusive jurisdiction of the courts
of the State of New York located in New York, New York and of the federal courts
in the Southern District of New York with respect to any action or legal
proceeding commenced by any party, and irrevocably waive any objection they now
or hereafter may have respecting the venue of any such action or proceeding
brought in such a court or respecting the fact that such court is an
inconvenient forum, relating to or arising out of this Subscription Agreement or
any acts or omissions relating to the sale of the securities hereunder, and
consent to the service of process in any such action or legal proceeding by
means of registered or certified mail, return receipt requested, in care of the
address set forth below or such other address as the undersigned shall furnish
in writing to the other.
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5.5 This Subscription Agreement may be executed in
counterparts. Upon the execution and delivery of this Subscription Agreement by
the Subscriber, this Subscription Agreement shall become a binding obligation of
the Subscriber with respect to the purchase of Shares as herein provided;
subject, however, to the right hereby reserved to the Company to enter into the
same agreements with other subscribers and to add and/or to delete other persons
as subscribers.
5.6 The holding of any provision of this Subscription
Agreement to be invalid or unenforceable by a court of competent jurisdiction
shall not affect any other provision of this Subscription Agreement, which shall
remain in full force and effect.
5.7 It is agreed that a waiver by either party of a breach of
any provision of this Subscription Agreement shall not operate, or be construed,
as a waiver of any subsequent breach by that same party.
5.8 The parties agree to execute and deliver all such further
documents, agreements and instruments and take such other and further action as
may be necessary or appropriate to carry out the purposes and intent of this
Subscription Agreement.
5.9 The Company agrees not to disclose the names, addresses or
any other information about the Subscribers, except as required by law,
provided, that the Company may provide information relating to the Subscriber as
required in any registration statement under the Act with respect to the
Registrable Securities.
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IN WITNESS WHEREOF, the parties have executed this Subscription
Agreement as of the day and year first written above.
______________________________ ___________________________________
Signature of Subscriber Signature of Co-Subscriber
______________________________ ___________________________________
Name of Subscriber Name of Co-Subscriber
[please print]
______________________________ ___________________________________
Address of Subscriber Address of Co-Subscriber
______________________________ ___________________________________
Social Security or Taxpayer Social Security or Taxpayer
Identification Number of Subscriber Identification Number of
Co-Subscriber
______________________________
Subscriber's Account Number
at Fine Equities, Inc.
______________________________
Number of Shares Subscribed For
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*IF SUBSCRIBER IS A REGISTERED REPRESENTATIVE
WITH AN NASD MEMBER FIRM, HAVE THE FOLLOWING
ACKNOWLEDGEMENT SIGNED BY THE APPROPRIATE PARTY:
The undersigned NASD member firm
acknowledges receipt of the notice
required by Rule 3050 of the NASD Subscription Accepted:
Conduct Rules.
MEDICAL SCIENCE SYSTEMS, INC.
______________________________
Name of NASD Member Firm By: ____________________________________
By _____________________________ Date: __________________________________
Authorized Officer
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