Exhibit 4.6
SUBSCRIPTION DOCUMENTS
CEPTOR CORPORATION
SUBSCRIPTION DOCUMENTS
INSTRUCTIONS
The following documents must be completed in accordance with the
instructions set forth below and must be executed in order to determine whether
you are an accredited investor and, if accredited, in order to subscribe for the
purchase of units ("Units"), each unit consisting of (i) one (1) share of Series
A Preferred Stock (the "Series A Preferred Stock"), and (ii) a detachable,
transferable three-year warrant (the "Warrant") to purchase shares of Common
Stock of CepTor Corporation, which will merge with a subsidiary of a Securities
and Exchange Commission ("SEC") reporting and registered publicly-traded company
which is or is expected to be qualified to be quoted on the OTC Bulletin board.
PLEASE PRINT THE ANSWERS TO ALL QUESTIONS.
1. ENCLOSED ARE THE FOLLOWING DOCUMENTS:
(a) SUBSCRIPTION AGREEMENT. Be sure to carefully and fully read the
Subscription Agreement, and execute the signature page which is applicable to
you. On the appropriate signature page of the Subscription Agreement, the
Subscriber must sign, print his, her or its name, address and social security or
tax identification number where indicated, and indicate the number of Units
subscribed for, the date of execution and the manner in which title to the
Series A Preferred Stock and Warrants will be held.
(b) INVESTOR QUESTIONNAIRE. Be sure to carefully and fully read the
Investor Questionnaire, which can be found after the signature pages to the
Subscription Agreement. On the signature page of the Investor Questionnaire, the
Subscriber must sign and print his, her or its name where indicated.
A PROSPECTIVE SUBSCRIBER MUST BE SURE TO CAREFULLY AND FULLY READ THE
ACCOMPANYING CONFIDENTIAL PRIVATE PLACEMENT MEMORANDUM PRIOR TO RETURNING THE
SIGNED SUBSCRIPTION DOCUMENTS.
2. PAYMENT.
Payment of the purchase price may be made by certified or bank check made
payable to "Corporate Stock Transfer, Inc., as Escrow Agent for CepTor
Corporation," or by wire transfer of immediately available funds,
contemporaneously with the execution and delivery of the Subscription Agreement,
to Guaranty Bank & Trust, as escrow bank for the Escrow Agent, as follows:
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WIRE TRANSFER INSTRUCTIONS FOR ESCROW ACCOUNT
Guaranty Bank & Trust
Denver, Colorado
ABA# 102 000 966
A/C# 312 464 33
FBO Corporate Stock Transfer
FFC CepTor Corporation-Escrow Account
3. RETURN OF DOCUMENTS.
Copies of the signed Subscription Agreement and Investor Questionnaire
should be delivered to: Brookshire Securities Corporation, at 4 West Las Olas
Boulevard, 8th Floor, Ft. Lauderdale, FL 33301, Attention: Mr. Peter S. Chung.
If you should have any questions, please contact Mr. Chung at tel: (954)
714-9008 or fax: (954) 714-9131, or Mr. Don Fallon or Mr. William Pursley of
CepTor Corporation, at tel: (410) 527-9998 or fax: (410) 527-9867.
* * *
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NAME OF SUBSCRIBER:_____________________________
To: Brookshire Securities Corporation
4 West Las Olas Boulevard
8th Floor
Ft. Lauderdale, FL 33301
SUBSCRIPTION AGREEMENT
This Subscription Agreement (this "Agreement") is being delivered to you in
connection with your investment in a publicly-traded company (the "Company") and
the anticipated merger (the "Merger") of a wholly-owned subsidiary of the
Company, with and into CepTor Corporation ("CepTor"). Your obligation to invest
in the Company shall be subject to, among other things, (a) the notification to
you of the identity of the Company and (b) your receipt of the draft Current
Report on Form 8-K in accordance with Section 2.1 below. Brookshire Securities
Corporation is acting as the Placement Agent (the "Placement Agent") in
conducting a private placement (the "Private Placement") of units ("Units"),
each Unit consisting of (i) one (1) share of the Company's Series A Preferred
Stock ("Series A Preferred Stock"), and (ii) a detachable, three-year warrant to
purchase 5,000 shares of Common Stock of the Company at an exercise price of
$2.50 per share of Common Stock ("Warrant"). The purchase price is $25,000 per
Unit. All funds received in the Private Placement shall be held in escrow in a
special non-interest bearing account by Guaranty Bank & Trust, as escrow bank
for Corporate Stock Transfer, Inc. (the "Escrow Agent") and, upon fulfillment of
the other conditions precedent set forth herein, shall be released from escrow
and delivered to the Company at which time the securities subscribed for as
further described below shall be delivered to you.
1. SUBSCRIPTION AND PURCHASE PRICE
1.1 SUBSCRIPTION. Subject to the conditions set forth in Section 2 hereof,
the undersigned hereby subscribes for and agrees to purchase the number of Units
indicated on page C-11 hereof on the terms and conditions described herein. The
minimum number of Units that may be purchased is two (2) Units. Subscriptions
for lesser amounts may be accepted at the discretion of the Company and the
Placement Agent.
1.2 PURCHASE OF SECURITIES. The undersigned understands and acknowledges
that the purchase price to be remitted to the Placement Agent in exchange for
the Unit(s) shall be $25,000 per Unit, for an aggregate purchase price of
$25,000 multiplied by the number of Units subscribed for (the "Aggregate
Purchase Price"). Payment for the Units subscribed for hereunder shall be made
by the undersigned, by certified or bank check made payable to Corporate Stock
Transfer, Inc., as Escrow Agent for CepTor, or by wire transfer of immediately
available funds, contemporaneously with the execution and delivery of this
Agreement to the Placement Agent, to Guaranty Bank & Trust, as escrow bank for
the Escrow Agent, as follows:
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WIRE TRANSFER INSTRUCTIONS FOR ESCROW ACCOUNT
Guaranty Bank & Trust
Denver, Colorado
ABA # 102 000 966
A/C# 312 464 33
FBO Corporate Stock Transfer
FFC CepTor Corporation-Escrow Account
2. ACCEPTANCE AND CLOSING PROCEDURES
2.1 ACCEPTANCE OR REJECTION.
(a) The undersigned and the Placement Agent understand and agree that
this subscription shall be revocable by the undersigned up until three (3) days
after a Draft Form 8-K (as defined in Section 5.1 hereof) is prepared and sent
to the undersigned (at the address set forth on the signature page of this
Agreement) in accordance with the terms and conditions set forth in Section 4
hereof (the "Revocation Period"). Provided that the undersigned shall not have,
within the Revocation Period, delivered a written notice via facsimile to Olshan
Grundman Frome Rosenzweig & Wolosky LLP, counsel to CepTor (to the attention of
Harvey Kesner) at (212) 451-2222, electing to withdraw his subscription, the
obligation of the undersigned to purchase the Units shall become irrevocable,
and the undersigned shall be legally bound to purchase the Units subject to the
terms set forth in this Agreement.
(b) The undersigned understands and agrees that the Company and the
Placement Agent reserve the right to reject this subscription for the Units in
whole or part in any order at any time prior to the Initial Closing (as defined
below) if, in their reasonable judgment, they deem such action in the best
interest of the Company, notwithstanding the undersigned's prior receipt of
notice of acceptance of the undersigned's subscription.
(c) In the event of the revocation of this subscription by the
undersigned in accordance with Section 2.1(a), rejection by the Company, CepTor,
or the Placement Agent in accordance with Section 2.1(b), or the sale of the
Units is not consummated by the Placement Agent for any reason, this Agreement
and any other agreement entered into between the undersigned and the Placement
Agent relating to this subscription shall thereafter have no force or effect,
and the Placement Agent shall promptly return or cause to be returned to the
undersigned the purchase price remitted to the Escrow Agent, without interest
thereon or deduction therefrom.
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2.2 CLOSINGS.
The closing of the purchase and sale of the Units (the "Closing")
shall take place at the offices of Olshan Grundman Frome Rosenzweig & Wolosky
LLP, counsel to CepTor, at 65 East 55th Street, Park avenue Tower, 2nd Floor,
New York, New York 10022, or such other place as determined by the Placement
Agent, on the first (1st) Business Day immediately following the Revocation
Period (the "Closing Date"), or such other date as is mutually agreed to by the
parties and the undersigned. "Business Day" shall mean from the hours of 9:00
a.m. (E.S.T.) through 5:00 p.m. (E.S.T.) of a day other than a Saturday, Sunday
or other day on which commercial banks in New York City are authorized or
required to be closed.
2.3 TERMINATION.
The subscription period for the Private Placement will terminate on
November 30, 2004, unless extended by the Company and the Placement Agent, in
their sole discretion, for up to one hundred eighty (180) days, without notice
to the undersigned (the "Termination Date"). The Company and the Placement Agent
may terminate the Private Placement at any time and without notice to the
undersigned. If 100 Units have not been subscribed for on or before the
Termination Date (as such may be extended), or if the Private Placement is
otherwise terminated or withdrawn, then the Escrow Agent will return to each
Subscriber his, her or its subscription amount, without interest or deduction
therefrom.
3. INVESTOR'S REPRESENTATIONS AND WARRANTIES
The undersigned hereby acknowledges, agrees with and represents and
warrants to the Placement Agent and its affiliates, as follows:
(a) The undersigned has full power and authority to enter into this
Agreement, the execution and delivery of which has been duly authorized, if
applicable, and this Agreement constitutes a valid and legally binding
obligation of the undersigned.
(b) The undersigned acknowledges his understanding that the offering
and sale of the Units is intended to be exempt from registration under the
Securities Act of 1933, as amended (the "Securities Act"), by virtue of Section
4(2) of the Securities Act and the provisions of Regulation D promulgated
thereunder ("Regulation D"). In furtherance thereof, the undersigned represents
and warrants to the Placement Agent and its affiliates as follows:
(i) The undersigned realizes that the basis for the exemption
from registration may not be available if, notwithstanding the
undersigned's representations contained herein, the undersigned is
merely acquiring the Units for a fixed or determinable 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.
(ii) The undersigned is acquiring the Unit(s) solely for the
undersigned's own beneficial account, for investment purposes, and not
with view to, or resale in connection with, any distribution of the
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shares of Common Stock, including such shares into which the Warrants
are exercised, underlying such Unit(s).
(iii) The undersigned has the financial ability to bear the
economic risk of his investment, has adequate means for providing for
his current needs and contingencies, and has no need for liquidity
with respect to his investment in the Company;
(iv) _______________________ [insert name of Purchaser
Representative: IF NONE, SO STATE] has acted as the undersigned's
Purchaser Representative for purposes of the private placement
exemption under the Securities Act. If the undersigned has appointed a
Purchaser Representative (which term is used herein with the same
meaning as given in Rule 501(h) of Regulation D), the undersigned has
been advised by his Purchaser Representative as to the merits and
risks of an investment in the Company in general, and the suitability
of an investment in the Units for the undersigned in particular; and
(v) The undersigned (together with his Purchaser
Representative(s), if any) has such knowledge and experience in
financial and business matters as to be capable of evaluating the
merits and risks of the prospective investment in the Units. If other
than an individual, the undersigned also represents it has not been
organized for the purpose of acquiring the Units.
(c) The information in the Accredited Investor Questionnaire completed
and executed by the undersigned (the "Investor Questionnaire") is accurate and
true in all respects, and the undersigned is an "accredited investor," as that
term is defined in Rule 501(a) of Regulation D.
(d) The undersigned (and his Purchaser Representative, if any) has
been furnished with a copy of the Confidential Private Placement Memorandum,
dated October 22, 2004, together with all annexes thereto (as such documents may
be amended or supplemented, the "Memorandum"), relating to the private placement
by the Company of the Units.
(e) The undersigned is not relying on the Placement Agent or its
affiliates with respect to economic considerations involved in this investment.
The undersigned has relied on the advice of, or has consulted with only the
person(s), if any, named as Purchaser Representative(s) herein. Each Purchaser
Representative, if any, is capable of evaluating the merits and risks of an
investment in the Units as such are described in the Memorandum, and each
Purchaser Representative, if any, has disclosed to the undersigned in writing (a
copy of which is annexed to this Agreement) the specific details of any and all
past, present or future relationships, actual or contemplated, between himself
and the Placement Agent or any affiliate or subsidiary thereof.
(f) The undersigned represents, warrants and agrees that he will not
sell or otherwise transfer the shares of Preferred Stock, the Warrants or the
shares of Common Stock into which the Preferred Stock is convertible and the
Warrants are exercisable (such Common Stock collectively, the "Conversion
Shares") without registration under the Securities Act or an exemption
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therefrom, and fully understands and agrees that he must bear the economic risk
of his purchase because, among other reasons, neither the shares of Preferred
Stock, the Warrants nor the Conversion Shares have been registered under the
Securities Act or under the securities laws of any state and, therefore, cannot
be resold, pledged, assigned or otherwise disposed of unless they are
subsequently registered under the Securities Act and under the applicable
securities laws of such states, or an exemption from such registration is
available. In particular, the undersigned is aware that the shares of Preferred
Stock, Warrants and Conversion Shares are "restricted securities," as such term
is defined in Rule 144 promulgated under the Securities Act ("Rule 144"), and
they may not be sold pursuant to 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 shares of Preferred
Stock, Warrants or the Conversion Shares on his behalf or to assist him in
complying with any exemption from registration under the Securities Act or
applicable state securities laws. The undersigned understands that any sales or
transfers of the shares of Preferred Stock, Warrants and Conversion Shares are
further restricted by state securities laws and the provisions of this
Agreement.
(g) No representations or warranties have been made to the undersigned
by the Company, CepTor or the Placement Agent, or any of their respective
officers, employees, agents, affiliates or subsidiaries, other than any
representations of the Placement Agent contained herein and in the Memorandum,
and in subscribing for Units the undersigned is not relying upon any
representations other than any contained herein or in the Memorandum.
(h) The undersigned understands and acknowledges that his purchase of
the Units is a speculative investment that involves a high degree of risk and
the potential loss of his entire investment.
(i) The undersigned's overall commitment to investments that 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.
(j) The undersigned understands and agrees that the certificates for
the shares of Preferred Stock, Warrants and Conversion Shares shall bear
substantially the following legend until (i) such securities shall have been
registered under the Securities Act and effectively disposed of in accordance
with a registration statement that has been declared effective, or (ii) in the
opinion of counsel for the Company such securities may be sold without
registration under the Securities Act as well as any applicable "blue sky" or
state securities laws:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT PURPOSES AND MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE,
TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FILED BY THE ISSUER WITH THE SECURITIES AND EXCHANGE COMMISSION
COVERING SUCH SECURITIES UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED.
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(k) The foregoing representations, warranties, and agreements shall
survive the Closing.
4. THE COMPANY'S REPRESENTATIONS AND WARRANTIES
The Company hereby acknowledges, agrees with and represents and warrants to
each of the undersigned, as follows:
(a) The Company has the corporate power and authority to execute and
deliver this Agreement and to perform its obligations hereunder. This Agreement
has been duly authorized, executed and delivered by the Company and is valid,
binding and enforceable against the Company in accordance with its terms.
(b) The Series A Preferred Stock and Warrants to be issued to the
undersigned pursuant to this Agreement, when issued and delivered in accordance
with the terms of this Agreement, will be duly and validly issued and will be
fully paid and nonassessable.
(c) The Conversion Shares to be issued to the undersigned pursuant to
this Agreement, when issued and delivered in accordance with this Agreement, the
Warrant and the Certificate of Designation, Preferences and Rights pertaining to
the Series A Preferred Stock, will, upon receipt by the Company of the
applicable cash conversion or exercise price therefor, be validly issued and
fully paid and nonassessable.
(d) Neither the execution and delivery nor the performance of this
Agreement by the Company will conflict with the Company's Certificate of
Incorporation, as amended, or By-laws, or result in a breach of any terms or
provisions of, or constitute a default under, any material contract, agreement
or instrument to which the Company is a party or by which the Companyis bound.
(e) After giving effect to the transactions contemplated by this
Agreement and immediately after the Closing, the Company will have the
outstanding capital stock as described in the Memorandum.
(f) The information contained in the Memorandum is true and correct in
all material respects as of its date.
5. COVENANTS FOLLOWING THE CLOSING
5.1 PREPARATION AND DELIVERY OF THE DRAFT FORM 8-K; WITHDRAWAL OF
SUBSCRIPTION. At least three (3) days prior to the date of closing of the
Merger, CepTor shall prepare and deliver to the undersigned via overnight
courier or facsimile, a draft copy of the Current Report on Form 8-K (the "Draft
Form 8-K") proposed to be filed by the Company, which shall describe the terms
and conditions of the Merger, in accordance with the requirements of the
Securities Exchange Act of 1934 and the Accounting and Financial Reporting
Interpretations and Guidance issued by the accounting staff members of the
Division of Corporate Finance of the Securities and Exchange Commission on March
31, 2001, as the same relates to "Reverse Acquisitions-Reporting Issues."
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5.2 REGISTRATION RIGHTS
(a) The Company has agreed to file a "resale" registration statement
with the SEC covering all shares of Common Stock underlying the Series A
Preferred Stock and Warrants issued in connection with this offering and the
Merger on or before the date which is 60 days after the Closing Date. The
Company will maintain the effectiveness of the "resale" registration statement
from the effective date through and until 12 months after the Closing Date, at
which time exempt sales pursuant to Rule 144 may be permitted for purchasers of
the Units. The Company will use its best efforts to respond to any SEC comments
to the "resale" registration statement on or prior to the date which is 20
business days from the date such comments are received, but in any event not
later than 30 business days from the date such comments are received. The
Company has agreed to use its best efforts to have such "resale" registration
statement declared effective by the SEC as soon as possible after the initial
filing date.
(b) If the Company fails to (i) file the Registration Statement with
the SEC on or prior to the date which is 120 days after the Closing Date, or
(ii) respond to any SEC comments to the Registration Statement on or prior to
the date which is twenty (20) Business Days after the date such comments are
received, but in any event not later than thirty (30) Business Days from the
date such comments are received, then the Company shall be obligated to issue to
the undersigned additional shares of Common Stock computed as follows: on the
first day that the Company has failed to file, or has failed to respond to SEC
comments concerning, the Registration Statement, as the case may be (the "First
Determination Date"), the Company shall determine the number of shares of Common
Stock entitled to the benefit of the registration rights set forth in this
Section 5.2 that are held by the undersigned (the "Subject Shares"). Within
fifteen (15) days following the First Determination Date, the Company shall
issue to the undersigned shares of Common Stock equal to 2% of the Subject
Shares (the "Penalty Shares"). Penalty Shares shall also be issuable upon the
expiration of each 30-day period following the First Determination Date during
which the Company has continued to fail to file or respond to SEC comments
concerning the Registration Statement, as the case may be (the expiration date
of each such 30-day period being a "Subsequent Determination Date"). The number
of Penalty Shares issuable following each Subsequent Determination Date shall be
determined and issued in accordance with this section on the same basis
applicable to the First Determination Date; PROVIDED, HOWEVER, that Penalty
Shares previously issued to the undersigned shall be excluded from the
calculation of Subject Shares. Notwithstanding the foregoing, the Company shall
not be obligated to issue to the undersigned in respect of the Penalty Shares an
aggregate number of shares of Common Stock greater than 12% of the Subject
Shares held by the undersigned as of the first day of the last month in which
payments in respect of the Penalty Shares are required to be made.
(c) The Company shall notify the undersigned at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, upon discovery that, or upon the happening of any event as a result of
which, the prospectus included in such Registration Statement, as then in
effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing. At the
request of the undersigned, the Company shall also prepare, file and furnish to
the undersigned a reasonable number of copies of a supplement to or an amendment
of such prospectus as may be necessary so that, as thereafter delivered to the
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purchasers of such shares, such prospectus shall not include an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances then existing. The undersigned agrees not to offer or sell any
shares covered by the Registration Statement after receipt of such notification
until the receipt of such supplement or amendment.
(d) The Company may request the undersigned to furnish the Company
such information with respect to the undersigned and the undersigned's proposed
distribution of shares of Common Stock pursuant to the Registration Statement as
the Company may from time to time reasonably request in writing or as shall be
required by law or by the SEC in connection therewith, and the undersigned
agrees to furnish the Company with such information.
6. USE OF PROCEEDS
The Company intends to use the available net proceeds of this offering of
the Units to continue the pre-clinical development of its technologies, compile
and draft an IND for Myodur and initiate Phase I/II human clinical trials, if
approved by the FDA, in muscular dystrophy. CepTor may also use the proceeds of
this offering to acquire additional products or technologies through licensing
arrangements or otherwise and, to the extent available, to fund other working
capital needs (including SEC compliance and related public company costs). The
proceeds of this offering are not expected to be sufficient to provide funding
to pursue many avenues of investigation of the CepTor technology, and are
planned to be primarily devoted to Myodur and the above described research and
other activities.
CepTor has not yet determined all of its expected expenditures, and cannot
estimate the amounts to be used for each purpose set forth above. Accordingly,
management will have significant flexibility in applying a substantial portion
of the net proceeds of this offering. Pending use of the net proceeds as
described above, CepTor may invest the net proceeds of the offering in
short-term, interest-bearing, investment-grade securities or accounts.
7. INSIDER TRADING PROHIBITION; INDEMNITY
(a) Commencing as of the date upon which the Draft Form 8-K is sent to
the undersigned and until the filing by the Company of the Form 8-K with the
SEC, the undersigned hereby agrees to (i) refrain from (a) engaging in any
transactions with respect to the capital stock of the Company or securities
exercisable or convertible into or exchangeable for any shares of capital stock
of the Company, and (b) entering into any transaction which would have the same
effect, or entering into any swap, hedge or other arrangement that transfers, in
whole or in part, any of the economic consequences of ownership of the capital
stock of the Company and (ii) indemnify and hold harmless the Company, the
Placement Agent, and their respective officers and directors, employees and
affiliates and each other person, if any, who controls any of the foregoing,
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 violation
of this Section 7 by the undersigned.
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(b) The undersigned agrees to indemnify and hold harmless the Company,
CepTor, the Placement Agent, the Escrow Agent and their respective officers and
directors, employees and affiliates and each other person, if any, who controls
any of the foregoing, 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 by the undersigned, or the
undersigned's breach of, or failure to comply with, any covenant or agreement
made by the undersigned herein or in any other document furnished by the
undersigned to the Company, its officers and directors, employees and its
affiliates and each other person, if any, who controls any of the foregoing in
connection with this transaction.
8. MISCELLANEOUS PROVISIONS
8.1 MODIFICATION. Neither this Agreement, nor any provisions hereof, shall
be waived, modified, discharged or terminated except by an instrument in writing
signed by the party against whom any waiver, modification, discharge or
termination is sought.
8.2 NOTICES. Any party may send any notice, request, demand, claim or
other communication hereunder to the intended recipient at the address set forth
above using any other means (including personal delivery, expedited courier,
messenger service, fax, ordinary mail or electronic mail), but no such notice,
request, demand, claim or other communication will be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
party may change the address to which notices, requests, demands, claims and
other communications hereunder are to be delivered by giving the other parties
notice in the manner herein set forth.
8.3 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 instrument.
8.4 BINDING EFFECT. Except as otherwise provided herein, this Agreement
shall be binding upon, and inure to the benefit of, the parties to this
Agreement and their heirs, executors, administrators, successors, legal
representatives and assigns. If the undersigned is more than one person or
entity, the obligation of the undersigned shall be joint and several and the
agreements, representations, warranties and acknowledgments contained herein
shall be deemed to be made by, and be binding upon, each such person or entity
and his or its heirs, executors, administrators, successors, legal
representatives and assigns.
8.5 ASSIGNABILITY. This Agreement is not transferable or assignable by the
undersigned. This Agreement shall be transferable or assignable by the Placement
Agent to the Company.
8.6 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to
conflicts of law principles.
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ALL SUBSCRIBERS MUST COMPLETE THIS PAGE
IN WITNESS WHEREOF, the undersigned has executed this Agreement on the ____
day of ____________ 2004.
________________________ X $1,000 for each Unit = $______________________.
Units subscribed for Aggregate Purchase Price
MANNER IN WHICH TITLE IS TO BE HELD (PLEASE CHECK ONE):
1. ___ Individual 7. ___ Trust/Estate/Pension or Profit
sharing Plan
Date Opened:______________
2. ___ Joint Tenants with Right of 8. ___ As a Custodian for
Survivorship ______________________________
Under the Uniform Gift to
Minors Act of the State of
______________________________
3. ___ Community Property 9. ___ Married with Separate Property
4. ___ Tenants in Common 10.___ Keogh
5. ___ Corporation/Partnership/ 11.___ Tenants by the Entirety
Limited Liability Company
6. ___ IRA
IF MORE THAN ONE SUBSCRIBER, EACH SUBSCRIBER MUST SIGN.
INDIVIDUAL SUBSCRIBERS MUST COMPLETE PAGE C12.
SUBSCRIBERS WHICH ARE ENTITIES MUST COMPLETE PAGE C13.
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EXECUTION BY NATURAL PERSONS
________________________________________________________________________________
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
___________________________________ ________________________________________
Telephone Number Telephone Number
___________________________________ ________________________________________
Fax Number (if available) Fax Number (if available)
___________________________________ ________________________________________
E-Mail (if available) E-Mail (if available)
___________________________________ ________________________________________
(Signature) (Signature of Additional Purchaser)
ACCEPTED this ___ day of _________ 2004, on behalf of the Company.
By: ___________________________________
Name:
Title:
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EXECUTION BY SUBSCRIBER WHICH IS AN ENTITY
(Corporation, Partnership, Trust, Etc.)
________________________________________________________________________________
Name of Entity (Please Print)
Date of Incorporation or Organization:__________________________________________
State of Principal Office:______________________________________________________
Federal Taxpayer Identification Number:_________________________________________
____________________________________________
Office Address
____________________________________________
City, State and Zip Code
____________________________________________
Telephone Number
____________________________________________
Fax Number (if available)
____________________________________________
E-Mail (if available)
By:________________________________
Name:
Title:
[seal] ___________________________________
Attest:________________________________
(If Entity is a Corporation)
___________________________________
Address
ACCEPTED this ____ day of __________ 2004, on behalf of the Company.
By: _______________________________
Name:
Title:
12
INVESTOR QUESTIONNAIRE
Instructions: Check all boxes below which correctly describe you.
|_| You are (I) a bank, as defined in Section 3(a)(2) of the Securities
Act of 1933, as amended (the "SECURITIES ACT"), (II) a savings and
loan association or other institution, as defined in Section
3(a)(5)(A) of the Securities Act, whether acting in an individual or
fiduciary capacity, (III) a broker or dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), (IV) an insurance company as defined in Section 2(13)
of the Securities Act, (V) an investment company registered under the
Investment Company Act of 1940, as amended (the "INVESTMENT COMPANY
ACT"), (VI) a business development company as defined in Section
2(a)(48) of the Investment Company Act, (VII) a Small Business
Investment Company licensed by the U.S. Small Business Administration
under Section 301 (c) or (d) of the Small Business Investment Act of
1958, as amended, (VIII) a plan established and maintained by a state,
its political subdivisions, or an agency or instrumentality of a state
or its political subdivisions, for the benefit of its employees and
you have total assets in excess of $5,000,000, or (IX) an employee
benefit plan within the meaning of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") and (1) the decision that
you shall subscribe for and purchase units consisting of one (1) share
of Series A Convertible Preferred Stock and a three-year detachable
warrant to purchase shares of common stock (the "Units"), is made by a
plan fiduciary, as defined in Section 3(21) of ERISA, which is either
a bank, savings and loan association, insurance company, or registered
investment adviser, (2) you have total assets in excess of $5,000,000
and the decision that you shall subscribe for and purchase the Units
is made solely by persons or entities that are accredited investors,
as defined in Rule 501 of Regulation D promulgated under the
Securities Act ("REGULATION D") or (3) you are a self-directed plan
and the decision that you shall subscribe for and purchase the Units
is made solely by persons or entities that are accredited investors.
|_| You are a private business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940, as amended.
|_| You are an organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended (the "CODE"), a corporation,
Massachusetts or similar business trust or a partnership, in each case
not formed for the specific purpose of making an investment in the
Units and with total assets in excess of $5,000,000.
|_| You are a director or executive officer of CepTor Corporation.
|_| You are a natural person whose individual net worth, or joint net
worth with your spouse, exceeds $1,000,000 at the time of your
subscription for and purchase of the Units.
|_| You are a natural person who had an individual income in excess of
$200,000 in each of the two most recent years or joint income with
1
your spouse in excess of $300,000 in each of the two most recent
years, and who has a reasonable expectation of reaching the same
income level in the current year.
|_| You are a trust, with total assets in excess of $5,000,000, not formed
for the specific purpose of acquiring the Units, whose subscription
for and purchase of the Units is directed by a sophisticated person as
described in Rule 506(b)(2)(ii) of Regulation D.
|_| You are an entity in which all of the equity owners are persons or
entities described in one of the preceding paragraphs.
The undersigned hereby represents and warrants that all of its answers to
this Investor Questionnaire are true as of the date of its execution of the
Subscription Agreement pursuant to which it purchased Units, each Unit
consisting of (i) one (1) share of Series A Convertible Preferred Stock, and
(ii) a three-year detachable warrant to purchase shares of the common stock, of
Pubco, which will acquire by merger the business of CepTor Corporation.
_________________________________ ____________________________________
Name of Purchaser [please print] Name of Co-Purchaser [please print]
_________________________________ ____________________________________
Signature of Purchaser (Entities please Signature of Co-Purchaser
provide signature of Purchaser's duly
authorized signatory.)
_________________________________
Name of Signatory (Entities only)
_________________________________
Title of Signatory (Entities only)
2
PRIVACY POLICY
It is the policy of Brookshire Securities Corporation (BSC) to respect the
privacy of customers who subscribe to transactions underwritten by BSC.
Whether its own brokers introduce Customers to BSC or the introduction was made
through Selling Agents, (hereinafter referred to as "Subscribers") nonpublic
personal information is protected by BSC.
BSC does not disclose any nonpublic personal information about Subscribers to
anyone, except as required or permitted by law and to effect, administer, or
enforce transactions requested by Subscribers in the ordinary processing,
servicing or maintaining their accounts. Furthermore, BSC does not reserve the
right to disclose Subscriber's nonpublic personal information in the future
without first notifying the Subscriber of a change in privacy policy and
providing a convenient opportunity for Subscriber to opt out of information
sharing with nonaffiliated third parties.
Under the USA PATRIOT Act of 2001 (Public Law 107-56)(together with all rules
and regulations promulgated hereunder, the "Patriot Act"), BSC and/or your
broker may be required or requested to disclose to one or more regulatory and/or
law enforcement bodies certain information regarding transactions relating to
your account involving transactions with foreign entitles and individuals, other
transactions in your account as required in the Patriot Act and other activities
described in the Patriot Act as "suspicious activities". Neither BSC nor your
broker shall have any oblige tion to advise you of any such disclosures or
reports made in compliance with the Patriot Act.
