EXHIBIT 10.64
TECHNICLONE CORPORATION
REGULATION D SUBSCRIPTION AGREEMENT
THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED WITH THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE OR OTHER SECURITIES
AUTHORITIES. THEY MAY NOT BE SOLD OR TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT OR AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE FEDERAL AND STATE SECURITIES LAWS.
THIS SUBSCRIPTION AGREEMENT DOES NOT CONSTITUTE AN OFFER TO SELL, OR A
SOLICITATION OF AN OFFER TO PURCHASE, ANY OF THE SECURITIES DESCRIBED
HEREIN BY OR TO ANY PERSON IN ANY JURISDICTION IN WHICH SUCH OFFER OR
SOLICITATION WOULD BE UNLAWFUL. THESE SECURITIES HAVE NOT BEEN
RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES AUTHORITIES, NOR HAVE
SUCH AUTHORITIES CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF
THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
AN INVESTMENT IN THESE SECURITIES INVOLVES A HIGH DEGREE OF RISK.
SUBSCRIBERS MUST RELY ON THEIR OWN ANALYSIS OF THE INVESTMENT AND
ASSESSMENT OF THE RISKS INVOLVED. SEE THE RISK FACTORS SET FORTH IN THE
ATTACHED DISCLOSURE DOCUMENTS AS EXHIBIT E.
SEE ADDITIONAL LEGENDS AT SECTIONS 3.7.
THIS REGULATION D SUBSCRIPTION AGREEMENT (this "Agreement") is made as
of the 6th day of January, 2000, by and between Techniclone Corporation, a
corporation duly incorporated and existing under the laws of the State of
Delaware (the "Company"), and the undersigned subscriber executing this
Agreement ("Subscriber").
THE PARTIES HEREBY AGREE AS FOLLOWS:
This Agreement is executed by Subscriber in connection with the offer
(the "Offering") by the Company and the purchase by Subscriber of "Units," where
each "Unit" consists of one share of the Company's Common Stock (collectively
referred to as the "Unit Shares") and a warrant ("Warrants") to purchase Common
Stock upon the terms set forth herein and in the Warrants. The Units are being
offered at a purchase price per share that is equal to $0.25, with an initial
offering amount of up to $600,000. The solicitation of this subscription and, if
accepted by the Company, the offer and sale of the Units are being made in
reliance upon the provisions of Regulation D ("Regulation D") promulgated under
the Securities Act of 1933, as amended (the "Act"). The Unit Shares and the
Warrants, and the Common Stock issuable upon exercise of the Warrants (the
"Warrant Shares") are sometimes referred to herein singularly as "Security" and
collectively as the "Securities."
Subscribers shall have an option (the "Option") to purchase, within
sixty (60) days from the Closing Date (defined in Section 4.12) of the Offering
(the "Option Exercise Date"), up to an additional $300,000 of Units (the
"Optional Tranche") with the amount to be divided equally between Subscribers
under the same terms (including but not limited to the same Unit Price and the
same Warrant Exercise Price) as this Offering. The Option may be exercised by
each Subscriber by paying to the Company the purchase price for such additional
Units on or before the Option Exercise Date. Concurrently with the Closing of
the Option, the Company and the Subscriber shall enter into an agreement
equivalent to this Agreement with respect to the Optional Tranche.
It is agreed as follows:
1. OFFERING
1.1 OFFER TO SUBSCRIBE; PURCHASE PRICE AND CLOSING.
Subject to satisfaction of the conditions to closing set forth in Section 1.2
below, Subscriber hereby agrees to subscribe for and purchase Units in the
Offering for the aggregate purchase price in the amount set forth in Section 10
of this Agreement in accordance with the terms and conditions of this Agreement.
The closing of a sale and purchase of Units as to each Subscriber (the
"Closing") shall be deemed to occur when this Agreement has been executed by
both Subscriber and the Company, full payment for the Units subscribed for shall
have been made by Subscriber, and the conditions to Subscriber's obligations set
forth in Section 1.2 have been satisfied. The date of any Closing of Units shall
be considered the "Closing Date" for such Units.
1.2 CONDITIONS TO SUBSCRIBER'S OBLIGATIONS. Subscriber's obligations
hereunder are conditioned upon all of the following:
(a) the following documents shall have been received by the
Subscriber: (i) the Registration Rights Agreement, in the form
attached hereto as EXHIBIT A (the "Registration Rights
Agreement") (executed by the Company), (ii) certificates
representing the Unit Shares and Warrants for which the
Subscriber has subscribed issued in the name of the
Subscriber; and (iii) a secretary's certificate, as to (A) the
resolutions of the Company's board of directors authorizing
this transaction, (B) the Company's Articles of Incorporation,
and (C) the Company's Bylaws;
(b) the Company's Common Stock shall be listed for and actively
trading on the Nasdaq Small Cap or the O.T.C. Bulletin Board;
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(c) other than as described in the Disclosure Documents (as
described in Section 2.2.4), as of the Closing there have been
no material adverse changes in the Company's business,
prospects or financial condition since the date of the last
balance sheet included in the Disclosure Documents (defined in
Section 2.2.4), including but not limited to incurring
material liabilities;
(d) the representations and warranties of the Company are true and
correct at the Closing as if made on such date and the
conditions to Subscriber's obligations set forth in this
Section 1.2 are satisfied as of the Closing, and the Company
shall deliver a certificate, signed by an officer of the
Company, to such effect to the Subscriber;
(e) the Company shall have reserved for issuance a sufficient
number of shares of Common Stock to effect the issuance of the
Unit Shares and the issuance of the Common Stock upon exercise
of the Warrants, which number of shares shall initially be
equal to Seven Million Two Hundred Thousand (7,200,000)
shares.
1.3 TERMS OF THE UNITS. Each "Unit" shall consist of one share of
Common Stock, and a Warrant to purchase one share of Common Stock at an exercise
price equal to $0.25. The purchase price ("Unit Price") for each Unit purchased
in the Offering shall equal $0.25. The terms of the Warrants, including the
terms on which the Warrants may be exercised for Common Stock, are set forth in
the form of the Warrant attached hereto as EXHIBIT B.
1.4 [INTENTIONALLY LEFT BLANK]
1.5 [INTENTIONALLY LEFT BLANK]
1.6 AUTHORIZATION AND RESERVATION OF SHARES OF COMMON STOCK.
(a) AUTHORIZED AND RESERVED AMOUNT. The Company shall at all times
reserve and keep available out of its authorized but unissued
shares of Common Stock a sufficient number of shares of Common
Stock to provide for (i) the issuance of the Unit Shares in
the Offering, and (ii) the full exercise of all outstanding
Warrants.
(b) INTENTIONALLY LEFT BLANK.
1.7 CLOSING. The Closing of the Offering shall occur no later than
January 15, 2000.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SUBSCRIBER. Subscriber
hereby represents and warrants to and agrees with the Company as follows:
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2.1 ACCREDITED INVESTOR. Subscriber is an accredited investor, as
defined in Rule 501 of Regulation D, and has checked the applicable box set
forth in Section 10 of this Agreement.
2.2 INVESTMENT EXPERIENCE; ACCESS TO INFORMATION; INDEPENDENT
INVESTIGATION.
2.2.1 ACCESS TO INFORMATION. Subscriber or Subscriber's
professional advisor has been granted the opportunity to ask questions of and
receive answers from representatives of the Company, its officers, directors,
employees and agents and to obtain any additional information which Subscriber
or Subscriber's professional advisor deems necessary concerning the terms and
conditions of this Offering, the Company and its business and prospects.
2.2.2 RELIANCE ON OWN ADVISORS. Subscriber has relied completely
on the advice of, or has consulted with, Subscriber's own personal tax,
investment, legal or other advisors and has not relied on the Company or any of
its affiliates, officers, directors, attorneys, accountants or any affiliates of
any thereof and each other person, if any, who controls any of the foregoing,
within the meaning of Section 15 of the Act for any tax or legal advice (other
than reliance on information in the Disclosure Documents as defined in Section
2.2.4).
2.2.3 CAPABILITY TO EVALUATE. Subscriber has such knowledge and
experience in financial and business matters so as to enable such Subscriber to
utilize the information made available to it in connection with the Offering in
order to evaluate the merits and risks of the prospective investment, which are
substantial, including without limitation those set forth in the Disclosure
Documents (as defined in Section 2.2.4 below).
2.2.4 DISCLOSURE DOCUMENTS. Subscriber, in making Subscriber's
investment decision to subscribe for the Securities hereunder, represents that
(a) Subscriber has received and had an opportunity to review (i) the Company's
Annual Report on Form 10-K for the year ended April 30, 1999 (ii) the Company's
quarterly reports on Form 10-Q for the quarters ended July 31, 1999 and October
31, 1999, (iii) the Risk Factors, attached as EXHIBIT E, (iv) the Capitalization
Schedule, attached as EXHIBIT F (the "Capitalization Schedule"), and (v) the Use
of Proceeds Schedule, attached as EXHIBIT G (the "Use of Proceeds Schedule"),
(b) Subscriber has read, reviewed, and relied solely on the documents described
in (a) above, the Company's representations and warranties and other information
in this Agreement, including the exhibits, any other written information
prepared by the Company which has been specifically provided to Subscriber in
connection with this Offering and is designated in writing by the Company as a
Disclosure Document (the documents described in Section 2.2.4 (a) and (b) are
collectively referred to as the "Disclosure Documents"), and an independent
investigation made by Subscriber and Subscriber's representatives, if any; (c)
Subscriber has, prior to the date of this Agreement, been given an opportunity
to review material contracts and documents of the Company which have been filed
as exhibits to the Company's filings under the Act and the Securities Exchange
Act of 1934, as amended (the "Exchange Act") and has had an opportunity to ask
questions of and receive answers from the Company's officers and directors; and
(d) is not relying on any oral representation of the Company or any other
person, nor any written representation or assurance from the Company other than
those contained in the Disclosure Documents or incorporated herein or therein.
Subscriber acknowledges and agrees that the Company has no responsibility for,
does not ratify, and is under no responsibility whatsoever to comment upon or
correct any reports, analyses or other comments made about the Company by any
third parties, including, but not limited to, analysts' research reports or
comments (collectively, "Third Party Reports"), and Subscriber has not relied
upon any Third Party Reports, in making the decision to invest.
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2.2.5 INVESTMENT EXPERIENCE; FEND FOR SELF. Subscriber has
substantial experience in investing in securities and he, she or it has made
investments in securities other than those of the Company. Subscriber
acknowledges that Subscriber is able to fend for Subscriber's self in the
transaction contemplated by this Agreement, that Subscriber has the ability to
bear the economic risk of Subscriber's investment pursuant to this Agreement and
that Subscriber is an "Accredited Investor" by virtue of the fact that
Subscriber meets the investor qualification standards set forth in Section 2.1
above. Subscriber has not been organized for the purpose of investing in
securities of the Company, although such investment is consistent with
Subscriber's purposes.
2.3 EXEMPT OFFERING UNDER REGULATION D.
2.3.1 INVESTMENT; NO DISTRIBUTION. Subscriber is acquiring the
Securities to be issued and sold hereunder for his, her or its own account (or a
trust account if such Subscriber is a trustee) for investment and not as a
nominee and not with a present view to the distribution thereof. Subscriber is
aware that there are legal limits on Subscriber's ability to sell or dispose of
the Securities and, therefore, that Subscriber may be required to bear the
economic risk of the investment for an indefinite period of time and has
adequate means of providing for Subscriber's current needs and possible personal
contingencies. Subscriber's commitment to illiquid investments is reasonable in
relation to Subscriber's net worth. By making the representations in this
Section 2.3.1, the Subscriber does not agree to hold the Securities for any
minimum or other specific term and reserves the right to dispose of the
Securities at any time in accordance with or pursuant to a registration
statement or an exemption from registration under the Act, except as otherwise
limited or required by the terms hereof.
2.3.2 [Intentionally Left Blank]
2.3.3 RESTRICTED SECURITIES. Subscriber understands that the
Unit Shares and Warrants issued at Closing are, and the Warrant Shares will be,
characterized as "restricted securities" under the federal securities laws
inasmuch as they are being acquired from the Company in a transaction exempt
from the registration requirements of the federal securities laws and that under
such laws and applicable regulations such securities may not be transferred or
resold without registration under the Act or pursuant to an exemption therefrom.
In this connection, Subscriber represents that Subscriber is familiar with Rule
144 under the Act, as presently in effect, and understands the resale
limitations imposed thereby and by the Act.
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2.3.4 DISPOSITION. Without in any way limiting the
representations set forth above, Subscriber further agrees not to sell,
transfer, assign, pledge (except for any limited pledge in connection with a
margin account of Subscriber to the extent that such pledge does not require
registration under the Act or unless an exemption from such registration is
available and provided further that if such pledge is realized upon, any
transfer to the pledgee shall comply with the requirements set forth herein), or
otherwise dispose of all or any portion of the Securities unless and until:
(a) There is then in effect a registration statement under
the Act and any applicable state securities laws
covering such proposed disposition and such disposition
is made in accordance with such registration statement;
or
(b) (i) Subscriber shall have notified the Company of the
proposed disposition and shall have furnished the
Company with a detailed statement of the circumstances
surrounding the proposed disposition, and (ii) if
reasonably requested by the Company, Subscriber shall
have furnished the Company with an opinion of counsel,
reasonably satisfactory to the Company, that such
disposition will not require registration of the
Securities under the Act or state securities laws. It is
agreed that the Company will not require the Subscriber
to provide opinions of counsel for transactions made
pursuant to Rule 144 provided that Subscriber and
Subscriber's broker, if necessary, provide the Company
with the necessary representations for counsel to the
Company to issue an opinion with respect to such
transaction.
2.4 DUE AUTHORIZATION.
2.4.1 AUTHORITY. The person executing this Subscription
Agreement, if executing this Agreement in a representative or fiduciary
capacity, has full power and authority to execute and deliver this Agreement and
each other document included herein for which a signature is required in such
capacity and on behalf of the subscribing individual, partnership, trust,
estate, corporation or other entity for whom or which Subscriber is executing
this Agreement. Subscriber has reached the age of majority (if an individual)
according to the laws of the state in which he or she resides.
2.4.2 DUE AUTHORIZATION. If Subscriber is a corporation,
Subscriber is duly and validly organized, validly existing and in good corporate
standing as a corporation under the laws of the jurisdiction of its
incorporation with full power and authority to purchase the Securities to be
purchased by Subscriber and to execute and deliver this Agreement.
2.4.3 [Intentionally Left Blank]
2.4.4 REPRESENTATIVES. If Subscriber is purchasing in a
representative or fiduciary capacity, the representations and warranties shall
be deemed to have been made on behalf of the person or persons for whom
Subscriber is so purchasing.
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3. ACKNOWLEDGMENTS Subscriber is aware that:
3.1 RISKS OF INVESTMENT. Subscriber recognizes that an investment in
the Company involves substantial risks, including the potential loss of
Subscriber's entire investment herein. Subscriber recognizes that the Disclosure
Documents, this Agreement and the exhibits hereto do not purport to contain all
the information which would be contained in a registration statement under the
Act;
3.2 NO GOVERNMENT APPROVAL. No federal or state agency has passed
upon the Securities, recommended or endorsed the Offering, or made any finding
or determination as to the fairness of this transaction;
3.3 NO REGISTRATION. The Securities and any component thereof have
not been registered under the Act or any applicable state securities laws by
reason of exemptions from the registration requirements of the Act and such
laws, and may not be sold, pledged (except for any limited pledge in connection
with a margin account of Subscriber to the extent that such pledge does not
require registration under the Act or unless an exemption from such registration
is available and provided further that if such pledge is realized upon, any
transfer to the pledgee shall comply with the requirements set forth herein)
assigned or otherwise disposed of in the absence of an effective registration of
the Securities and any component thereof under the Act or unless an exemption
from such registration is available;
3.4 [INTENTIONALLY LEFT BLANK].
3.5 NO ASSURANCES OF REGISTRATION. There can be no assurance that
any registration statement will become effective at the scheduled time, or ever.
Subscriber acknowledges that it may be required to bear the economic risk of
Subscriber's investment for an indefinite period of time;
3.6 EXEMPT TRANSACTION. Subscriber understands that the Securities
are being offered and sold in reliance on specific exemptions from the
registration requirements of federal and state law and that the representations,
warranties, agreements, acknowledgments and understandings set forth herein are
being relied upon by the Company in determining the applicability of such
exemptions and the suitability of Subscriber to acquire such Securities;
3.7 LEGENDS. It is understood that the certificates evidencing the
Unit Shares, the Warrants, and the Warrant Shares, subject to legend removal
under the terms of Section 5.9 below, shall bear the following legend (the
"Legend"):
"The securities represented hereby have not been registered
under the Securities Act of 1933, as amended, or applicable
state securities laws, nor the securities laws of any other
jurisdiction. They may not be sold or transferred in the absence
of an effective registration statement under those securities
laws or an exemption therefrom."
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3.8 [INTENTIONALLY LEFT BLANK].
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY . The Company hereby
makes the following representations and warranties to Subscriber (which shall be
true at the signing of this Agreement and as of Closing) and agrees with
Subscriber that:
4.1 ORGANIZATION, GOOD STANDING, AND QUALIFICATION. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware, USA and has all requisite corporate power and
authority to carry on its business as now conducted and as proposed to be
conducted. The Company is duly qualified to transact business and is in good
standing in each jurisdiction in which the failure to so qualify would have a
material adverse effect on the business or properties of the Company and its
subsidiaries taken as a whole. The Company is not the subject of any pending,
threatened or, to its knowledge, contemplated investigation or administrative or
legal proceeding by the Internal Revenue Service, the taxing authorities of any
state or local jurisdiction, the Securities and Exchange Commission ("SEC"), The
National Association of Securities Dealers, Inc., The Nasdaq Stock Market, Inc.
or any state securities commission, or any other governmental entity, which have
not been disclosed in the Disclosure Documents. The Company does not have any
subsidiaries, other than Peregrine Pharmaceuticals, Inc.
4.2 CORPORATE CONDITION. The Company's condition is, in all material
respects, as described in the Disclosure Documents, except for changes in the
ordinary course of business and normal year-end adjustments that are not, in the
aggregate, materially adverse to the Company. There have been no material
adverse changes in the Company's business, prospects or financial condition
since January 6, 2000 including but not limited to incurring material
liabilities, of which any officer of the Company is aware of or should be aware
of after due inquiry. The financial statements contained in the Disclosure
Documents have been prepared in accordance with generally accepted accounting
principles, consistently applied (except as otherwise permitted by Regulation
S-X of the Exchange Act and except as otherwise disclosed in the footnotes to
the Company's financial statements), and fairly present the financial condition
of the Company as of the dates of the balance sheets included therein and the
consolidated results of its operations and cash flows for the periods then
ended. Without limiting the foregoing, there are no material liabilities,
contingent or actual, that are not disclosed in the Disclosure Documents (other
than liabilities incurred by the Company in the ordinary course of its business,
consistent with its past practice, after the period covered by the Disclosure
Documents). The Company has paid all material taxes which are due, except for
taxes which it reasonably disputes. There is no material claim, litigation, or
administrative proceeding pending, or, to the best of the Company's knowledge,
threatened against the Company or its officers and directors in their capacity
as such, except as disclosed in the Disclosure Documents. The Disclosure
Documents do not contain any untrue statement of a material fact and do not omit
to state any material fact required to be stated therein necessary to make the
statements contained therein not misleading in the light of the circumstances
under which they were made. No event or circumstance exists relating to the
Company which under applicable law, would require disclosure in a registration
statement for the primary issuance by the Company of its Common Stock but which
has not been so publicly announced or disclosed.
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4.3 AUTHORIZATION. All corporate action on the part of the Company
by its officers, directors and shareholders necessary for the authorization,
execution and delivery of this Agreement, the performance of all obligations of
the Company hereunder and the authorization, issuance and delivery of the Unit
Shares and Warrants being sold hereunder and the issuance (and the reservation
for issuance) of the Warrant Shares have been taken, and this Agreement, the
Irrevocable Instructions to Transfer Agent, and the Registration Rights
Agreement and the Warrants constitute valid and legally binding obligations of
the Company, enforceable in accordance with their terms, except insofar as the
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, or other similar laws affecting creditors' rights generally or
by principles governing the availability of equitable remedies. The Company has
obtained all consents and approvals required for it to execute, deliver and
perform each agreement referenced in the previous sentence.
4.4 VALID ISSUANCE OF SECURITIES. The Unit Shares and the Warrants,
when issued, sold and delivered in accordance with the terms hereof, for the
consideration expressed herein, will be validly issued, fully paid and
nonassessable and, based in part upon the representations of Subscriber in this
Agreement, will be issued in compliance with all applicable U.S. federal and
state securities laws. The Warrant Shares, when issued in accordance with the
terms of the Warrants shall be duly and validly issued and outstanding, fully
paid and nonassessable, and based in part on the representations and warranties
of Subscriber in this Agreement and of the, will be issued in compliance with
all applicable U.S. federal and state securities laws. The Unit Shares and the
Warrants will be issued free of any preemptive rights. The Company currently has
Seven Million Two Hundred Thousand (7,200,000) shares of Common Stock reserved
for the Unit Shares and upon exercise of the Warrants.
4.5 COMPLIANCE WITH OTHER INSTRUMENTS. The Company is not in
violation or default of any provisions of its Articles of Incorporation or
Bylaws each as amended, and in effect on and as of the date of this Agreement or
of any provision of any instrument or contract to which it is a party or by
which it is bound or of any provision of any federal or state judgment, writ,
decree, order, statute, rule or governmental regulation applicable to the
Company, which would have a material adverse effect on the Company's business or
prospects, or on the performance of its obligations under this Agreement, the
Registration Rights Agreement, and the Irrevocable Instructions to Transfer
Agent, except as described in the Disclosure Documents. The execution, delivery
and performance of this Agreement and the other agreements entered into in
conjunction with the Offering and the consummation of the transactions
contemplated hereby and thereby will not (a) result in any such violation or be
in conflict with or constitute, with or without the passage of time and giving
of notice, either a default under any such provision, instrument or contract or
an event which results in the creation of any lien, charge or encumbrance upon
any assets of the Company, which would have a material adverse effect on the
Company's business or prospects, or on the performance of its obligations under
this Agreement, the Registration Rights Agreement and the Irrevocable
Instructions to Transfer Agent, except as described in the Disclosure Documents,
(b) violate the Company's Articles of Incorporation or By-Laws or (c) violate
any statute, rule or governmental regulation applicable to the Company which
violation would have a material adverse effect on the Company's business or
prospects.
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4.6 REPORTING COMPANY. The Company is subject to the reporting
requirements of the Exchange Act, has a class of securities registered under
Section 12 of the Exchange Act, and has filed all reports required by the
Exchange Act since the date the Company first became subject to such reporting
obligations. The Company is not in violation of the listing requirements of the
O.T.C. Bulletin Board.
4.7 CAPITALIZATION. The capitalization of the Company as of the
Closing Date is, and the pro forma capitalization as of such date, after taking
into account the offering of the Securities contemplated by this Agreement and
all other share issuances occurring prior to this Offering, will be, as set
forth in the Capitalization Schedule as set forth in EXHIBIT F. There are no
securities or instruments containing anti-dilution or similar provisions that
will be triggered by the issuance of the Securities.
As of January 6, 2000, the Company's authorized capital stock consisted
of 150,000,000 shares of Common Stock, of which 81,215,305 shares are issued and
outstanding and 23,504,743 (which includes Unit Shares and Warrants Underlying
the Offering) shares were reserved for future issuance and 5,000,000 shares of
preferred stock, of which 10,000 have been designated as Series B Preferred
Stock, none of which are outstanding, 17,200 of which have previously been
designated as Series C Preferred Stock, 50 of which are outstanding and the
remaining 4,972,800 shares are undesignated as to series.
4.8 INTELLECTUAL PROPERTY. The Company has valid, unrestricted and
exclusive ownership of or rights to use the patents, trademarks, trademark
registrations, trade names, copyrights, know-how, technology and other
intellectual property necessary to the conduct of its business. Section A of
EXHIBIT H lists all patents, trademarks, trademark registrations, trade names
and copyrights of the Company. The Company has granted such licenses or has
assigned or otherwise transferred a portion of (or all of) such valid,
unrestricted and exclusive patents, trademarks, trademark registrations, trade
names, copyrights, know-how, technology and other intellectual property
necessary to the conduct of its business as set forth on Section B of EXHIBIT H.
The Company has been granted licenses, know-how, technology and/or other
intellectual property necessary to the conduct of its business as set forth on
Section C EXHIBIT H. To the best of the Company's knowledge after due inquiry,
the Company is not infringing on the intellectual property rights of any third
party, nor is any third party infringing on the Company's intellectual property
rights. There are no restrictions in any agreements, licenses, franchises, or
other instruments which preclude the Company from engaging in its business as
presently conducted.
4.9 USE OF PROCEEDS. As of the date hereof, the Company expects to
use the net proceeds from this Offering (less fees and expenses) for the
purposes and in the approximate amounts set forth on the Use of Proceeds
Schedule set forth as EXHIBIT G hereto. These purposes and amounts are estimates
and are subject to change without notice to any Subscriber.
4.10 NO RIGHTS OF PARTICIPATION. No person or entity, including, but
not limited to, current or former shareholders of the Company, underwriters,
brokers, agents or other third parties, has any right of first refusal,
preemptive right, right of participation, or any similar right to participate in
the financing contemplated by this Agreement which has not been waived.
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4.11 COMPANY ACKNOWLEDGMENT. The Company hereby acknowledges that
Subscriber may elect to hold the Securities for an indefinite period of time, as
permitted by the terms of this Agreement and other agreements contemplated
hereby, and the Company further acknowledges that Subscriber has made no
representations or warranties, either written or oral, as to how long the
Securities will be held by Subscriber or regarding Subscriber's trading history
or investment strategies.
4.12 TERMINATION DATE OF OFFERING. While there may be more than one
Closing of the purchase and sale of the Units for the Offering, last such
Closing must occur not later than January 15, 2000. The date of such last
Closing shall be referred to as the "Closing Date".
4.13 UNDERWRITER'S FEES AND RIGHTS OF FIRST REFUSAL. The Company is
not obligated to pay any compensation or other fees, costs or related
expenditures in cash or securities to any underwriter, broker, agent or other
representative in connection with this Offering.
4.14 AVAILABILITY OF FORM S-3. The Company is currently eligible and
agrees to maintain its eligibility to register the resale of its Common Stock on
a registration statement on Form S-3 under the Act.
4.15 NO INTEGRATED OFFERING. Neither the Company, nor any of its
affiliates, nor any person acting on its or their behalf, has directly or
indirectly made any offers or sales of any of the Company's securities or
solicited any offers to buy any security under circumstances that would prevent
the parties hereto from consummating the transactions contemplated hereby
pursuant to an exemption from registration under the Act pursuant to the
provisions of Regulation D or would require the issuance of any other securities
to be integrated with this Offering under the Rules of Nasdaq. The Company has
not engaged in any form of general solicitation or advertising in connection
with the offering of the Units.
4.16 INTENTIONALLY LEFT BLANK.
4.17 FOREIGN CORRUPT PRACTICES. Neither the Company, nor any
director, officer, agent, employee or other person acting on behalf of the
Company or any subsidiary has, in the course of its actions for, or on behalf
of, the Company, used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expenses relating to political activity; made
any direct or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; violated or is in violation of any
provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended; or made
any unlawful bribe, rebate, payoff, influence payment, kickback or other
unlawful payment to any foreign or domestic government official or employee.
4.18 KEY EMPLOYEES. Each Key Employee (as defined below) is
currently serving the Company in the capacity disclosed in EXHIBIT I. No Key
Employee, to the best knowledge of the Company, is, or is now expected to be, in
violation of any material term of any employment contract, confidentiality,
disclosure or proprietary information agreement, non-competition agreement, or
any other contract or agreement or any restrictive covenant, and the continued
employment of each Key Employee does not subject the Company or any of its
subsidiaries to any liability with respect to any of the foregoing matters. No
Key Employee has, to the best knowledge of the Company, any intention to
terminate his employment with, or services to, the Company. "Key Employee" means
each of John Bonfiglio, Ph.D. and Terrence Chew, M.D.
11
4.19 TAX STATUS. The Company has made or filed all federal and state
income and all other tax returns, reports and declarations required by any
jurisdiction to which it is subject (unless and only to the extent that the
Company has set aside on its books provisions reasonably adequate for the
payment of all unpaid and unreported taxes) and has paid all taxes and other
governmental assessments and charges that are material in amount, shown or
determined to be due on such returns, reports and declarations, except those
being contested in good faith and as set aside on its books provision reasonably
adequate for the payment of all taxes for periods subsequent to the periods to
which such returns, reports or declarations apply. There are no unpaid taxes in
any material amount claimed to be due by the taxing authority of any
jurisdiction, and the officers of the Company know of no basis for any such
claim.
4.20 TRANSACTIONS WITH AFFILIATES. Except as set forth in the
Disclosure Documents, none of the officers, directors, or employees of the
Company is presently a party to any transaction with the Company (other than for
services as employees, officers and directors), including any contract,
agreement or other arrangement providing for the furnishing of services to or
by, providing for rental of real or personal property to or from, or otherwise
requiring payments to or from any officer, director or such employee or, to the
knowledge of the Company, any corporation, partnership, trust or other entity in
which any officer, director, or any such employee has a substantial interest or
is an officer, director, trustee or partner.
4.21 [INTENTIONALLY LEFT BLANK].
4.22 OTHER AGREEMENTS. The Company has not, directly or indirectly,
made any agreements with the Subscriber, or any other subscriber under a
subscription in the form of this Agreement for the purchase of Units, relating
to the terms or conditions of the transactions contemplated hereby or thereby
except as expressly set forth herein or therein, respectively, or in exhibits
hereto or thereto.
5. COVENANTS OF THE COMPANY
5.1 INDEPENDENT AUDITORS. The Company shall, until at least three
(3) years after the Closing Date, maintain as its independent auditors an
accounting firm authorized to practice before the SEC.
5.2 CORPORATE EXISTENCE AND TAXES. The Company shall, until at least
the later of (i) the date that is three (3) years after the Closing Date or (ii)
the exercise of all Warrants issued pursuant to this Agreement, maintain its
corporate existence in good standing and remain a "Reporting Issuer" (defined as
a Company which files periodic reports under the Exchange Act) (provided,
however, that the foregoing covenant shall not prevent the Company from entering
into any merger or corporate reorganization as long as the surviving entity in
such transaction, if not the Company, assumes the Company's obligations with
respect to the Warrants and has Common Stock listed for trading on a stock
exchange or on Nasdaq and is a Reporting Issuer) and shall pay all its taxes
when due except for taxes which the Company disputes.
12
5.3 REGISTRATION RIGHTS. The Company will enter into a registration
rights agreement covering the resale of the Unit Shares and the Warrant Shares
in the form of the Registration Rights Agreement attached as EXHIBIT A.
5.4 [INTENTIONALLY LEFT BLANK].
5.5 ASSET TRANSFERS. The Company shall not transfer, sell, convey or
otherwise dispose of any of its material assets to any Subsidiary or affiliate
except for a cash or cash equivalent consideration and for a proper business
purpose, prior to six (6) months from the date of this Agreement without the
consent of the Subscriber.
5.6 RIGHTS OF FIRST REFUSAL.
5.6.1 INTENTIONALLY LEFT BLANK.
5.6.2 RIGHT OF FIRST OFFER. The Company agrees that, during the
period beginning on the date hereof and terminating one year following the
Closing Date, the Company will not, without the prior written consent of each
Subscriber issue or sell, or agree to issue or sell any equity or debt
securities of the Company (or any security convertible into or exercisable or
exchangeable, directly or indirectly, for equity or debt securities of the
Company) ("Future Offerings") unless the Company shall have first delivered to
each Subscriber at least ten (10) business days prior to the closing of such
Future Offering, written notice describing the proposed Future Offering,
including the terms and conditions thereof, and providing each Subscriber and
its affiliates an option for such ten (10) business day period following
delivery of such notice to purchase up to the amount of the securities, as
designated in Section 5.6.3 below, being offered in the Future Offering on the
same terms as contemplated by such Future Offering (the limitations referred to
in this sentence are collectively referred to as the "Capital Raising
Limitations").
5.6.3 AMOUNT OF SUBSCRIBER'S RIGHT OF FIRST REFUSAL. The amount
of securities which a Subscriber is entitled to purchase in such a Future
Offering shall be a number obtained by multiplying the aggregate amount of
securities being offered in the Future Offering by a fraction, the numerator of
which is the purchase price of the Units purchased by the Subscriber pursuant to
this Agreement and the denominator of which is the aggregate dollar amount of
Units placed in this Offering.
5.7 FINANCIAL 10-K STATEMENTS, ETC. AND CURRENT REPORTS ON FORM 8-K.
The Company shall make available, upon request, to the Subscribers copies of its
annual reports on Form 10-K, and quarterly reports on Form 10-Q and shall
deliver to the Subscriber current reports on form 8-K within two (2) days of
filing for as long as the Preferred Stock may remain outstanding. The Company
shall file a current report on form 8-K, if required pursuant to Section 13 or
15(d) of The Securities Act of 1934, disclosing the terms of this Offering and
the Securities within five (5) business days of the date of Closing.
5.8 [INTENTIONALLY LEFT BLANK].
13
5.9 REMOVAL OF LEGEND UPON EXERCISE. Unit Shares and Warrant Shares
shall be issued to transferees thereof without restrictive legend upon the terms
set forth in the Irrevocable Instructions to Transfer Agent. The Company will,
or will instruct the Transfer Agent to, remove the restrictive legend from Unit
Shares and Warrant Shares provided that the applicable shares are eligible for
resale pursuant to Rule 144(k) and the Holder thereof makes the representations
necessary for counsel to the Company to issue a legal opinion to that effect.
5.10 LISTING. The Company shall use its best efforts to (i) continue
the listing and trading of its Common Stock on the O.T.C. Bulletin Board, the
Nasdaq Small Cap Market ("Nasdaq"), or on the Nasdaq National Market System
("NMS"), the New York Stock Exchange ("NYSE"), or the American Stock Exchange
("AMEX"); and (ii) comply in all material respects with the Company's reporting,
filing and other obligations under the by-laws or rules of the National
Association of Securities Dealers ("NASD") and such exchanges, as applicable.
5.11 THE COMPANY'S INSTRUCTIONS TO TRANSFER AGENT. The Company shall
use its best efforts to, within ten (10) business days of the Closing Date,
enter into an agreement with the Company's transfer agent (the "Transfer Agent")
substantially in the form attached hereto as EXHIBIT D (the "Irrevocable
Instructions to Transfer Agent"), with such modifications as are necessary to
reflect the terms of this Offering. The Company will issue to its Transfer Agent
the Irrevocable Instructions to Transfer Agent in the form of EXHIBIT D
instructing the Transfer Agent to issue certificates, registered in the name of
each Subscriber or its nominee, for the Warrant Shares in such amounts as
specified from time to time by such Subscriber to the Company upon the exercise
of the Warrants. The Company warrants that no instruction, other than such
instructions referred to in Section 5.9 hereof will be given by the Company to
its Transfer Agent with respect to the Units, or the Warrant Shares. Nothing in
this Section shall affect in any way each Subscriber's obligations and agreement
set forth in Sections 2.3.3 or 2.3.4 hereof to resell the Securities pursuant to
an effective registration statement and to deliver a prospectus in connection
with such sale or in compliance with an exemption from the registration
requirements of applicable securities laws. The Company hereby agrees that it
will not unilaterally terminate its relationship with the Transfer Agent for any
reason prior to the date which is two (2) years and one month after the Closing
Date or one (1) month after the Nine Month Anniversary Date, whichever is
earlier (the "Ending Date") without the consent of the Subscriber. In the event
the Company's agency relationship with the Transfer Agent should be terminated
for any other reason prior to the date which is three (3) years after the
Closing Date, the Company's Transfer Agent shall continue acting as transfer
agent pursuant to the terms of the Irrevocable Instructions to Transfer Agent
until such time that a successor transfer agent (i) is appointed by the Company;
(ii) is approved by the Subscriber; and (iii) executes and agrees to be bound by
the terms of the Irrevocable Instructions to Transfer Agent.
6. SUBSCRIBER COVENANT/MISCELLANEOUS
6.1 REPRESENTATIONS AND WARRANTIES SURVIVE THE CLOSING;
SEVERABILITY. The Subscriber's and the Company's representations and warranties
shall survive the Closing of the transactions contemplated by this Agreement
notwithstanding any due diligence investigation made by or on behalf of the
party seeking to rely thereon. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision.
14
6.2 SUCCESSORS AND ASSIGNS. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement. Subscriber may assign Subscriber's rights hereunder, in
connection with any private sale of the Warrants of such Subscriber, so long as,
as a condition precedent to such transfer, the transferee executes an
acknowledgment agreeing to be bound by the applicable provisions of this
Agreement in a form acceptable to the Company and provides an original copy of
such acknowledgment to the Company.
6.3 GOVERNING LAW; JURISDICTION; ARBITRATION. Any controversy or
claim arising out of or related to this Agreement or the breach thereof, shall
be settled by binding arbitration in Wilmington, Delaware in accordance with the
Expedited Procedures (Rules 53-57) of the Commercial Arbitration Rules of the
American Arbitration Association ("AAA"). A proceeding shall be commenced upon
written demand by Company or any Subscriber to the other. The arbitrator(s)
shall enter a judgment by default against any party which fails or refuses to
appear in any properly noticed arbitration proceeding. The proceeding shall be
conducted by one (1) arbitrator, unless the amount alleged to be in dispute
exceeds two hundred fifty thousand dollars ($250,000), in which case three (3)
arbitrators shall preside. The arbitrator(s) will be chosen by the parties from
a list provided by the AAA, and if they are unable to agree within ten (10)
days, the AAA shall select the arbitrator(s). The arbitrators must be experts in
securities law and financial transactions. The arbitrators shall assess costs
and expenses of the arbitration, including all attorneys' and experts' fees, as
the arbitrators believe is appropriate in light of the merits of the parties'
respective positions in the issues in dispute. Each party submits irrevocably to
the jurisdiction of any state court sitting in Wilmington, Delaware or to the
United States District Court sitting in Delaware for purposes of enforcement of
any discovery order, judgment or award in connection with such arbitration. The
award of the arbitrator(s) shall be final and binding upon the parties and may
be enforced in any court having jurisdiction. The arbitration shall be held in
such place as set by the arbitrator(s) in accordance with Rule 55.
6.4 EXECUTION IN COUNTERPARTS PERMITTED. This Agreement may be
executed in any number of counterparts, each of which shall be enforceable
against the parties actually executing such counterparts, and all of which
together shall constitute one (1) instrument.
6.5 TITLES AND SUBTITLES; GENDER. 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. The use in this Agreement of a
masculine, feminine or neither pronoun shall be deemed to include a reference to
the others.
6.6 WRITTEN NOTICES, ETC. Any notice, demand or request required or
permitted to be given by the Company or Subscriber pursuant to the terms of this
Agreement shall be in writing and shall be deemed given when delivered
personally, or by facsimile or upon receipt if by overnight or two (2) day
courier, addressed to the parties at the addresses and/or facsimile telephone
number of the parties set forth at the end of this Agreement or such other
address as a party may request by notifying the other in writing.
15
6.7 EXPENSES. Except as set forth in Section 8 hereof and Section 9
of the Registration Rights Agreement, each of the Company and Subscriber shall
pay all costs and expenses that it respectively incurs, with respect to the
negotiation, execution, delivery and performance of this Agreement.
6.8 ENTIRE AGREEMENT; WRITTEN AMENDMENTS REQUIRED. This Agreement,
including the Exhibits attached hereto, the Warrants, the Registration Rights
Agreement, the Escrow Agreement, the Irrevocable Instructions to Transfer Agent
and the other documents delivered pursuant hereto constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof, and no party shall be liable or bound to any other party in
any manner by any warranties, representations or covenants except as
specifically set forth herein or therein. Except as expressly provided herein,
neither this Agreement nor any term hereof may be amended, waived, discharged or
terminated other than by a written instrument signed by the party against whom
enforcement of any such amendment, waiver, discharge or termination is sought.
6.9 [Intentionally Left Blank]
6.10 [Intentionally Left Blank]
7. [INTENTIONALLY LEFT BLANK].
8. INDEMNIFICATION.
In consideration of each Buyer's execution and delivery of the
Subscription Agreement, Registration Rights Agreement, Irrevocable Instructions
to Transfer Agent (the "Transaction Documents") and acquiring the Securities
thereunder and in addition to all of the Company's other obligations under the
Transaction Documents, the company shall defend, protect, indemnify and hold
harmless Subscriber and all of its stockholders, officers, directors, employees
and direct or indirect investors and any of the foregoing person's agents,
members, partners or other representatives (including, without limitation, those
retained in connection with the transactions contemplated by this Agreement)
(collectively, the "Indemnitees") from and against any and all actions, causes
of action, suits, claims, losses, costs, penalties, fees, liabilities and
damages, and expenses in connection therewith (irrespective of whether any such
Indemnitee is a party to the action for which indemnification hereunder is
sought), and including reasonable attorney's fees and disbursements (the
"Indemnified Liabilities"), incurred by any Indemnitee as a result of, or
arising out of, or relating to (a) any misrepresentation or breach of any
representation or warranty made by the Company in the Transaction Documents or
any other certificate, instrument or documents contemplated hereby or thereby,
or (b) any breach of any covenant, agreement or obligation of the Company
contained in the Transaction Documents or any other certificate, instrument or
document contemplated hereby or thereby.
To the extent that the foregoing undertaking by the Company may be
unenforceable for any reason, the Company shall make the maximum contribution to
the payment and satisfaction of each of the Indemnified Liabilities which it
would be required to make if such foregoing undertaking was enforceable which is
permissible under applicable law.
16
Promptly after receipt by an Indemnified Party of notice of the
commencement of any action pursuant to which indemnification may be sought, such
Indemnified Party will, if a claim in respect thereof is to be made against the
other party (hereinafter "Indemnitor") under this Section 8, deliver to the
Indemnitor a written notice of the commencement thereof and the Indemnitor shall
have the right to participate in and to assume the defense thereof with counsel
reasonably selected by the Indemnitor, provided, however, that an Indemnified
Party shall have the right to retain its own counsel, with the reasonably
incurred fees and expenses of such counsel to be paid by the Indemnitor, if
representation of such Indemnified Party by the counsel retained by the
Indemnitor would be inappropriate due to actual or potential conflicts of
interest between such Indemnified Party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
Indemnitor within a reasonable time of the commencement of any such action, if
prejudicial to the Indemnitor's ability to defend such action, shall relieve the
Indemnitor of any liability to the Indemnified Party under this Section 8, but
the omission to so deliver written notice to the Indemnitor will not relieve it
of any liability that it may have to any Indemnified Party other than under this
Section 8 to the extent it is prejudicial.
9. [INTENTIONALLY LEFT BLANK].
[INTENTIONALLY LEFT BLANK]
17
10. NUMBER OF SHARES AND PURCHASE PRICE. Subscriber subscribes for
_________ Units (at a price of $_______ per Unit) against payment by wire
transfer in the amount of $___________________.
11. ACCREDITED INVESTOR. Subscriber is an "accredited investor" because
(check all applicable boxes):
(a) [ ] it is an organization described in Section
501(c)(3) of the Internal Revenue Code, or a
corporation, limited duration company, limited
liability company, business trust, or partnership not
formed for the specific purpose of acquiring the
securities offered, with total assets in excess of
$5,000,000.
(b) [ ] any trust, with total assets in excess of
$5,000,000, not formed for the specific purpose of
acquiring the securities offered, whose purchase is
directed by a sophisticated person who has such
knowledge and experience in financial and business
matters that he is capable of evaluating the merits
and risks of the prospective investment.
(c) [ ] a natural person, who
[ ] is a director, executive officer or general
partner of the issuer of the securities being offered
or sold or a director, executive officer or general
partner of a general partner of that issuer.
[ ] has an individual net worth, or joint net worth
with that person's spouse, at the time of his
purchase exceeding $1,000,000.
[ ] had an individual income in excess of $200,000 in
each of the two most recent years or joint income
with that person's spouse in excess of $300,000 in
each of those years and has a reasonable expectation
of reaching the same income level in the current
year.
(d) [ ] an entity each equity owner of which is an entity
described in a - b above or is an individual who
could check one (1) of the last three (3) boxes under
subparagraph (c) above.
(e) [ ] other
[specify]____________________________________________
18
The undersigned acknowledges that this Agreement and the subscription
represented hereby shall not be effective unless accepted by the Company as
indicated below.
IN WITNESS WHEREOF, the undersigned Subscriber does represent and
certify under penalty of perjury that the foregoing statements are true and
correct and that Subscriber by the following signature(s) executed this
Agreement.
Dated this _____ day of January, 2000.
____________________________________ __________________________________
Your Signature PRINT EXACT NAME IN WHICH YOU WANT
THE SECURITIES TO BE REGISTERED
DELIVERY INSTRUCTIONS:
----------------------
____________________________________ Please type or print address where
Name: Please Print your security is to be delivered
____________________________________ ATTN.:____________________________
Title/Representative Capacity (if applicable)
____________________________________ __________________________________
Name of Company You Represent (if applicable) Street Address
____________________________________ __________________________________
Place of Execution of this Agreement City, State or Province, Country,
Offshore Postal Code
_________________________________________________
Phone Number (For Federal Express) and Fax Number (re: Notice)
WITH A COPY TO:
Please type or print address where copies are to be delivered
ATTN.:____________________________________________
__________________________________________________
Street Address
__________________________________________________
City, State or Province, Country, Offshore Postal Code
__________________________________________________
Phone Number (For Federal Express) and Fax Number (re: Notice)
THIS AGREEMENT IS ACCEPTED BY THE COMPANY IN THE AMOUNT OF $
_________________ ON THE ____ DAY OF JANUARY, 2000.
Techniclone Corporation
By:________________________________
Name:______________________________
Title:_______________________________
19
10. NUMBER OF SHARES AND PURCHASE PRICE. Subscriber subscribes for
800,000 Units (at a price of $0.25 per Unit) against payment by wire
transfer in the amount of $200,000.
11. ACCREDITED INVESTOR. Subscriber is an "accredited investor" because
(check all applicable boxes):
(a) [ ] it is an organization described in Section
501(c)(3) of the Internal Revenue Code, or a
corporation, limited duration company, limited
liability company, business trust, or partnership not
formed for the specific purpose of acquiring the
securities offered, with total assets in excess of
$5,000,000.
(b) [ ] any trust, with total assets in excess of
$5,000,000, not formed for the specific purpose of
acquiring the securities offered, whose purchase is
directed by a sophisticated person who has such
knowledge and experience in financial and business
matters that he is capable of evaluating the merits
and risks of the prospective investment.
(c) [ ] a natural person, who
[ ] is a director, executive officer or general
partner of the issuer of the securities being offered
or sold or a director, executive officer or general
partner of a general partner of that issuer.
[ ] has an individual net worth, or joint net worth
with that person's spouse, at the time of his
purchase exceeding $1,000,000.
[ ] had an individual income in excess of $200,000 in
each of the two most recent years or joint income
with that person's spouse in excess of $300,000 in
each of those years and has a reasonable expectation
of reaching the same income level in the current
year.
(d) [X] an entity each equity owner of which is an entity
described in a - b above or is an individual who
could check one (1) of the last three (3) boxes under
subparagraph (c) above.
(e) [ ] other
[specify]____________________________________________
18
The undersigned acknowledges that this Agreement and the subscription
represented hereby shall not be effective unless accepted by the Company as
indicated below.
IN WITNESS WHEREOF, the undersigned Subscriber does represent and
certify under penalty of perjury that the foregoing statements are true and
correct and that Subscriber by the following signature(s) executed this
Agreement.
Dated this 13th day of January, 2000.
/S/EDWARD J. LEGERE BIOTECHNOLOGY DEVELOPMENT, LTD.
- ------------------------------------ ---------------------------------
Your Signature PRINT EXACT NAME IN WHICH YOU WANT
THE SECURITIES TO BE REGISTERED
DELIVERY INSTRUCTIONS:
----------------------
BUEN HERMANOS, INC. Please type or print address where
- ------------------------------------ your security is to be delivered
Name: Please Print
GENERAL PARTNER ATTN.: EDWARD J. LEGERE
- ------------------------------------ -----------------------
Title/Representative Capacity
(if applicable)
BIOTECHNOLOGY DEVELOPMENT, LTD. 222 SOUTH RAINBOW, SUITE 218
- ------------------------------------ ------------------------------
Name of Company You Represent Street Address
(if applicable)
LAKE WORTH, FL LAS VEGAS, NV 89128
- ------------------------------------ ---------------------
Place of Execution of this Agreement City, State or Province, Country,
Offshore Postal Code
Phone Number (For Federal Express) and Fax Number (re: Notice)
WITH A COPY TO:
Please type or print address where copies are to be delivered
ATTN.:____________________________________________
- --------------------------------------------------
Street Address
- --------------------------------------------------
City, State or Province, Country, Offshore Postal Code
- --------------------------------------------------
Phone Number (For Federal Express) and Fax Number (re: Notice)
THIS AGREEMENT IS ACCEPTED BY THE COMPANY IN THE AMOUNT OF $200,000 ON
THE 13th DAY OF JANUARY, 2000.
Techniclone Corporation
By: /S/ JOHN N. BONFIGLIO
--------------------
Name: JOHN N. BONFIGLIO
Title: PRESIDENT
19
10. NUMBER OF SHARES AND PURCHASE PRICE. Subscriber subscribes for
400,000 Units (at a price of $0.25 per Unit) against payment by wire transfer in
the amount of $100,000.
11. ACCREDITED INVESTOR. Subscriber is an "accredited investor" because
(check all applicable boxes):
(a) [ ] it is an organization described in Section
501(c)(3) of the Internal Revenue Code, or a
corporation, limited duration company, limited
liability company, business trust, or partnership not
formed for the specific purpose of acquiring the
securities offered, with total assets in excess of
$5,000,000.
(b) [ ] any trust, with total assets in excess of
$5,000,000, not formed for the specific purpose of
acquiring the securities offered, whose purchase is
directed by a sophisticated person who has such
knowledge and experience in financial and business
matters that he is capable of evaluating the merits
and risks of the prospective investment.
(c) [ ] a natural person, who
[ ] is a director, executive officer or general
partner of the issuer of the securities being offered
or sold or a director, executive officer or general
partner of a general partner of that issuer.
[ ] has an individual net worth, or joint net worth
with that person's spouse, at the time of his
purchase exceeding $1,000,000.
[ ] had an individual income in excess of $200,000 in
each of the two most recent years or joint income
with that person's spouse in excess of $300,000 in
each of those years and has a reasonable expectation
of reaching the same income level in the current
year.
(d) [X] an entity each equity owner of which is an entity
described in a - b above or is an individual who
could check one (1) of the last three (3) boxes under
subparagraph (c) above.
(e) [ ] other
[specify]____________________________________________
18
The undersigned acknowledges that this Agreement and the subscription
represented hereby shall not be effective unless accepted by the Company as
indicated below.
IN WITNESS WHEREOF, the undersigned Subscriber does represent and
certify under penalty of perjury that the foregoing statements are true and
correct and that Subscriber by the following signature(s) executed this
Agreement.
Dated this 25th day of January, 2000.
/S/ EDWARD J. LEGERE BIOTECHNOLOGY DEVELOPMENT, LTD.
- ------------------------------------ ---------------------------------
Your Signature PRINT EXACT NAME IN WHICH YOU WANT
THE SECURITIES TO BE REGISTERED
DELIVERY INSTRUCTIONS:
----------------------
BUEN HERMANOS, INC. Please type or print address where
- ------------------------------------ your security is to be delivered
Name: Please Print
GENERAL PARTNER ATTN.: EDWARD J. LEGERE
- ------------------------------------ ------------------
Title/Representative Capacity
(if applicable)
BIOTECHNOLOGY DEVELOPMENT, LTD. 222 SOUTH RAINBOW, SUITE 218
- ------------------------------------ ------------------------------
Name of Company You Represent Street Address
(if applicable)
LAKE WORTH, FL LAS VEGAS, NV 89128
- ------------------------------------ ---------------------
Place of Execution of this Agreement City, State or Province, Country,
Offshore Postal Code
Phone Number (For Federal Express) and Fax Number (re: Notice)
WITH A COPY TO:
Please type or print address where copies are to be delivered
ATTN.:____________________________________________
- --------------------------------------------------
Street Address
- --------------------------------------------------
City, State or Province, Country, Offshore Postal Code
- --------------------------------------------------
Phone Number (For Federal Express) and Fax Number (re: Notice)
THIS AGREEMENT IS ACCEPTED BY THE COMPANY IN THE AMOUNT OF $100,000 ON
THE 25th DAY OF JANUARY, 2000.
Techniclone Corporation
By: /S/ JOHN N. BONFIGLIO
--------------------
Name: JOHN N. BONFIGLIO
Title: PRESIDENT
19
10. NUMBER OF SHARES AND PURCHASE PRICE. Subscriber subscribes for
400,000 Units (at a price of $0.25 per Unit) against payment by wire
transfer in the amount of $100,000.
11. ACCREDITED INVESTOR. Subscriber is an "accredited investor" because
(check all applicable boxes):
(a) [ ] it is an organization described in Section
501(c)(3) of the Internal Revenue Code, or a
corporation, limited duration company, limited
liability company, business trust, or partnership not
formed for the specific purpose of acquiring the
securities offered, with total assets in excess of
$5,000,000.
(b) [ ] any trust, with total assets in excess of
$5,000,000, not formed for the specific purpose of
acquiring the securities offered, whose purchase is
directed by a sophisticated person who has such
knowledge and experience in financial and business
matters that he is capable of evaluating the merits
and risks of the prospective investment.
(c) [ ] a natural person, who
[ ] is a director, executive officer or general
partner of the issuer of the securities being offered
or sold or a director, executive officer or general
partner of a general partner of that issuer.
[ ] has an individual net worth, or joint net worth
with that person's spouse, at the time of his
purchase exceeding $1,000,000.
[ ] had an individual income in excess of $200,000 in
each of the two most recent years or joint income
with that person's spouse in excess of $300,000 in
each of those years and has a reasonable expectation
of reaching the same income level in the current
year.
(d) [X] an entity each equity owner of which is an entity
described in a - b above or is an individual who
could check one (1) of the last three (3) boxes under
subparagraph (c) above.
(e) [ ] other
[specify]____________________________________________
18
The undersigned acknowledges that this Agreement and the subscription
represented hereby shall not be effective unless accepted by the Company as
indicated below.
IN WITNESS WHEREOF, the undersigned Subscriber does represent and
certify under penalty of perjury that the foregoing statements are true and
correct and that Subscriber by the following signature(s) executed this
Agreement.
Dated this 6th day of January, 2000.
/S/ ERIC S.SWARTZ SWARTZ INVESTMENTS, LLC
- ------------------------------------ ----------------------------------
Your Signature PRINT EXACT NAME IN WHICH YOU WANT
THE SECURITIES TO BE REGISTERED
DELIVERY INSTRUCTIONS:
----------------------
ERIC S. SWARTZ Please type or print address where
- ------------------------------------ your security is to be delivered
Name: Please Print
MANAGER ATTN.: ERIC S. SWARTZ
- ------------------------------------ ---------------
Title/Representative Capacity
(if applicable)
200 Roswell Summit, Suite 285
SWARTZ INVESTMENTS, LLC 1080 HOLCOMB BRIDGE ROAD
- ------------------------------------ ----------------------------------
Name of Company You Represent Street Address
(if applicable)
ROSWELL, GEORGIA, U.S.A. ROSWELL, GEORGIA 30076, U.S.A.
- ------------------------------------ --------------------------------
Place of Execution of this Agreement City, State or Province, Country,
Offshore Postal Code
Phone Number (For Federal Express) and Fax Number (re: Notice)
WITH A COPY TO:
Please type or print address where copies are to be delivered
ATTN.:____________________________________________
- --------------------------------------------------
Street Address
- --------------------------------------------------
City, State or Province, Country, Offshore Postal Code
- --------------------------------------------------
Phone Number (For Federal Express) and Fax Number (re: Notice)
THIS AGREEMENT IS ACCEPTED BY THE COMPANY IN THE AMOUNT OF $100,000 ON
THE 6th DAY OF JANUARY, 2000.
Techniclone Corporation
By: /S/ JOHN N. BONFIGLIO
--------------------
Name: JOHN N. BONFIGLIO
Title: PRESIDENT
19
10. NUMBER OF SHARES AND PURCHASE PRICE. Subscriber subscribes for
400,000 Units (at a price of $0.25 per Unit) against payment by wire
transfer in the amount of $100,000.00, as exercise of option.
11. ACCREDITED INVESTOR. Subscriber is an "accredited investor" because
(check all applicable boxes):
(a) [ ] it is an organization described in Section
501(c)(3) of the Internal Revenue Code, or a
corporation, limited duration company, limited
liability company, business trust, or partnership not
formed for the specific purpose of acquiring the
securities offered, with total assets in excess of
$5,000,000.
(b) [ ] any trust, with total assets in excess of
$5,000,000, not formed for the specific purpose of
acquiring the securities offered, whose purchase is
directed by a sophisticated person who has such
knowledge and experience in financial and business
matters that he is capable of evaluating the merits
and risks of the prospective investment.
(c) [ ] a natural person, who
[ ] is a director, executive officer or general
partner of the issuer of the securities being offered
or sold or a director, executive officer or general
partner of a general partner of that issuer.
[ ] has an individual net worth, or joint net worth
with that person's spouse, at the time of his
purchase exceeding $1,000,000.
[ ] had an individual income in excess of $200,000 in
each of the two most recent years or joint income
with that person's spouse in excess of $300,000 in
each of those years and has a reasonable expectation
of reaching the same income level in the current
year.
(d) [X] an entity each equity owner of which is an entity
described in a - b above or is an individual who
could check one (1) of the last three (3) boxes under
subparagraph (c) above.
(e) [ ] other
[specify]____________________________________________
18
The undersigned acknowledges that this Agreement and the subscription
represented hereby shall not be effective unless accepted by the Company as
indicated below.
IN WITNESS WHEREOF, the undersigned Subscriber does represent and
certify under penalty of perjury that the foregoing statements are true and
correct and that Subscriber by the following signature(s) executed this
Agreement.
Dated this 25th day of January, 2000.
/S/ ERIC S. SWARTZ SWARTZ INVESTMENTS, LLC
- ------------------------------------ ----------------------------------
Your Signature PRINT EXACT NAME IN WHICH YOU WANT
THE SECURITIES TO BE REGISTERED
DELIVERY INSTRUCTIONS:
----------------------
ERIC S. SWARTZ Please type or print address where
- ------------------------------------ your security is to be delivered
Name: Please Print
MANAGER ATTN.: ERIC S. SWARTZ
- ------------------------------------ ----------------
Title/Representative Capacity
(if applicable)
200 Roswell Summit, Suite 285
SWARTZ INVESTMENTS, LLC 1080 HOLCOMB BRIDGE ROAD
- ------------------------------------ ------------------------
Name of Company You Represent Street Address
(if applicable)
ROSWELL, GEORGIA, U.S.A. ROSWELL, GEORGIA 30076, U.S.A.
- ------------------------------------ ----------------------------------
Place of Execution of this Agreement City, State or Province, Country,
Offshore Postal Code
Phone Number (For Federal Express) and Fax Number (re: Notice)
WITH A COPY TO:
Please type or print address where copies are to be delivered
ATTN.:____________________________________________
- --------------------------------------------------
Street Address
- --------------------------------------------------
City, State or Province, Country, Offshore Postal Code
- --------------------------------------------------
Phone Number (For Federal Express) and Fax Number (re: Notice)
THIS AGREEMENT IS ACCEPTED BY THE COMPANY IN THE AMOUNT OF $100,000 ON
THE 25th DAY OF JANUARY, 2000.
Techniclone Corporation
By: /S/ JOHN N. BONFIGLIO
--------------------
Name: JOHN N. BONFIGLIO
Title: PRESIDENT
19