[XXXXXXX XXXXX PRIVATE EQUITY FUND II, LP]
SUBSCRIPTION AGREEMENT
To: Vyteris Holdings (Nevada), Inc.
Ladies and Gentlemen:
1. Subscription. The undersigned (the "LENDER"), intending to be
legally bound, hereby irrevocably agrees to make a loan of $37,500 in aggregate
principal amount (the "LOAN") to Vyteris Holdings (Nevada), Inc. (the "COMPANY")
and receive from the Company a promissory note in that amount and in the form
annexed hereto as ANNEX A (the "NOTE") and warrants (the "WARRANTS"), initially
exercisable into 469 shares of the Company's common stock, in the form attached
as an exhibit to the form of Warrant Agreement annexed hereto as ANNEX B (the
"WARRANT AGREEMENT"). The Note will be secured by the assets of the Company
pursuant to a Security Agreement in the form annexed hereto as ANNEX C (the
"SECURITY AGREEMENT"). The Lender is, simultaneously herewith, making a wire
transfer payment to the Company in the full amount of the Loan. The shares of
Company common stock into which the Warrants are or may become exercisable are
referred to herein as the "CONVERSION SHARES."
2. Representations and Warranties. The Lender hereby represents,
warrants, acknowledges and agrees as follows:
(a) None of the Note, the Warrants nor the Conversion Shares
registered under the Securities Act of 1933, as amended (the "SECURITIES ACT"),
or any state securities laws. The Lender understands that the issuance of the
Note, the Warrants and the Conversion Shares is intended to be exempt from
registration under the Securities Act, by virtue of Section 4(2) thereof and the
provisions of Regulation D promulgated thereunder, based, in part, upon the
representations, warranties and agreements of the Lender contained in this
Subscription Agreement;
(b) Neither the Securities and Exchange Commission nor any
state securities commission has approved the Note, the Warrants or the
Conversion Shares, or passed upon or endorsed the merits of thereof;
(c) The Lender and its advisors have had a reasonable
opportunity to ask questions of and receive answers from a person or persons
acting on behalf of the Company concerning the Company and the Note, the
Warrants and the Conversion Shares and all such questions have been answered to
the full satisfaction of the Lender and its advisors, if any;
(d) In evaluating its decision to make the Loan and accept
the Note, the Warrants and the Conversion Shares, the Lender has not relied upon
any representation or other information (oral or written) made by the Company or
anyone on its behalf;
(e) The Lender is unaware of, is in no way relying on, and
did not become aware of the Note, the Warrants and the Conversion Shares through
or as a result of, any form of general solicitation or general advertising
including, without limitation, any article, notice, advertisement or other
communication published in any newspaper, magazine or similar media or broadcast
over television or radio, and did not become aware of the Note, the Warrants or
the Conversion Shares through or as a result of any seminar or meeting to which
the Lender
was invited by, or any solicitation of a subscription by, a person not
previously known to the Lender in connection with investments in securities
generally;
(f) The Lender has such knowledge and experience in
financial, tax, and business matters, and, in particular, investments in
securities, so as to enable it to utilize the information made available to it
in connection with the Loan and the Note, the Warrants and the Conversion Shares
to evaluate the merits and risks of making the Loan and accepting the Note, the
Warrants and the Conversion Shares, and to make an informed investment decision
with respect thereto;
(g) The Lender is not relying on the Company or any of its
employees or agents with respect to the legal, tax, economic and related
considerations as to making the Loan or accepting the Note, the Warrants and the
Conversion Shares, and the Lender has relied on the advice of, or has consulted
with, only its own advisors;
(h) The Lender is acquiring the Note, the Warrants and the
Conversion Shares solely for its own account for investment and not with a view
to resale, assignment or distribution thereof, in whole or in part. The Lender
has no agreement or arrangement, formal or informal, with any person to sell or
transfer all or any part of the Note, the Warrants and the Conversion Shares,
and the Lender has no plans to enter into any such agreement or arrangement;
(i) The Lender must bear the substantial economic risks of
the Note, the Warrants and the Conversion Shares indefinitely because none of
the Note, the Warrants and the Conversion Shares may be sold, hypothecated or
otherwise disposed of unless subsequently registered under the Securities Act
and applicable state securities laws or an exemption from such registration is
available. Legends shall be placed on the Note, the Warrants and the Conversion
Shares to the effect that they have not been registered under the Securities Act
or applicable state securities laws and appropriate notations thereof will be
made in the Company's stock books. Stop transfer instructions will be placed
with the transfer agent of the Note, the Warrants and the Conversion Shares;
(j) The Lender has adequate means of providing for its
current financial needs and foreseeable contingencies and has no need for
liquidity of the Note, the Warrants and the Conversion Shares for an indefinite
period of time;
(k) The Lender meets the requirements of at least one of the
suitability standards for an "accredited investor" as set forth on the
Accredited Investor Certification contained herein;
(l) The Lender:
(i) if a natural person, represents that the Lender
has reached the age of 21 and has full power and authority to execute and
deliver this Subscription Agreement, the Warrant Agreement and the Security
Agreement and all other related agreements or certificates and to carry out the
provisions hereof and thereof (collectively referred to herein as the
"SUBSCRIPTION DOCUMENTS");
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(ii) if a corporation, partnership, limited liability
company or partnership, association, joint stock company, trust, unincorporated
organization or other entity, either such entity was not formed for the specific
purpose of acquiring the Note, the Warrants and the Conversion Shares or all of
the equity owners of such entity meet the requirement of at least one of the
suitability standards for an "accredited investor" as set forth on the
Accredited Investor Certification contained herein, such entity is duly
organized, validly existing and in good standing under the laws of the state of
its organization, the consummation of the transactions contemplated hereby is
authorized by, and will not result in a violation of state law or its charter or
other organizational documents, such entity has full power and authority to
execute and deliver the Subscription Documents and all other related agreements
or certificates and to carry out the provisions hereof and thereof and to
acquire and hold the Note, the Warrants and the Conversion Shares, the execution
and delivery of the Subscription Documents have been duly authorized by all
necessary action, the Subscription Documents have been duly executed and
delivered on behalf of such entity and is a legal, valid and binding obligation
of such entity; and
(iii) if executing this Subscription Agreement in a
representative or fiduciary capacity, the undersigned has full power and
authority to execute and deliver the Subscription Documents in such capacity and
on behalf of the subscribing individual, xxxx, partnership, trust, estate,
corporation, limited liability company or limited liability partnership, or
other entity for whom the undersigned is executing the Subscription Documents,
and such individual, xxxx, partnership, trust, estate, corporation, limited
liability company or partnership, or other entity has full right and power to
perform pursuant to the Subscription Documents and make an investment in the
Company, and that the Subscription Documents constitute legal, valid and binding
obligations of such entity.
(m) The execution and delivery of the Subscription Documents
will not violate or be in conflict with any order, judgment, injunction,
agreement or controlling document to which the Lender is a party or by which it
is bound;
(n) The Lender has significant prior investment experience,
including investment in non-listed and non-registered securities. The Lender has
a sufficient net worth to sustain a loss of its entire investment in the Company
in the event such a loss should occur. The Lender's overall commitment to
investments which are not readily marketable is not excessive in view of its net
worth and financial circumstances and the Loan will not cause such commitment to
become excessive. The investment is a suitable one for the Lender;
(o) The Lender is satisfied that it has received adequate
information with respect to all matters which it or its advisors consider
material to its decision to make this investment;
(p) The Lender has a pre-existing business relationship with
Xxxxxxx Xxxxx Ventures, Inc. and/or one of its related parties; and
(q) THE NOTE, THE WARRANTS AND THE CONVERSION SHARES HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE
SECURITIES LAWS OF CERTAIN STATES AND ARE BEING OFFERED AND SOLD IN RELIANCE ON
EXEMPTIONS FROM THE REGISTRATION
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REQUIREMENTS OF SAID ACT AND SUCH LAWS. THE NOTE, THE WARRANTS AND THE
CONVERSION SHARES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND
MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER SAID ACT AND SUCH
LAWS PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE NOTE, THE WARRANTS AND
THE CONVERSION SHARES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY
AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE
MERITS THEREOF. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
3. Applicable Law. This Subscription Agreement shall be governed by
and construed in accordance with the laws of the State of New York relating to
contracts entered into and to be performed wholly within such State.
4. Confidentiality. The Lender acknowledges and agrees that any
information or data it has acquired from or about the Company, not otherwise
properly in the public domain, was received in confidence. The Lender agrees not
to divulge, communicate or disclose, except as may be required by law or for the
performance of the Subscription Documents, or use to the detriment of the
Company or for the benefit of any other person or persons, or misuse in any way,
any confidential information of the Company, including any scientific,
technical, trade or business secrets of the Company and any scientific,
technical, trade or business materials that are treated by the Company as
confidential or proprietary, including, but not limited to, ideas, discoveries,
inventions, developments and improvements belonging to the Company and
confidential information obtained by or given to the Company about or belonging
to third parties.
5. Miscellaneous.
(b) This Subscription Agreement, together with the Warrant
Agreement, the Security Agreement, the Note and Warrant, constitute the entire
agreement between the Lender and the Company with respect to the subject matter
hereof and supersede all prior oral or written agreements and understandings, if
any, relating to the subject matter hereof. The terms and provisions of this
Subscription Agreement may be waived, or consent for the departure therefrom
granted, only by a written document executed by the party entitled to the
benefits of such terms or provisions.
(c) The Lender's covenants, agreements, representations and
warranties made in this Subscription Agreement shall survive the execution and
delivery hereof and delivery of the Note, the Warrants and the Conversion
Shares.
(d) Each of the parties hereto shall pay its own fees and
expenses (including the fees of any attorneys, accountants, appraisers or others
engaged by such party) in connection with this Subscription Agreement and the
transactions contemplated hereby whether or not the transactions contemplated
hereby are consummated.
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(e) This Subscription Agreement may be executed in one or
more counterparts each of which shall be deemed an original, but all of which
shall together constitute one and the same instrument.
(f) Each provision of this Subscription Agreement shall be
considered separable and, if for any reason any provision or provisions hereof
are determined to be invalid or contrary to applicable law, such invalidity or
illegality shall not impair the operation of or affect the remaining portions of
this Subscription Agreement.
(g) Paragraph titles are for descriptive purposes only and
shall not control or alter the meaning of this Subscription Agreement as set
forth in the text.
6. Amendment to the Security Agreement. Notwithstanding anything to
the contrary set forth in the Security Agreement, the Security Agreement is
hereby amended such that upon the Lender's execution of this Subscription
Agreement in accordance with Section 7 below, the Lender shall become a
Noteholder (as defined in the Security Agreement) and the terms of the note and
the warrants described in such Security Agreement shall be the terms set forth
in the Note and the Warrant annexed hereto, rather than the terms set forth in
the SPA described in such Security Agreement.
7. Omnibus Signature Page. This Subscription Agreement is intended
to be read and construed in conjunction with the Warrant Agreement, the Security
Agreement, the Note and the Warrant. Accordingly, pursuant to the terms and
conditions of this Subscription Agreement and such related agreements it is
hereby agreed that the execution by the Lender of this Subscription Agreement,
in the place set forth herein, shall constitute agreement to be bound by the
terms and conditions hereof and the terms and conditions of the Warrant
Agreement and the Security Agreement (as amended pursuant to Section 6 of this
Subscription Agreement), with the same effect as if each of such separate but
related agreement were separately signed.
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VYTERIS HOLDINGS (NEVADA), INC.
OMNIBUS SIGNATURE PAGE TO
SUBSCRIPTION AGREEMENT, WARRANT AGREEMENT AND
SECURITY AGREEMENT
Date (NOTE: To be completed by subscriber): May 27, 2005
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If the Purchaser is an INDIVIDUAL, and if purchased as JOINT TENANTS, as TENANTS
IN COMMON, or as COMMUNITY PROPERTY:
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PRINT NAME(S) SOCIAL SECURITY NUMBER(S)
---------------------------- ------------------------------
SIGNATURE(S) OF SUBSCRIBER(S) SIGNATURE
---------------------------- ------------------------------
DATE ADDRESS
If the Purchaser is a PARTNERSHIP, CORPORATION, LIMITED LIABILITY COMPANY or
TRUST:
XXXXXXX XXXXX PRIVATE
EQUITY FUND II, LLC
---------------------------- ------------------------------
NAME OF PARTNERSHIP, FEDERAL TAXPAYER
CORPORATION, LIMITED IDENTIFICATION NUMBER
LIABILITY COMPANY OR TRUST
BY: /s/ Xxxxxxx X. Xxxxxxxxx NEW YORK
------------------------- ------------------------------
NAME: XXXXXXX X. XXXXXXXXX STATE OF ORGANIZATION
TITLE:
000 XXXXXXX XXXXXX,
MAY 27, 2005 XXX XXXX, XX 00000
---------------------------- ------------------------------
DATE ADDRESS
VYTERIS HOLDINGS (NEVADA), INC.
By: /s/ Xxxxxxx XxXxxxxx
---------------------------
Name: Xxxxxxx XxXxxxxx, Ph.D.
Title: President and Chief Executive Officer
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ACCREDITED INVESTOR CERTIFICATION
Initial the appropriate item(s)
THE UNDERSIGNED FURTHER REPRESENTS AND WARRANTS AS INDICATED BELOW BY THE
UNDERSIGNED'S INITIALS:
A. INDIVIDUAL LENDER: (Please INITIAL one or more of the following five
statements)
1._____ I certify that I am an accredited investor because I have had individual
income (exclusive of any income earned by my spouse) of more than
$200,000 in each of the most recent two years and I reasonably expect to
have an individual income in excess of $200,000 for the current year.
2._____ I certify that I am an accredited investor because I have had joint
income with my spouse in excess of $300,000 in each of the most recent
two years and reasonably expect to have joint income with my spouse in
excess of $300,000 for the current year.
3._____ I certify that I am an accredited investor because I have an individual
net worth, or my spouse and I have a joint net worth, in excess of
$1,000,000.
4._____ I am a director or executive officer of Vyteris Holdings (Nevada), Inc.
5._____ I have individual net worth or my spouse and I have joint net worth of
over $5,000,000.
B. PARTNERSHIPS, CORPORATIONS, TRUSTS OR OTHER ENTITIES: (Please INITIAL one of
the following seven statements). The Lender hereby certifies that it is an
accredited investor because it is:
1._____ an employee benefit plan whose total assets exceed $5,000,000;
2._____ an employee benefit plan whose investments decisions are made by a plan
fiduciary which is either a bank, savings and loan association or an
insurance company (as defined in Section 2(13) of the Securities Act) or
an investment adviser registered as such under the Investment Advisers
Act of 1940;
3._____ a self-directed employee benefit plan, including an Individual
Retirement Account, with investment decisions made solely by persons
that are accredited investors;
4._____ an organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended, not formed for the specific purpose of
acquiring the Note, the Warrants and the Conversion Shares, with total
assets in excess of $5,000,000;
5._____ a corporation, partnership or Massachusetts or similar business trust,
with total assets in excess of $5,000,000, not formed for the specific
purpose of acquiring the Note, the Warrants and the Conversion Shares
and whose purchase is directed by a sophisticated person as described in
Rule 506(b)(ii) of Regulation D and who has such knowledge and
experience in financial and business matters that he is capable of
evaluating the risks and merits of an investment in the Note, the
Warrants and the Conversion Shares;
6._____ a trust, not formed for the specific purpose of acquiring the Note, the
Warrants and the Conversion Shares, with total assets exceed $5,000,000,
whose purchase is directed by a person who has such knowledge and
experience in financial and business matters that he is capable of
evaluating the merits and risks of an investment in the Note, the
Warrants and the Conversion Shares; or
7._____ an entity (including a revocable grantor trust but other than a
conventional trust) in which each of the equity owners qualifies as an
accredited investor under items A(1), (2) or (3) or item B(1) above.
ANNEX A
FORM OF NOTE
ANNEX B
FORM OF WARRANT AGREEMENT
ANNEX C
FORM OF SECURITY AGREEMENT
