EXHIBIT 4.5
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SUBSCRIPTION AGREEMENT
This Subscription Agreement, dated as of June 15, 2001, is made by and
between Able Laboratories, Inc. f/k/a DynaGen, Inc., a corporation organized
under the laws of the State of Delaware (the "Company"), and The Endeavour
Capital Investment Fund S.A. (the "Purchaser").
WHEREAS, the Purchaser and the Company are parties to an Exchange and
Purchase Agreement dated as of February 15, 2001 (the "Purchase Agreement")
whereby the Company agreed to sell and issue to the purchasers named therein
shares of Series O Preferred Stock, $.01 par value per share, of the Company
(the "Series O Preferred Stock");
WHEREAS, the Purchaser and the Company are parties to a Registration
Rights Agreement dated as of February 15, 2001 (the "Registration Rights
Agreement") whereby the Company agreed to file a registration statement covering
the shares of Common Stock, $.01 par value per share, of the Company issuable
upon conversion of the Series O Preferred Stock (the "Common Stock"); and
WHEREAS, the Purchaser has agreed to purchase from the Company, and the
Company has agreed to sell to the Purchaser, an additional 2,500 shares of
Series O Preferred Stock for a total cash purchase price of $250,000.
NOW THEREFORE, the Company and the Purchaser hereby agree as follows:
1. Subscription and Closing.
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(a) The Company hereby agrees to issue and sell to the Purchaser,
and the Purchaser hereby agrees to purchase, 2,500 shares of Series O
Preferred Stock (the "New Shares"), pursuant to the terms and
conditions hereof, for a total purchase price of $250,000. The closing
of the purchase and sale of the New Shares (the "Closing") shall take
place at the offices of Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx
LLP, 1290 Avenue of the Americas, New York, New York immediately
following the execution hereof or such later date as the parties shall
mutually agree.
(b) On the date of the Closing, the parties shall deliver or
cause to be delivered the following: (i) the Company shall deliver to
the Purchaser a stock certificate, registered in the name of such
Purchaser, representing 2,500 shares of Series O Preferred Stock and a
legal opinion in a form satisfactory to the Purchaser; and (ii) the
Purchaser shall deliver the purchase price of $250,000, in United
States dollars in immediately available funds by wire transfer to an
account designated in writing by the Company for such purpose.
2. Representations and Warranties, Covenants and Obligations.
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(a) Authorization; Enforcement. The Company has the requisite
corporate power and authority to enter into and to consummate the
transactions contemplated by this Subscription Agreement and otherwise
to carry out its obligations hereunder. The execution and delivery of
this Subscription Agreement by the Company and the consummation by it
of the transactions contemplated hereby have been duly authorized by
all necessary corporate action on the part of the Company. This
Subscription Agreement has been duly executed by the Company and, when
delivered in accordance
with the terms hereof, will constitute the valid and binding obligation
of the Company enforceable against the Company in accordance with its
terms. The Company is not in violation of any of the provisions of its
certificate of incorporation, by-laws or other organizational or
charter documents.
(b) Issuance of Shares. The New Shares are duly authorized and,
when issued and paid for in accordance with the terms hereof, will be
duly and validly issued, fully paid and nonassessable, free and clear
of all liens, encumbrances and rights of first refusal of any kind.
(c) No Conflicts. The execution, delivery and performance of this
Subscription Agreement by the Company and the consummation by the
Company of the transactions contemplated hereby do not and will not:
(i) conflict with or violate any provision of the Company's certificate
of incorporation, bylaws or other charter documents (each as amended
through the date hereof), or (ii) subject to obtaining the Required
Approvals (as defined in the Purchase Agreement), conflict with, or
constitute a default (or an event which with notice or lapse of time or
both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation (with or without
notice, lapse of time or both) of, any agreement, credit facility, debt
or other instrument (evidencing a subsidiary debt or otherwise) or
other understanding to which the Company is a party or by which any
property or asset of the Company is bound or affected, or (iii) result
in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental
authority to which the Company is subject (including federal and state
securities laws and regulations), or by which any property or asset of
the Company is bound or affected; except in the case of each of clauses
(ii) and (iii), as would not reasonably be expected to, individually or
in the aggregate, have or result in a Material Adverse Effect (as
defined in the Purchase Agreement). The business of the Company is not
being conducted in violation of any law, ordinance or regulation of any
governmental authority, except for violations which, individually or in
the aggregate, would not reasonably be expected to have or result in a
Material Adverse Effect.
(d) The representations and warranties of the Company and the
Purchaser contained in Article II of the Purchase Agreement, other than
representations of the Company regarding the exchange of shares of
Series A Preferred Stock of XxXxxxxx.xxx, Inc. for shares of Series O
Preferred Stock, which exchange is not applicable to this transaction,
and except for the representations of the Company which are modified by
the Disclosure Schedule attached hereto, are true and correct as of the
date hereof, except for the representations and warranties which speak
of a particular date which are true as of such date. The Company
acknowledges and agrees that the Purchaser does not make and has not
made any representations or warranties other than those specifically
set forth in this Section 2.
(e) The covenants and obligations of the Company and the
Purchaser contained in Article III of the Purchase Agreement, other
than covenants and obligations of the Company regarding the exchange of
shares of Series A Preferred Stock of XxXxxxxx.xxx, Inc. for shares of
Series O Preferred Stock, which exchange is not applicable to this
transaction, except for the rights and obligations contained in Section
3.9 of the Purchase Agreement, and except for the covenants and
obligations which speak
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of a particular date, are reaffirmed as of the date hereof with respect
to the purchase of the New Shares.
(f) The rights and obligations of the Company and the Purchaser
contained in Article IV of the Purchase Agreement, other than rights
and obligations regarding the exchange of shares of Series A Preferred
Stock of XxXxxxxx.xxx, Inc. for shares of Series O Preferred Stock,
which exchange is not applicable to this transaction, and except for
the rights and obligations which speak of a particular date, are
reaffirmed as of the date hereof with respect to the purchase of the
New Shares.
For purposes of this Section 2, the "Transaction Documents" as defined in the
Purchase Agreement shall include this Subscription Agreement, the "Shares" as
defined in the Purchase Agreement shall include the New Shares, and the
"Purchasers" as defined in the Purchase Agreement shall include the Purchaser.
3. Registration Rights. The Purchaser shall be entitled to all of the
rights and privileges available to a holder of Preferred Stock under the
Registration Rights Agreement with respect to the New Shares and the Common
Stock issuable upon conversion thereof, pursuant to the terms hereof. For
purposes hereof, the Common Stock issuable upon conversion of the New Shares
shall be considered "Registrable Securities" under the Registration Rights
Agreement, the New Shares shall be considered "Preferred Stock" under the
Registration Rights Agreement, and the "Closing Date," as defined in the
Registration Rights Agreement, applicable to the New Shares shall be the date
hereof.
4. Fees and Expenses. Except as otherwise set forth in the Registration
Rights Agreement, each party shall pay its own fees and expenses related to the
negotiation, preparation, execution, delivery and performance of this Agreement,
PROVIDED, HOWEVER, that the Company shall pay $3,000 to the counsel to the
Purchaser in connection with fees incurred in the negotiation, preparation,
execution, delivery and performance of this Agreement.
5. Waiver of Mandatory Redemption. The Purchaser hereby irrevocably
waives its right to require the Company to redeem any outstanding shares of
Series O Preferred Stock under Section 7 of the Certificate of Designations,
Preferences and Rights of the Series O Preferred Stock.
6. Governing Law. The corporate laws of the State of Delaware shall
govern all issues concerning the relative rights of the Company and its
stockholders. All other questions concerning the construction, validity,
enforcement and interpretation of this Subscription Agreement shall be governed
by and construed and enforced in accordance with the internal laws of the State
of New York, without regard to the principles of conflicts of law thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Subscription
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
ABLE LABORATORIES, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxx
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Xxxxxxxxx X. Xxxxxxx
President
PURCHASER:
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THE ENDEAVOUR CAPITAL INVESTMENT FUND S.A.
By: /s/
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Name:
Title:
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