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Exhibit 10.3
SUBSCRIPTION AGREEMENT
HIV-VAC, INC.
HIV-VAC, Inc.
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Ladies and Gentlemen:
HIV-VAC, Inc. (the "Company") is offering (the "Offering") 1,000,000
shares of its Convertible Preferred Stock, Series B (the "Shares"). The Shares
are offered at a purchase price of $.01 per Share. The offering shall terminate
on the earlier of the sale of all of the Shares offered or September 30, 2001
unless extended by the Company, in its sole discretion (as so extended, the
"Termination Date").
The undersigned (hereinafter referred to as the "Subscriber") hereby
subscribes for the number of Shares set forth on the signature pages hereof
(page 14 for an individual and joint purchasers and pages 15 and 17 for
Corporations, Trusts and Partnerships). The entire purchase price is due and
payable upon the execution of this Subscription Agreement, and unless otherwise
mutually agreed, shall be paid by check, subject to collection, to the order of
"HIV-VAC, Inc."
The Shares may be converted by the Subscriber by surrendering to the
Escrow Agent, as set forth in the Escrow Agreement of an even date herewith, a
duly executed and completed notice (the "Conversion Notice") in the form
attached hereto as Exhibit A.
The Company shall have the right to reject this subscription in whole
or in part.
In order to participate in this Offering, prospective investors are
required to complete, sign and return to the Company, at its address above,
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇: (i) two signed copies of the Subscription Agreement and
all other documents required to be executed in connection with the issuance of
the Shares (the "Subscription Documents") and (ii) payment by check to the order
of "HIV-VAC, Inc."
At closing, the Company will cause to be issued to each Subscriber the
Shares and deliver them to the Subscriber at the address appearing on the
signature page of this Subscription Agreement.
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Acceptance of subscriptions will be evidenced by the Company's
execution of a copy of each Subscriber's Subscription Agreement, and the
transmittal thereof to the Subscriber. The Company reserves the right to limit
or reject subscriptions for any reason.
The undersigned acknowledges that the Shares will not be registered
under the Securities Act of 1933, as amended (the "1933 Act"), or the securities
laws of any State, that absent an exemption from registration contained in those
laws, the issuance and sale of the Shares would require registration, and that
the Company's reliance upon any such exemption is invariably based upon the
undersigned's representations, warranties, and agreements contained in this
Subscription Agreement.
1. Representations and Warranties of Subscriber.
The undersigned represents, warrants, and agrees as follows:
(a) This Subscription Agreement is irrevocable.
(b) He has carefully read and understands the terms of this
Subscription Agreement. He has read the Term Sheet and Summary dated as of
August 7, 2001 (the "Disclosure Documents"). In addition, he has been given the
opportunity to conduct a "due diligence" inquiry into the business of the
Company, to ask questions of, and receive answers from, the Company and its
management concerning the terms and conditions of the Offering and to obtain
such additional written information, to the extent the Company possesses such
information or can acquire it without unreasonable effort or expense, necessary
to verify the accuracy of same, as the undersigned desires in order to evaluate
his investment.
(c) He is aware that the purchase of the Shares is a speculative
investment, involving a high degree of risk and that there is no guarantee that
he will realize any gain from this investment, and that his entire investment
could be lost.
(d) He understands that no federal or state agency has made any finding
or determination regarding the fairness of this Offering or any recommendation
or endorsement of the Offering.
(e) He is purchasing the Shares for his own account, with the intention
of holding the Shares indefinitely, with no present intention of dividing or
allowing others to participate in this investment or of reselling or otherwise
participating, directly or indirectly, in a distribution of the Shares and shall
not make any sale, transfer, or pledge thereof without registration under the
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1933 Act and any applicable securities laws of any state or unless an exemption
from registration is available under those laws.
(f) He, if an individual, has adequate means of providing for his
current needs and personal and family contingencies and has no need for
liquidity in his investment in the Shares. He has no reason to anticipate any
material change in his personal financial condition for the foreseeable future.
(g) The Subscriber is an "Accredited Investor" as that term is defined
in Section 2(15) of the 1933 Act and Rule 501 of Regulation D promulgated
thereunder. Specifically an Accredited Investor is:
(i) A bank defined in Section 3(a)(2) of the Act, or a savings
and loan association or other institution as defined in Section 3(a)(5)(A) of
the Act, whether acting in its individual or fiduciary capacity; a broker or
dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934;
an insurance company as defined in Section 2(13) of the Act; an investment
company registered under the Investment Company Act of 1940 (the "Investment
Company Act") or a business development company as defined in Section 2(a)(48)
of the Investment Company Act; a Small Business Investment Company licensed by
the U.S. Small Business Administration under Section 301(3) or (d) of the Small
Business Investment Act of 1958; a plan established and maintained by a state,
its political subdivisions or any agency or instrumentality of a state or its
political subdivisions for the benefit of its employees, if such plan has total
assets greater than $5,000,000; an employee benefit plan within the meaning of
the Employee Retirement Income Security Act of 1974 ("ERISA"), if the investment
decision is made by a plan fiduciary, as defined in Section 3(21) of ERISA,
which is either a bank, savings and loan association, insurance company, or a
registered investment advisor, or if the employee benefit plan has total assets
greater than $5,000,000 or, if a self-directed plan, with investment decisions
made solely by persons that are accredited investors.
(ii) A private business development company as defined in
Section 202(a)(22) of the Investment Adviser Act of 1940.
(iii) An organization described in Section 501(c)(3) of the
Internal Revenue Code, corporation, Massachusetts or similar business trust, or
partnership, not formed for the specific purpose of acquiring the securities
offered, with total assets greater than $5 million.
(iv) a natural person whose individual net worth, or joint net
worth with that person's spouse, at the time of his or her
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purchase exceeds $1 million. (California and Massachusetts residents: please see
Section 3(b) below.)
(v) A natural person who had an individual income greater than
$200,000 in each of the two most recent years or joint income with that person's
spouse greater than $300,000 in each of those years and has a reasonable
expectation of reaching the same income level in the current year.
(vi) A trust, with total assets greater than $5 million not
formed for the specific purpose of acquiring the securities offered, whose
purchase is directed by a sophisticated person as described in Rule
506(b)(2)(ii) (i.e., a 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.)
(vii) an entity in which all of the equity owners are
accredited investors. (If this alternative is checked, the Subscriber must
identify each equity owner and provide statements signed by each demonstrating
how each is qualified as an accredited investor.)
(h) He is financially able to bear the economic risk of this
investment, including the ability to hold the Shares indefinitely or to afford a
complete loss of his investment in the Shares.
(i) His overall commitment to investments which are not readily
marketable is not disproportionate to his net worth, and the investment in the
Shares will not cause such overall commitment to become excessive. The
undersigned understands that the statutory basis on which the Shares are being
sold to him and to others would not be available if the undersigned's present
intention were to hold the Shares for a fixed period or until the occurrence of
a certain event. The undersigned realizes that in the view of the Securities and
Exchange Commission ("SEC"), a purchase now with a present intent to resell by
reason of a foreseeable specific contingency or any anticipated change in the
market value, or in the condition of the Company, or that of the industry in
which the business of the Company is engaged or in connection with a
contemplated liquidation, or settlement of any loan obtained by the undersigned
for the acquisition of the Shares, and for which the Shares may be pledged as
security or as donations to religious or charitable institutions for the purpose
of securing a deduction on an income tax return, would, in fact, represent a
purchase with an intent inconsistent with the undersigned's representations to
the Company, and the SEC would then regard such sale as one for which no
exemption from registration is available. The undersigned will not pledge,
transfer or assign this Subscription Agreement.
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(j) The funds provided for this investment are either separate property
of the undersigned, community property over which the undersigned has the right
of control, or are otherwise funds as to which the undersigned has the sole
right of management.
(k) FOR PARTNERSHIPS, CORPORATIONS, TRUSTS, OR OTHER ENTITIES ONLY: If
the undersigned is a partnership, corporation, trust or other entity, (i) the
undersigned has enclosed with this Subscription Agreement appropriate evidence
of the authority of the individual executing this Subscription Agreement to act
on its behalf (e.g. if a trust, a certified copy of the trust agreement; if a
corporation, a certified corporate resolution authorizing the signature and a
certified copy of the articles of incorporation; or if a partnership, a
certified copy of the partnership agreement), (ii) the undersigned represents
and warrants that it was not organized or reorganized for the specific purpose
of acquiring Shares and (iii) the undersigned has the full power and authority
to execute this Subscription Agreement on behalf of such entity and to make the
representations and warranties made herein on its behalf, and (iv) this
investment in the Company has been affirmatively authorized, if required, by the
governing board of such entity and is not prohibited by the governing documents
of the entity.
(l) The address shown under the undersigned's signature at the end of
this Subscription Agreement is the undersigned's principal residence if he is an
individual, or its principal business address if a corporation or other entity.
(m) He has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of an investment in
the Shares.
(n) He acknowledges that the certificate for the Shares will contain a
legend substantially as follows:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR UNDER
THE PROVISIONS OF ANY APPLICABLE STATE SECURITIES LAWS, BUT HAS BEEN
ACQUIRED BY THE REGISTERED HOLDER HEREOF FOR PURPOSES OF INVESTMENT AND
IN RELIANCE ON STATUTORY EXEMPTIONS UNDER THE 1933 ACT, AND UNDER ANY
APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES MAY NOT BE SOLD,
PLEDGED, TRANSFERRED OR ASSIGNED EXCEPT IN A TRANSACTION WHICH IS
EXEMPT UNDER PROVISIONS OF THE 1933 ACT AND ANY APPLICABLE STATE
SECURITIES LAWS OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT; AND
IN THE CASE OF AN EXEMPTION, ONLY IF THE COMPANY HAS RECEIVED AN
OPINION OF COUNSEL SATISFACTORY
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TO THE COMPANY THAT SUCH TRANSACTION DOES NOT REQUIRE REGISTRATION OF
THESE SECURITIES.
(o) He expressly acknowledges and understands that the Company is
relying upon the undersigned's representation contained in the Subscription
Agreement and Purchaser Questionnaire.
(p) He understands the meaning and legal consequences of the
representations and warranties which are contained herein and hereby agrees to
indemnify, save and hold the Company and its officers, directors and counsel
harmless from and against any and all claims or actions arising out of a breach
of any representation, warranty or acknowledgment of the undersigned contained
in any Subscription Document. Such indemnification shall be deemed to include
not only the specific liabilities or obligation with respect to which such
indemnity is provided, but also all reasonable costs expenses, counsel fees and
expenses of settlement relating thereto, whether or not any such liability or
obligation shall have been reduced to judgment.
2. Representations and Warranties of the Company.
The Company represents, warrants and covenants that it is duly and
validly incorporated and is validly existing and in good standing as a
corporation under the laws of the State of Nevada and has all requisite power
and authority, and all necessary authorizations, approvals and orders required
as of the date hereof to own its properties and conduct its business as
described in the Disclosure Documents; to enter into this Subscription
Agreement; to issue the Shares, and to be bound by the provisions and conditions
hereof.
3. Registration Under
The Securities Act of 1933
3.1 Registration Rights.
(a) Right to include Registrable Securities. By September 30,
2001, the Company shall file a registration statement with the SEC pursuant to
the Act registering the shares of the Company's common stock into which the
Shares are convertible (hereinafter, the "Registrable Securities"). Such rights
are referred to hereinafter as "Registration Rights." The Company shall keep
such registration statement in effect and maintain compliance with each Federal
and state law or regulation for the period necessary for such Subscriber to
effect a conversion of the Shares (but in no event for a period greater than
nine (9) months).
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(b) Payment of Registration Expenses. The Company shall pay all
Registration Expenses in connection with each registration of Registrable
Securities pursuant to the Registration Right contained in this Section 3.1.
3.2 Registration Procedures. If and whenever the Company is required to
take action pursuant to any Federal or state law or regulation to permit the
sale or other disposition of any Registrable Securities that are then held, in
order to effect or cause the registration of any Registrable Securities under
the 1933 Act as provided in this Article 3, the Company shall, as expeditiously
as practicable:
(a) Prepare and file with the SEC, as soon as practicable, a
Registration Statement or Registration Statements relating to the registration
on any appropriate form under the 1933 Act, which form shall be available for
the sale of the Registrable Securities and use its best efforts to cause such
Registration Statement to become effective;
(b) Prepare and file with the SEC such amendments and post-effective
amendments to a Registration Statement as may be necessary to keep such
Registration Statement effective for a reasonable period not to exceed nine (9)
months; cause the related Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented, to be filed pursuant to Rule 424
under the 1933 Act; and comply with the provisions of the 1933 Act with respect
to the disposition of all securities covered by such Registration Statement
during such period in accordance with the intended methods of disposition by the
sellers thereof set forth in such Registration Statement or supplement to such
Prospectus;
(c) Notify the selling Subscribers of Registrable Securities promptly,
and (if requested by any such person) confirm such advice in writing, (i) when a
Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective; (ii) of any request by the SEC
for amendments or supplements to a Registration Statement or related Prospectus
or for additional information; (iii) of the issuance by the SEC of any stop
order suspending the effectiveness of a Registration Statement or the initiation
of any proceedings for that purpose; (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification of any of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, and (v) of the happening of any
event that makes any statement of a material fact made in the Registration
Statement, the Prospectus or any document incorporated therein by reference
untrue or which
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requires the making of any changes in the Registration Statement or Prospectus
so that they will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading;
(d) Make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible moment;
(e) Furnish to each selling shareholder of Registrable Securities,
without charge, at least one signed copy of the Registration Statement and any
post-effective amendment thereto, including financial statements and schedules,
all documents incorporated therein by reference and all exhibits (including
those incorporated by reference)
(f) Deliver to each selling shareholder of Registrable Securities,
without charge, as many copies of the Prospectus or Prospectuses (including each
preliminary Prospectus), any amendment or supplement thereto as such persons may
reasonably request; the Company consents to the use of such Prospectus or any
amendment or supplement thereto by each of the selling shareholders of
Registrable Securities, in connection with the offering and sale of the
Registrable Securities covered by such Prospectus or any amendment or supplement
thereto;
(g) Cooperate with the selling shareholders of Registrable Securities
and their respective counsel in connection with the registration or
qualification of such Registrable Securities for offer and sale under the
securities or Blue Sky-laws of such jurisdictions within the United States as
any selling shareholder or underwriter reasonably requests in writing, keep each
such registration or qualification effective during the period such Registration
Statement is required to be kept effective and do any and all other acts or
things necessary or advisable to enable the disposition in such jurisdictions of
the Registrable Securities covered by the applicable Registration Statement;
provided that the Company will not be required to qualify to do business in any
jurisdiction where it is not then so qualified or to take any action which would
subject the Company to general service of process in any jurisdiction where it
is not at the time so subject;
(h) Cooperate with the selling shareholders of Registrable Securities
to facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends;
(i) Use its best efforts to cause the Registrable Securities covered by
the applicable Registration Statement to be registered
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with or approved by such other governmental agencies or authorities within the
United States as may be necessary to enable the seller or sellers thereof or the
underwriters, if any, to consummate the disposition of such Registrable
Securities;
(j) Upon the occurrence of any event contemplated by Section 3.2(c)(vi)
above, prepare a supplement or post-effective amendment to the applicable
Registration Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities being sold thereunder,
such Prospectus will not contain an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein not
misleading;
(k) With respect to each issue or class, of Registrable Securities, use
its best efforts to cause all Registrable Securities covered by the Registration
Statements to be listed on each securities exchange, if any, on which similar
securities issued by the Company are then listed if requested by the selling
shareholders of a majority of such issue or class of Registrable Securities;
(l) Enter into such agreements and take all such other action
reasonably required in connection therewith in order to expedite or facilitate
the disposition of such Registrable Securities;
(m) Make available for inspection by one or more representatives of the
selling shareholders of Registrable Securities being sold pursuant to such
registration, and any attorney or accountant retained by such selling
shareholders all financial and other records, pertinent corporate documents and
properties of the Company, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such
representatives, in connection with such; and
(n) Otherwise use its best efforts to comply with all applicable
Federal and state regulations; and take such other action as may be reasonably
necessary to or advisable to enable each such selling shareholder to consummate
the sale or disposition in such jurisdiction or jurisdiction in which any such
selling shareholder shall have requested that the Registrable Securities be
sold.
Except as otherwise provided in this Agreement, the Company shall have
sole control in connection with the preparation, filing, withdrawal, amendment
or supplementing of each Registration Statement and the distribution of any
preliminary prospectus
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included in the Registration Statement, and may include within the coverage
thereof additional shares of Common Stock or other securities for its own
account or for the account of one or more of its other security shareholders.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish to the Company such
information regarding the distribution of such securities and such other
information as may otherwise be required by the 1933 Act to be included in such
Registration Statement.
3.3 Indemnification.
(a) Indemnification by Company. In connection with each Registration
Statement relating to disposition of Registrable Securities, the Company shall
indemnify and hold harmless each Subscriber of Registrable Securities and each
person, if any, who controls such Subscriber or underwriter (within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act) against any and all
losses, claims, damages and liabilities, joint or several (including any
reasonable investigation, legal and other expenses incurred in connection with,
and any amount paid in settlement of any action, suit or proceeding or any claim
asserted), to which they, or any of them, may become subject under the 1933 Act,
the Securities and Exchange Act of 1934 (the "Exchange Act") or other Federal or
state law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement, Prospectus or preliminary prospectus or any amendment
thereof or supplement thereto, or arise out of or are based upon any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; provided, however,
that such indemnity shall not inure to the benefit of the Subscriber on account
of any losses, claims, damages or liabilities arising from the sale of the
Registrable Securities if such untrue statement or omission was made in such
Registration Statement, Prospectus or preliminary prospectus, or such amendment
or supplement, in reliance upon and in conformity with information furnished in
writing to the Company by the Subscriber specifically for use therein. The
Company shall also indemnify selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, their
officers and directors and each person who controls such persons (within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act) to the same
extent as provided above with respect to the indemnification of the Subscriber,
if requested. This indemnity agreement shall be in addition to any liability
which the Company may otherwise have.
(b) Indemnification by Subscriber. In connection with each Registration
Statement, the Subscriber shall indemnify, to the same
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extent as the indemnification provided by the Company in Section 3.3(a), the
Company, its directors and each officer who signs the Registration Statement,
each other Subscriber, and each person who controls the Company, such other
Subscriber (within the meaning of Section 15 of the Act and Section 20 of the
Exchange Act), but only insofar as such losses, claims, damages and liabilities
arise out of or are based upon any untrue statement or omission or alleged
untrue statement or omission which was made in the Registration Statement, the
Prospectus or preliminary prospectus or any amendment thereof or supplement
thereto, in reliance upon and in conformity with information furnished in
writing by such Subscriber to the Company specifically for use therein. The
Company shall be entitled to receive indemnities selling brokers and similar
securities industry professionals participating in the distribution, to the same
extent as provided above, with respect to information so furnished in writing by
such persons specifically for inclusion in any Prospectus, Registration
Statement or preliminary prospectus or any amendment thereof or supplement
thereto.
(c) Conduct of Indemnification Procedure. Any party that proposes to
assert the right to be indemnified hereunder will, promptly after receipt of
notice of commencement of any action, suit or proceeding against such party in
respect of which a claim is to be made against an indemnifying party or parties
under this Section, notify each such indemnifying party of the commencement of
such action, suit or proceeding, enclosing a copy of all papers served. No
indemnification provided for in Section 3.3(a) or 3.3(b) shall be available to
any party who shall fail to give notice as provided in this Section 3.3(c) if
the party to whom notice was not given was unaware of the proceeding to which
such notice would have related and was prejudiced by the failure to give such
notice, but the omission so to notify such indemnifying party of any such
action, suit or proceeding shall not relieve it from any liability that it may
have to any indemnified party for contribution otherwise than under this
Section. In case any such action, suit or proceeding shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
in, and, to the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense thereof
and the approval by the indemnified party of such counsel, the indemnifying
party shall not be liable to such indemnified party for any legal or other
expenses, except as provided below. The indemnified party shall have the right
to employ its counsel in any such action, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
employment of counsel by such indemnified party has been authorized in writing
by the
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indemnifying parties, (ii) it shall have been reasonably concluded that there
may be a conflict of interest between the indemnifying parties and the
indemnified party in the conduct of the defense of such action (in which case
the indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party; it being understood, however, that
the Company shall not be liable for the fees and expenses of more than one
separate counsel representing the indemnified parties) or (iii) the indemnifying
parties shall not have employed counsel to assume the defense of such action
within a reasonable time after notice of the commencement thereof, in each of
which cases the fees and expenses of counsel shall be at the expense of the
indemnifying parties. An indemnified party shall not be liable for any
settlement of any action, suit, proceeding or claim effected without its written
consent.
(d) Contribution. In connection with each Registration Statement
relating to the disposition of Registrable Securities, if the indemnification
provided for in subsection (a) hereof is unavailable to an indemnified party
thereunder in respect to any losses, claims, damages or liabilities referred to
therein, then the indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsections (a) or (b) of this Section 3.3 in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and of the indemnified party on the other in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities, or actions in respect thereof, as well as any other relevant
equitable considerations. Relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the indemnifying party or the indemnified party and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission.
4. General
(a) Any notice, declaration or other communications required or
authorized to be given by any party under this Subscription Agreement to any
other party shall be in writing and shall be personally delivered, sent by
facsimile transmission (with a copy by ordinary mail in either case) or
dispatched by courier, addressed to the other party at the address first above
written if to the Company and to the address on the signature page to this
Subscription Agreement, if to the Subscriber or such other address as shall be
specified by the parties hereto by notice in accordance with the provisions of
this section. Any notice shall operate and
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be deemed to have been served, if personally delivered or sent by fax on the
next following business day, and if by courier, on the fifth following business
day.
(b) Except as otherwise specifically provided for hereunder, no party
shall be deemed to have waived any of his or its rights hereunder or under any
other agreement, instrument or papers signed by any of them with respect to the
subject matter hereof unless such waiver is in writing signed by the party
waiving said right. A waiver on any one occasion with respect to the subject
matter hereof shall not be construed as a bar to, or waiver of, any right or
remedy on any future occasion. All rights and remedies with respect to the
subject matter hereof, whether evidenced hereby or by any other agreement,
instrument, or paper, will be cumulative, and may be exercised separately or
concurrently.
(c) The parties have not made any representations or warranties with
respect to the subject matter hereof not set forth herein, and this Subscription
Agreement, together with any instruments executed simultaneously herewith,
constitutes the entire agreement between them with respect to the subject matter
hereof. All understandings and agreements heretofore had between the parties
with respect to the subject matter hereof are merged in this Subscription
Agreement and any such instrument, which alone fully and completely expresses
their agreement.
(d) This Agreement may not be changed, modified, extended, terminated
or discharged orally, but only by an agreement in writing, which is signed by
all of the parties to this Agreement.
(e) The parties agree to execute any and all such other and further
instruments and documents, and to take any and all such further actions
reasonably required to effectuate this Subscription Agreement and the intent and
purposes hereof.
(f) This Subscription Agreement shall be governed by and construed in
accordance with the laws of the State of New York and the undersigned hereby
consents to the jurisdiction of the courts of the State of New York and/or the
United States District Court for the Southern District of New York.
(g) This Agreement may be in any number of counterparts, each of which
shall be deemed an original and enforceable against the parties actually
executing such counterpart, and all of which together shall constitute one and
the same instrument.
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[This Space Intentionally Left Blank]
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IN WITNESS WHEREOF, this Agreement has been executed by the Subscriber
and by the Company on the respective dates set forth below.
Number of Shares Price Per Share Amount of Purchase Price
-------------------------------- ------------------------
x $0.01 =
----------------
Individual Signature(s):
------------------------
Date Signature of Subscriber
------------------------ --------------------------
Social Security No. Printed Name
------------------------
Telephone No. Street
City State Zip
------------------------
Date Signature of Co-Subscriber
------------------------ --------------------------
Social Security No. Printed Name
------------------------
Telephone No. Street
City State Zip
Subscription Accepted by:
HIV-VAC, Inc.
By: Date:
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IN WITNESS WHEREOF, this Agreement has been executed by the Subscriber
and by the Company on the respective dates set forth below.
Number of Shares Price Per Share Amount of Purchase Price
---------------- --------------- ------------------------
x $0.01 = $10,000
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For Corporations, Trusts and Partnerships:
August 13, 2001 Bromley Holdings, Inc.
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Date Printed Name of Subscriber
By: /s/ Bromley Holdings, Inc.
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Tax Identification No. Signature of Authorized Signatory
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Telephone No. Printed Name of Authorized Signatory
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Street Address of Subscriber
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City State Zip
Subscription Accepted by:
HIV-VAC, Inc.
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Date: August 13, 2001
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SPECIAL SUBSCRIPTION INSTRUCTIONS FOR CORPORATE,
PARTNERSHIP, TRUST, AND JOINT PURCHASERS
If the subscriber is a corporation, partnership, trust, or other entity
or joint purchaser, the following additional instructions must be followed.
INFORMATION ADDITIONAL TO THAT REQUESTED BELOW MAY ALSO BE REQUIRED BY THE
COMPANY IN SOME CASES.
I. Certificate. The subscriber must date and sign the Certificate
below, and, if requested by the Company, the subscriber may also be required to
provide an opinion of counsel to the same effect as this Certificate or a copy
of (a) the corporation's articles of incorporation, bylaws and authorizing
resolution, (b) the partnership agreement, or (c) the trust agreement, as
applicable.
II. Subscription Agreement
A. Corporations. An authorized officer of the corporation must
date, sign, and complete the Subscription Agreement with information concerning
the corporation. The officer should print the name of the corporation above his
signature, and print his name and office below his signature.
B. Partnerships. An authorized partner must date, sign, and
complete the Subscription Agreement with information concerning the partnership.
The partner should print the name of the partnership above his signature, and
print his name and the words "general partner" below his signature.
C. Trusts. In the case of a trust, the authorized trustee
should date, sign, and complete the Subscription Agreement with information
concerning the trust. The trustee should print the name of the trust above his
signature, and print his name and the word "trustee" below his signature. In
addition, an authorized trustee should also provide information requested in the
Subscription Agreement as it pertains to him as an individual.
D. Joint Ownership. In all cases, each individual must date,
sign, and complete the Subscription Agreement. Joint investors must state if
they are purchasing the Shares as joint tenants with the right of survivorship,
tenants in common, or community property, and each must execute the Subscription
Agreement Signature Page.
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CERTIFICATE FOR CORPORATE, PARTNERSHIP,
TRUST, AND JOINT PURCHASERS
If the subscriber is a corporation, partnership, trust, joint
purchaser, or other entity, an authorized officer, partner, or trustee must
complete, date, and sign this Certificate.
CERTIFICATE
I hereby certify that:
a. The subscriber has been duly formed and is validly existing
and has full power and authority to invest in HIV-VAC, Inc.
b. The Subscription Agreement has been duly and validly
authorized, executed, and delivered by the subscriber and, upon
acceptance by HIV-VAC, Inc. will constitute the valid, binding, and
enforceable obligation of the subscriber.
Dated: August 13, 2001 Bromley Holdings, Inc.
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Name of corporation, partnership, trust
or joint purchases (please print)
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Signature and title of authorized officer,
partner, trustee, or joint purchaser
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NOTICE OF CONVERSION
(To be Executed by the Registered Holder
in order to Convert Series B Preferred Shares)
As of the date written below, the undersigned ("Holder") hereby
irrevocably elects to convert _____________ shares of Series B Preferred stock
("Series B Preferred") of HIV-VAC, Inc. ("HIV-VAC" or the "Company"), a Nevada
corporation, into _______________ shares of common stock, par value $0.001 per
share of HIV-VAC (the "Common Stock") according to the conditions of the
Subscription Agreement of the Company dated as of August ___, 2001, and the
Certificate of Designation, Powers, Preferences and Rights of the Preferred
Stock, Series B of HIV-VAC, Inc. (the "Certificate of Designation"). As set
forth in the Certificate of Designation, the conversion price per share of
Common Stock is $ . Therefore, the aggregate amount to be included with this
conversion is $ . If the Common Stock is to be issued in the name of a person
other than the Holder, the Holder will pay all transfer taxes payable with
respect thereto and is delivering herewith such certificates. No fee will be
charged to the Holder for any conversion, except for transfer taxes, if any.
Pursuant to the escrow agreement (the "Escrow Agreement") between the
Company, the Holder and Continental Stock Transfer and Trust Company (the
"Escrow Agent") dated August ___, 2001, the Escrow Agent is hereby instructed to
issue a certificate or certificates for the number of shares Common Stock set
forth above (which numbers are based on the Holder's calculation attached
hereto) in the name(s) specified immediately below or, if additional space is
necessary, on an attachment hereto:
Name: ____________________________
Address: ____________________________
____________________________
____________________________
Date: ____________________________
Authorized ____________________________
Signature: ____________________________
Name: ____________________________
Title: ____________________________
Agreed and Accepted:
HIV-VAC, INC.
By:________________________
Name:______________________
Title______________________
Date:______________________
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ADDENDUM TO SUBSCRIPTION AGREEMENT
This is an Addendum to that Subscription Agreement (hereafter referred to as
"the Agreement") dated August 13, 2001, between HIV-VAC, Inc. (the "Company")
and Bromley Holdings, Inc. (the "Subscriber"), and shall modify the terms of the
Agreement in the manner and to the extent specified in this Addendum.
1. Paragraph 1 shall be amended to include the following:
(q) He expressly acknowledges and understands that he may not convert the Shares
or exercise any warrants to the extent that such conversion or exercise, as the
case may be, would result in the Subscriber, together with any affiliate
thereof, beneficially owning in excess of 4.999% of the outstanding shares of
common stock following such conversion or exercise, as the case may be. Such
restrictions may be waived by the Subscriber upon not less than 61 days notice
to the Company.
HIV-VAC, INC
/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
BROMLEY HOLDINGS, INC.
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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By: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: President
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