Rev-2 PHARMA PATCH PLC
(an Irish public limited company)
REGULATION S OFFSHORE TRANSACTION SUBSCRIPTION AGREEMENT
2,150,000 American Depositary Shares, each representing one Ordinary Share,
IR Pound .01 par value
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Any interest in the PHARMA PATCH PLC securities subscribed to hereunder may be
resold within the jurisdiction of the United States or to U.S. Persons [as
defined in Rule 902(o) of Regulation S under the United States Securities Act
of 1933 ("Securities Act")] by or for the account of the undersigned Foreign
Investor only (i) pursuant to a registration statement under the Securities
Act, or (ii) pursuant to an applicable exemption from such registration.
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Pharma Patch PLC
00-00 XxxxXxxxxxx Xxxxx
Xxxxxx 0, Xxxxxxx
FAX Number 000-000-0-000-0000
1. SUBSCRIPTION TO AMERICAN DEPOSITARY SHARES. The undersigned, an
individual not residing in nor a resident of the United States, or
alternatively a company organized under the laws of the jurisdiction of its
organization or incorporation set forth on the signature page hereof (herein
called the "Foreign Investor"), hereby subscribes for the purchase of the
number of American Depositary Shares ("ADS") indicated on the signature page
hereof, each ADS representing one Ordinary Share, IR Pound .01 par value, in
PHARMA PATCH PLC, an Irish public limited company (herein called "PHARMA
PATCH") for the account of the Foreign Investor upon the terms and conditions
set forth in this Subscription Agreement. The subscription price for each
ADS shall be (i) $0.50 per ADS in United States funds, payable in cash upon
acceptance hereof, and (ii) the delivery in proper form, endorsed for
transfer, of one (1) Class C Warrant previously issued by PHARMA PATCH which
shall be surrendered for cancellation.
2. DESCRIPTION OF OFFERING.
2.1. REGULATION S OFFERING. PHARMA PATCH is offering up to a maximum
of 2,150,000 American Depositary Shares representing up to a maximum of
2,150,000 Ordinary Shares of PHARMA PATCH on a "best efforts" basis to a
limited number of qualified investors in a private placement offering of
securities exempt from the registration requirements of the United States
Securities Act of 1933, as amended (the "Securities Act"). The offering of
such ADS securities to investors who are not U.S. persons as defined in Rule
902(o) of Regulation S ("Regulation S") promulgated under the Securities Act
is herein called the "Offering". All of the ADS securities are being offered
at a price of $0.50 per ADS share in U.S. funds and the surrender for
cancellation of one (1) PHARMA PATCH Class C Warrant for each ADS sold in the
Offering. The Foreign Investor acknowledges receipt and has read and
understands information concerning the existing financial condition and a
proposed future plan of operation and proposed reorganization of PHARMA PATCH.
There are no minimum amount of subscriptions required in order for
Regulation S Subscription Agreement -1-
PHARMA PATCH to accept any subscriptions to the Offering. The Offering will
terminate on February 15, 1996 unless extended at the option of PHARMA PATCH
for an additional period of not more than 30 days. PHARMA PATCH reserves the
right to terminate the Offering at any time, whether or not the maximum ADS
securities have been sold, and further reserves the right to increase the
amount of ADS securities offered if at least 2,150,000 ADS securities are
subscribed for in this Offering on or prior to February 15, 1996.
2.2. CLASS C WARRANTS TO BE SURRENDERED FOR CANCELLATION. Each Class
C Warrant to be transferred and surrendered for cancellation by PHARMA PATCH
pursuant to this Offering represents the right to purchase for $10.00 a unit
of PHARMA PATCH securities consisting of one ADS, one-half of a Class A
Warrant and one-quarter of a Class B Warrant in PHARMA PATCH. Upon the
acceptance of his or its subscription to this Offering, the undersigned
Foreign Investor acknowledges that he or it is surrendering all rights
represented by such Class C Warrants and the other securities underlying the
Class C Warrants. In order to perform his or its obligations under this
Agreement with respect to the transfer and surrender of Class C Warrants, the
Foreign Investor represents and warrants to PHARMA PATCH as follows:
(a) The Foreign Investor is the owner of record and beneficially of a
sufficient number of Class C Warrants, free and clear of any liens,
encumbrances or other adverse claims, necessary to subscribe for the
number of ADS securities indicated on the signature page of this
Agreement, and the Foreign Investor has not sold, assigned, endorsed,
transferred, deposited under any agreement, hypothecated, pawned,
pledged for any bank or brokerage loan, or otherwise transferred any
interest in such Class C Warrants to any third party;
(b) Upon the tender of this subscription Agreement, the Foreign Investor
shall promptly
(i) cause certificates representing the Class C Warrants transferred
and surrendered in connection with this Offering to be delivered
to, and deposited with, PHARMA PATCH at its offices at 00-00
XxxxXxxxxxx Xxxxx, Xxxxxx 0, Xxxxxxx;
(ii) deliver to PHARMA PATCH at said office in Toronto, Ontario a stock
power in the form attached hereto, duly endorsed for transfer of
said Class C Warrants to PHARMA PATCH with signature guaranteed by
a medallion signature guaranty;
(iii) if the Foreign Investor is a corporation, partnership or another
entity (other than an individual), deliver to PHARMA PATCH at said
office in Toronto, Ontario a certificate in the form attached
hereto confirming the authority of the officer, managing director
or other agent executing the aforesaid stock power on behalf of
the Foreign Investor.
The Foreign Investor agrees that it will, at any time and from time to time
after this subscription is accepted by PHARMA PATCH, do, execute, acknowledge
and deliver, or will cause to be done, executed, acknowledged and delivered,
all such further acts, assignments, transfers, powers and assurances as may be
required to enable PHARMA PATCH to cancel the Class C Warrants delivered in
payment of the applicable portion of the subscription price to ADS in this
Offering and hereby appoints PHARMA PATCH as the duly authorized agent and
attorney-in-fact of the Foreign Investor to cause such Class C Warrants to be
cancelled.
Regulation S Subscription Agreement -2-
3. OTHER REPRESENTATIONS AND WARRANTIES OF THE FOREIGN INVESTOR. In
connection with this Agreement and the transactions contemplated herein, the
Foreign Investor represents and warrants to PHARMA PATCH as follows:
3.1. The Foreign Investor has been duly formed and is validly existing
as a corporation or other legal entity in good standing under the laws of its
jurisdiction of incorporation set forth on the signature page to this
Agreement. The Foreign Investor is not organized under the laws of the United
States, is not a "U.S. Person" as that term is defined in Rule 902(o) of
Regulation S, and is not an "affiliate" of PHARMA PATCH as that term is used
in regulations promulgated under the Securities Act or associated with any
individual or entity which may be deemed an "affiliate" of PHARMA PATCH as of
the date hereof. Neither the Foreign Investor, nor any person affiliated with
it, is or has been for the past three months, an officer, director,
controlling shareholder or otherwise in a position to control, select or
influence the management and policies of PHARMA PATCH.
3.2. The Foreign Investor was not formed for the purpose of investing
in Regulation S securities or formed for the purpose of investing in this
Agreement and the ADS securities of PHARMA PATCH. The Foreign Investor is not
registered as an issuer under the Securities Act and is not required to be
registered with the U.S. Securities and Exchange Commission under the
Investment Company Act of 1940, as amended. The Foreign Investor is entering
into this Agreement and is participating in the Offering for its own account,
and not on behalf of any U.S. Person as defined in Rule 902(o) of Regulation
S.
3.3. No offer to enter into this Agreement has been made by PHARMA
PATCH to the Foreign Investor in the United States other than as permitted in
the case of an account managed by a professional fiduciary resident in the
United States within the meaning of Section 902(o)(2) of Regulation S. At the
times of the offer and execution of this Agreement and, to the best knowledge
of the Foreign Investor, at the time the Offering originated, the Foreign
Investor was located and resident outside the United States other than as
permitted in the case of an account managed by a professional fiduciary
resident in the United States within the meaning of Section 902(o)(2) of
Regulation S.
3.4. Neither the Foreign Investor, nor any of its affiliates nor any
person acting on its behalf or any behalf of any such affiliate, has engaged,
or will engage, in any activity undertaken for the purpose of, or that could
reasonable be expected to have the effect of, conditioning the markets in the
United States for the ADS securities or for any securities that are
convertible into or exercisable for ADS securities of PHARMA PATCH, including
but not limited to effecting any sale of PHARMA PATCH securities to or through
the Foreign Investor or any of its affiliates prior to the expiration of any
restricted period contained in Regulation S (any such activity being defined
herein as a "Directed Selling Effort"). To the best knowledge of the
undersigned, this Agreement and the transactions contemplated herein are not
part of a plan or scheme to evade the registration provisions of the
Securities Act and the ADS securities are being purchased for investment
purposes by the Foreign Investor. The Foreign Investor, and to the best
knowledge of the Foreign Investor, each distributor, if any, participating in
this Offering of PHARMA PATCH ADS securities, has agreed that all offers and
sales of any securities included in the Offering prior to the date hereof and
through the expiration of the any restricted period set forth in Rule 903 of
Regulation S (and as the same may be amended from time to time hereafter)
shall not be made to U.S. Persons or for the account or benefit of U.S.
Persons, and shall otherwise be made in compliance with the provisions of
Regulation S and any other applicable provisions of the Securities Act. The
Foreign Investor and its representatives have not conducted any Directed
Selling Effort as that term is used and defined in Rule 902 of Regulation S
and will not engage in any such Directed Selling Effort within the United
States through the expiration of any restricted period set forth in Rule 903
of Regulation S.
Regulation S Subscription Agreement -3-
3.5. The Foreign Investor acknowledges and agrees that following the
expiration of any restricted period provided by Rule 903 of Regulation S, any
interest in this Agreement or in the ADS securities subscribed to hereunder
may be resold within the jurisdiction of the United States or to U.S. Persons
[as defined in Rule 902(o) of Regulation S] by or for the account of the
parties hereto only: (i) pursuant to a registration statement under the
Securities Act, or (ii) pursuant to an exemption from such registration for
sales by a person other than an issuer, underwriter or dealer as those terms
are used in Section 4(1) and related provisions of the Securities Act and
regulations thereunder, or pursuant to another exemption from registration,
and following the expiration of any restricted period required by Regulation
S. The Foreign Investor acknowledges that this Agreement and the PHARMA PATCH
ADS securities have not been registered under the Securities Act or qualified
under state securities laws of the United States, and that the transferability
hereof and thereof within the jurisdiction of the United States is restricted
by the Securities Act as well as such state laws. The Foreign Investor
acknowledges that this Agreement and the ADS securities are being sold in
reliance upon the transaction exemption afforded by Regulation S in connection
with an offshore offer and sale of securities of PHARMA PATCH not within or
subject to the jurisdiction of the United States markets. The Foreign
Investor acknowledges it has received a copy of Regulation S, is familiar with
and understands the terms thereof, and has had the opportunity to consult with
its legal counsel concerning this Agreement and Regulation S.
The Foreign Investor acknowledges that if any transfer of the ADS securities
is to be made in reliance upon an exemption under the Securities Act, the
issuer of the securities being so transferred or its successor-in-interest may
require an opinion of counsel satisfactory to the issuer that such transfer
may be made pursuant to an applicable exemption under the Securities Act. The
Foreign Investor acknowledges that, so long as appropriate, a legend similar
to the following may appear on the certificates representing the PHARMA PATCH
ADS securities subscribed for hereunder: "These securities have not been
registered under the Securities Act of 1933 and may be reoffered and sold only
if registered or if an exemption from such registration is available in the
opinion of counsel satisfactory to the issuer."
3.6. The Foreign Investor has not received any general solicitation or
advertising regarding the Offering or this Agreement. The Foreign Investor
has sufficient knowledge and experience in financial and business matters so
that it is able to evaluate the merits and risks of the Offering and this
Agreement. The Foreign Investor has had substantial experience in previous
private and public purchases of speculative and restricted securities,
understands that an investment in the ADS securities of PHARMA PATCH is
speculative, and can afford to sustain a complete loss of its investment.
3.7. The Foreign Investor has carefully read and reviewed this
Agreement and any other written information received by the Foreign Investor
or its representatives and agent relating to this Offering. The Foreign
Investor has had an opportunity to ask questions of, and to receive answers
from, one or more of the executive officers of PHARMA PATCH as the Foreign
Investor deems necessary in order for the Foreign Investor to make an informed
decision with respect to this Agreement and the Offering. The undersigned
Foreign Investor has received complete and satisfactory answers to all such
inquiries. The undersigned has not received oral or written representations
or assurances from PHARMA PATCH or any representatives of PHARMA PATCH, other
than as set forth in this Agreement.
3.8. This Agreement has been duly authorized, executed and delivered by
the Foreign Investor and is a valid and binding agreement enforceable in
accordance with its terms, subject only to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general application
to or affecting creditors' rights generally and to general principles of
equity. The Foreign Investor has full power and authority necessary to enter
into this Agreement and to perform its obligations hereunder.
Regulation S Subscription Agreement -4-
3.9. The execution and delivery of this Agreement, and the consummation
of the transactions contemplated herein, do not and will not conflict with or
result in a breach by the Foreign Investor of any of the terms or provisions
of, or constitute a default under, its charter documents, its memorandum or
articles of association or incorporation, its by-laws, any action of its
directors or shareholders, or any indenture, mortgage, deed of trust or other
agreement or instrument to which the undersigned is a party or by which it or
any of its properties or assets are bound, or any existing applicable law,
rule or regulation or any applicable decree, judgment or order of any court,
regulatory body, administrative agency or other governmental body having
jurisdiction over the undersigned or any of its properties or assets.
4. REPRESENTATIONS AND WARRANTIES OF PHARMA PATCH.
By its acceptance of any subscription from the Foreign Investor
hereunder, PHARMA PATCH represents and warrant to the Foreign Investor as
follows:
4.1. PHARMA PATCH is duly organized and validly existing in good
standing as a public limited company under the laws of the Republic of Ireland
with corporate power to enter into this Agreement and to conduct its business
as presently conducted.
4.2. PHARMA PATCH is a "Reporting Issuer" as defined in Rule 902(l) of
Regulation S and will cause all the materials required to be filed by it
pursuant to Section 13(a) of the U.S. Securities Exchange Act of 1934, as
amended (the "Exchange Act") to be filed with the Securities and Exchange
Commission for a period of at least three (3) months following the completion
of the Offering. PHARMA PATCH is not an investment company registered or
required to register as such under the United States Investment Company Act of
1940.
4.3. PHARMA PATCH's ADS securities is a class of securities registered
under Section 12(g) of the Exchange Act, and PHARMA PATCH has filed all
materials, reports and documents required to be filed pursuant to Section
13(a) of the Exchange Act for a period of at least twelve months preceding the
date of this Offering (or for such shorter period as it may have been required
to filed such materials). PHARMA PATCH has made available to the Foreign
Investor copies of PHARMA PATCH's filings with the Securities and Exchange
Commission for the last twelve months prior to the date of this Offering
including, without limitation, its last proxy statement to shareholders for
its annual general meeting of shareholders and audited financial statements
for its last fiscal year and unaudited interim financial statements for
quarterly periods subsequent thereto.
4.4. PHARMA PATCH has not offered any securities covered by this
Offering to any persons in the United States nor to any U.S. Person nor to any
identifiable group or groups of U.S. citizens in the United States or abroad.
4.5. The PHARMA PATCH ADS securities and the underlying Ordinary
shares of PHARMA PATCH, when issued and delivered upon payment of the
subscription price, will each be duly and validly authorized and issued, fully
paid and nonassessable securities of PHARMA PATCH and will not subject the
holders thereof to personal liability by reason of being such holders.
4.6. This Agreement, upon its acceptance by PHARMA PATCH, has been
duly authorized, executed and delivered by PHARMA PATCH and is a valid and
binding agreement enforceable in accordance with its terms, subject only to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general application to or affecting creditors' rights
generally and to general principles of equity. PHARMA PATCH has full power
and authority necessary to enter into this Agreement and to perform its
obligations hereunder.
Regulation S Subscription Agreement -5-
4.7. The execution and delivery of this Agreement, and the
consummation of the transactions contemplated herein, do not and will not
conflict with or result in a breach by PHARMA PATCH of any of the terms or
provisions of, or constitute a default under, its articles of incorporation or
association, its by-laws, any action of its directors or shareholders, or any
indenture, mortgage, deed of trust or other agreement or instrument to which
it is a party or by which it or any of its properties or assets are bound, or
any existing applicable law, rule or regulation or any applicable decree,
judgment or order of any court, regulatory body, administrative agency or
other governmental body having jurisdiction over the undersigned or any of its
properties or assets.
5. OTHER TERMS AND AGREEMENTS.
5.1. Each of the parties understand that no governmental agency of any
jurisdiction has passed upon or made any recommendation or endorsement of the
ADS securities, the transactions contemplated by this Agreement, or an
investment in the ADS securities.
5.2. Each of the undersigned agrees to pay its own expenses incident to
the performance of its obligations hereunder.
5.3. Each of the undersigned agree this Agreement shall be governed by
and construed in accordance with the laws of the Republic of Ireland, and
without regard to principles of conflicts of law.
5.4. This Agreement may be executed in one or more counterparts and it
is not necessary that the signatures of all parties appear on the same
counterpart, but such counterparts together shall constitute but one and the
same agreement. The headings of the sections of this Agreement have been
inserted for convenience of reference only, and shall not be deemed to be a
part of this Agreement.
5.5. Time shall be of the essence of this Agreement.
[SIGNATURE PAGE FOLLOWS]
Regulation S Subscription Agreement -6-
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
as of the respective dates set forth below.
FOREIGN INVESTOR:
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[Full Legal Name]
By:
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[Authorised Signature]
Name of Signing Officer:
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Title of Signing Officer:
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Principal Address of Foreign Investor:
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Jurisdiction in which Foreign Investor is Incorporated or Organized:
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Number of PHARMA PATCH American Depositary Shares subscribed for ( ADS)
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at $0.50 per ADS equals $ .
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The following is a true and correct schedule of the PHARMA PATCH Class C
Warrants to be surrendered for cancellation upon your acceptance of this
subscription, all of which currently are registered solely in the name of the
undersigned Foreign Investor:
CLASS C WARRANTS TO BE SURRENDERED:
Certificate Number Number of Class C Warrants
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ATTACH LIST IF MORE ROOM IS REQUIRED
Date: , 1996
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This Agreement is accepted as of 1996
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for PHARMA PATCH PLC in the City of Dublin, Ireland:
By:
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[Authorised Signature]
Name and Title of Signing Officer:
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Date: , 1996 Rev-2
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Regulation S Subscription Agreement -7-
