Exhibit 10.1
FORM OF SUBSCRIPTION AGREEMENT
This Subscription Agreement (this “ Agreement ”)
is dated as of September 10, 2009 among iBio, Inc., a Delaware
corporation (the “ Company ”), and each
purchaser identified on the signature pages hereto (each, including
its successors and assigns, a “ Purchaser ” and
collectively the “ Purchasers ”).
WHEREAS, subject to the terms and conditions set forth in this
Agreement and pursuant to Section 4(2) of the Securities Act of
1933, as amended (the “ Securities Act ”), and
Rule 506 promulgated thereunder, the Company desires to issue and
sell to each Purchaser, and each Purchaser, severally and not
jointly, desires to purchase from the Company, shares of common
stock of the Company as more fully described in this Agreement.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained
in this Agreement, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the
Company and each Purchaser agree as follows:
ARTICLE I
DEFINITIONS
1.1.
Definitions . In addition to the terms defined elsewhere in
this Agreement the following terms have the meanings set forth in
this Section 1.1:
“ Affiliate ” means any Person that, directly or
indirectly through one or more intermediaries, controls or is
controlled by or is under common control with a Person, as such
terms are used in and construed under Rule 405 under the Securities
Act. With respect to a Purchaser, any investment fund or managed
account that is managed on a discretionary basis by the same
investment manager as such Purchaser will be deemed to be an
Affiliate of such Purchaser.
“ Board of Directors ” means the board of
directors of the Company.
“ Business Day ” means any day except any
Saturday, any Sunday, any day which is a federal legal holiday in
the United States or any day on which banking institutions in the
State of New York are authorized or required by law or other
governmental action to close.
“ Closing ” or “ Closings ”
means the closing of the purchase and sale of the Shares pursuant
to Section 2.2.
“ Closing Date ” means the Trading Day when all
of the Transaction Documents have been executed and delivered by
the applicable parties thereto, and all conditions precedent to (i)
the Purchasers’ obligations to pay the applicable
Subscription Amount and (ii) the Company’s obligations to
deliver the applicable Shares have been satisfied or waived.
“ Commission ” means the Securities and Exchange
Commission.
“ Common Stock ” means the common stock of the
Company, par value $0.001 per share.
“ Company Counsel ” means Davis Wright Tremaine
LLP, with offices located at 1633 Broadway, New York, New York
10019.
“ Disclosure Schedules ” shall have the meaning
ascribed to such term in Section 3.1.
“ Effective Date ” means the date that the
initial Registration Statement filed by the Company pursuant to the
Registration Rights Agreement is first declared effective by the
Commission.
“ Escrow Agent ” shall mean Signature Bank, with
offices located at 261 Madison Ave, New York, New York 10016.
“ Escrow Agreement ” shall mean the escrow
agreement entered into prior to or on the date hereof, by and among
the Company and the Escrow Agent pursuant to which the Purchasers
shall deposit Subscription Amounts with the Escrow Agent to be
applied to the transactions contemplated hereunder.
“ Exchange Act ” means the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated
thereunder.
“ Liens ” means a lien, charge, security
interest, encumbrance, right of first refusal, preemptive right or
other similar restriction.
“ Material Adverse Effect ” shall have the
meaning assigned to such term in Section 3.1(b).
“ Person ” means an individual or corporation,
partnership, trust, incorporated or unincorporated association,
joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of
any kind.
“ Proceeding ” means an action, claim, suit,
investigation or proceeding (including, without limitation, an
informal investigation or partial proceeding, such as a
deposition), whether commenced or threatened.
“ Registration Rights Agreement ” means the
Registration Rights Agreement, dated the date hereof, among the
Company and the Purchasers, in the form of Exhibit A
attached hereto.
“ Registration Statement ” means a registration
statement meeting the requirements set forth in the Registration
Rights Agreement and covering the resale of the Shares by each
Purchaser as provided for in the Registration Rights Agreement.
“ Required Approvals ” shall have the meaning
ascribed to such term in Section 3.1(e).
“ Rule 144 ” means Rule 144 promulgated by the
Commission pursuant to the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same
effect as such Rule.
“ Shares ” means the shares of Common Stock sold
to each Purchaser pursuant to this Agreement.
“ Subscription Amount ” means, as to each
Purchaser, the aggregate amount to be paid for Shares purchased
hereunder as specified below such Purchaser’s name on the
signature page of this Agreement and next to the heading
“Subscription Amount,” in United States dollars and in
immediately available funds.
“ Subsidiary ” means any direct or indirect
subsidiary of the Company and shall, where applicable, include any
direct or indirect subsidiary of the Company formed or acquired
after the date hereof.
“ Trading Day ” means a day on which the New
York Stock Exchange is open for trading.
“ Trading Market ” means the following markets
or exchanges on which the Common Stock is listed or quoted for
trading on the date in question: the American Stock Exchange, the
Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global
Select Market, or the New York Stock Exchange or the OTC Bulletin
Board.
“ Transaction Documents ” means this Agreement,
the Registration Rights Agreement, the Escrow Agreement, all
exhibits and schedules thereto and hereto and any other documents
or agreements executed in connection with the transactions
contemplated hereunder.
“ Transfer Agent ” means Continental Stock
Transfer & Trust Company, the current transfer agent of the
Company with a mailing address of 17 Battery Place, New York, New
York 10004, and a facsimile number of (212) 509-5150, and any
successor transfer agent of the Company.
ARTICLE II
PURCHASE AND SALE
2.1. Signing . On the date
hereof, upon the terms and subject to the conditions set forth
herein, the Company agrees to sell, and the Purchasers, severally
and not jointly, agree to purchase, up to an aggregate of
$3,000,000 of Shares. Each Purchaser shall deliver (1) to the
Escrow Agent, via wire transfer or a certified check, immediately
available funds equal to its Subscription Amount and (2) to the
Company, this Agreement duly executed by such Purchaser. The
Company shall deliver to each Purchaser, this Agreement duly
executed by the Company.
2.2.
Closing . On the Closing Date, upon the terms and subject to
the conditions set forth herein, the Company shall deliver to each
Purchaser its respective Shares, as determined pursuant to Section
2.3(a), and the Company and each Purchaser shall deliver the other
items set forth in Section 2.3 deliverable at the Closing. Upon
satisfaction of the conditions set forth in Sections 2.3 and 2.4,
the Closing shall occur at the offices of Company Counsel or such
other location as the parties shall mutually agree. The parties
hereto acknowledge that there may be more than one Closing in
connection with transactions contemplated by this Agreement.
2.3.
Closing Deliveries (a) On the Closing Date, the Company
shall deliver or cause to be delivered to each Purchaser the
following:
(i) irrevocable instructions to the
Transfer Agent instructing the Transfer Agent to deliver a
certificate evidencing a number of Shares equal to such
Purchaser’s Subscription Amount divided by the per share
purchase price of $0.65 (the “ Purchase Price
”), registered in the name of such Purchaser; and
(ii) the Registration Rights Agreement
in the form attached hereto as Exhibit A duly executed by
the Company.
(b) On the Closing Date, each
Purchaser shall deliver or cause to be delivered to the Company and
the Placement Agent (or, where indicated, to the Escrow Agent) the
following:
(i) the Registration Rights
Agreement duly executed by such Purchaser;
(ii) the Accredited Investor
Questionnaire; and
(ii) the Subscription Amount.
2.4.
Closing Conditions .
(a) The obligations of the
Company hereunder in connection with the Closing are subject to the
following conditions being met:
(i) the accuracy in all material
respects on the Closing Date of the representations and warranties
of the Purchasers contained herein;
(ii) all obligations, covenants and
agreements of each Purchaser required to be performed at or prior
to the Closing Date shall have been performed; and
(iii) the delivery by each Purchaser
of the items set forth in Section 2.3(b) of this Agreement.
(b) The respective obligations of the
Purchasers hereunder in connection with the Closing are subject to
the following conditions being met:
(i) the accuracy in all material
respects when made and on the Closing Date of the representations
and warranties of the Company contained herein;
(ii) all obligations, covenants and
agreements of the Company required to be performed at or prior to
the Closing Date shall have been performed;
(iii) the delivery by the Company of
the items set forth in Section 2.3(a) of this Agreement; and
(iv) there shall have been no Material
Adverse Effect with respect to the Company since the date
hereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1.
Representations and Warranties of the Company . Except as
set forth under the corresponding section of the disclosure
schedules delivered to the Purchasers concurrently herewith (the
“ Disclosure Schedules ”), attached hereto as
Exhibit B , which Disclosure Schedules shall be deemed a
part hereof, the Company hereby makes the representations and
warranties set forth below to each Purchaser:
(a) Subsidiaries . The Company
has no Subsidiaries. Any references to the Subsidiaries or any of
them in the Transaction Documents shall be disregarded, unless such
references are to Subsidiaries formed after the date hereof.
(b) Organization and
Qualification . The Company is an entity duly incorporated or
otherwise organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation, with the
requisite power and authority to own and use its properties and
assets and to carry on its business as currently conducted. The
Company is not in violation or default of any of the provisions of
its certificate of incorporation, bylaws or other organizational or
charter documents. The Company is duly qualified to conduct
business and is in good standing as a foreign corporation in each
jurisdiction in which the nature of the business conducted or
property owned by it makes such qualification necessary, except
where the failure to be so qualified or in good standing, as the
case may be, could not have or reasonably be expected to result in
(i) a material adverse effect on the legality, validity or
enforceability of any Transaction Document, (ii) a material adverse
effect on the results of operations, assets, business, properties
or condition (financial or otherwise) of the Company and the
Subsidiaries, taken as a whole, or (iii) a material adverse effect
on the Company’s ability to perform in any material respect
on a timely basis its obligations under any Transaction Document
(any of (i), (ii) or (iii), a “ Material Adverse
Effect ”) and no Proceeding has been instituted in any
such jurisdiction revoking, limiting or curtailing or seeking to
revoke, limit or curtail such power and authority or
qualification.
(c) Authorization; Enforcement
. The Company has the requisite corporate power and authority to
enter into and to consummate the transactions contemplated by each
of the Transaction Documents, to issue the Shares in accordance
with the terms hereof and thereof and otherwise to carry out its
obligations hereunder and thereunder. The execution and delivery of
each of the Transaction Documents by the Company and the
consummation by it of the transactions contemplated hereby and
thereby, including the issuance of the Shares, have been duly
authorized by all necessary action on the part of the Company and
no further action is required by the Company, the Board of
Directors or the Company’s stockholders in connection
therewith other than in connection with the Required Approvals.
Each Transaction Document has been (or upon delivery will have
been) duly executed by the Company and, when delivered in
accordance with the terms hereof and thereof, will constitute the
valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, except as limited by general
equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally.
(d) No Conflicts . The
execution, delivery and performance of the Transaction Documents by
the Company and the consummation by the Company of the other
transactions contemplated hereby and thereby (including, without
limitation, the issuance of the Shares) do not and will not: (i)
conflict with or violate any provision of the Company’s or
any Subsidiary’s certificate or articles of incorporation,
bylaws or other organizational or charter documents, or (ii)
conflict with, or constitute a default (or an event that with
notice or lapse of time or both would become a default) under,
result in the creation of any Lien upon any of the properties or
assets of the Company or any Subsidiary, 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 Company or
Subsidiary debt or otherwise) or other understanding to which the
Company or any Subsidiary is a party or by which any property or
asset of the Company or any Subsidiary is bound or affected, or
(iii) subject to the Required Approvals, conflict with or 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 or a Subsidiary is
subject (including federal and state securities laws and
regulations and the rules and regulations of any Trading Market on
which the Common Stock is traded or quoted), or by which any
property or asset of the Company or a Subsidiary is bound or
affected, except in the cases of conflicts described in clauses
(ii) or (iii) that would not have a Material Adverse Effect.
(e) Filings, Consents and
Approvals . The Company is not required to obtain any consent,
waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state,
local or other governmental authority or other Person in connection
with the execution, delivery and performance by the Company of the
Transaction Documents, including but not limited to the issuance
and sale of securities, other than (i) filings required pursuant to
the Exchange Act, (ii) the filing with the Commission of the
Registration Statement, and (iii) the filing of Form D with the
Commission and such filings as are required to be made under
applicable state securities laws (collectively, the “
Required Approvals ”) and filings which if not made
would not result in a Material Adverse Effect.
(f) Issuance of the Shares .
The Shares are duly authorized and, when issued and paid for in
accordance with the applicable Transaction Documents, will be duly
and validly issued, fully paid and nonassessable, free and clear of
all taxes and charges with respect thereof and free and clear of
all Liens imposed by the Company other than restrictions on
transfer provided for in the Transaction Documents. The Shares
would not have been issued or sold in violation of any preemptive
or similar rights of the holders of any securities of the
Company.
(g) Conduct of Business . The
conduct of business by the Company as presently conducted is not
subject to continuing oversight, supervision, regulation or
examination by any governmental official or body of the United
States or any other jurisdiction wherein the Company conducts or
proposes to conduct such business, except (i) as such regulation as
is applicable to commercial enterprises generally, and (ii) by the
U.S. Food and Drug Administration. The Company has obtained all
requisite licenses, permits and other governmental authorization
necessary to conduct its business as presently, and as proposed to
be, conducted, except where the failure to obtain such license,
permit or other governmental authorization would not result in a
Material Adverse Effect.
(h) No Defaults . No default
by the Company or, to the best knowledge of the Company, any other
party exists in the due performance under any agreement to which
the Company is a party or to which any of its assets is subject
(collectively, the “Company Agreements”), except for
such defaults that would not result in a Material Adverse
Effect.
(i) Intellectual Property .
The Company owns all right, title and interest in, or possesses
adequate and enforceable rights to use, all patents, patent
applications, trademarks, trade names, service marks, copyrights,
rights, licenses, franchises, trade secrets, confidential
information, processes, formulations, software and source and
object codes necessary for the conduct of its business
(collectively, the “Intangibles”), except for such
defects in ownership rights that would not result in a Material
Adverse Effect. To the knowledge of the Company, it has not
infringed upon the rights of others with respect to the Intangibles
and the Company has not received notice that it has or may have
infringed or is infringing upon the rights of others with respect
to the Intangibles, or any notice of conflict with the asserted
rights of others with respect to the Intangibles that could,
individually or in the aggregate, have a Material Adverse
Effect.
(j) Anti-Terrorism . Neither
the sale of the Shares
by the Company nor its use of the
proceeds thereof will violate the Trading with the Enemy Act, as
amended, or any of the foreign assets control regulations of the
United States Treasury Department (31 CFR, Subtitle B, Chapter V,
as amended) or any enabling legislation or executive order relating
thereto. Without limiting the foregoing, the Company is not (a) a
person whose property or interests in property are blocked pursuant
to Section 1 of Executive Order 13224 of September 23, 2001
Blocking Property and Prohibiting Transactions With Persons Who
Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg.
49079 (2001)) or (b) a person who engages in any dealings or
transactions, or be otherwise associated, with any such person. The
Company and its subsidiaries are in compliance, in all material
respects, with the USA Patriot Act of 2001 (signed into law October
26, 2001) .
(k)
Capitalization; Additional Issuances . The issued and
outstanding securities of the Company as of September 10
, 2009 are as set forth in Schedule
3.1 (k) hereto. Except as set
forth in Schedule 3.1 (k) , as of
September 10 , 2009 there are no
outstanding agreements or preemptive or similar rights affecting
the Company’s Common Stock and no outstanding rights,
warrants or options to acquire, or instruments convertible into or
exchangeable for, or agreements or understandings with respect to
the sale or issuance of any Common Stock of the Company.
(l)
Litigation . Except as disclosed in Schedule 3.1(l) ,
there are no legal proceedings, other than routine litigation
incidental to the business, pending or, to the knowledge of the
Company, threatened against or involving the Company or any of its
respective property or assets, except for proceedings that if
determined adversely to the Company would not result in
a Material Adverse Effect. There are no
outstanding orders, judgments, injunctions, awards or decrees of
any court, governmental or regulatory body or arbitration tribunal
against or involving the Company, except for orders, judgments,
injunctions, awards or decrees that would not have a Material
Adverse Effect.
(m) SEC
Reports . The Company has filed all reports required to
be filed by it under the Exchange Act , for the two
years preceding the date hereof (or such shorter period as the
Company was required by law to file such material) (all of the
foregoing filed prior to the date hereof and all exhibits included
therein and financial statements and schedules thereto and
documents incorporated by reference therein, being hereinafter
referred to as the “ SEC Documents ”). As of
their respective dates, the SEC Documents complied in all material
respects as to form with the requirements of the Securities Act and
the Exchange Act and the rules and regulations of the Securities
and Exchange Commission (the “ Commission ”)
promulgated hereunder, and none of the SEC Documents, when filed,
contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading. The Company has advised
the Investor that a correct and complete copy of each of the SEC
Documents (together with all exhibits and schedules thereto and as
amended to date) is available at http://www.sec.gov , a
website maintained by the Commission where the Investor may view
the SEC Documents. The financial statements of the Company included
in the SEC Documents (the “ Financial
Statements ” ) comply in all material respects
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