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Exhibit 10.1
SUBSCRIPTION AGREEMENT
DUSKA THERAPEUTICS, INC.
To: Duska Therapeutics, Inc.
This Subscription Agreement (this " Subscription
Agreement ") is made by and between Duska Therapeutics, Inc., a
Nevada corporation (the " Company "), and the undersigned
prospective purchaser (the " Investor ") who is subscribing
hereby for Units (the " Units ") each consisting of a share
of common stock $0.001 par value (the " Common Stock ") of
the Company, and a warrant to purchase one share of the
Company’s common stock at an exercise price of $0.04 per
share. The warrants will expire after three years from the date of
issuance. The Investor has received that certain Investment Letter,
dated December 15, 2006, and all exhibits and attachments
referred to therein (the " Investment Letter" ). The Units
are offered and will be sold at a price of $0.02 per Unit. The
Units are offered to Accredited Investors (hereinafter defined)
only. All funds received by the Company pursuant to subscriptions
for the Units will be deposited into the Company’s accounts
and may be used by the Company upon the issuance to the Investor of
the certificates representing the Units. The Company reserves the
right to offer and sell a limited number of the Units through one
or more placement agents (the " Placement Agents ").
In consideration of the Company’s agreement to sell Units
to the Investor upon the terms and conditions summarized in the
Investment Letter, the Investor or Company, as the case may be,
agrees and represents as follows:
A. SUBSCRIPTION.
1. The Investor hereby irrevocably subscribes for and agrees to
purchase the number of Units indicated on the signature page hereof
at a purchase price of $0.02 cents per Unit. The Investor encloses
herewith a check payable to "Duska Therapeutics, Inc." in the
amount of the purchase price of the Units for which the Investor is
subscribing (the " Payment ").
2. The Company may reject any subscription, in whole or in part,
for any reason. The Payment will be returned promptly if the
Investor’s subscription is rejected. In addition, as
described in Paragraph D.1 below, the Company may reduce the number
of Units that the Investor will be entitled to purchase in the
event that the Company has to allocate the Units available for sale
among the Investor and other subscribers.
B. REGISTRATION.
The Company hereby grants to the Investor certain rights to
register the shares purchased by the Investor. The terms,
conditions and limitations of the foregoing registration rights are
set forth on Exhibit A to this Subscription Agreement. The
Investor hereby shall be bound by the terms and conditions set
forth on Exhibit A .
C. REPRESENTATIONS AND WARRANTIES.
The Investor hereby represents and warrants to the Company (and
any participating Placement Agents in this offering) as
follows:
1. The Investor has sufficient liquid assets to sustain a loss
of the Investor’s entire investment.
2. The Investor is an Accredited Investor as that term is
defined in Regulation D (" Regulation D ") promulgated under
the Securities Act of 1933, as amended (the " Act "). The
Investor either alone or with the Investor’s
representative(s), has such knowledge and experience in financial
and business matters that the Investor is capable of evaluating the
merits and risks of the investment in the Units.
3. The Investor (i) has adequate means of
providing for his current financial needs and possible personal
contingencies, and has no need for liquidity of his investment in
the Company; (ii) can afford (a) to hold unregistered
securities for an indefinite period of time and (b) sustain a
complete loss of the entire amount of the subscription; and
(iii) has not made an overall commitment to investments that
are not readily marketable that is so disproportionate as to cause
such overall commitment to become excessive.
4. The Investor’s Units are being purchased for the
Investor’s own account, for investment purposes only, not for
the account of any other person, and not with a view to
distribution, assignment or resale to others or to
fractionalization in whole or in part. No other person has or will
have a direct or indirect beneficial interest in the
Investor’s Units. The Investor will not sell, hypothecate or
otherwise transfer the Investor’s Units unless:
(a) there is an effective registration statement under the Act
and applicable state securities laws covering any transaction
involving such securities, or (b) an exemption from the
registration requirements of the Act and such state laws is
available and the Company receives an opinion of legal counsel from
Investor, in form and substance satisfactory to the Company, that
the transfer is exempt from registration.
5. The Investor has been furnished with and has carefully read
the Investment Letter and is familiar with and understands the
terms of the offering. In evaluating the suitability of an
investment in the Company, the Investor has not relied upon any
representations or other information (whether oral or written) from
the Company, other than as set forth in the Investment Letter and
the various exhibits attached thereto, or as set forth in the
Company’s public filings with the Commission. With respect to
the Investor’s tax and other economic considerations involved
in this investment, the Investor is not relying on the Company. The
Investor has carefully considered and has, to the extent the
Investor believes such discussion necessary, discussed with the
Investor’s professional legal, tax, accounting and financial
advisors the suitability of an investment in the Units for the
Investor’s particular tax and financial situation and has
determined that the Units being subscribed for by the Investor are
a suitable investment for the Investor.
6. The Company has made available to the Investor all documents
and information that the Investor has requested relating to an
investment in the Units.
7. The Investor has received, read, understands and is familiar
with the Investment Letter, including, without limitation, the
"Risk Factors" section contained therein and the exhibits attached
thereto.
8. The Investor recognizes that the Company is an early
development stage company that has not generated any revenues to
date and is not expected to have any products commercially
available for a number of years, if at all. Therefore, the Investor
realizes that an investment in the Company involves substantial
risks, including loss of the entire amount of such investment, and
has taken full cognizance of and understands all of the risk
factors relating to the purchase of the Units.
9. If this Subscription Agreement is executed and delivered on
behalf of a partnership, corporation, trust, estate or other legal
entity that is not a natural person: (i) such partnership,
corporation, trust, estate or other entity has the full legal right
and power and all authority and approval required: (a) to
execute and deliver, or authorize execution and delivery of, this
Subscription Agreement and all other instruments executed and
delivered by or on behalf of such partnership, corporation, trust,
estate or other entity in connection with the purchase of its
Units, (b) to delegate authority pursuant to a power of
attorney, and (c) to purchase and hold such Units;
(ii) the signature of the party signing on behalf of such
partnership, corporation, trust, estate or other entity is binding
upon such partnership, corporation, trust, estate or other entity,
(iii) the execution and delivery of this Subscription
Agreement and all other instruments executed and delivered by such
entity shall not violate, contravene or breach the entity’s
charter and/or other formation documents, or any contract or
agreement to which the entity is a party or is otherwise subject or
bound, and (iv) such partnership, corporation, trust or other
entity has not been formed for the specific purpose of acquiring
such Units, unless each beneficial owner of such entity is
qualified as an Accredited Investor within the meaning of Rule 501
(a) of Regulation D, and has submitted information
substantiating such individual qualification.
D. UNDERSTANDINGS.
The Investor understands, acknowledges and agrees with the
Company (and any Placement Agent participating in this offering) as
follows:
1. This Subscription may be rejected, in whole or in part, by
the Company, in its sole and absolute discretion. In addition, in
the event that the Company receives subscriptions for more Units
than are offered in this offering, the Company may allocate the
number of Units sold in this offering between the Investor and the
other subscribers in any manner deemed equitable by the Company. If
the Units sold in this offering are allocated by the Company among
the Investor and the other subscribers and, as a result, the number
of Units that the Investor will be sold is reduced, the unused
portion of the Payment will be promptly returned to the Investor,
without interest.
2. This Subscription is and shall be irrevocable, except that
the Investor shall have no obligations hereunder in the event that
this Subscription is rejected in full for any reason.
3. No Federal or state agency has made any finding or
determination as to the accuracy or adequacy of the Investment
Letter or as to the fairness of the terms of this offering for
investment, nor any recommendation or endorsement of the Units.
4. The offering and sale of the Units is intended to be exempt
from registration under the Act by virtue of Section 4(2) of
the Act, and Rule 506 thereunder, which is in part dependent upon
the truth, completeness and accuracy of the statements made by the
Investor herein and in the Questionnaire.
5. The offer and sale of the Units under the Investment Letter
have not been registered. Accordingly, the Common Stock contained
in the Units will not be freely transferable. Although the
Company’s shares are listed for trading on the OTC Bulletin
Board, the shares may not be offered and sold on the OTC Bulletin
Board, or on any other public stock trading system, unless and
until the shares have been registered for re-sale or until the
Units are eligible for re-sale under Rule 144 under the Act. Even
if the Units are registered or are eligible for sale under Rule
144, there may not be a significant market in such stock. There can
also be no assurance as to the depth or liquidity of any market for
the Company’s common stock or the prices at which holders may
be able to sell the shares.
6. If the Company decides to use any Placement Agents, each of
the Placement Agents will receive compensation in connection with
the offering and sale of the Units but none of them will guarantee
or assume responsibility for the operation or possible liability of
the Company, and none of them will supervise or participate in the
operation or management of the Company.
7. The Investor acknowledges that no general solicitation or
general advertising (including, without limitation, communications
published in any newspaper, magazine or other broadcast) has been
received by him and that no public solicitation or advertisement
with respect to the offering of the Units has been made to him.
8. IN MAKING AN INVESTMENT DECISION INVESTORS MUST RELY ON THEIR
OWN EXAMINATION OF THE COMPANY AND THE TERMS OF THE OFFERING,
INCLUDING THE MERITS AND RISKS INVOLVED. THESE UNITS HAVE NOT BEEN
RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES COMMISSION OR
REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING AUTHORITIES HAVE
NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THE
INVESTMENT LETTER OR THIS DOCUMENT. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
9. THE UNITS MAY NOT BE TRANSFERRED, RESOLD OR OTHERWISE
DISPOSED OF EXCEPT AS PERMITTED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS, OR AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT
REQUIRED UNDER THE SECURITIES ACT OF 1933 OR
UNDER APPLICABLE STATE SECURITIES LAWS.
PURCHASERS SHOULD BE AWARE THAT THEY WILL BE REQUIRED TO BEAR THE
FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF
TIME.
10. FOR RESIDENTS OF ALL STATES. THE SECURITIES OFFERED HEREBY
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE
SECURITIES LAWS OF ANY STATE AND ARE BEING OFFERED AND SOLD IN
RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SAID
ACT AND SUCH LAWS. THE SECURITIES ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD
EXCEPT AS PERMITTED UNDER SAID ACT AND SUCH LAWS PURSUANT TO
REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT
THEY WILL BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS
INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
E. INDEMNIFICATION.
The Investor shall indemnify and hold harmless the Company, and
each officer, director or control person of any such entity, who is
or may be a party or is or may be threatened to be made a party to
any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason
of or arising from any actual or alleged misrepresentation or
misstatement of facts or omission to represent or state facts made
or alleged to have been made by the Investor to the Company or
omitted or alleged to have been made or omitted by the Investor,
concerning the Investor or the Investor’s authority to invest
or financial position in connection with the offering or sale of
the Units, including, without limitation, any such
misrepresentation, misstatement or omission contained in the
Questionnaire submitted by the Investor, against losses,
liabilities and expenses for which the Company or any officer,
director or control person of any such entity has not otherwise
been reimbursed (including, without limitation, attorneys’
fees, judgments, fines and amounts paid in settlement) actually and
reasonably incurred by the Company or such officer, director or
control person in connection with such action, suit or
proceeding.
F. MISCELLANEOUS.
1. All pronouns and any variations thereof used herein shall be
deemed to refer to the masculine, feminine, impersonal, singular or
plural, as the identity of the person or persons may require.
2. Except as set forth in Paragraph D.1 herein, neither this
Subscription Agreement nor any provision hereof shall be waived,
modified, changed, discharged, terminated, revoked or canceled
except by an instrument in writing signed by the party effecting
the same against whom any change, discharge or termination is
sought.
3. Notices required or permitted to be given hereunder shall be
in writing and shall be deemed to be sufficiently given when
personally delivered or sent by registered mail, return receipt
requested, addressed: (i) if to the Company, at Duska
Therapeutics, Inc., Two Bala Plaza, Suite 300, Bala Cynwyd,
Pennsylvania 19004; or (ii) if to the Investor, at the address
for correspondence set forth in the following Investor
Questionnaire, or at such other address as may have been specified
by written notice given in accordance with this Paragraph F.3.
4. Failure of the Company to exercise any right or remedy under
this Subscription Agreement or any other agreement between the
Company and the Investor, or otherwise, or delay by the Company in
exercising such right or remedy, will not operate as a waiver
thereof. No waiver by the Company will be effective unless and
until it is in writing and signed by the Company.
5. This Subscription Agreement shall be enforced, governed and
construed in all respects in accordance with the laws of the
Commonwealth of Pennsylvania, as such laws are applied by
Pennsylvania courts to agreements entered into and to be performed
in Pennsylvania by and between residents of Pennsylvania, and venue
shall be in the federal and state courts located in Philadelphia,
Pennsylvania. This Subscription Agreement may not be assigned by
either party without the prior written consent of the other
party.
This Subscription Agreement shall be binding upon
the Investor, the Investor’s heirs, estate, legal
representatives, successors and permitted assigns and shall inure
to the benefit of the Company, its successors and permitted
assigns. If any provision of this Subscription Agreement is invalid
or unenforceable under any applicable statute or rule of law, then
such provision shall be deemed inoperative to the extent that it
may conflict therewith and shall be deemed modified to conform with
such statute or rule of law. Any provision hereof that may prove
invalid or unenforceable under any law shall not affect the
validity or enforceability of any other provision
hereof.
6. This Subscription Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter
hereof and may be amended only by a writing executed by both
parties hereto.
G. SIGNATURE.
The signature page of this Subscription Agreement is contained
as part of the applicable Subscription Package, entitled "Signature
Page," appearing after the Investor Questionnaire.
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