<PAGE>
EXHIBIT 10
FORM OF SUBSCRIPTION AGREEMENT
THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS AND
HAVE BEEN TAKEN FOR INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO OR FOR SALE
IN CONNECTION WITH ANY DISTRIBUTION THEREOF. THEY MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION AND QUALIFICATION WITHOUT,
EXCEPT UNDER CERTAIN SPECIFIC LIMITED CIRCUMSTANCES, AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION AND QUALIFICATION
ARE NOT REQUIRED.
THE SALE OF THE SECURITIES THAT ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN
QUALIFIED WITH THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND
THE ISSUANCE OF THE SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE
CONSIDERATION THEREFOR PRIOR TO THE QUALIFICATION IS UNLAWFUL, UNLESS THE SALE
OF SECURITIES IS EXEMPT FROM QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF
THE CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT
ARE EXPRESSLY CONDITIONED UPON THE QUALIFICATION BEING OBTAINED, UNLESS THE SALE
IS SO EXEMPT.
SUBSCRIPTION AGREEMENT
Neurobiological Technologies, Inc.
1387 Marina Way South
Richmond, California 94804
Attn: President and Chief Executive Officer
Ladies and Gentlemen:
SUBSCRIPTION.
(a) The undersigned is hereby purchasing from Neurobiological
Technologies, Inc., a Delaware corporation (the "Company"), up to 1,200,000
shares (the "Shares") of the Company's Common Stock, $0.001 par value (the
"Common Stock"). The purchase price of each Share shall be $5.30 for an
aggregate purchase price of $6,360,000 (the "Purchase Price").
(b) This subscription is submitted to the undersigned in accordance
with and subject to the terms and conditions described in this Subscription
Agreement relating to the offering of up to 1,200,000 Shares of Common Stock
(the "Offering"). The Company reserves the right to amend, modify and/or
withdraw all or a portion of the Offering and to increase or decrease the number
of Shares to be offered hereby.
(a) PURCHASE PRICE. The undersigned has tendered, together with this
Subscription Agreement, the Purchase Price by electronic wire transfer in
accordance with the following instructions:
Bank Name
Bank Address:
ABA#:
Citibank Account #:
<PAGE>
For further credit to Acct
Neurobiological Technologies, Inc.
Attn: ___________
or by delivery of a bank check or certified check made payable to
Neurobiological Technologies, Inc. against delivery to the undersigned of a
certificate representing the Shares.
(b) CLOSING. The closing of the sale and purchase of the Shares shall
occur on April 7, 2000 or on such other date as shall be selected by the Company
(the "Closing Date"). The Shares subscribed for under this Subscription
Agreement shall not be deemed issued to, or owned by, the undersigned until the
Closing Date has occurred.
(c) ACCEPTANCE OR REJECTION. The undersigned understands and agrees
that the Company reserves the right, in its absolute discretion, to reject this
subscription for the Shares in whole or in part, at any time prior to the
earlier of (i) acceptance by the Company or (ii) the Closing Date. In the event
of rejection of this subscription, or in the event the sale of the Shares is not
consummated for any reason within 20 days after the date of this Subscription
Agreement (in which event this Subscription Agreement shall be deemed to be
rejected), the Company shall cause the return to the undersigned of this
Subscription Agreement and the Purchase Price tendered by the undersigned, and
this Subscription Agreement thereafter shall be of no force or effect.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY. To induce the undersigned to
enter into this Subscription Agreement and to purchase the Shares, the Company
hereby represents and warrants to the undersigned the following:
ORGANIZATION, STANDING, ETC. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware and has the requisite corporate power and authority
to own or lease its properties and to carry on its business as it is
now being conducted, duly qualified to do business in other
jurisdictions, where the nature of its business requires such
qualification, except where such failure to be so qualified would not
have a material adverse effect on the Company. The Company has the
requisite corporate power and authority to issue the Shares and to
perform its obligations under this Subscription Agreement.
VALID ISSUANCE. The Shares, when issued and delivered pursuant to the
terms of this Subscription Agreement, will be duly authorized, validly
issued, fully paid and nonassessable. All outstanding shares of the
Company's Common Stock have been duly and validly issued and are fully
paid and nonassessable.
CORPORATE ACTS AND PROCEEDINGS. This Subscription Agreement has been
duly authorized by all necessary corporate action on behalf of the
Company, has been duly executed and delivered by an authorized officer
of the Company, is a valid and binding agreement on the part of the
Company and is enforceable against the Company in accordance with its
terms. All corporate actions necessary to the authorization, creation,
issuance and delivery of the Shares have been taken by the Company.
COMPLIANCE WITH APPLICABLE LAWS AND OTHER INSTRUMENTS. Neither the
execution nor delivery of, nor the performance of or compliance with
this Subscription Agreement, the issuance of the Shares nor the
consummation of the transactions contemplated hereby will, with or
without the giving of notice or passage of time, result in any breach
of, or constitute a default under, or result in the imposition of any
lien or encumbrance upon any asset or property of the Company pursuant
to, any material agreement or other material instrument to which the
Company is a party or by which it or any of its properties, assets or
rights is bound or affected, and will not violate the Company's
Certificate of Incorporation or Bylaws.
<PAGE>
SECURITIES LAWS. Based in part upon the representations of the
undersigned in Section 5, no consents, authorization, approval, permit
or order of or filing with any governmental or regulatory authority is
required under current laws and regulations in connection with the
execution and delivery of this Subscription Agreement or the offer,
issuance, sale or delivery of the Shares, other than the filing of a
Form D pursuant to Regulation D under the Securities Act of 1933 (the
"Act"), the filing of a notice on Form 25102(f) with the State of
California and a similar notice with any other state whose laws require
such filing, and the qualification thereof, if required, under other
applicable state laws which qualification has been or will be effected
as a condition of this transaction. Under the circumstances
contemplated by this Subscription Agreement, the offer, issuance, sale
and delivery of the Shares will not, under current laws and
regulations, require compliance with the prospectus delivery or
registration requirements of the Act.
CAPITAL STOCK. Except as set forth on SCHEDULE A attached hereto, the
authorized and issued capital stock of the Company is correctly set
forth in the unaudited financial statements of the Company for the
fiscal quarter ended December 31, 1999. All of the outstanding shares
of the Company's capital stock are duly authorized and validly issued
and are fully paid and nonassessable. Except as described in the
Company's Registration Statement on Form SB-2 filed with the Securities
and Exchange Commission (the "Commission") on December 29, 1999, as
amended, or as set forth on SCHEDULE A, there are no outstanding
subscriptions, options, warrants, calls, contracts, demands,
commitments, convertible securities or other agreements or arrangements
of any character or nature whatever, other than this Subscription
Agreement, pursuant to which the Company is obligated to issue any
securities of any kind representing an ownership interest in the
Company.
COMPANY SEC FILINGS. The Company has furnished, or made available
through the EDGAR Internet web site of the Commission, to the
undersigned true and complete copies of its Annual Report on Form
10-KSB for the fiscal year ended June 30, 1999, its quarterly reports
on Form 10-QSB for the fiscal quarters ended September 30, 1999 and
December 31, 1999 and Registration Statement on Form SB-2 dated
December 29, 1999, as amended, as filed with the Commission (the "SEC
Filings"). As of these filing dates, the SEC Filings complied in all
material respects with the applicable requirements of the Exchange Act
of 1934, as amended (the "Exchange Act"), and the SEC Filings contained
no 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 made therein, in the light of the circumstances under which
they were made, not misleading.
INTELLECTUAL PROPERTY. The Company has sufficient title and ownership,
or rights to license, all patents, trademarks, service marks, trade
names, copyrights, trade secrets, information, proprietary rights and
processes necessary for its business as now conducted, and as proposed
to be conducted, without conflict with or infringement of the rights of
others. Except as set forth in the SEC Filings, there are no
outstanding options, licenses or agreements of any kind relating to the
foregoing, nor is the Company bound by or a party to any options,
licenses or agreements of any kind with respect to the patents,
trademarks, service marks, trade names, copyrights, trade secrets,
licenses, information, proprietary rights and processes of any other
person or entity. The Company has not received any communications
alleging, nor is the Company aware of any basis for such allegation,
that the Company has violated or, by conducting its business as
proposed, would violate any of the patents, trademarks, service marks,
trade names, copyrights or trade secrets or other proprietary rights of
any other person or entity.
NO MATERIAL ADVERSE CHANGES. Since December 31, 1999, the Company has
conducted its business in the ordinary course and there has not been
any material adverse change in the business or financial condition of
the Company, other than continuing losses in amounts consistent with
prior periods in the current fiscal year.
TAXES. All federal, state and local income, ad valorem, excise, sales,
use, payroll and other taxes and assessments, interest, and other
governmental charges which are due and payable by the Company have been
duly reported, paid and discharged. No audit, action or proceeding for
the assessment or collection of
<PAGE>
taxes or other assessments is pending or threatened against the
Company. The Company has not agreed to any extension of the statute of
limitations with respect to any taxes or assessments.
COMPLIANCE WITH LAWS. The Company is not, to the knowledge of the
Company, in violation in any material respect of, (i) any federal,
state or local law, statute, ordinance or regulation or any other
requirement of any federal, state or local governmental or regulatory
body of competent jurisdiction applicable to the Company, including
without limitation those pertaining to its products under development,
or (ii) any term of any applicable judgment, decree, injunction, law
and/or order issued by a governmental or regulatory body of competent
jurisdiction.
TRANSFER RESTRICTIONS.
The undersigned realizes that the Shares are not registered under the
Act, or any foreign or state securities laws. The undersigned agrees
that the Shares will not be sold, offered for sale, pledged,
hypothecated, or otherwise transferred (collectively, a "Transfer")
except in compliance with the Act, if applicable, and applicable
foreign and state securities laws. The undersigned understands that the
undersigned can only Transfer the Shares pursuant to registration under
the Act or pursuant to an exemption therefrom. The undersigned
understands that to Transfer the Shares may require in some
jurisdictions specific approval by the appropriate governmental agency
or commission in such jurisdiction.
To enable the Company to enforce the transfer restrictions contained in
Section 4(a), the undersigned hereby consents to the placing of legends
upon, and stop-transfer orders with the transfer agent of the Common
Stock with respect to, the Shares.
REPRESENTATIONS AND WARRANTIES. To induce the Company to accept the
undersigned's subscription, the undersigned hereby represents and warrants to
the Company that:
the undersigned, if an individual, has reached the age of majority in
the jurisdiction in which he/she resides, is a bona fide resident of
the jurisdiction contained in the address set forth on the signature
page of this Subscription Agreement; is legally competent to execute
this Subscription Agreement; and does not intend to change residence to
another jurisdiction;
the undersigned, if an entity, is duly authorized to execute this
Subscription Agreement and this Subscription Agreement, when executed
and delivered by the undersigned, will constitute a legal, valid, and
binding obligation enforceable against the undersigned in accordance
with its terms; and the execution, delivery, and performance of this
Subscription Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all requisite
corporate or other necessary action on the part of the undersigned;
the Shares subscribed for hereby are being acquired by the undersigned
for investment purposes only, for the account of the undersigned and
not with the view to any resale or distribution thereof, and the
undersigned is not participating, directly or indirectly, in a
distribution of such Shares and will not take, or cause to be taken,
any action that would cause the undersigned to be deemed an
"underwriter" of such Shares as defined in Section 2(11) of the Act;
<PAGE>
the undersigned has had access to all materials, books, records,
documents, and information relating to the Company, including (i) the
SEC Filings and (ii) the Proxy Statement relating to the Company's 1999
annual meeting;
the undersigned acknowledges and understands that investment in the
Securities involves a high degree of risk, including without limitation
the risks set forth in the SEC Filings under the captions "Risks
Associated with Product Development," "Management's Discussion and
Analysis of Financial Condition and Results of Operations" in the
Company's Form 10-KSB, "Risk Factors" in the Company's Registration
Statement on Form SB-2" and elsewhere in the Company's SEC Filings;
the undersigned acknowledges that the undersigned has been offered an
opportunity to ask questions of, and receive answers from, officers of
the Company concerning all material aspects of the Company and its
business, and that any request for such information has been fully
complied with to the extent the Company possesses such information or
can acquire it without unreasonable effort or expense;
the undersigned has such knowledge and experience in financial and
business matters that the undersigned is capable of evaluating the
merits and risks of an investment in the Company and can afford a
complete loss of his investment in the Company;
the undersigned recognizes that no governmental agency has passed upon
the issuance of the Shares or made any finding or determination as to
the fairness of this investment;
if the undersigned is purchasing the Securities subscribed for hereby
in a representative or fiduciary capacity, the representations and
warranties contained herein shall be deemed to have been made on behalf
of the person or persons for whom such Shares are being purchased;
the undersigned has not entered into any agreement to pay commissions
to any persons with respect to the purchase or sale of the Shares,
except commissions for which the undersigned will be responsible; and
the undersigned is an "Accredited Investor" as that term is defined in
Section 501(a) of Regulation D promulgated under the Act. Specifically
the undersigned is (check appropriate item(s)):
/ / (i) a bank as 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
Exchange Act; an insurance company as defined in Section 2(13) of the
Act; an investment company registered under the Investment Company
Act of 1940 or a business development company as defined in Section
2(a)(48) of that Act; a Small Business Investment Company licensed by
the U.S. Small Business Administration under Section 301(c) 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 in excess of
$5,000,000, an employee benefit plan within the meaning of the
Employment Retirement Income Security Act of 1974, if the investment
decision is made by a plan fiduciary, as defined in Section 3(21) of
such act, which is either a bank, savings and loan association,
insurance company, or registered investment advisor, or if the
employee benefit plan has total assets in excess of $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 Advisers Act of 1940;
<PAGE>
/ / (iii) an organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended, corporation, Massachusetts or
similar business trust, or partnership, not formed for the specific
purpose of acquiring Shares, with total assets in excess of
$5,000,000;
/ / (iv) a director or executive officer of the Company;
/ / (v) a natural person whose individual net worth, or joint net worth
with that person's spouse, at the time of his or her purchase exceeds
$1,000,000;
/ / (vi) a natural person who had an individual income (not including his
or her spouse's income) in excess of $200,000 in 1998 and 1999 or
joint income with his or her spouse in excess of $300,000 in each of
those years and has a reasonable expectation of reaching such income
level in 2000;
/ / (vii) a trust, with total assets in excess of $5,000,000, not formed
for the specific purpose of acquiring Shares, whose purchase is
directed by a person having such knowledge and experience in
financial and business matters that he or she is capable of
evaluating the merits and risks entailed in the purchase of Shares;
or
/ / (viii) an entity in which all of the equity owners are Accredited
Investors. (If this alternative is checked, the undersigned must
identify each equity owner and provide statements signed by each
demonstrating how each is qualified as an Accredited Investor.)
COVENANTS OF THE COMPANY.
The Company will use its best efforts in the 60 day period after the
Closing Date to have its Common Stock approved for quotation on the
Nasdaq SmallCap Market and to maintain such listing for a period of two
years from the Closing Date.
On or before a date that is 60 days after the Closing Date, the Company
shall file with the Securities and Exchange Commission a registration
statement on Form S-3 (or, if such form is not available to the
Company, any such other form as may be available to the Company) to
register for resale pursuant to Section 5 of the Act the Shares sold
and issued to the undersigned in accordance with this Subscription
Agreement. The Company will use its best efforts to cause such
registration statement to be declared effective within 90 days of
filing and to remain available for the resale of such shares and
securities for a period of up to 24 months from the Closing Date,
provided, however, that the Company may suspend the use of the
prospectus constituting part of the registration statement (i) for up
to two periods of 60 days each in the event the Company determines, in
its sole judgment, that such prospectus is incomplete, inaccurate or
omits to disclose any information required to be included therein, and
provided further, that the period during which the registration
statement will remain available shall be extended by any period in
which the Company invoked its right to suspend the use of the
prospectus, or (ii) if it shall receive notice or obtain knowledge of
the issuance of any stay order by the SEC delaying or suspending the
effectiveness of the registration statement or the initiation of any
proceeding for that purpose. In the event of any such suspension, the
Company will promptly notify the undersigned subscriber of the
suspension and use its best efforts to amend or supplement the
registration statement, and the prospectus constituting a part thereof,
within said 60-day period to enable the use of the amended or
supplemented prospectus for the resale of the shares and securities
covered thereby or to prevent the issuance of any stop order or obtain
its withdrawal. The Company will promptly notify the undersigned
subscriber of the effectiveness of the registration statement or of any
amendment or supplement thereto. The Company will provide the
undersigned with such copies of the prospectus, or any amended or
supplemented prospectus, as the undersigned may reasonably request.
<PAGE>
The undersigned agrees to cooperate with the Company in preparing and
filing the aforesaid registration statement, and any amendment or
supplement thereto, and to provide the Company with such information
and documentation as the Company may reasonably request.
Notwithstanding anything to the contrary contained herein, the Company
shall not be obligated to maintain the effectiveness of any
registration statement, or to update, amend or supplement such
registration statement or any prospectus constituting a part thereof,
after the undersigned shall become eligible to sell all of its shares,
or remaining shares, by virtue of the undersigned owning less than 1%
of the Shares and not because of fluctuations in the average daily
trading volume of the Shares, pursuant to Rule 144 of the Act, within
any three month period without volume limitations.
The Company shall bear all expenses in connection with the registration
of the Shares pursuant to this Agreement, other than fees and expenses,
if any, of counsel or other advisors to the undersigned or underwriting
discounts, brokerage fees and commissions incurred by the undersigned.
To the extent permitted by law, the Company will indemnify the
undersigned subscriber, its officers, directors and constituent
partners, and each person controlling the undersigned subscriber, with
respect to which registration has been effected pursuant to this
Subscription Agreement, against all claims, losses, damages or
liabilities (or actions in respect thereof) to the extent such claims,
losses, damages or liabilities arise out of or are based upon any
untrue statement (or alleged untrue statement) of a material fact
contained in any prospectus or other document (including any related
registration statement) incident to any such registration,
qualification or compliance, or are based on 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, or
any violation by the Company of the Act, the Securities Exchange Act of
1934, as amended (the "1934 Act"), or any state securities law, or any
rule or regulation promulgated under the Act, the 1934 Act or any state
securities law, applicable to the Company and relating to action or
inaction required of the Company in connection with such registration,
qualification or compliance; and the Company will reimburse the
undersigned subscriber, each of its officers, directors and constituent
partners, and each person who controls the undersigned subscriber for
any legal and any other expenses reasonably incurred, as incurred, in
connection with investigating or defending any such claim, loss,
damage, liability or action; PROVIDED, HOWEVER, that the indemnity
contained in this Section 6(f) shall not apply to amounts paid in
settlement of any such claim, loss, damage, liability or action if
settlement is effected without the consent of the Company (which
consent shall not unreasonably be withheld); and PROVIDED, FURTHER,
that the Company will not be liable in any such case to the extent that
any such claim, loss, damage, liability or expense arises out of or is
based upon any untrue statement or omission based upon written
information furnished to the Company by the undersigned, its officers,
directors, constituent partners, or controlling person and stated to be
for use in connection with the offering of securities of the Company.
To the extent permitted by law, the undersigned will indemnify the
Company, each of its directors and officers, each legal counsel and
independent accountant of the Company, each person who controls the
Company within the meaning of the Act, with respect to which
registration has been effected pursuant to this Subscription Agreement
against all claims, losses, damages and liabilities (or actions in
respect thereof) arising out of or based upon any untrue statement (or
alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document
(including any related registration statement) incident to any such
registration, qualification or compliance, or 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, or
any violation by such undersigned of the Act, the 1934 Act or any state
securities law, or any rule or regulation promulgated under the Act,
the 1934 Act or any state securities law, applicable to the undersigned
and relating to action or inaction required of the undersigned in
connection with any such registration, qualification or compliance; and
will reimburse the Company, such directors, officers, partners,
persons, law and accounting firms, or control persons for any legal and
any other expenses reasonably incurred, as incurred, in connection with
investigating or defending any such
<PAGE>
claim, loss, damage, liability or action, in each case to the extent,
but only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such
registration statement, prospectus, offering circular or other
document in reliance upon and in conformity with written information
furnished to the Company by the undersigned and stated to be
specifically for use in connection with the offering of securities of
the Company; PROVIDED, HOWEVER, that the undersigned's liability under
this Section 6(g) shall not exceed the undersigned's net proceeds from
the offering of securities made in connection with such registration;
and PROVIDED, FURTHER, that the indemnity contained in this Section
6(g) shall not apply to amounts paid in settlement of any such claim,
loss, damage, liability or action if settlement is effected without
the consent of the undersigned (which consent shall not unreasonably
be withheld).
Promptly after receipt by an indemnified party under this Section 6 of
notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against an indemnifying
party under this Section 6, notify the indemnifying party in writing of
the commencement thereof and generally summarize such action. The
indemnifying party shall have the right to participate in and to assume
the defense of such claim, jointly with any other indemnifying party
similarly noticed; provided, however, that the indemnifying party shall
be entitled to select counsel for the defense of such claim with the
approval of any parties entitled to indemnification, which approval
shall not be unreasonably withheld; provided, further, however, that if
either party reasonably determines that there may be a conflict between
the position of the Company and the undersigned in conducting the
defense of such action, suit or proceeding by reason of recognized
claims for indemnity under this Section 6, then counsel for such party
shall be entitled to conduct the defense to the extent reasonably
determined by such counsel to be necessary to protect the interest of
such party. The failure to notify promptly an indemnifying party of the
commencement of any such action, if prejudicial to the ability of the
indemnifying party to defend such action, shall relieve such
indemnifying party, to the extent so prejudiced, of any liability to
the indemnified party under this Section 6, but the omission so to
notify the indemnifying party will not relieve such party of any
liability that such party may have to any indemnified party otherwise
other than under this Section 6.
FURTHER DOCUMENTS. The undersigned agrees that it will execute such other
documents as may be necessary or desirable in connection with the transactions
contemplated hereby.
MODIFICATION. Neither this Subscription Agreement nor any provisions hereof
shall be waived, modified, discharged, or terminated except by an instrument in
writing signed by the party against whom any such waiver, modification,
discharge, or termination is sought.
NOTICES. Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be mailed by certified mail, return
receipt requested, or by Federal Express, Express Mail or similar overnight
delivery or courier service and delivered (in person or by telecopy, telex or
similar telecommunications equipment) against receipt to the party to whom it is
to be given, (i) if to the Company, at its address set forth on the first page
hereof, (ii) if to the undersigned, at its address set forth on the signature
page hereto, or (iii) in either case, to such other address as the party shall
have furnished in writing in accordance with the provisions of this Section 9.
Notice to the estate of any party shall be sufficient if addressed to the party
as provided in this Section. Any notice or other communication given by
certified mail shall be deemed given at the time of certification thereof,
except for a notice changing a party's address which shall be deemed given at
the time of receipt thereof. Any notice given by other means permitted by this
Section 9 shall be deemed given at the time of receipt thereof.
COUNTERPARTS. This Subscription Agreement may be executed through the use of
separate signature pages or in any number of counterparts, and each such
counterpart shall, for all purposes, constitute one agreement binding on all
parties, notwithstanding that all parties are not signatories to the same
counterpart.
<PAGE>
ENTIRE AGREEMENT. This Subscription Agreement contains the entire agreement of
the parties with respect to the subject matter hereof and there are not
representations, covenants or other agreements except as stated or referred to
herein.
SEVERABILITY. Each provision of this Subscription Agreement is intended to be
severable from every other provision, and the invalidity or illegality of any
portion hereof shall not affect the validity or legality of the remainder
hereof.
ASSIGNABILITY. This Subscription Agreement is not transferable or assignable by
the undersigned.
APPLICABLE LAW. This Subscription Agreement has been negotiated and consummated
in the State of California and shall be governed by and construed in accordance
with the laws of the State of California, without giving effect to conflict of
laws.
CHOICE OF JURISDICTION. Any action or proceeding arising, directly, indirectly,
or otherwise, in connection with, out of or from this Subscription Agreement,
any breach hereof or any transaction covered hereby shall be resolved within San
Francisco, California. Accordingly, the parties consent and submit to the
jurisdiction of the United States federal and state courts located within San
Francisco, California.
TAXPAYER IDENTIFICATION NUMBER. The undersigned verifies under penalties of
perjury that any Taxpayer Identification Number or Social Security Number shown
on the signature page hereto is true, correct, and complete.
PRONOUNS. Any personal pronoun shall be considered to mean the corresponding
masculine, feminine, or neuter personal pronoun, as the context requires.
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Subscription
Agreement this __ day of ___________, 2000.
Number of Shares Subscribed for: ________ Shares
INDIVIDUAL SUBSCRIBER: ENTITY SUBSCRIBER:
------------------------------------ ------------------------------------
(Signature of Subscriber) (Print Name of Subscriber)
By:
------------------------------------ --------------------------------
(Typed or Printed Name) Name:
------------------------------
Title:
-----------------------------
------------------------------------ ------------------------------------
(Residence Address) (Address)
------------------------------------ ------------------------------------
(City, State and Zip Code) (City, State and Zip Code)
------------------------------------ ------------------------------------
(Telephone Number) (Telephone Number)
------------------------------------ ------------------------------------
(Telecopier Number) (Telecopier Number)
------------------------------------ ------------------------------------
(Tax I.D. or Social Security Number) (Tax I.D. or Social Security Number)
ACCEPTED:
NEUROBIOLOGICAL TECHNOLOGIES, INC.
By: ________________________________________
Name: Paul E. Freiman
Title: President and Chief Executive Officer
Date: _________, 2000
<PAGE>
SCHEDULE A
NTI Shares Reserved as of March 16, 2000
<TABLE>
<S> <C>
25,000,000 Authorized
(13,846,881) Common stock issues
(1,900,771) Options issued
(91,108) Reserved for options
(65,266) Reserved for ESPP
(4,777,676) Warrants issued
(2,332,000) Preferred
-----------
1,986,298 Remaining
</TABLE>
