exv4w43



 





Exhibit–4.43




                    , 2006




CytoCore, Inc.

414 North Orleans Street

Suite 502

Chicago, Illinois 60610




Ladies and Gentlemen:




     This Subscription Agreement (the “Agreement”) sets forth the agreements and
understandings between the undersigned (“Subscriber”) and CytoCore, Inc., a corporation
organized under the laws of Delaware (the “Company”), relating to Subscriber’s subscription
for, and purchase of, the number of shares of common stock, par value $.001 per share (the
“Common Stock”), of the Company set forth on the signature page hereto (the
“Shares”) at a price of $0.00 per Share Also, included in this offering are warrants with
an exercise price of $0.00 per Share.



     1. Conditions to Subscription Acceptance and Closing. Subscriber understands and
agrees that this subscription and the closing of the transactions contemplated hereby (the
“Closing”) is made subject to the following terms and conditions:



          (a) The Company has the right to accept or reject this subscription in whole or in part.
Unless this subscription is rejected by the Company by May 20, 2006 this subscription shall be
deemed accepted in whole.




          (b) On or prior to the date of the Closing, Subscriber shall have furnished the Company with
such information, documents, certificates and opinions as the Company may reasonably require to
evidence the accuracy, completeness or satisfaction of the representations, warranties, covenants,
agreements and conditions herein contained or as the Company otherwise may reasonably require.




     2. Subscriber Representations and Warranties. In connection with Subscriber’s
subscription for, and purchase of, the Shares, Subscriber represents and warrants to the Company
that:



          (a) If Subscriber is a natural person, Subscriber (i) is a bona fide resident of the state or
jurisdiction set forth on the signature page of this Agreement as Subscriber’s home address, and
has no present intention of becoming a resident of any other state or jurisdiction; (ii) is at
least 21 years of age; and (iii) is legally competent to execute this Agreement, the Confidential
Accredited Investor Questionnaire included herewith, and any other documents and instruments
required in connection herewith or therewith, if any (the “Transaction Documents”). If
Subscriber is an entity, the person signing this Agreement and the Transaction Documents on

 









 








behalf of the entity is duly authorized to execute and deliver this Agreement and the Transaction
Documents on behalf of Subscriber. This Agreement and the Transaction Documents constitute the
legal, valid and binding obligations of Subscriber, enforceable in accordance with their terms,
except as such enforceability may be limited by applicable bankruptcy, insolvency or similar laws
relating to or affecting generally the enforcement of creditors’ rights and remedies or by other
equitable principles.




          (b) The execution and delivery of this Agreement and the Transaction Documents by Subscriber
do not, and the performance of the terms hereof and thereof will not, contravene any material law,
rule, regulation, order, writ, judgment, injunction, decree, determination or award applicable to
Subscriber, or of the charter, bylaws, operating agreement, partnership agreement or other
governing agreements of Subscriber (if applicable), and will not conflict with, or result in any
breach of, the terms, conditions or provisions of, or constitute a default under, or give to others
any rights of termination, amendment, acceleration or cancellation of, or result in or permit the
creation or imposition of any lien, charge or encumbrance upon any of the assets of Subscriber
pursuant to any indenture, mortgage or other agreement or instrument or any judgment, decree, order
or decision to which Subscriber is a party or by which Subscriber is bound.




          (c) Under existing law, no approval, authorization, license, permit or other action by or
filing with any Federal, state, municipal or other governmental commission, board or agency is
required on the part of Subscriber in connection with the execution and delivery by Subscriber of
this Agreement or the Transaction Documents, or the consummation of the transactions contemplated
hereby or thereby.




          (d) There are no actions, suits or proceedings existing, pending or, to the knowledge of
Subscriber, threatened against or affecting Subscriber before any court, arbitrator or governmental
or administrative body or agency that would affect the validity or enforceability of this Agreement
or the Transaction Documents, or that would have a material adverse affect on the ability of
Subscriber to perform Subscriber’s obligations hereunder and there under.




          (e) Subscriber has such knowledge and experience in financial and business matters so as to be
capable of evaluating and understanding, and has evaluated and understood, the merits and risks of
an investment in the Company and the purchase of the Shares, and Subscriber has been given the
opportunity (i) to obtain information and to examine all documents relating to the Company and the
Company’s business, (ii) to ask questions of, and to receive answers from, the Company concerning
the Company, the Company’s business and the terms and conditions of this investment, and (iii) to
obtain any additional information, to the extent the Company possesses such information or could
acquire such information without unreasonable effort or expense, necessary to verify the accuracy
of any information previously furnished. All such questions have been answered to Subscriber’s
full satisfaction, and all information and documents, records and books pertaining to this
investment which Subscriber has requested have been made available to Subscriber.




          (f) Subscriber is able to bear the substantial economic risks of Subscriber’s investment in
the Company and the purchase of the Shares in that, among other factors,

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Subscriber can afford to hold the Shares for an indefinite period and can afford a complete loss of
Subscriber’s investment in the Company.




          (g) No material adverse change in Subscriber’s financial condition has taken place during the
past twelve (12) months, and Subscriber will have sufficient liquidity with respect to Subscriber’s
net worth for an adequate period of time to provide for Subscriber’s needs and contingencies.




          (h) Subscriber is relying solely on Subscriber’s own decision and/or the advice of
Subscriber’s own adviser(s) with respect to an investment in the Company and the purchase of the
Shares, and has neither received nor relied on any communication from the Company or its officers
or agents regarding any legal, investment or tax advice relating to an investment in the Company.




          (i) Subscriber has had an opportunity to read and understand the provisions of this Agreement
and the Transaction Documents, to consult with Subscriber’s adviser(s) or counsel regarding the
operation and consequences of those provisions, and has considered the effect of those provisions
on Subscriber.




          (j) Subscriber recognizes that an investment in the Company involves substantial risks in
that, among other factors: (i) successful operation of the Company depends on factors beyond the
control of the Company, and the Company has not had profitable operations from its inception to
date; (ii) investment in the Company is a speculative investment and involves a high degree of risk
of loss; (iii) the Company is engaged in an industry which is highly competitive and subject to
substantial risks; (iv) the Company has a very limited amount of working capital available to it;
and (v) the Shares may not be registered under applicable federal and state securities laws and,
accordingly, it may not be possible to liquidate an investment in the Company in case of immediate
need of funds or any other emergency, if at all. Subscriber has taken full cognizance of, and
understands such risks and has obtained sufficient information to evaluate the merits and risks of
an investment in the Company and the purchase of the Shares.




          (k) Subscriber confirms that none of the Company’s officers nor any of the Company’s agents
have made any representations or warranties concerning an investment in the Company, including,
without limitation, any representations or warranties concerning anticipated financial results, or
the likelihood of success of the operations, of the Company.




          (l) Subscriber is acquiring the Shares for Subscriber’s own account, for investment and not
with a view to, or in connection with, any public offering or distribution of the same and without
any present intention to sell the same at any particular event or circumstance. Subscriber has no
agreement or other arrangement with any person to sell, transfer or pledge any part of the Shares
that would guarantee Subscriber any profit or protect against any loss with respect to the Shares.




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          (m) Subscriber understands that no U.S. Federal or State or International agency has passed on
or made any recommendation or endorsement of an investment in the Shares.




          (n) Subscriber understands that the Shares have not been registered under the Securities Act
of 1933, as amended (the “Act”), or applicable U.S. state securities laws or any securities
laws of any other jurisdiction, and are being offered and sold under an exemption from registration
provided by such laws and the rules and regulations there under. Further, Subscriber understands
that the Company is under no obligation to register the Shares or to comply with any exemption
under any applicable securities laws with respect thereto or any other ownership interest in the
Company. Subscriber may therefore be required to bear the economic risks of an investment in the
Company for an indefinite period of time because the Shares cannot be resold unless registered
under applicable securities laws or unless an exemption from such registration is available.
Subscriber also understands that (i) the exemption provided by Rule 144 under the Act may not be
available because of the conditions and limitations of such rule, and that in the absence of the
availability of such rule, any disposition by Subscriber of any securities of the Company may
require compliance with some other exemption under the Act; and, (ii) the Company is under no
obligation and does not plan to take any action in furtherance of making Rule 144 or any other
exemption so available.




          (o) If Subscriber is required in the future to file a Form 144 with the Securities and
Exchange Commission in connection with sales of Shares or any other ownership interest in the
Company pursuant to Rule 144 under the Act, Subscriber will deliver a copy of such form to the
Company at the same time and each time Subscriber is required to file a copy with the Securities
and Exchange Commission.




          (p) Subscriber is an “accredited investor” as such term is defined in Rule 501(a) promulgated
under the Act. Subscriber will execute and deliver the Confidential Accredited Investor
Questionnaire attached hereto as Exhibit A simultaneously with the execution and delivery
of this Agreement.




          (q) Subscriber agrees that the foregoing representations and warranties will survive the sale
of the Shares to Subscriber, as well as any investigation made by any party relying on same.




          (r) Except as Subscriber shall have clearly and expressly disclosed to the Company, Subscriber
has not authorized any underwriter, broker, dealer, agent or finder to act on Subscriber’s behalf
(nor does Subscriber have any knowledge of any broker, dealer, agent or finder purporting to act on
Subscriber’s behalf) with respect to Subscriber’s purchase of the Shares and Subscriber has not
paid directly or indirectly any commission or similar remuneration with respect to such
acquisition. Subscriber hereby agrees to indemnify and hold harmless the Company and its
directors, officers and agents from and against any cost, expense, claim, liability or damage
arising out of or resulting from a breach of such representation and warranty.




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     3. General Provisions.



          (a) This Agreement will be governed by and construed in accordance with the substantive laws
of the State of Delaware without regard to rules thereof relating to conflicts of laws.




          (b) This Agreement and the Transaction Documents together constitute the entire agreement
between the parties with respect to the subject matter hereof and thereof and supersede any prior
subscription agreement for Shares executed by Subscriber. This Agreement may be amended only by a
writing executed by the parties.




          (c) The Shares will be assigned or transferred only in accordance with applicable law and the
terms of this Agreement and the Transaction Documents.




          (d) This Agreement will survive Subscriber’s death or dissolution and will be binding upon
Subscriber’s successors, heirs, assignees, representatives and distributors.




(Signatures appear on next page.)




* * * * * *




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     IN WITNESS WHEREOF, Subscriber has hereby executed this Agreement as of the date set forth
above.



SUBSCRIBER:




	 	 	 	 	 	 	 	 	 	 	 
	If an Individual (s):	 	 	 	If an Entity:	 	 	 	 
	 

	 	 	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Name of Entity:	 	 	 	 
	 

	 	 	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	[Name]
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 	 	 






	 	 	 	 	 
	Mailing Address:
	 	 	 	 
	 

	 	 

	 	 






Social Security Number/U.S. Employer Identification Number:                     -                    -                    




	 	 	 	 	 
	Subscription:
	 	 	 	 
	 
	 	 	 	 
	Number of Shares for which Subscription is tendered:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	Purchase Price:
	 	 	 	 
	 

	 	 

	 	 
	Aggregate Consideration:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	Warrant coverage:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	CytoCore, Inc.

   a Delaware corporation
	 	 	 	 






	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 






	 	 	 	 	 
	Date of Acceptance:
	 	 	 	 
	 

	 	 

	 	 







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EXHIBIT A




Confidential Accredited Investor Questionnaire




     The undersigned represents and warrants that he, she or it comes within one of the categories
marked below, and that for any category marked, he, she or it has truthfully set forth the factual
basis or reason the undersigned comes within that category. ALL INFORMATION IN RESPONSE TO THIS
QUESTIONNAIRE WILL BE KEPT STRICTLY CONFIDENTIAL. The undersigned agrees to furnish such
additional information as is reasonably necessary in order to verify the answers set forth below.



Please mark next to each applicable paragraph:




	 	 	 	 	 	 	 
	                    	 	a. The undersigned is an individual (not a partnership, corporation, etc.)
whose individual net worth, or joint net worth with his or her spouse, presently
exceeds $1,000,000.
	 
	 	 	 	 	 	 
	 	 	 	 	Explanation. In calculating net worth, you may include equity in
personal property and real estate, including your principal residence, cash,
short-term investments, stock and securities. Equity in personal property
and real estate should be based on the appraised fair market value of such
property, less debt secured by such property.
	 
	 	 	 	 	 	 
	                    	 	b. The undersigned is an individual (not a partnership, corporation, etc.) who
had an income in excess of $200,000 in each of the two most recent years, or joint
income with his or her spouse in excess of $300,000 in each of those years (in each
case including foreign income, tax exempt income and the full amount of capital gains
and losses, but excluding any income of other family members and any unrealized capital
appreciation), and has a reasonable expectation of reaching the same income level in
the current year.
	 
	 	 	 	 	 	 
	                    	 	c. The undersigned is a director or executive officer of CytoCore, Inc. or a
subsidiary thereof.






 









 






	 	 	 	 	 	 	 
	                    	 	d. The undersigned is (i) a bank or a savings and loan association, (ii) a
registered broker dealer, (iii) an insurance company, (iv) a registered investment
company or business development company, (v) a licensed small business investment
company, (vi) a plan established and maintained by a state, its political subdivisions,
or any agency or instrumentality of a state or its political subdivisions (or any
agency or instrumentality thereof), for the benefit of its employees, if such plan has
total assets in excess of $5,000,000, (vii) an employee benefit plan within the meaning
of Title I of ERISA, if the investment decision is made by a plan fiduciary which is
either a bank, savings and loan association, insurance company or registered investment
adviser or if the plan has total assets in excess of $5,000,000 or is a self-directed
plan with investment decisions made solely by persons that are accredited investors.
	 
	 	 	 	 	 	 
	 	 	Describe entity.
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	                    	 	e. The undersigned is a private business development company as defined in
Section 202(a)(22) of the Investment Advisers Act of 1940, as amended.
	 
	 	 	 	 	 	 
	 	 	Describe entity.
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	                    	 	f. The undersigned is a corporation, partnership, business trust or non-profit
organization within the meaning of Section 501(c)(3) of the Internal Revenue Code, as
amended, in each case not formed for the specific purpose of potentially making an
investment in connection herewith and with total assets in excess of $5,000,000.
	 
	 	 	 	 	 	 
	 	 	Describe entity.
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	                    	 	g. The undersigned is a trust (not formed for the specific purpose of
potentially making an investment in connection herewith) with total assets in excess of
$5,000,000, where the purchase is directed by a person with the knowledge and
experience in financial and business matters to capably evaluate the merits and risks
of the prospective investment, as set forth in Rule 506(b)(2)(ii) promulgated under the
Securities Act of 1933, as amended.
	 
	 	 	 	 	 	 
	                    	 	h. The undersigned is an entity all the equity owners of which are “accredited
investors” within one or more of the above categories.






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	 	 	Describe entity.
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 





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     The undersigned is aware of the significance of the foregoing representations. The
undersigned is also aware that the above representations made by him, her or it will be relied upon
in connection with any investment made in CytoCore, Inc. pursuant to the accompanying document or
documents.



	 	 	 	 	 	 	 	 	 	 	 
	Date:
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Signature	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Print name	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Address: