SUBSCRIPTION AGREEMENT UNITS
Exhibit
10.1
UNITS
TO: VistaGen
Therapeutics, Inc., a Nevada corporation (the “Company”)
RE: Purchase
of Units of the Company
Instructions:
Complete and sign
this Subscription Agreement. Please be sure to initial the
appropriate “Accredited Investor” category in Box
C.
A
completed and originally executed copy of, and the other documents
required to be delivered with, this Subscription Agreement, must be
delivered to the following address:
Xxxxxxx
Xxxxxx
Chief
Financial Officer
000
Xxxxxxxx Xxxxxx
Xxxxx
Xxx Xxxxxxxxx, XX 00000
(000) 000-0000
xxxxxxx@xxxxxxxx.xxx
1. Subscription. The undersigned
(the “Subscriber”) hereby irrevocably
subscribes for and agrees to purchase from the Company the number
of units of the Company (“Units”) at the price and for the
aggregate consideration set forth in Box A of Section 7 below (the
“Subscription
Price”). Each Unit will consist of (i) one share of
the Company’s Common Stock, par value $0.001 per share
(“Common
Stock”); and (ii) a warrant, exercisable after [at
least six months and one day after issuance date], to purchase one
(1) unregistered share of the Company’s Common Stock (the
“Warrant
Shares”) of the Company at a price of $1.50 per share,
through February 28, 2022 (each warrant to purchase shares of
Common Stock, a “Warrant”). The Subscription Price
for each Unit shall be $1.25. The Subscriber acknowledges that this
Subscription Agreement is subject to acceptance by the Company. The
Company may also accept this Subscription Agreement in part. The
Company agrees that if this Subscription Agreement is not accepted
in full, any funds related to the portion of this Subscription
Agreement not accepted will be promptly returned to the
undersigned, without interest.
2. Subscriber Representations, Warranties
and Agreements. By executing this Subscription Agreement,
the Subscriber represents, warrants and covenants (on its own
behalf and, if applicable, on behalf of each beneficial purchaser
for whom it is contracting hereunder) to the Company (and
acknowledges that the Company is relying thereon)
that:
(a) it is authorized to
consummate the purchase of the Units;
(b) it understands that
the shares of Common Stock, the Warrants and the Warrant Shares
(collectively, the “Securities”) have not been and
will not be registered under the Securities Act of 1933 (the
“Securities
Act”), or any applicable state securities laws, and
that the offer and sale of the Units and Warrants to it is being
made in reliance on a private placement exemption available under
Section 4(a)(2) of the Securities Act and Rule 506 of Regulation D
under the Securities Act (“Regulation D”) to accredited
investors (“Accredited
Investors”), as defined in Rule 501(a) of Regulation
D;
(c) it has reviewed
copies of any documents considered by it to be important in making
an investment decision whether to purchase the Units. In addition,
it has had access to such additional information, if any,
concerning the Company as it has considered necessary in connection
with its investment decision to acquire the Units, and it
acknowledges that it has been offered the opportunity to ask
questions and receive answers from management of the Company
concerning the terms and conditions of the offering of the Units,
and to obtain any additional information which the Company
possesses or can acquire without unreasonable effort or expense
that is necessary to verify the accuracy of the information
contained in any documents provided to it;
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(d) it has such
knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of its investment in the
Units and is able to bear the economic risks of, and withstand the
complete loss of, such investment;
(e) it is an Accredited
Investor acquiring the Units for its own account or, if the Units
are to be purchased for one or more accounts (“Investor Accounts”) with respect
to whom it is exercising sole investment discretion, each such
investor account is an Accredited Investor on a like basis. In each
case, the undersigned has completed the Accredited Investor Status
questionnaire attached hereto to indicate under which category of
Rule 501(a) the investor qualifies as an Accredited
Investor;
(f) it is not acquiring
the Units with a view to any resale, distribution or other
disposition of the Units in violation of federal or applicable
state securities laws, and, in particular, it has no intention to
distribute either directly or indirectly any of the Units in the
U.S. or to U.S. persons; provided, however, that the holder may sell or
otherwise dispose of any of the Units pursuant to registration
thereof under the Securities Act and any applicable state
securities laws or pursuant to an exemption from such registration
requirements;
(g) in the case of the
purchase by the Subscriber of the Units as agent or trustee for any
other person, the Subscriber has due and proper authority to act as
agent or trustee for and on behalf of such beneficial purchaser in
connection with the transactions contemplated hereby;
(h) it is not
purchasing the Units as a result of any general solicitation or
general advertising (as those terms are used in Regulation D under
the Securities Act), including advertisements, articles, notices or
other communications published in any newspaper, magazine or
similar media or broadcast over radio or television, or any seminar
or meeting whose attendees have been invited by general
solicitation or general advertising;
(i) neither the
Subscriber nor, to the extent it has them, any of its shareholders,
members, managers, general or limited partners, directors,
affiliates or executive officers (collectively with the Subscriber,
the “Covered
Persons”), are subject to any of the “Bad
Actor” disqualifications described in Rule 506(d)(1)(i) to
(viii) under the Securities Act (a “Disqualification Event”), except
for a Disqualification Event covered by Rule 506(d)(2) or (d)(3).
The Subscriber has exercised reasonable care to determine whether
any Covered Person is subject to a Disqualification Event. The
purchase of the Units by the Subscriber will not subject the
Company to any Disqualification Event;
(j) it understands that
the Securities are “restricted securities” as defined
in Rule 144(a)(3) under the Securities Act and agrees that if it
decides to offer, sell or otherwise transfer the Securities, such
Securities may be offered, sold or otherwise transferred only (A)
to the Company, (B) outside the U.S. in accordance with Rule 904 of
Regulation S under the Securities Act, (C) within the U.S. or to or
for the account or benefit of a U.S. Person in accordance with an
exemption from the registration requirements of the Securities Act
and all applicable state securities laws, (D) in a transaction that
does not require registration under the Securities Act or any
applicable U.S. state securities laws or (E) pursuant to an
effective registration statement under the Securities Act, and in
each case in accordance with any applicable state securities laws
in the U.S. or securities laws of any other applicable
jurisdiction; provided that with respect to sales or transfers
under clauses (C) or (D), only if the holder has furnished to the
Company a written opinion of counsel, reasonably satisfactory to
the Company, prior to such sale or transfer;
(k) it has been
independently advised as to the applicable holding period and
resale restrictions with respect to trading imposed in respect of
the Securities, by securities legislation in the jurisdiction in
which it resides or to which it is otherwise subject, and confirms
that no representation has been made respecting the applicable
holding periods for the Securities and is aware of the risks and
other characteristics of the Securities and of the fact that the
undersigned may not be able to resell the Securities except in
accordance with applicable securities legislation and
regulations;
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(l) no person has made
to the Subscriber any written or oral representations:
(i) that any person
will resell or repurchase any of the Securities;
(ii) that
any person will refund the purchase price of the Securities;
or
(iii) as
to the future price or value of any of the Securities;
(m) it understands and
acknowledges that certificates representing the Shares and the
Warrant Shares shall bear the following legend or another legend of
substantially similar substance:
“THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY
STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THESE
SECURITIES, AGREES FOR THE BENEFIT OF THE COMPANY, THAT THESE
SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
ONLY (A) TO THE COMPANY, (B) OUTSIDE THE U.S. IN ACCORDANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (C) IN COMPLIANCE WITH AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, (D) IN
ANOTHER TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE
SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS, OR (E)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, AND, IN THE CASE OF (C) AND (D), THE SELLER
FURNISHES TO THE COMPANY A WRITTEN OPINION OF COUNSEL OF RECOGNIZED
STANDING IN FORM AND SUBSTANCE SATISFACTORY TO THE COMPANY TO SUCH
EFFECT.”
(n) it consents to the
Company making a notation on its records or giving instructions to
any transfer agent of the Shares in order to implement the
restrictions on transfer set forth and described
herein.
(o) the office or other
address of the undersigned at which the undersigned received and
accepted the offer to purchase the Units is the address listed in
Box B of Section 6 below.
(p) if required by
applicable securities laws, regulations, rule or order or by any
securities commission, stock exchange or other regulatory
authority, it will execute, deliver and file, within the approved
time periods, all documentation as may be required thereunder, and
otherwise assist the Company in filing reports, questionnaires,
undertakings and other documents with respect to the issuance of
the Units.
(q) this subscription
agreement has been duly and validly authorized, executed and
delivered by and constitutes a legal, valid, binding and
enforceable obligation of the Subscriber; and
(r) it is not an
affiliate (as defined in Rule 144 under the Securities Act) of the
Company and is not acting on behalf of an affiliate of the
Company.
3. Representations, Warranties and
Covenants of the Company. As a material inducement of
Subscriber to enter into this Subscription Agreement and subscribe
for the Units, the Company represents and warrants to Subscriber,
as of the date hereof, as follows:
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(a) Organization and
Standing. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State
of Nevada, has full power to carry on its business as and where
such business is now being conducted and to own, lease and operate
the properties and assets now owned or operated by it, and is duly
qualified to do business and is in good standing in each
jurisdiction where the conduct of its business or the ownership of
its properties requires such qualification, except where the
failure to be so qualified would not have a Material Adverse Effect
on the Company. “Material
Adverse Effect” means any circumstance, change in, or
effect on the Company that, individually or in the aggregate with
any other similar circumstances, changes in, or effects on, the
Company taken as a whole: (i) is, or is reasonably expected to be,
materially adverse to the business, operations, assets,
liabilities, employee relationships, customer or supplier
relationships, prospects, results of operations or the condition
(financial or otherwise) of the Company taken as a whole, or (ii)
is reasonably expected to adversely affect the ability of the
Company to operate or conduct the Company’s business in the
manner in which it is currently operated or conducted or proposed
to be operated or conducted by the Company; provided, however, that none of the following
shall be deemed in and of themselves, either alone or in
combination, to constitute, and none of the following shall be
taken into account in determining whether there has been or will
be, a Material Adverse Effect: (A) any change, event, state of
facts or development generally affecting the general political,
economic or business conditions of the United States, (B) any
change, event, state of facts or development generally affecting
the industry in which the Company operates, (C) any change, event,
state of facts or development arising from or relating to
compliance with the terms of this Subscription Agreement, (D) acts
of war (whether or not declared), the commencement, continuation or
escalation of a war, acts of armed hostility, sabotage or terrorism
or other international or national calamity or any material
worsening of such conditions, (E) changes in laws or generally
accepted accounting principles (“GAAP”) after date hereof or in
interpretations thereof, or (F) any matter disclosed in this
Subscription Agreement (including the schedules
hereto).
(b) Authority. The Board of
Directors of the Company has duly authorized the execution,
delivery and performance of this Subscription Agreement by the
Company, and the consummation of the transactions contemplated
hereby. This Subscription Agreement has been (or upon delivery will
be) duly executed by the Company when delivered in accordance with
the terms hereof, and will constitute, assuming due authorization
and execution and delivery by each of the parties thereto, a valid
and binding obligation of the Company enforceable against the
Company in accordance with its terms. The Securities, when issued,
will be validly issued, fully-paid and non-assessable.
(c) No Conflicts. The execution and
delivery of the Agreement and Securities and the consummation of
the transactions contemplated by this Agreement and the Securities,
will not (i) conflict with or result in a breach of or a default
under any of the terms or provisions of, (A) the Company's
certificate of incorporation or by-laws, or (B) of any material
provision of any indenture, mortgage, deed of trust or other
material agreement or instrument to which the Company is a party or
by which it or any of its material properties or assets is bound,
(ii) result in a violation of any provision of any law, statute,
rule, regulation, or any existing applicable decree, judgment or
order by any court, federal or state regulatory body,
administrative agency, or other governmental body having
jurisdiction over the Company, or any of its material properties or
assets or (iii) result in the creation or imposition of any
material lien, charge or encumbrance upon any material property or
assets of the Company or any of its subsidiaries pursuant to the
terms of any agreement or instrument to which any of them is a
party or by which any of them may be bound or to which any of their
property or any of them is subject except in the case of clauses
(i)(B), (ii) or (iii) for any such conflicts, breaches, or defaults
or any liens, charges, or encumbrances which would not have a
Material Adverse Effect.
(d) No Solicitation. The Company
represents that it has not paid, and shall not pay, any commissions
or other remuneration, directly or indirectly, to any third party
for the sale of the Securities. There are no brokers or other fees
due with respect to the sale of the Securities.
(e) Material Disclosure. No
representation, warranty or statement contained in this Section 3
or any disclosure furnished by the Company pursuant to this
Agreement or pursuant to its filings with the Securities and
Exchange Commission contains or will contain at closing hereunder
any untrue statement of material fact or omits or will omit at such
closing to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading.
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(a) The Company’s
obligation to issue and sell the Units to Subscribers is subject to
the fulfillment (or waiver by the Company) of the following
conditions:
(i) Representations and Warranties.
The representations and warranties made by Subscribers in this
Subscription Agreement shall be true and correct in all material
respects when made, and shall be true and correct in all material
respects upon issuance of the Units;
(ii) Accredited
Investor Questionnaire. All Subscribers shall have completed
and delivered to the Company the Accredited Investor section of the
Subscriber’s signature page attached hereto; and
(iii) Approval
of Subscribers. The Company, in its reasonable discretion,
shall have approved the participation and amount of participation
of any Subscribers who are either individuals that are non-United
States citizens or are entities domiciled in any jurisdiction other
than the United States.
(b) Each
Subscriber’s obligation to purchase the Units is subject to
the fulfillment (or waiver by such Subscriber) of the following
conditions:
(i) Representations and Warranties.
The representations and warranties made by the Company in this
Subscription Agreement shall be true and correct when made, and
shall be true and correct in all material respects upon issuance of
the Units; and
(ii) Compliance
with Securities Laws. The Company shall have obtained all
permits and qualifications required under federal and/or state law
and/or foreign law for the offer and sale of the Units, or shall
have the availability of exemptions therefrom. Upon sale of the
Units, the Company shall file a Form D with the United States
Securities and Exchange Commission in a timely manner as well as
any “blue sky” filings required by the states in which
Subscribers are located.
5. Legends. Subscriber understands
and agrees that the Company will cause any necessary restrictive
legends to be placed upon any instruments(s) evidencing ownership
of the Units, together with any other legend that may be required
by federal or state securities laws or deemed necessary or
desirable by the Company.
6. General
Provisions.
(a) Confidentiality. Subscriber
covenants and agrees that it will keep confidential and will not
disclose or divulge any confidential or proprietary information
that such Subscriber may obtain from the Company pursuant to
financial statements, reports, and other materials submitted by the
Company to such Subscriber in connection with this Subscription
Agreement, or as a result of discussions with or inquiry made to
the Company, unless such information is known, or until such
information becomes known, to the public through no action by
Subscriber; provided,
however, that a Subscriber
may disclose such information to its attorneys, accountants,
consultants, assignees or transferees and other professionals to
the extent necessary in connection with his or her investment in
the Company so long as any such professional to whom such
information is disclosed is made aware of Subscriber’s
obligations hereunder and such professional agrees to be likewise
bound as though such professional were a party hereto.
(b) Successors. The covenants,
representations and warranties contained in this Subscription
Agreement shall be binding on Subscriber’s and the
Company’s heirs and legal representatives and shall inure to
the benefit of the respective successors and assigns of the
Company. The rights and obligations of this Subscription Agreement
may not be assigned by any party without the prior written consent
of the other party.
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(c) Counterparts. This Agreement
may be executed in counterparts, each of which shall be deemed an original agreement, but all of which together shall
constitute one and the same instrument.
(d) Execution by
Facsimile. Execution
and delivery of this Agreement by facsimile transmission (including
the delivery of documents in Adobe PDF format) shall constitute
execution and delivery of this Agreement for all purposes, with the
same force and effect as execution and delivery of an original
manually signed copy hereof.
(e) Governing Law and Jurisdiction.
This Subscription Agreement shall be governed by and construed in
accordance with the laws of the State of California applicable to
contracts to be wholly performed within such state and without
regard to conflicts of laws provisions. THE PARTIES HERETO EACH
HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMIT TO THE EXCLUSIVE
JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY OF
SOUTH SAN FRANCISCO, COUNTY OF SAN MATEO. THE PARTIES HERETO EACH
AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO
THIS SUBSCRIPTION AGREEMENT AND/OR THE OFFERING DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED THEREBY MUST BE LITIGATED EXCLUSIVELY IN
ANY SUCH STATE OR FEDERAL COURT THAT SITS IN THE CITY OF SOUTH SAN
FRANCISCO, COUNTY OF SAN MATEO, AND ACCORDINGLY, THE PARTIES EACH
IRREVOCABLY WAIVE ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE
TO THE LAYING OF THE VENUE OF ANY SUCH LITIGATION IN ANY SUCH
COURT. Each of Subscriber and Company hereby irrevocably waive and
agree not to assert, by way of motion, as a defense, or otherwise,
in every suit, action or other proceeding arising out of or based
on this Subscription Agreement and brought in any such court, any
claim that Subscriber or the Company is not subject personally to
the jurisdiction of the above named courts, that Subscriber’s
or the Company’s property, as applicable, is exempt or immune
from attachment or execution, that the suit, action or proceeding
is brought in an inconvenient forum or that the venue of the suit,
action or proceeding is improper.
(f) Notices. All notices, requests,
demands, claims and other communications hereunder shall be in
writing and shall be delivered by certified or registered mail
(first class postage pre-paid), guaranteed overnight delivery, or
facsimile transmission if such transmission is confirmed by
delivery by certified or registered mail (first class postage
pre-paid) or guaranteed overnight delivery, to the following
addresses and facsimile numbers (or to such other addresses or
facsimile numbers which such party shall subsequently designate in
writing to the other party):
(i) if to the Company,
to the address first set forth above.
(ii) if
to Subscriber to the address set forth next to its name on the
signature page hereto.
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7. SUBSCRIPTION
PARTICULARS
INFORMATION
IN RESPONSE TO THIS SECTION WILL BE KEPT STRICTLY
CONFIDENTIAL
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BOX A
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Particulars
of Purchase of Units
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Number
of Units subscribed for:
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Subscription
Price ($____ X number of Units)
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BOX
B
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Subscriber Information
For individual subscribers this address should be
Subscriber’s primary legal residence. For entities other than
individual subscribers, please provide address information for the
entity’s primary place of business. Information regarding a
joint subscriber should also be included.
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Name
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Xxxxxx
Xxxxxxx
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Xxxxxx
Xxxxxxx (2)
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City
and State
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Zip
Code
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Contact
Name
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Alternate
Contact
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Phone
No.
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Fax No.
/ E-mail Address
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Tax ID
# or Social Security #
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BOX C
Accredited Investor Status
The
Subscriber represents and warrants that it is an “accredited
investor”, as defined in Rule 501(a) under the Securities
Act, by virtue of satisfying one or more of the categories
indicated below (please write your
initials on the line next to each applicable
category):
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Category
1.
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A bank,
as defined in section 3(a)(2) of the Securities Act.
A
savings and loan association or other institution, as defined in
section 3(a)(5)(A) of the Securities Act, whether acting in its
individual or fiduciary capacity.
A
broker or dealer registered pursuant to section 15 of the
Securities Exchange Act of 1934.
An
insurance company as defined in section 2(a)(13) of the Securities
Act.
An
investment company registered under the Investment Corporation Act
of 1940 or a business development company as defined in section
2(a)(48) of that Act.
A Small
Business Investment Corporation 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 Employee 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 adviser, 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.
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Category
2.
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Any
private business development company as defined in section
202(a)(22) of the Investment Advisers Act of 1940.
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Category
3.
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An
organization described in Section 501(c)(3) of the Internal Revenue
Code, a corporation, a Massachusetts or similar business trust, or
a partnership, not formed for the specific purpose of acquiring the
Securities, with total assets in excess of $5,000,000.
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Category
4.
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A
director or executive officer of the Company.
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Category
5.
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A
natural person whose individual net worth, or joint net worth with
that person’s spouse, at the time of this purchase exceeds
$1,000,000, excluding the value of the person’s primary
residence, if any.
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Category
6.
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A
natural person who had an individual income in excess of $200,000
in each of the two most recent years or joint income with that
person’s spouse in excess of $300,000 in each of those years
and has a reasonable expectation of reaching the same income level
in the current year.
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Category
7.
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A
trust, with total assets in excess of $5,000,000, not formed for
the specific purpose of acquiring the Securities, whose purchase is
directed by a sophisticated person as described in Rule
506(b)(2)(ii) of Regulation D under the U.S. Securities
Act.
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Category
8.
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An
entity in which each of the equity owners is an accredited
investor.
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[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the Company has
executed this Subscription Agreement as of the date first written
on the Subscriber Signature Page following (the
“Effective
Date”).
By:
Name:
Xxxxx X.
Xxxxx
Title:
Chief Executive
Officer
[SUBSCRIBER
SIGNATURE PAGE FOLLOWS]
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SUBSCRIBER SIGNATURE PAGE TO SUBSCRIPTION AGREEMENT
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AGREED
AND SUBSCRIBED
This
__ day of _____, 2018
By:_________________________________
Name:
Title
(if any):
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AGREED
AND SUBSCRIBED
SIGNATURE OF JOINT SUBSCRIBER (if any)
This __ day of _____, 2018
By:_________________________________
Name:
Title
(if any):
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__________________________________
Subscriber
Name (Typed or Printed)
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__________________________________
Additional
Subscriber Name (Typed or Printed)
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