Procera Networks, Inc. Registrable Common Stock at $0.50 per share with 50% Warrant Coverage at $0.75 per share SUBSCRIPTION AGREEMENT
Exhibit
4.13
Procera
Networks, Inc.
Registrable
Common Stock at $0.50 per share
with
50% Warrant Coverage at $0.75 per share
SUBSCRIPTION
AGREEMENT
1. Subscription:
(a) The
undersigned (individually and/or collectively, the "Participant") hereby applies
to become a participant in the restricted common stock (the "Shares" or the
"Common Stock") of Procera Networks, Inc., a Delaware corporation (the
"Company"), in accordance with the terms and conditions of this Subscription
Agreement (the "Subscription").
(b) Before this
subscription for participation in the Shares is considered, the Participant
must
complete, execute and deliver to the Company the following:
(i) This
Subscription Agreement;
(ii) The
Procera Registration Rights Agreement; and
(iii) The
Participant’s check in the amount of
$ .
(c) Number of
shares
purchased:
.
(d) Number of
warrants granted, at $.75 per
share: .
(e) This
subscription is irrevocable by the Participant.
(f) This
subscription is not transferable or assignable by the Participant
(g) This
subscription may be rejected in whole or in part by the Company in its sole
discretion. In the event this subscription is rejected by the
Company, all funds and documents tendered by the Participant shall be
returned.
2. Representations
by Participant. In consideration of the Company’s acceptance
of participation, I make the following representations and warranties to the
Company, to its principals, and to participating broker-dealers, if any, jointly
and severally, which warranties and representations shall survive any acceptance
of my participation in the Shares:
(a) I have had
the opportunity to ask questions and receive any additional information from
persons acting on behalf of the Company to verify my understanding of the terms
thereof and of the Company’s business and status thereof, and that no oral
information furnished to the undersigned or my advisors in connection with
my
participation in the Shares has been in any way inconsistent with other
documentary information provided.
(b) I
acknowledge that I have not seen, received, been presented with, or been
solicited by any leaflet, public promotional meeting, newspaper or magazine
article or advertisement, radio or television advertisement, or any other form
of advertising or general solicitation with respect to my participation in
the
Shares.
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(c) The Shares
are being purchased for my own account for long-term investment and not with
a
view to immediately re-sell the Shares. No other person or entity
will have any direct or indirect beneficial interest in, or right to, the
Shares. I or my agents or investment advisors have such knowledge and
experience in financial and business matters that will enable me to utilize
the
information made available to me in connection with the participation in the
Shares to evaluate the merits and risks of participation and to make an informed
investment decision.
(d) I
acknowledge that the Shares have not been registered under the Securities Act
of
1933, as amended (the "Securities Act"), or qualified under the California
Securities Law, or any other applicable blue sky laws, in reliance, in part,
on
my representations, warranties and agreements made herein.
(e) Other than
the rights specifically set forth in the Procera Shareholder Rights Agreement,
I
represent, warrant and agree that the Company and the officers of the Company
(the "Company’s Officers") are under no obligation to register or qualify the
participation in the Shares under the Securities Act or under any state
securities law, or to assist the undersigned in complying with any exemption
from registration and qualification.
(f) I
represent that I meet the criteria for participation because (i) I have a
preexisting personal or business relationship with the Company or one or more
of
its partners, officers, directors or controlling persons or (ii) by reason
of my
business or financial experience, or by reason of the business or
financial experience of my financial advisors who are unaffiliated with, and
are
not compensated, directly or indirectly, by the Company or any affiliate or
selling agent of the Company, I am capable of evaluating the risk and merits
of
an investment in the Shares and of protecting my own interests; AND
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(i)
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I
have minimum net worth in excess of $1,000,000,
or
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(ii)
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I
have income in excess of $200,000 or joint income with my spouse
in excess
of $300,000 in each of the two most recent years, and I/we have a
reasonable expectation of reaching the same income level in the current
year; or
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(iii)
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I
am a director or executive officer of the Company;
or
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(iv)
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If
a trust, the trust has total assets in excess of $5,000,000 and was
not
formed for the specific purpose of acquiring the Shares and the purchase
was directed by a sophisticated person as described in 7 CFR §
230.506(b)(2)(ii); or
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(v)
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If
a corporation or partnership, the corporation or partnership has
total
assets in excess of $5,000,000 and was not formed for the specific
purpose
of acquiring the Shares; or
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(vi)
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If
an entity, all of the equity owners meet the criteria for participation
set forth in this Paragraph 2(f).
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(g) I
understand that the participation in the Shares is illiquid, cannot be readily
sold as there will not be a public market for them and that I may not be able
to
sell or dispose of my participation in the Shares, or to utilize the Shares
as
collateral for a loan. I must not purchase participation in the
Shares unless I have liquid assets sufficient to assure myself that such
purchase will cause me no undue financial difficulties and that I can still
provide for my current and possible personal contingencies, and that the
commitment herein for participation in the Shares, combined with other
investments of mine, is reasonable in relation to my net worth.
(h) I
understand that my right to transfer my participation in the Shares will be
restricted against transfers unless the transfer is not in violation of the
Securities Act, the California Securities Law, and any other applicable state
securities laws (including investment suitability standards), that the Company
will not consent to a transfer of participation in the Shares unless the
transferee represents that such transferee meets the financial suitability
standards required of an initial participant and that the Company has the right,
in its absolute discretion, to refuse to consent to such transfer.
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(i) I have
been advised to consult with my own attorney or attorneys regarding all legal
matters concerning an investment in the Company and the tax consequences of
participation in the Shares, and have done so, to the extent I consider
necessary.
(j) I
acknowledge that the tax consequences to me of investing in the Company will
depend on my particular circumstances, and neither the Company, the Company’s
Officers, any other investors, nor the partners, shareholders, members,
managers, agents, officers, directors, employees, affiliates or consultants
of
any of them, will be responsible or liable for the tax consequences to me of
an
investment in the Company. I will look solely to and rely upon my own
advisers with respect to the tax consequences of this investment
(k) All
information which I have provided to the Company concerning myself, my financial
position and my knowledge of financial and business matters is truthful,
accurate, correct and complete as of the date set forth herein.
3. Agreement
to Indemnify Company. I hereby agree to indemnify and hold
harmless the Company, its principals, the Company’s officers, directors and
attorneys, from any and all damages, costs and expenses (including actual
attorneys’ fees) which they may incur (i) by reason of my failure to fulfill any
of the terms and conditions of participation, (ii) by reason of my breach of
any
of my representations, warranties or agreements contained herein; (iii) with
respect to any and all claims made by or involving any person, other than me
personally, claiming any interest, right, title, power or authority in respect
to my participation. I further agree and acknowledge that these
indemnifications shall survive any sale or transfer, or attempted sale or
transfer, of any portion of my participation.
4. Subscription
Binding on Heirs, etc. This subscription, upon acceptance by
the Company, shall be binding upon the heirs, executors, administrators,
successors and assigns of the Participant. If the undersigned is more
than one person, the obligations of the undersigned shall be joint and several
and the representations and warranties shall be deemed to be made by and be
binding on each such person and his heirs, executors, administrators,
successors, and assigns.
5. Execution
Authorized. If this subscription is executed on behalf of a
corporation, partnership, trust or other entity, the undersigned has been duly
authorized and empowered to legally represent such entity and to execute this
subscription and all other instruments in connection with participation in
the
Shares and the signature of the person is binding upon such entity.
6. Adoption
of Terms and Provisions. The Participant hereby adopts,
accepts and agrees to be bound by all the terms and provisions
hereof.
7. Governing
Law. This subscription shall be construed in accordance with
the laws of the State of California.
8. Investor
Information:
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(The
information below should be consistent with the form of ownership selected
below.)
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Name
(please print):
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If
entity named above, By:
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Its:
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Social
Security or Taxpayer I.D. Number:
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Business
Address (including zip code):
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Business
Phone:
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Residence
Address (including zip code):
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Residence
Phone:
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All
communications to be sent to:
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Business
or
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Residence
Address
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Please
indicate below the form in which you will hold title to your interest in the
Shares. PLEASE CONSIDER CAREFULLY. ONCE YOUR SUBSCRIPTION
IS ACCEPTED, A CHANGE IN THE FORM OF TITLE CONSTITUTES A TRANSFER OF THE
INTEREST IN THE SHARES AND MAY THEREFORE BE RESTRICTED BY THE TERMS OF THIS
SUBSCRIPTION, AND MAY RESULT IN ADDITIONAL COSTS TO YOU. Subscribers
should seek the advice of their attorneys in deciding in which of the forms
they
should take ownership of the interest in the Shares, because different forms
of
ownership can have varying gift tax, estate tax, income tax, and other
consequences, depending on the state of the investor's domicile and his or
her particular personal circumstances.
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INDIVIDUAL
OWNERSHIP (one signature required)
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JOINT
TENANTS WITH RIGHT OF SURVIVORSHIP AND NOT AS TENANTS IN COMMON
(both or
all parties must sign)
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COMMUNITY
PROPERTY (one signature required if interest held in one name,
i.e.,
managing spouse; two signatures required if interest held in both
names)
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TENANTS
IN COMMON (both or all parties must sign)
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GENERAL
PARTNERSHIP (fill out all documents in the name of the PARTNERSHIP,
by a
PARTNER authorized to sign, and include a copy of the Partnership
Agreement)
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LIMITED
PARTNERSHIP (fill out all documents in the name of the LIMITED
PARTNERSHIP, by a GENERAL PARTNER authorized to sign, and include a
copy of the Limited Partnership Agreement and any other document
showing
that the investment is authorized)
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LIMITED
LIABILITY COMPANY (fill out all documents in the name of the LIMITED
LIABILITY COMPANY, by a member authorized to sign, and include
a copy of
the LIMITED LIABILITY COMPANY’s Operating Agreement and any other
documents necessary to show the investment is
authorized.)
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CORPORATION
(fill out all documents in the name of the CORPORATION, by the
President
or other officer authorized to sign, and include a copy of the
Corporation's Articles and certified Corporate Resolution authorizing
the
signature)
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TRUST
(fill out all documents in the name of the TRUST, by the Trustee,
and
include a copy of the instrument
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Subject
to acceptance by the Company, the undersigned has completed this Subscription
Agreement to evidence his/her subscription for participation in the
Shares of the Company, this day of , 2003, at
, .
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Subscriber |
The
Company has accepted this subscription this
day of
, 2003.
| Procera Networks, Inc., a Delaware corporation | |||
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By:
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Xxxxxxx
Xxxxxx, CEO
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Address
for Notice:
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Procera
Networks
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0000
Xxxxx Xxxxxxxxxx Xxxxxxxxx
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Xxxxxxxx,
XX 00000
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