SUBSCRIPTION AGREEMENT UNITS
Exhibit
10.4
TO:
VistaGen
Therapeutics, Inc., a Nevada corporation (the “Company”)
RE:
Purchase of Units
of the Company
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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
(650)
577-3600
xxxxxxx@xxxxxxxx.xxx
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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) an immediately exercisable warrant
to purchase one (1) unregistered share of the Company’s
Common Stock (the “Warrant
Shares”) of the Company at a price equal to the
closing quoted market price per share of the Company’s Common
Stock on the Nasdaq Capital Market on the effective date of each
Subscriber’s Subscription Agreement, which shall be defined
as the date on which the Company receives Subscriber’s
investment funds (the “Effective Date”) for a period of
four (4) years following the Effective Date (each warrant to
purchase shares of Common Stock, a “Warrant”). The Subscription Price
for each Unit shall be equal to the closing quoted market price per
share of the Company’s Common Stock on the Nasdaq Capital
Market on the Effective Date of each Subscriber’s
Subscription Agreement plus $0.15. 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;
(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;
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(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;
(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.
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(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:
(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.
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(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.
4.
Conditions to
Closing.
(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.
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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.
(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):
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(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.
[REMAINDER OF PAGE
INTENTIONALLY LEFT BLANK]
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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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☐
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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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☐
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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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☐
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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.
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By:
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/s/
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Name:
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Xxxxx X.
Xxxxx
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Title:
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Chief Executive
Officer
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[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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