Subscription Agreement
Exhibit 10.16
This subscription (this “Subscription”) is dated [●], 2023, by and between the investor identified on the signature page hereto (the “Investor”) and HeartBeam, Inc., a Delaware corporation (the “Company”). The parties agree as follows:
1. Subscription.
Investor agrees to buy and the Company agrees to sell to Investor such number of shares (the “Shares”) of the Company’s common stock, $0.0001 par value per share (the “Common Stock”), as set forth on the signature page hereto, for an aggregate purchase price (the “Purchase Price”) equal to the product of (x) the aggregate number of Shares the Investor has agreed to purchase and (y) the purchase price per share as set forth on the signature page hereto.
The Shares have been registered for sale pursuant to a Registration Statement on Form S-1, Registration No. 333-269717 (the “Registration Statement”). The Registration Statement will have been declared effective by the Securities and Exchange Commission (the “Commission”) prior to issuance of any Shares and acceptance of any Investor’s subscription. The prospectus contained in the Registration Statement (the “Prospectus”), however, is subject to change. A final Prospectus and/or Prospectus supplement will be delivered to the Investor as required by law.
The Shares are being offered by the Company through Public Ventures, LLC (“PV”) (the “Placement Agent”) as the exclusive placement agent on a commercially reasonable “best efforts” no minimum basis by the Prospectus. The purchase price per share of Common Stock will be the price per share set forth on the cover page of the Prospectus. This offering will terminate on ________, 2023 (the “Initial Offering Termination Date”), which date may be extended to a date up to and including _______, 2023 (the “Offering Termination Date”), unless the Company decides to terminate this offering prior to the Offering Termination Date, which the Company may do at any time in its discretion.
The completion of the purchase and sale of the Shares (the “Closing”) shall take place at a place and time (the “Closing Date”) to be specified by the Company and PV in accordance with Rule 15c6-1 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Upon satisfaction or waiver of all the conditions to closing set forth in the preliminary prospectus contained in the Registration Statement when it is declared effective by the Commission, at the Closing: (i) the Purchase Price deposited by the Investor subsequent to the declaration of effectiveness of the Registration Statement by wire transfer of immediately available funds to the Company’s escrow account per wire instructions as provided on the signature line below shall be released to the Company, and (ii) the Company shall cause the Shares to be delivered to the Investor (A) through the facilities of The Depository Trust Company’s DWAC system in accordance with the instructions set forth on the signature page attached hereto under the heading “DWAC Instructions,” or (B) if requested by the Investor on the signature page hereto or if the Company is unable to make the delivery through the facilities of The Depository Trust Company’s DWAC system, through the book-entry delivery of Shares on the books and records of the transfer agent. If delivery is made by book entry on the books and records of the transfer agent, the Company shall send written confirmation of such delivery to the Investor at the address indicated on the Signature Page hereof.
PV and any participating sub-agents (the “Members”) shall confirm, via a sub-agency or selected dealer agreement, as applicable, that it will comply with Rule 15c2-4 under the Exchange Act. As per Rule 15c2-4 and Notice to Members 84-7 issued by the Financial Industry Regulatory Authority (collectively, the “Rule”), all checks that are accompanied by a subscription agreement will be promptly sent along with the subscription agreements to the escrow account by noon the next business day. In regard to monies being wired from an investor’s bank account, the Members shall request the investors to send their wires by the business day immediately following the receipt of a completed subscription document. In regards to monies being sent from an Investor’s account held at the participating broker, the funds will be “promptly transmitted” to the escrow agent following the receipt of a completed subscription document and completed wire instructions by the Investor to send funds to the escrow account. Absent unusual circumstances, funds in customer accounts will be transmitted by noon of the next business day. In the event that the offering does not close for any reason prior to the termination date set forth in the Registration Statement, all funds deposited in the escrow account will be returned to Investors promptly in accordance with the terms of the escrow agreement and applicable law, without interest or other set off.
1
2. Subscription Process.
To purchase shares of Common Stock in this offering, Investors must complete and sign a subscription agreement. Investors will be required to pay for their shares of Common Stock by wire for the full purchase price of the shares, payable to “________ as Agent for HeartBeam, Inc. Escrow Account”.
Subscriptions will be effective only upon the Company’s acceptance of the subscriptions, and the Company reserves the right to reject any subscriptions in whole or in part. Additionally, PV may reject a subscription that it believes compromises the integrity of the placement agent’s legal and contract obligations. In compliance with Rule 15c2-4 under the Exchange Act, the Company and PV will instruct Investors to deliver all monies in the form of personal check, bank draft, cashier’s check, ACH, or federal funds wire transfer to the escrow agent. Upon the escrow agent’s receipt of such monies, they shall be credited to the escrow account. Pursuant to an escrow agreement among the Company, PV, and Delaware Trust Company, as escrow agent, the funds received in payment for the shares of Common Stock purchased in this offering will be wired to a non-interest bearing escrow account at Delaware Trust Company and held until the escrow agent determines that the amount in the escrow account is equal to at least the minimum amount required to close this offering. Upon confirmation of receipt of the requested minimum subscription amount, the escrow agent will release the funds in accordance with the written instructions provided by the Company and PV, indicating the date on which the shares of common stock purchased in this offering are to be delivered to the investors and the date the net proceeds are to be delivered to the Company. Unless Investors instruct us otherwise, the Company will deliver the shares of Common Stock being issued to the Investors electronically through the Company’s transfer agent.
3. Miscellaneous.
This Subscription may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument and shall become effective when counterparts have been signed by each party and delivered to the other parties hereto, it being understood that all parties need not sign the same counterpart. Execution may be made by delivery by facsimile or via electronic format.
All communications hereunder, except as otherwise specifically provided herein, shall be in writing and shall be mailed, hand delivered, sent by a recognized overnight courier service such as Federal Express, or sent via facsimile and confirmed by letter, to the party to whom it is addressed at the following addresses or such other address as such party may advise the other in writing:
To the Company: as set forth on the signature page hereto.
To the Investor: as set forth on the signature page hereto.
All notices hereunder shall be effective upon receipt by the party to which it is addressed.
If the foregoing correctly sets forth our agreement, please confirm this by signing and returning to us the duplicate copy of this Subscription.
[Signature Page Follows]
2
[Company Signature Page to Investor Subscription Agreement for Heartbeam, Inc.]
IN WITNESS WHEREOF, the Investor and the Company have caused this Subscription Agreement to be duly executed as of the date first written above.
| HeartBeam, Inc. | ||
| By: | ||
| Name: | ||
| Title: | ||
| Address for Notice: | ||
| HeartBeam, Inc. | ||
| 0000 Xxxxx Xxxxxx, Xxxxx 000 | ||
| Santa Clara, CA 95050 | ||
| Attn: Chief Executive Officer | ||
3
[Investor Signature Page to Investor Subscription Agreement for Heartbeam, Inc. - Individual]
IN WITNESS WHEREOF, the Investor and the Company have caused this Subscription Agreement to be duly executed as of the date first written above.
| Number of Shares: ____________________ | |
| Name (Print) | |
| Purchase Price per Share: $XXX | |
| Signature (Individual) | |
| Aggregate Purchase Price: $________________ | |
| Broker of Record: ____________________ | Tax Identification or Social Security Number |
| If Joint Tenants or Tenants-in-Common: | |
| Name (Print) | |
| Signature (Individual) | |
| Tax Identification or Social Security Number | |
| Address for Notice: | |
| c/o Name | |
| Street Address | |
| City, State, Zip Code & Country | |
| (______)____________________________ | |
| Telephone Number | |
| (______)____________________________ | |
| Facsimile Number |
4
Select method of delivery of Shares: DRS or DWAC (Pick one)
DWAC DELIVERY INSTRUCTIONS:
| 1. | Name of DTC Participant (broker-dealer at which the account or accounts to be credited with the Shares are maintained): | |
| 2. | DTC Participant Number: | |
| 3. | Name of Account at DTC Participant being credited with the Shares: | |
| 4. | Account Number of DTC Participant being credited with the Shares: |
Or
DRS ELECTRONIC BOOK ENTRY CONFIRMATION (hold shares at transfer agent) Delivery Instructions:
| Name(s) in which Shares should be issued: |
| Address: | ||
| City/State/Zip: | ||
| Attention: | ||
| Telephone No.: |
5
[Investor Signature Page to Investor Subscription Agreement for Heartbeam, Inc. - Entity]
IN WITNESS WHEREOF, the Investor and the Company have caused this Subscription Agreement to be duly executed as of the date first written above.
| Number of Shares: ________________________ | |
| Name of Entity | |
| Purchase Price per Share: $XXXX | |
| Aggregate Purchase Price: $________________ | Type of Entity (i.e., corporation, limited liability company, partnership, etc.) |
| Broker of Record: ____________________ | |
| Tax Identification or Social Security Number | |
| State of Formation of Entity | |
| Name of Authorized Signatory (Print) | |
| Signature | |
| Title | |
| Address for Notice: | |
| Street Address | |
| City, State, Zip Code & Country | |
| (______)____________________________ | |
| Telephone Number | |
| (______)____________________________ | |
| Facsimile Number |
6
Select method of delivery of Shares: DRS or DWAC (Pick one)
DWAC DELIVERY INSTRUCTIONS:
| 1. | Name of DTC Participant (broker-dealer at which the account or accounts to be credited with the Shares are maintained): | |
| 2. | DTC Participant Number: | |
| 3. | Name of Account at DTC Participant being credited with the Shares: | |
| 4. | Account Number of DTC Participant being credited with the Shares: |
Or
DRS ELECTRONIC BOOK ENTRY CONFIRMATION (hold shares at transfer agent) Delivery Instructions:
| Name(s) in which Shares should be issued: |
| Address: | ||
| City/State/Zip: | ||
| Attention: | ||
| Telephone No.: |
7
SUBSCRIPTION PAYMENT INSTRUCTIONS:
NO WIRE TRANSFERS OR ACH PAYMENTS MAY BE MADE TO THE ESCROW ACCOUNT, DIRECTLY OR THROUGH ANY SELLING AGENT UNLESS AND UNTIL THE REGISTRATION STATEMENT HAS BEEN DECLARED EFFECTIVE BY THE COMMISSION.
WIRE PAYMENT INSTRUCTIONS:
| [BANK] | |
| [Bank Address] | |
| ABA/Routing #: | |
| Swift #: | |
| Account #: | |
| Account Title: xxxxxx as Agent for Heartbeam, Inc. Escrow Account | |
| Telephone No.: | |
| Fax No.: |
8
