TechSoup Global TechSoup Risk Capital Note Investment Subscription Agreement
EXHIBIT 1A – 0X
XxxxXxxx Xxxxxx |
XxxxXxxx Risk Capital Note
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This Investment Subscription Agreement is entered into by and between TechSoup Global (“TechSoup”) and the following investor (“Investor”):
| Name of Investor: |
| Address: |
| Name of individual authorized to act on behalf of Investor: |
| Phone: | Email: |
Background
TechSoup is raising investments via a Regulation A Offering under the Securities Act of 1933 in order to facilitate the strategic plans of TechSoup as described in the Offering Statement, dated ___________. The investments comprise three distinct notes: the Community Investment Note; the Patient Capital Note; and this Risk Capital Note, which is only open to accredited investors.
Investor wishes to participate by intentionally and voluntarily placing its investment at risk as described in this Agreement.
Now, therefore, in consideration of the foregoing and of the mutual promises in this Agreement and for other consideration, the adequacy of which is acknowledged, TechSoup and Investor agree as follows:
1. Investment
Investor will invest $__________________ (the “Investment) in a Risk Capital Note (the “Note”) issued by TechSoup as described in TechSoup’s Offering Statement. If there are any inconsistencies, the provisions of this Agreement supplement and supersede the terms of the Offering Statement. This Agreement is irrevocable and unconditional during the term of the Note and continues notwithstanding the death, incapacity, dissolution or bankruptcy of, or any other event or proceeding affecting Investor.
Minimum investment in Note is $50,000.00.
2. Term
This Agreement will expire on the fifth anniversary of the date hereof or, if earlier, on the Maturity Date set forth in the Note (June 30, 2023), unless TechSoup has notified you in writing of its intent to extend the term and you have not opted to rescind the extension. Payment of Principal and all accrued and unpaid interest will be paid within 60 days of Maturity Date.
3. Option to Subordinate Investment to be Used for Community Investor Loan Repayments
TechSoup intends to raise capital in the Community Investment Pool by issuing Community Investment Notes to unaccredited investors. In light of the risk to holders of Community Investment Notes, TechSoup would like to offer Risk Capital Note Investors the opportunity to allow the repayment of all or a portion of their principle investment to serve as a reserve to cover payment obligations to holders of Community Investment Notes, if needed.
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If TechSoup reasonably determines that its revenues are insufficient to pay the aggregate unpaid interest and principal balance of all Community Investment Notes issued by TechSoup, then TechSoup may apply, on a pro rata basis, that portion of the assets of the Risk Capital Notes that have voluntarily been earmarked by the Risk Capital Note Investor for this provision, so as to make such payments (but only to the extent needed); and in that event the repayment of the unpaid principal balance of such Risk Capital Note Investment will be segregated, on a pro rata basis with other investors of Risk Capital Notes who have also opted to allow their principal to be used in this regard, and the remainder of those Investments will be repaid when sufficient revenues are available.
Please indicate here whether Investor wishes to allow its investment to be subordinated to the repayment of the Community Investment Notes at Maturity Date.
Investor’s election is:
| ☐ | Pay accrued interest to Investor Annually, and allow repayment of principal to be subordinated and used first for repayment of Community Investment Note repayments at Maturity Date, prior to repayment of principal to Investor. | |
| ☐ | Pay accrued interest to Investor Annually, and receive principal at Maturity Date. |
4. Interest. Investor may elect what TechSoup should do with interest earned on the Investment.
Investor’s election is:
| ☐ | Accrue it and add it to Investor’s principal balance to be paid at Maturity Date. | |
| ☐ | Pay it to Investor each year. |
5. Prepayment Right. Notwithstanding any other provision contained herein, TechSoup shall have the right to prepay any or all of the principal and outstanding interest owed hereunder at any time without penalty or premium.
6. Tax Implications
TechSoup makes no representations about the tax deductibility of any such donations, and Investor has been advised to consult with Investor’s tax advisor regarding any tax implications of this Agreement.
7. General
This Agreement will be binding upon and inure to the benefit of the heirs, legal representatives, successors and assigns of the parties. This Agreement may be amended or modified only in writing signed by TechSoup and Investor. This Agreement, together with the Note, supersedes all discussions and negotiations between TechSoup and Investor concerning repayment of the indebtedness evidenced hereby.
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8. Accredited Status
Investor understands that this investment opportunity is open only to accredited investors, as that term is defined in Federal securities law. By signing this Agreement Investor certifies that Investor is accredited because Investor is: (check as applicable)
| ☐ | An institution meeting the definition of “Accredited Investor.” | |
| ☐ | An individual with net worth of at least $1,000,000 (excluding primary residence). | |
| ☐ | An individual with income over $200,000 in the past 2 years, and expectation of the same in the current year. | |
| ☐ | A married couple with joint income over $300,000 in the past 2 years, and expectation of the same the current year. | |
| ☐ | An entity in which all equity owners are accredited. | |
| ☐ | A 501(c)(3) organization with assets over $5,000,000. | |
| ☐ | Another
type of investor defined as an accredited under federal securities laws because: (Please explain) ____________________________________________________________________________ |
9. Investor has read the Representations, Warranties and Covenants attached as Attachment 1 to this Agreement.
10. General Provisions.
Notice. Any notice or demand which either party may or must give to the other under this Agreement shall be made in writing and shall be either hand delivered or sent via email, facsimile, or U.S. certified mail to the following addresses:
| If to TechSoup: | If to Investor: |
| TechSoup | The name and address provided |
| 000 Xxxxxxx Xxxxxx, Xxxxx 000 | by Investor on the signature |
| Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 | page of this Agreement |
b. Modification. This Agreement may not be modified or amended except pursuant to an instrument in writing signed by the Non-Profit and Investor.
c. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California.
d. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute an original, but all of which, when taken together, shall constitute one instrument, and shall become effective when one or more counterparts have been signed by each party hereto and delivered to the other parties.
e. Electronic Signatures. To invest in the TechSoup Risk Capital Note, please use our Invest Now feature on our website, complete this Agreement sign electronically on our Invest Now page, and TechSoup will provide Investor with wire payments instructions
Investor may also, if necessary, tender to TechSoup this Agreement by electronic means such as by email or facsimile. If Investor submits this Agreement to TechSoup electronically, Investor agrees that Investor’s digital signature or other form of electronic acknowledgement, consent or acceptance (as the case may be), constitutes Investor’s signature, acceptance and agreement of the terms of this Agreement and such digital signature, consent or acceptance shall be given the same force and effect as a signature affixed by hand.
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f. Severability. If a court or an arbitrator of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable, or invalid in whole or in part for any reason, the validity and enforceability of the remaining provisions, or portions of them, will not be affected.
g. Entire Agreement. This Agreement constitutes the final, complete, and exclusive statement of the terms of the agreement between the parties pertaining to the purchase and sale of the Note by Investor from TechSoup, and supersedes all prior and contemporaneous understandings or agreements of the parties.
h. Arbitration. Any dispute, claim or controversy between the Investors or his/her/its affiliates and TechSoup arising out of or relating to this Agreement or any subscription by any Investor to purchase Securities, or any termination, alleged breach, enforcement, interpretation or validity of any of those agreements (including the determination of the scope or applicability of this agreement to arbitrate), or otherwise involving TechSoup, will be submitted to arbitration in the county and state in which TechSoup maintains its principal office at the time the request for arbitration is made, before a sole arbitrator, in accordance with the laws of the state of California for agreements made in and to be performed in the state of California. Such arbitration will be administered by the Judicial Arbitration and Mediation Services (“JAMS”) and conducted under the provisions of its Comprehensive Arbitration Rules and Procedures. Arbitration must be commenced by service upon the other party of a written demand for arbitration or a written notice of intention to arbitrate, therein electing the arbitration tribunal. Judgment upon any award rendered by the arbitrator shall be final and may be entered in any court having jurisdiction thereof. No party to any such controversy will be entitled to any punitive damages. Notwithstanding the rules of JAMS, no arbitration proceeding will be consolidated with any other arbitration proceeding without all parties’ consent. The arbitrator shall, in the award, allocate all of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees of the prevailing party, against the party who did not prevail.
12. Signatures
By signing below, Investor certifies under penalty of perjury as follows (please draw a line through any of these statements that is not true):
| ■ | Investor has read and understood the TechSoup Offering Statement. |
| ■ | Investor qualifies as an “accredited investor” for purposes of Federal securities laws. |
| ■ | The number shown on this form is Investor’s correct taxpayer identification number; |
| ■ | Investor is not subject to backup withholding because: (a) Investor is exempt from backup withholding, or (b) Investor has not been notified by the Internal Revenue Service (IRS) that Investor is subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified Investor that Investor is no longer subject to backup withholding; and |
| ■ | Investor is a U.S. person (including a U.S. resident alien). |
| Investor: | TechSoup Global | |||
| Signature: | Signature: | |||
| Print Name: | Print Name: | |||
| Title: | Title: | |||
| Date: | Date: | |||
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Attachment 1
Representations, Warranties, and Covenants of the Investor
Investor represents and warrants to, and covenants with, TechSoup that:
a. TechSoup May Rely on These Representations. Investor understands that TechSoup’s offer and sale of the Note has not been registered under the Securities Act of 1933, as amended, because TechSoup believes, relying in part on Investor’s representations in the Agreement, that an exemption from such registration requirement is available for such sale. Investor understands that the availability of this exemption depends upon the representations Investor is making to TechSoup in this Agreement being true and correct.
b. Purchase for Investment. Investor is purchasing the Note solely for investment purposes, and not for further distribution. Investor’s entire legal and beneficial ownership interest in the Note is being purchased and shall be held solely for Investor’s account, except to the extent Investor intends to hold the Note jointly with a spouse. Investor is not a party to, and does not presently intend to enter into, any contract or arrangement with any other person or entity involving the resale, transfer, grant of participation with respect to or other distribution of the Note. Investor’s investment intent is not limited to a present intention to hold the Note for any fixed period.
c. Investor Can Protect Its Interests. Investor can properly evaluate the merits and risks of an investment in the Note and can protect its own interests in this regard, whether by reason of its own business and financial expertise, the business and financial expertise of certain professional advisors unaffiliated with TechSoup with whom Investor has consulted, or Investor’s preexisting business or personal relationship with TechSoup or any of its officers, directors or controlling persons.
d. Investor Recognizes Its Economic Risk. Investor understands that the purchase of the Note involves a high degree of risk, and that TechSoup’s future prospects are uncertain. Investor has the requisite knowledge to assess the relative merits and risks of the investment, or has relied upon the advice of Investor’s professional advisors with regard to an investment in TechSoup. Investor acknowledges that TechSoup has made available to it the opportunity to ask questions of and receive answers from TechSoup’s officers and directors concerning the terms and conditions of this Agreement and the business and financial condition of TechSoup, and Investor has received to its satisfaction, such information about the business and financial condition of TechSoup and the terms and conditions of this Agreement as it has requested.
e. Restricted Securities. Investor understands that the Note is a “restricted securities” in that TechSoup’s sale of the Note has not been registered under the Securities Act. Investor understands that there are significant limitations on transfer of the Note.
f. Investor Advised to Seek Representation. Investor understands that nothing in this Agreement or any other materials presented to Investor in connection with the purchase and sale of the Note constitutes legal, tax, or investment advice. TechSoup has advised Investor to consult with such legal, tax, and investment advisors as Investor, in its sole discretion, deems necessary or appropriate in connection with its purchase of the Note.
g. Complete Information. All information provided by Investor to TechSoup in connection with the purchase of Note is true, correct and complete as of the date set forth hereof, and if there should be any change in such information, Investor will immediately provide TechSoup with such information. Investor is not subject to backup withholding of interest or dividends by the Internal Revenue Service.
h. Authority; Binding Agreement. Investor represents and warrants to, and covenants with TechSoup that (i) Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery, and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable law.
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