FORM OF THREE-YEAR SUBSCRIPTION AND LOCK-UP AGREEMENT
Exhibit
10.17
FORM
OF THREE-YEAR SUBSCRIPTION AND LOCK-UP AGREEMENT
Apro Bio
Pharmaceutical Corporation
0000
Xxxxx Xxxxxx, Xxx 000
Xxxxxxxxx
Xxxxxxx, XX 00000
Fax (000)
000-0000
Re: Subscription and Three Year
Lock Up Agreement
Ladies
and Gentlemen:
This
agreement is made in connection with the proposed merger of Apro Bio
Pharmaceutical Corporation (“Apro”) with and into Across America Financial
Services, Inc. (“Across America”) pursuant to a Agreement of Merger and Plan of
Reorganization dated November 17, 2008 between Apro and Across America, whereby
Across America will issue to Apro 18,189,462 shares of its common stock in
exchange for all of the outstanding common stock of Apro. Apro will
distribute the shares of Across America issued to it to its shareholders in
exchange for their shares of common stock in Apro. The Agreement of
Merger and Plan of Reorganization has been approved by the shareholders of
Apro. Apro and Across America shall be referred to herein as the
“Company”).
In
consideration of the offer of shares of Across America to me in exchange for my
shares of Apro, and of other valuable consideration, the receipt of
which is hereby acknowledged, I agree as follows:
1. Consent
to Share Exchange. I hereby consent to the exchange of my
shares of common stock of Apro for shares of the common stock of Across America
in the proportions as stated in the Agreement of Merger and Plan of
Reorganization, a copy of which is attached hereto as Exhibit A, and I accept
receipt of the common shares of Across America (the “Shares”) in full
consideration for my common shares of Apro. In connection with such
share exchange, I represent and warrant as follows:
(a) I
have full right, power and authority to deliver such Apro Common Stock and this
Agreement;
(b) the
delivery of my Apro Common Stock will not violate or be in conflict with, result
in a breach of or constitute a default under, any indenture, loan or credit
agreement, deed of trust, mortgage, security agreement or other agreement or
instrument to which I am bound or affected; and
(c) I
have good, valid and marketable title to all shares of Apro Common Stock
indicated herein and I am not affected by any voting trust, agreement or
arrangement affecting the voting rights of such Company Common
Stock.
2. Representations
Regarding Accredited Investor Status and Suitability. I hereby
acknowledge, represent and warrant to and agrees with, the Company as
follows:
(a) I
understand that the share exchange is being made pursuant to one or more
exemptions from the Securities Act of 1933 (the “Act”). I represent
and warrant to the Company, as the issuer of the Shares, that I am an
"Accredited Investor" as defined in Regulation D because I come within any one
or more of the following categories (please initial each applicable
category):
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i. _____
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Any
bank as defined in section 3(a)(2) of the Act, or any savings and loan
association or other institution as defined in section 3(a)(5)(A) of the
Act whether acting in its individual or fiduciary capacity; any broker or
dealer registered pursuant to section 15 of the Securities Exchange Act of
1934; any insurance company as defined in section 2(a)(13) of the Act; any
investment company registered under the Investment Company Act of 1940 or
a business development company as defined in section 2(a)(48) of that Act;
any Small Business Investment Company licensed by the U.S. Small Business
Administration under section 301(c) or (d) of the Small Business
Investment Act of 1958; any 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; any 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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ii.
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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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iii.
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Any
organization described in section 501(c)(3) of the Internal Revenue Code,
Massachusetts or similar business trust, or partnership, not formed for
the specific purpose of acquiring the securities offered, with total
assets in excess of $5,000,000;
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iv.
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Any
director, executive officer, or general partner of the issuer of the
securities being offered or sold, or any director, executive officer, or
general partner of a general partner of that
issuer;
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v. _____
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Any
natural person whose individual net worth, or joint net worth with that
person's spouse, at the time of his purchase exceeds
$1,000,000;
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vi.
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Any
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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vii.
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Any
trust, with total assets in excess of $5,000,000, not formed for the
specific purpose of acquiring the securities offered, whose purchase is
directed by a sophisticated person as described in Rule 506(b)(2)(ii);
or
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viii.
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Any
entity in which all of the equity owners are accredited
investors.
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(b) I
understand that the share exchange is intended to be exempt from registration
under the Ac by virtue of Section 4(2) and/or 4(6) of the Act and/or the
provisions of Regulation D promulgated thereunder and, in accordance therewith
and in furtherance thereof, I represent and warrant to and agree with the
Company as follows:
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(i)
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I
have received the Agreement of Merger and Plan of Reorganization, have
carefully reviewed it and the exhibits attached thereto and documents
referenced therein, and understand and have relied on the information
contained therein and information otherwise provided to me in writing by
the Company relating to the Agreement of Merger and Plan of
Reorganization;
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(ii)
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I
understand and acknowledge that all documents, records and books
pertaining to the Agreement of Merger and Plan of Reorganization have been
made available by the Company for inspection by the undersigned's
attorney(s), accountant(s) and/or other
advisors;
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(iii)
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I
and/or my advisor(s) have had a reasonable opportunity to review all
publicly available information concerning the Company, including the
Agreement of Merger and Plan of Reorganization, ask questions of and
receive answers from a person or persons acting on behalf of the Company
concerning the Agreement of Merger and Plan of Reorganization and the
Company, and hereby acknowledge that all such questions have been answered
to my full satisfaction;
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(iv)
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No
oral or written representations have been made or oral or written
information furnished to mr or my advisor(s) in connection with the
Agreement of Merger and Plan of Reorganization, which were in any way
inconsistent with the information stated in the Agreement of Merger and
Plan of Reorganization;
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(v)
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I
am not engaging the share exchange as a result of any advertisement,
article, notice, press release or other communication published in any
newspaper, magazine or similar media or broadcast over television or
radio, or any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising, or any solicitation of a
subscription by a person not previously known to me in connection with
investments in securities
generally;
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(vi)
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If
I am a natural person, I have reached the age of majority in the state in
which I reside, have adequate means of providing for my current needs and
personal contingencies, am able to bear the substantial economic risks of
an investment in the Shares for an indefinite period of time, have no need
for liquidity in such investment and, at the present time, could afford a
complete loss of such investment;
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(vii)
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I
have, or together with my advisor(s) have, such knowledge and experience
in financial, tax and business matters so as to enable me to utilize the
information made available to me in connection with the Share Exchange in
order to evaluate the merits and risks of an investment in the Shares and
to make an informed investment decision with respect
thereto;
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(viii)
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I
am not relying on the Company with respect to the tax and other economic
considerations of this investment. In regard to such
considerations, I have relied on the advice of, or has consulted with,
only my own advisors;
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(ix)
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I
am acquiring the Shares solely for my own account as principal, for
investment purposes only and not with a view to the resale or distribution
thereof, in whole or in part, and no other person has a direct or indirect
beneficial interest in such
Shares;
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(x)
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I
will not sell or otherwise transfer the Shares without registration under
the Act or an exemption therefrom and fully understand and agree that I
must bear the economic risk of the Shares for an indefinite period of time
because, among other reasons, the Shares have not been registered under
the Act or under the securities laws of any state and, therefore, cannot
be resold, pledged, assigned or otherwise disposed of unless it is
subsequently registered under the Act and under the applicable securities
laws of such states or unless an exemption from such registration is
available; and
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(xi)
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I
understand that the Company is under no obligation to register the Shares
on behalf of me or to assist me in complying with any exemption from
registration under the Act.
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(c) I
recognize that an investment in the Shares involves a number of significant
risks, including those set forth under the captions "RISK FACTORS" in the
Company’s most recent Form 10-KSB and other periodic filings.
(d) If
the undersigned is a corporation, partnership, trust or other entity, it is
authorized and qualified to engage in the share exchange, and the person signing
this Subscription Agreement on behalf of such entity has been duly authorized by
such entity to do so.
(e) If
the undersigned is a corporation, a partnership or a limited liability company,
the person signing this Subscription and Lock Up Agreement on its behalf hereby
represents and warrants that the information contained herein completed by any
shareholders of such corporation, partners of such partnership or members or
managers of such limited liability company is true and correct with respect to
such shareholders, partners, members or managers (and if any such shareholder,
partner, member or manager is itself a corporation, partnership or limited
liability company, with respect to all persons having an interest in such
corporation, partnership or limited liability company, whether directly or
indirectly) and that the person signing this Subscription and Lock Up Agreement
has made due inquiry to determine the truthfulness and accuracy of the
information contained herein.
3. Lock Up
Agreement
(a) I
will not offer, sell, contract to sell, pledge, hypothecate, grant any option to
purchase or otherwise dispose of (the "Resale Restrictions") any shares of
Common Stock of the Company, or any securities convertible into or exchangeable
for shares of Common Stock of the Company, that I beneficially own or otherwise
hold by me as of the date of this letter, or which I may acquire pursuant to the
Agreement of Merger and Plan of Reorganization, or which are issuable upon
exercise of options, warrants, or other convertible securities held by me on
such dates, (collectively, the “Restricted Securities") for the period specified
hereafter without the prior written consent of a representative of BOCO
Investments, Inc.. Such restrictions shall apply to the Restricted
Securities for a period of three years after the closing date of the Agreement
of Merger and Plan of Reorganization, provided, however, that after two (2)
years, I may sell up to five percent (5%) of the Restricted Securities every
quarter during the third year. As a reasonable means of ensuring
compliance with the terms of this Agreement, the undersigned further agrees that
the Company may instruct the transfer agent for the Restricted Securities to
place a transfer restriction on such transfer agent's records,
(b) Notwithstanding
the foregoing, if, at any time after fifteen (15) months from the closing date
of the Agreement of Merger and Plan of Reorganization, the closing price of the
Company’s common stock is above $3.00 per share for 25 out of 30 consecutive
trading days with an average daily trading volume in excess of 250,000 shares, I
may sell up to ten percent (10%) of the Restricted Shares in every quarter that
these conditions are met.
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(c) Notwithstanding
the foregoing, if I am an individual, I may transfer any or all of the
Restricted Securities either during my lifetime or on my death by will or
intestacy to my immediate family or to a trust, beneficiaries of which are
exclusively me, a member or members of my immediate family; provided, however,
that in any such case it shall be a condition of the transfer that the
transferee execute an agreement stating that the transferee is receiving and
holding the Restricted Securities subject to the provisions of this Agreement,
and there shall be no further transfer of such Restricted Securities except in
accordance with this Agreement. For purposes of this paragraph, "immediate
family” shall mean spouse, lineal descendant, father, mother, brother or sister
of the transferor.
3. In
addition, notwithstanding the foregoing, if I am a partnership, the partnership
may transfer any Restricted Securities to a partner of such partnership or a
retired partner of such partnership who retires after the date hereof, or to the
estate of any such partner or retired partner, and any partner who is an
individual may transfer Restricted Securities by gift, will or intestate
succession to his or her immediate family (as defined above) or ancestors. If I
am a corporation, the corporation may transfer Restricted Securities to any
shareholder of such corporation and any shareholder who is an individual may
transfer Restricted Securities by gift, will or intestate succession to his or
her immediate family (as defined above) or ancestors. Notwithstanding anything
else herein to the contrary, in an such case, it shall be a condition to the
transfer that the transferee execute an agreement stating that the transferee is
receiving and holding the Restricted Securities subject to the provisions of
this Agreement and there shall be no further transfer of such Restricted
Securities except in accordance with this Agreement.
4. I recognize that
the offer of the Shares in the Company was based upon my
representations and warranties contained above and hereby agree to indemnify the
Company and to hold it harmless against any and all liabilities, costs, or
expenses (including reasonable attorneys' fees) arising by reason of, or in
connection with, any misrepresentation or any breach of such warranties by the
undersigned, or arising as a result of the sale or distribution of the Shares by
me in violation of the Securities Act of 1933, as amended, or any other
applicable law. Further, in the event that any dispute were to arise in
connection with this Agreement or with the undersigned's investment in the
Company, I agree, prior to seeking any other relief at law or equity, to submit
the matter to binding arbitration in accordance with the rules of the American
Arbitration Association at a place to be designated by the Company.
Very
truly yours,
By:
____________________________________________________
Signature
_______________________________________________________
Name
(printed)
_______________________________________________________
Title of
signing entity
Restricted
Securities subject to this Agreement:
_______
shares of Apro exchanged for _________ shares of Across America
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