SUBSCRIPTION AGREEMENT EXACTUS, INC.
Exhibit
10.2
Exactus,
Inc., a Nevada corporation (hereinafter the "Company") and the
undersigned (hereinafter the “Subscriber”) agree as
follows:
WHEREAS:
A. The
Company desires to issue a maximum of __________ shares of Series A
Preferred Stock of the Company, par value $0.0001 per share, at a
price of $1.00 per share ($__________); and
B.
Subscriber desires to acquire that number of shares as is set forth
on the signature page hereof (hereinafter the "Shares") at the
purchase price set forth herein.
NOW, THEREFORE, for and in consideration of the premises and
the mutual covenants hereinafter set-forth, the parties hereto do
hereby agree as follows:
SUBSCRIPTION
1.1
Subject to the
terms and conditions hereinafter set forth, the Subscriber hereby
subscribes for and agrees to purchase the Shares from the Company
at a price equal to $1.00 per share, and the Company agrees to sell
the Shares to Subscriber in consideration of said purchase price.
Upon execution, this subscription shall be irrevocable by
Subscriber.
1.2
The purchase price
for the Shares subscribed to hereunder is payable by the Subscriber
contemporaneously with the execution and e-mail delivery of this
Subscription Agreement to the Company at xxxxx@xxxxxxxxxx.xxx.
Payment shall be made by wire transfer of the purchase price in the
amount of $1.00 per Share to the Company’s escrow agent as
follows:
Routing
number:
000000000
SWIFT
CODE:
XXXXXX0X
Bank:
Xxxxx
Fargo Bank, N.A.
000
Xxxxxxxxxx
Xxx
Xxxxxxxxx, XX 00000
Account number:
2967194461
Account name: Xxxxxxx Law, Inc.,
Escrow Account
0
Xxxx Xxxxxxx, Xxxxx 000
Xxxx,
XX 00000
Reference:
REPRESENTATIONS AND WARRANTIES BY SUBSCRIBER
2.1
Subscriber hereby
acknowledges, represents and warrants to the Company the
following:
(A)
Subscriber
acknowledges that the purchase of the Shares involves a high degree
of risk and that the Company may require substantial additional
funds;
-1-
(B)
Subscriber
recognizes that an investment in the Company is highly speculative
and only investors who can afford the loss of their entire
investment should consider investing in the Company and the
Shares;
(C)
Subscriber has such
knowledge and experience in finance, securities, investments,
including investment in unregistered securities, and other business
matters so as to be able to protect its interests in connection
with this transaction;
(D)
Unless allowed to
participated in this offering as a non-accredited investor by
permission of the Board of Directors of the Company, the Subscriber
is an "Accredited Investor" as defined in Rule 501 of Regulation D
promulgated under the Securities Act of 1933, as
amended;
(E)
Subscriber
acknowledges that the shares are subject to significant
restrictions on transfer as imposed by state and federal securities
laws, including but not limited to a minimum holding period of at
least six (6) months;
(F)
Subscriber hereby
acknowledges (i) that this offering of Shares has not been reviewed
by the United States Securities and Exchange Commission ("SEC") or
by the securities regulator of any state; (ii) that the Shares are
being issued by the Company pursuant to an exemption from
registration provided by Section 4(2) of the Securities Act of
1933; and (iii) that any certificate evidencing the Shares received
by Subscriber will bear a legend in substantially the following
form:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED WITH THE UNITED STATES
SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR UNDER ANY APPLICABLE STATE SECURITIES LAWS.
WITHOUT SUCH REGISTRATION, SUCH SECURITIES MAY NOT BE SOLD OR
OTHERWISE TRANSFERRED AT ANY TIME WHATSOEVER UNLESS IN THE OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY REGISTRATION IS NOT REQUIRED
FOR SUCH TRANSFER AND THAT SUCH TRANSFER WILL NOT BE IN VIOLATION
OF THE APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR ANY RULE OR
REGULATION PROMULGATED THEREUNDER.
(G)
Subscriber is
acquiring the Shares as principal for Subscriber's own
benefit;
(H)
Subscriber is not
aware of any advertisement of the Shares or any general
solicitation in connection with any offering of the
Shares;
(I)
Subscriber
acknowledges receipt and review of the Company’s filings with
the Securities and Exchange Commission, and of both the Articles of
Incorporation and bylaws of the Company, together with the
opportunity and the Company’s encouragement to seek the
advice and consultation of independent investment, legal and tax
counsel;
(J)
Subscriber
acknowledges and agrees that the Company has previously made
available to Subscriber the opportunity to ask questions of and to
receive answers from representatives of the Company concerning the
Company and the Shares, as well as to conduct whatever due
diligence the Subscriber, in its discretion, deems advisable.
Subscriber is not relying on any information communicated by any
representatives of the Company and is relying solely upon
information obtained during Subscriber’s due diligence
investigation in making a decision to invest in the Shares and the
Company.
-2-
REPRESENTATIONS BY THE COMPANY
3.1
The Company
represents and warrants to the Subscriber that:
(A)
The Company is a
corporation duly organized, existing and in good standing under the
laws of the State of Nevada and has the corporate power to conduct
the business which it conducts and proposes to
conduct.
(B)
Upon issue, the
Shares will be duly and validly issued, fully paid and
non-assessable preferred stock in the capital of the
Company.
TERMS
OF SUBSCRIPTION
4.1
Upon acceptance of
this subscription by the Company, all funds paid hereunder shall be
immediately available to the Company for its use.
4.2
Subscriber hereby
authorizes and directs the Company to deliver the securities to be
issued to such Subscriber pursuant to this Subscription Agreement
to Subscriber’s address indicated herein.
4.3
Notwithstanding the
place where this Subscription Agreement may be executed by any of
the parties hereto, the parties expressly agree that all the terms
and provisions hereof shall be construed in accordance with and
governed by the laws of the State of Nevada. Exclusive venue for
any dispute arising out of this Subscription Agreement or the
Shares shall be the state or federal courts sited in Washoe County,
Nevada.
4.4
The parties agree
to execute and deliver all such further documents, agreements and
instruments and take such other and further action as may be
necessary or appropriate to carry out the purposes and intent of
this Subscription Agreement.
[remainder of this page intentionally blank, signature page to
follow]
-3-
ACCREDITED INVESTOR STATUS
5.1
☐ By checking this box, Subscriber represents
and warrants to the Company that the Subscriber is an "Accredited
Investor" as such term is defined in Rule 501 of Regulation D
promulgated under the United States Securities Act of 1933, as
amended (the "Act"). The Subscriber acknowledges having reviewed
and considered the definition of “Accredited Investor”
attached to this Subscription Agreement.
IN WITNESS WHEREOF, this Subscription Agreement is executed
as of the _____ day of January, 2019.
|
Number
of Shares Subscribed For:
|
|
|
Total
Purchase Price:
|
|
|
Signature of
Subscriber:
|
|
|
Name of
Subscriber:
|
|
|
Address
of Subscriber:
|
|
|
Subscriber’s
SS# or tax ID#:
|
|
ACCEPTED BY: EXACTUS, INC.
Signature of
Authorized Signatory:
___________________________
Name of Authorized
Signatory: _________________________
Date of
Acceptance: ____________________________
-4-
Accredited Investor Definition
The
Subscriber will be an "Accredited Investor" as such term is defined
in Rule 501 of Regulation D promulgated under the United States
Securities Act of 1933, as amended (the "Act") if the Subscriber is
any of the following:
(1) 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;
(2) Any
private business development company as defined in section
202(a)(22) of the Investment Advisers Act of 1940;
(3) Any
organization described in section 501(c)(3) of the Internal Revenue
Code, corporation, 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;
(4) 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;
(5) Any
natural person whose individual net worth, or joint net worth with
that person's spouse, exceeds $1,000,000.
(i)
Except as provided in paragraph (a)(5)(ii) of this section, for
purposes of calculating net worth under this paragraph
(a)(5):
(A) The
person's primary residence shall not be included as an
asset;
(B)
Indebtedness that is secured by the person's primary residence, up
to the estimated fair market value of the primary residence at the
time of the sale of securities, shall not be included as a
liability (except that if the amount of such indebtedness
outstanding at the time of sale of securities exceeds the amount
outstanding 60 days before such time, other than as a result of the
acquisition of the primary residence, the amount of such excess
shall be included as a liability); and
(C)
Indebtedness that is secured by the person's primary residence in
excess of the estimated fair market value of the primary residence
at the time of the sale of securities shall be included as a
liability;
(ii)
Paragraph (a)(5)(i) of this section will not apply to any
calculation of a person's net worth made in connection with a
purchase of securities in accordance with a right to purchase such
securities, provided that:
(A)
Such right was held by the person on July 20, 2010;
(B) The
person qualified as an accredited investor on the basis of net
worth at the time the person acquired such right; and
(C) The
person held securities of the same issuer, other than such right,
on July 20, 2010.
(6) 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;
(7) 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
§230.506(b)(2)(ii); and
(8) Any
entity in which all of the equity owners are accredited
investors.
-5-
