SUBSCRIPTION AGREEMENT June 26, 2023
Exhibit 10.1
CONFIDENTIAL
June 26, 2023
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Los Angeles, CA 90502
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇, CFO
Ladies and Gentlemen:
Ispire Technology Inc. (“Ispire” or the “Company”) is offering to sell shares of its common stock, par value $0.0001 per share (the “Shares of Common Stock”) in a private placement conducted by the Company (the “Offering”) pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”), Rule 506(b) of the Securities Act and/or Regulation S of the Securities Act (“Regulation S”) for a purchase price of $7.1318 per Share of Common Stock (the “Purchase Price”). The Company is offering a maximum of 2,103,256 Shares of Common Stock in the Offering pursuant to this Subscription Agreement and other subscription agreements of like tenor, and the Company may, in its discretion, increase the size of the offering. There is no minimum number of Shares of Common Stock which must be sold in the Offering. As a result, it is possible that the Company will not sell any Shares of Common Stock other than the Shares of Common Stock being sold to the Subscriber and those Shares of Common Stock, if any, which have been previously sold in the Offering. In the event the Company does not raise $15,000,000 in the Offering, it may not have the funds to develop its business as contemplated, and it may need to raise additional funds on terms which would be negotiated but which may be different from the terms at which the Shares of Common Stock are being offered pursuant to the Offering. The undersigned subscriber (the “Subscriber”) and the Company agree as follows:
1. Subscription. The Subscriber hereby irrevocably subscribes for and agrees to purchase from the Company, and the Company agrees to issue and sell to the Subscriber, such number of Shares of Common Stock as is set forth on the signature page of this Subscription Agreement (the “Shares”) at the Purchase Price per Share and on the terms provided for herein.
2. Closing; Issuance of Shares.
(a) The Subscriber shall pay the Purchase Price for the Shares of Common Stock subscribed for by the Subscriber by wire transfer of immediately available funds in accordance with the wire instructions provided by the Company contemporaneously with the execution of this Subscription Agreement. The wire transfer shall be from an account in the Subscriber’s name and shall clearly identify the Subscriber.
(b) The closing of the sale of Shares contemplated hereby (the “Closing,” and the date that the Closing actually occurs, the “Closing Date”) shall take place upon acceptance by the Company of this Subscription Agreement. If the Subscriber is not a U.S. Person, the Closing shall take place outside of the United States. The Company shall instruct its transfer agent to issue the Shares not later than the business day following the Closing Date. Since the Shares are maintained in book entry, the Company shall instruct its transfer agent to send to the Subscriber, by email, advice setting forth the number of Shares purchased by the Subscriber.
(c) Simultaneously with the execution and delivery of this Subscription Agreement, Subscriber is delivering to the Company a duly completed and executed U.S. Internal Revenue Service Form W-9 or appropriate Form W-8.
3. Company Representations and Warranties. The Company represents and warrants to the Subscriber that:
(a) The Company is a corporation organized and validly existing under the laws of the State of Delaware. The Company has the corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement. This Subscription Agreement has been duly authorized, validly executed and delivered by the Company, constitutes the valid and binding agreement of the Company and is enforceable against the Company in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity.
(b) The Company has not entered into any agreement or arrangement entitling any agent, broker, investment banker, financial advisor or other person to any broker’s or finder’s fee or any other commission or similar fee in connection with the transactions contemplated by this Subscription Agreement other than US Tiger Securities, Inc. (the “Placement Agent”). The Company understands that the Placement Agent may have agreements with other investment banking firms and the Placement Agent shall be responsible for any compensation due to such other investment banking firms. Except for the Placement Agent, the Company is not aware of any person that has been or will be paid (directly or indirectly) remuneration for solicitation of purchasers in connection with the sale of any Shares of Common Stock in the Offering.
(c) The execution, delivery and performance of this Subscription Agreement by the Company will not conflict with or result in a material breach or material violation of any of the terms or provisions of, or constitute a material default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company or any of its subsidiaries pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, license, lease or any other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, which would have a material adverse effect on the Company or materially affect the validity of the Shares or legal authority of the Company to comply in all material respects with the terms of this Subscription Agreement; (ii) result in any violation of the provisions of the Company’s certificate of incorporation or by-laws; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its properties that would have a material adverse effect on the Company or materially affect the validity of the Shares or the legal authority of the Company to comply with this Subscription Agreement.
(d) Assuming the accuracy of the representations and warranties of the Subscriber, the Company is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person on the part of the Company in connection with the execution, delivery and performance by the Company of this Subscription Agreement which has not heretofore been obtained or will be obtained prior to the Closing, other than (i) any filings with the SEC, (ii) filings required by applicable state or local securities laws, (iii) those required by Nasdaq, the failure of which to obtain would not be reasonably expected to have, individually or in the aggregate, a material adverse effect on the Company.
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(e) The Shares issuable to the Subscriber hereunder will, when so issued, have been duly authorized, validly issued, fully paid and non-assessable, free and clear of all liens or other restrictions (other than those arising under this Subscription Agreement or applicable securities laws or that incurred by the Subscriber) and will not have been issued in violation of or subject to any preemptive or similar rights created under the Company’s certificate of incorporation, or under the Delaware General Corporation Law, or any similar rights pursuant to any agreement or other instrument to which the Company is a party or by which it is otherwise bound.
(f) Assuming the accuracy of the Subscriber’s representations and warranties set forth in Section 4, in connection with the offer, sale and issuance of the Shares in the manner contemplated by this Subscription Agreement, it is not necessary to register the Shares under the Securities Act and the Shares (i) were not offered by any form of general solicitation or general advertising and (ii) and are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any applicable state securities laws.
(g) Neither the Company, nor, to the Company’s knowledge, any Covered Person of the Company is subject to any Disqualification Event, except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3) under the Securities Act.
(h) Neither the Company nor any of its subsidiaries has taken any steps to seek protection pursuant to any law or statute relating to bankruptcy, insolvency, reorganization, receivership, liquidation, administration or winding up or failed to pay its debts when due, nor does the Company have any knowledge or reason to believe that any of their respective creditors intend to initiate involuntary bankruptcy proceedings or seek to commence an administration.
(i) Except for such matters as have not had and would not be reasonably expected to have, individually or in the aggregate, a material adverse effect on the Company, there is no (i) suit, action, proceeding or arbitration before a governmental authority or arbitrator pending against the Company or (ii) judgment, decree, injunction, ruling or order of any governmental entity or arbitrator outstanding against the Company. The Company is not and none of its directors and officers is a Prohibited Person. Each of the Company and, to the Company’s knowledge, its directors, officers, employees, representatives, agents and any person acting on its or their behalf has not engaged in any activity or conduct which would materially violate any applicable anti-bribery, anticorruption or anti-money laundering laws, regulations or rules in any applicable jurisdiction. A “Prohibited Person” means any person with whom transactions are currently prohibited or restricted under the United States sanctions administered by the United States Department of the Treasury’s Office of Foreign Assets Control (OFAC), any other United States government sanction, export or procurement laws or any other sanctions or other such restrictions on business dealings imposed by the European Union or the United Kingdom, including a person on any list of restricted entities, persons or organizations published by the United States government or the European Union or any member state of the European Union or the United Kingdom.
(j) The Company understands that the foregoing representations and warranties shall be deemed material to and have been relied upon by the Subscriber.
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4. Subscriber Representations and Warranties. The Subscriber represents and warrants to the Company that:
(a) The Subscriber is either a U.S. investor or a non-U.S. investor as set forth under its name on the signature page hereto, and accordingly represents the applicable additional matters under clause (i) or (ii) below:
(i) Applicable to U.S. investors: At the time the Subscriber was offered the Shares, it was, and as of the date hereof, the Subscriber is (A) a “qualified institutional buyer” (within the meaning of Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) of Regulation D under the Securities Act) as indicated in the questionnaire attached as Exhibit A hereto, and (B) is acquiring the Shares only for its own account and (C) not for the account of others, and not on behalf of any other account or person or with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act. The Subscriber is not an entity formed for the specific purpose of acquiring the Shares.
(ii) Applicable to non-U.S. investors: The Subscriber has complied in all material respect with all applicable laws and regulations of the country of his residence that relate directly or indirectly to the Subscriber’s purchase of the Shares, wiring funds to the Company and otherwise complying with the Subscriber’s obligations under this Subscription Agreement. The Subscriber understands that the sale of the Shares is made pursuant to and in reliance upon Regulation S. The Subscriber is not a U.S. person (as defined in Regulation S), it is acquiring the Shares in an offshore transaction in reliance on Regulation S, and it has received all the information that it considers necessary and appropriate to decide whether to acquire the Shares hereunder outside of the United States. The Subscriber is not relying on any statements or representations made in connection with the transactions contemplated hereby other than representations contained in this Subscription Agreement. The Subscriber understands and agrees that Securities sold pursuant to Regulation S may be subject to restrictions thereunder, including compliance with the distribution compliance period provisions therein.
(b) The Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares issued at the Closing have not been registered under the Securities Act. The Subscriber understands that the Shares may not be resold, transferred, pledged or otherwise disposed of by the Subscriber absent an effective registration statement under the Securities Act except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act and subject to any limitations set forth in Regulation S, or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (iii) in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any the Shares shall contain a legend or restrictive notation to such effect. The Subscriber understands and agrees that the Shares, until registered under an effective registration statement, will be subject to transfer restrictions and, as a result of these transfer restrictions, the Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. No governmental, administrative or other third-party consents, approvals, authorizations, registrations, declarations or filings (collectively, the “Consents and Filings”) are required, necessary or appropriate on the part of Subscriber in connection with the Subscriber’s purchase of the Shares pursuant to this Subscription Agreement, and if any Consents and Filings are required, such Consents and Filings have been properly obtained by the Subscriber. The Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Shares.
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(c) The Subscriber understands and agrees that the Subscriber is purchasing Shares directly from the Company. The Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to the Subscriber by the Company, or any of its officers or directors, or any other person, expressly (other than those representations, warranties, covenants and agreements included in this Subscription Agreement by the Company) or by implication.
(d) The Subscriber acknowledges and agrees that the Subscriber has received such information as the Subscriber deems necessary in order to make an investment decision with respect to the Shares. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has received and carefully reviewed the final prospectus (the “Final Prospectus”) filed with the Securities and Exchange Commission (the “SEC”) (File No. 333-269470) relating to the initial public offering by the Company of 2,700,000 Shares of Common Stock of the Company and each filing made by the Company with the SEC following the filing of the Final Prospectus through the date of this Subscription Agreement (collectively, the “Disclosure Documents”). The Subscriber represents and agrees that the Subscriber and the Subscriber’s professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as the Subscriber and the Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. The Subscriber has conducted its own investigation of the Company and the Shares, and the Subscriber has made its own assessment and have satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Shares. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents shall in no way affect the Subscriber’s obligation to purchase the Shares hereunder, except as otherwise provided herein.
(e) The Subscriber became aware of this Offering of the Shares solely by means of direct contact between the Subscriber and the Company or a representative of the Company or an affiliate of the Company, and the Shares were offered to the Subscriber solely by direct contact between the Subscriber and the Company, or a representative of the Company. The Subscriber acknowledges that the Company represents and warrants that the Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Subscriber has a substantive pre-existing relationship with the Company or an affiliate of the Company or the Placement Agent. The Subscriber has not had any contact with any firm claiming to act as a placement agent other than the Placement Agent.
(f) The Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the Disclosure Documents, particularly under the captions “Special Note Regarding Forward-Looking Statements,” “Risk Factors” and “Management’s Discussion and Analysis of Financial Conditions and Results of Operations” in the Final Prospectus and in “Management’s Discussion and Analysis of Financial Conditions and Results of Operations” in the Company’s Quarterly Report on Form 10-Q for the quarter and nine-months ended March 31, 2023. The Subscriber is able to evaluate for itself the transactions contemplated herein and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and the Subscriber has sought such accounting, legal and tax advice as the Subscriber has considered necessary to make an informed investment decision.
(g) Alone, or together with any professional advisor(s), the Subscriber has considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Subscriber and that the Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Subscriber’s investment in the Company. The Subscriber acknowledges specifically that a possibility of total loss exists.
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(h) In making its decision to purchase the Shares, the Subscriber has relied solely upon independent investigation made by the Subscriber and the representations and warranties of the Company set forth herein. Without limiting the generality of the foregoing, the Subscriber has not relied on any statements or other information provided by any other person concerning the Company or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber had access to, and an adequate opportunity to review, financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Shares.
(i) The Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of this Offering of the Shares or made any findings or determination as to the fairness of this investment or the accuracy or adequacy of the Disclosure Documents.
(j) If an entity, the Subscriber has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation. The execution, delivery and performance by the Subscriber of this Subscription Agreement are within the powers of the Subscriber, have been duly authorized and will not constitute or result in a material breach or default under or conflict with any law, statute, rule or regulation applicable to the Subscriber, any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Subscriber is a party or by which the Subscriber is bound, and, if the Subscriber is not an individual, will not violate any provisions of the Subscriber’s organizational documents. The signature on this Subscription Agreement is genuine, and the signatory, if the Subscriber is an individual, has legal competence and capacity to execute the same or, if the Subscriber is not an individual the signatory has been duly authorized to execute the same, and this Subscription Agreement constitutes a legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity.
(k) Neither the due diligence investigation conducted by the Subscriber in connection with making its decision to acquire the Shares nor any representations and warranties made by the Subscriber herein shall modify, amend or affect the Subscriber’s right to rely on the truth, accuracy and completeness of the Company’s representations and warranties contained herein.
(l) The Subscriber is not a Prohibited Person. The Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Subscriber is permitted to do so under applicable law. If the Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by the Subscriber and used to purchase the Shares were legally derived.
(m) Neither the Subscriber, nor, to the Subscriber’s knowledge, any of its equity holders, managers, general or limited partners, directors, affiliates or executive officers (collectively with the Subscriber, the “Covered Persons”), are subject to any 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 acquisition of Shares by the Subscriber will not subject the Company to any Disqualification Event.
(n) The Subscriber acknowledges its obligations under applicable securities laws with respect to the treatment of non-public information relating to the Company.
(o) Subscriber has sufficient immediately available funds to pay the Purchase Price.
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5. Registration Rights.
(a) Not later than 45 days from the Closing, the Company will file a registration statement on Form S-1 covering the sale by the Subscriber and the other Subscribers of the shares of Common Stock issued in the Offering. The Company will use its commercially reasonable efforts to provide a draft of the Registration Statement to the Subscribers for review (but not comment) at least two (2) business days in advance of filing the Registration Statement; provided that, for the avoidance of doubt, in no event shall the Company be required to delay or postpone the filing of such Registration Statement as a result of or in connection with the Subscribers’ review. The Company shall use its commercially reasonable efforts to have the Registration Statement declared effective not later than 100 days from the Closing.
(b) The Company will cause the Registration Statement to remain effective until the earlier of (i) one year from the issuance of the Shares, (ii) the date on which the Subscriber ceases to hold the Shares covered by such Registration Statement, or (iii) the first date on which the Subscriber has sold or can sell all of its Shares under Rule 144 of the Securities Act without limitation, including as to the manner of sale or the amount of such securities that may be sold and without the requirement for the Company to be in compliance with the current public information required under Rule 144(c)(1). The Subscriber agrees to disclose its beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, of the Shares to the Company upon request to assist the Company in making the determination described above.
(c) The Company’s obligations to include the Shares in the Registration Statement are contingent upon the Subscriber furnishing in writing to the Company such information regarding the Subscriber, the Shares of the Company held by the Subscriber and the intended method of disposition of the Shares as shall be reasonably requested by the Company to effect the registration of the Shares, and shall execute such documents in connection with such registration as the Company may reasonably request that are customary of a selling stockholder in similar situations. With respect to any information to be provided by the Subscriber pursuant to this Section 5, the Company shall request such information from the Subscriber at least five (5) business days prior to the anticipated filing date of the Registration Statement. Notwithstanding the foregoing, if the SEC prevents the Company from including any or all of the shares proposed to be registered for resale under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Company’s securities by the applicable stockholders or otherwise, (i) such Registration Statement shall register for resale such number of the Shares which is equal to the maximum number of the Shares as is permitted by the SEC and (ii) the number of Shares to be registered for each selling stockholder named in the Registration Statement shall be reduced pro rata among all such selling stockholders, and as promptly as practicable after being permitted to register additional shares under Rule 415 under the Securities Act, the Company shall amend the Registration Statement or file a new Registration Statement to register such Shares not included in the initial Registration Statement and cause such amendment or Registration Statement to become effective as promptly as practicable. The Company shall pay the legal, accounting, printing, filing, stock exchange, transfer agent and other expenses associated with the filing of the registration statement, and the Subscriber shall pay any underwriting or brokerage fees associated with the sale of Shares of Common Stock pursuant to the registration statement and any legal or investment banking expenses Subscriber may incur.
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(d) The Company may delay filing or suspend the use of any such registration statement if it determines, upon advice of legal counsel, that (x) in order for the registration statement to not contain a material misstatement or omission, an amendment thereto would be needed, or (y) such filing or use would materially affect a bona fide business or financing transaction of the Company or would require premature disclosure of information that would materially adversely affect the Company (each such circumstance, a “Suspension Event”); provided, that the Company shall use commercially reasonable efforts to make such registration statement available for the sale by the Subscriber of the Shares as soon as practicable thereafter and the Company may not delay or suspend any such registration statement on more than two occasions or for more than 60 consecutive calendar days, or more than 100 total calendar days in any twelve-month period. Upon receipt of any written notice from the Company of the happening of any Suspension Event during the period that the Registration Statement is effective or if as a result of a Suspension Event the Registration Statement or related prospectus contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made (in the case of the prospectus) not misleading, the Subscriber agrees that it will (i) immediately discontinue offers and sales of the Shares under the Registration Statement (including, for the avoidance of doubt, sales conducted pursuant to Rule 144) until the Subscriber receives (A) (x) copies of a supplemental or amended prospectus that corrects the misstatement(s) or omission(s) referred to above, which the Company agrees to promptly prepare and file and (y) notice that any post-effective amendment has become effective or (B) notice from the Company that it may resume such offers and sales, and (ii) maintain the confidentiality of any information included in such written notice delivered by the Company unless otherwise required by applicable law.
(e) In the case of the registration, qualification, exemption or compliance effected by the Company pursuant to this Subscription Agreement, the Company shall, upon reasonable request, inform the Subscriber as to the status of such registration, qualification, exemption and compliance. At its expense, the Company shall: (i) except for such times as the Company is permitted hereunder to suspend the use of the prospectus forming part of a Registration Statement, use its commercially reasonable efforts to keep such registration, and any qualification, exemption or compliance under state securities laws which the Company determines to obtain, continuously effective with respect to the Subscriber, and to keep the applicable Registration Statement or any subsequent shelf registration statement free of any material misstatements or omissions; (ii) advise Subscriber within five (5) business days (A) of the issuance by the SEC of any stop order suspending the effectiveness of any Registration Statement or the initiation of any proceedings for such purpose, (B) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares included therein for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and (C) subject to the provisions in this Subscription Agreement, of the occurrence of any event that requires the making of any changes in any Registration Statement or prospectus included therein so that, as of such date, the statements therein are not misleading and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading (notwithstanding anything to the contrary set forth herein, the Company shall not, when so advising the Subscriber of such events listed above, provide the Subscriber with any material, nonpublic information regarding the Company other than to the extent that providing notice to the Subscriber of the occurrence of the events listed in (A) through (C) above constitutes material, nonpublic information regarding the Company); (iii) use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement as soon as reasonably practicable; and (iv) upon the occurrence of any event contemplated above, except for such times as the Company is permitted hereunder to suspend, and has suspended, the use of a prospectus forming part of a Registration Statement, the Company shall use its commercially reasonable efforts to as soon as reasonably practicable prepare a post-effective amendment to such Registration Statement or a supplement to the related prospectus, or file any other required document so that, as thereafter delivered to purchasers of the Shares included therein, such prospectus will not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
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(f) The Company shall indemnify, defend and hold harmless the Subscriber (to the extent a seller under such registration statement), the officers, directors and agents of the Subscriber, and each person who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Subscriber to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable attorneys’ fees) and expenses (collectively, “Losses”), as incurred, that arise out of or are based upon (i) any untrue or alleged untrue statement of a material fact contained in the Registration Statement or any registration statement including any of the Shares, any prospectus included in such registration statement or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading, or (ii) any violation or alleged violation by the Company of the Securities Act, Exchange Act or any state securities law or any rule or regulation thereunder, in connection with the performance of its obligations under this Section 5(f), except to the extent, but only to the extent, that such untrue statements, alleged untrue statements, omissions or alleged omissions are based upon information regarding the Subscriber furnished in writing to the Company by the Subscriber expressly for use therein or the Subscriber has omitted a material fact from such information or otherwise violated the Securities Act, Exchange Act or any state securities law or any rule or regulation thereunder; provided, however, that the indemnification contained in this Section 5(f) shall not apply to amounts paid in settlement of any Losses if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable for any Losses to the extent they arise out of or are based upon a violation which occurs (A) in reliance upon and in conformity with written information furnished by Subscriber, (B) in connection with any failure of such person to deliver or cause to be delivered a prospectus made available by the Company in a timely manner, (C) as a result of offers or sales effected by or on behalf of any person by means of a freewriting prospectus (as defined in Rule 405) that was not authorized in writing by the Company, or (D) in connection with any offers or sales effected by or on behalf of Subscriber in violation of Section 5(d) hereof. The Company shall notify the Subscriber promptly of the institution, threat or assertion of any proceeding arising from or in connection with the transactions contemplated by this Section 5(f) of which the Company is aware. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of an indemnified party and shall survive the transfer of the Shares by the Subscriber.
(g) The Subscriber shall, severally and not jointly with any other selling stockholder named in the Registration Statement, indemnify and hold harmless the Company, its directors, officers, agents and employees, and each person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), to the fullest extent permitted by applicable law, from and against all Losses, as incurred, arising out of or are based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any prospectus included in the Registration Statement, or any form of prospectus, or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus, or any form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading to the extent, but only to the extent, that such untrue statements or omissions are based upon information regarding the Subscriber furnished in writing to the Company by the Subscriber expressly for use therein; provided, however, that the indemnification contained in this Section 5(g) shall not apply to amounts paid in settlement of any Losses if such settlement is effected without the consent of the Subscriber (which consent shall not be unreasonably withheld, conditioned or delayed). In no event shall the liability of any Subscriber be greater in amount than the dollar amount of the net proceeds received by the Subscriber upon the sale of the Shares giving rise to such indemnification obligation. The Subscriber shall notify the Company promptly of the institution, threat or assertion of any proceeding arising from or in connection with the transactions contemplated by this Section 5 of which the Subscriber is aware. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of an indemnified party and shall survive the transfer of the Shares by the Subscriber.
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(h) If the indemnification provided under Section 5(f) or Section 5(g) from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and expenses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by, such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be subject to the limitations set forth in this Section 5(h) and deemed to include any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 5(h) from any person who was not guilty of such fraudulent misrepresentation. Each indemnifying party’s obligation to make a contribution pursuant to this Section 5(h) shall be individual, not joint, and in no event shall the liability of the Subscriber under this Section 5(h) be greater in amount than the dollar amount of the net proceeds received by the Subscriber upon the sale of the Shares giving rise to such indemnification obligation.
6. [Reserved].
7. Termination. This Subscription Agreement shall terminate and be void and of no further force and effect, and all rights and obligations of the parties hereunder shall terminate without any further liability on the part of any party in respect thereof, upon the earlier to occur of: (a) the mutual written agreement of the Subscriber and the Company to terminate this Subscription Agreement; or (b) such date and time as the Subscription Agreement is terminated in accordance with its terms; provided that (i) nothing herein will relieve any party from liability for any willful breach hereof prior to the time of termination, and each party will be entitled to any remedies at law or in equity to recover losses, liabilities or damages arising from such breach, and (ii) the provisions of Sections 7 through 9 of this Subscription Agreement will survive any termination of this Subscription Agreement and continue indefinitely.
8. Miscellaneous.
(a) Neither this Subscription Agreement nor any rights that may accrue to the Subscriber hereunder may without the prior written consent of the Company be transferred or assigned by the Subscriber, and any purported transfer or assignment without such consent shall be null and void ab initio.
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(b) The Company may request from the Subscriber such additional information as the Company may reasonably deem necessary to evaluate the eligibility of the Subscriber to acquire the Shares, and the Subscriber shall provide such information to the Company as may be reasonably requested to the extent readily available and to the extent consistent with its internal policies and procedures. The Company agrees to keep any such information provided by Subscriber confidential, except as may be required by applicable law, rule, regulation or in connection with any legal proceeding or regulatory request.
(c) The Subscriber acknowledges that the Company will rely on the acknowledgments, understandings, agreements, representations and warranties of the Subscriber contained in this Subscription Agreement. The Company acknowledges that Subscriber will rely on the acknowledgments, understandings, agreements, representations and warranties of the Company contained in this Subscription Agreement. This Subscription Agreement shall not confer any rights or remedies upon any person other than the parties hereto, and their respective successor and permitted assigns, except that the Placement Agent shall be an express third-party beneficiary to the representations, warranties, covenants, acknowledgments, understandings and agreements made by the Company and the Subscriber in this Subscription Agreement.
(d) The Company is entitled to rely upon this Subscription Agreement and is irrevocably authorized to produce this Subscription Agreement or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby to the extent required by applicable law, regulatory body or stock exchange requirement. The Subscriber shall not issue any press release or make any other similar public statement with respect to the transactions contemplated hereby without the prior written consent of the Company.
(e) All the agreements, representations and warranties made by each party hereto in this Subscription Agreement shall survive the Closing.
(f) This Subscription Agreement may not be amended, modified or terminated (other than pursuant to the terms of Section 7) except by an instrument in writing, signed by the Company and the Subscriber. No right under this Subscription Agreement may be waived except by an instrument in writing signed by the party against whom enforcement of such waiver is sought. No failure or delay in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
(g) This Subscription Agreement constitutes the entire agreement, and supersedes all other prior or contemporaneous agreements, understandings, representations and warranties, both written and oral, among the parties, with respect to the subject matter hereof (other than any confidentiality agreement entered into by the Company and the Subscriber in connection with the Offering). This Agreement may not be modified or amended nor may any right be waived except by a writing which expressly refers to this Agreement, states that it is a modification, amendment or waiver and is signed by both parties with respect to a modification or amendment or the party granting the waiver with respect to a waiver. No course of conduct or dealing and no trade custom or usage shall modify any provisions of this Agreement.
(h) This Subscription Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their heirs, executors, administrators, successors, legal representatives, and permitted assigns, and the agreements, representations, warranties, covenants and acknowledgments contained herein shall be deemed to be made by, and be binding upon, such heirs, executors, administrators, successors, legal representatives and permitted assigns.
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(i) If any provision of this Subscription Agreement shall be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Subscription Agreement shall not in any way be affected or impaired thereby and shall continue in full force and effect. Upon such determination that any provision is invalid, illegal or unenforceable, the parties will substitute for any invalid, illegal or unenforceable provision a suitable and equitable provision that carries out, so far as may be valid, legal and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
(j) This Subscription Agreement may be executed in one or more counterparts (including by electronic mail or in .pdf) and by different parties in separate counterparts, with the same effect as if all parties hereto had signed the same document. All counterparts so executed and delivered shall be construed together and shall constitute one and the same agreement.
(k) The parties hereto agree that irreparable damage may occur in the event that any of the provisions of this Subscription Agreement are not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to seek an injunction or injunctions to prevent breaches of this Subscription Agreement and seek to enforce specifically the terms and provisions of this Subscription Agreement, without the necessity of proving actual damages or that money damages would be insufficient and without the necessity of posting bond or other security, this being in addition to any other remedy to which such party is entitled at law, in equity, in contract, in tort or otherwise.
(l) Subscriber shall pay all of its own expenses in connection with this Subscription Agreement and the transactions contemplated herein. The Subscriber shall not be responsible for any expenses of the Company in connection with this Subscription Agreement and the transactions contemplated herein.
(m) This Subscription Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to principles relating to conflict of laws. Each party hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the state and federal courts seated in New York County, New York (and any appellate courts thereof) in any action or proceeding arising out of or relating to this Subscription Agreement, and each of the parties hereby irrevocably and unconditionally (a) agrees not to commence any such action or proceeding except in such courts, (b) agrees that any claim in respect of any such action or proceeding may be heard and determined in such court, (c) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any such action or proceeding in any such court, and (d) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court. Each party agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Each party irrevocably consents to the service of the summons and complaint and any other process in any other proceeding relating to the transactions contemplated by this Subscription Agreement, on behalf of itself, or its property, by personal delivery of copies of such process to such party at the applicable address set forth in Section 8(n). Nothing in this Section 8(m) shall affect the right of any party to serve legal process in any other manner permitted by law. Each party hereby knowingly, voluntarily and intentionally irrevocably waives the right to a trial by jury in respect to any litigation, dispute, claim, legal action or other legal proceeding based hereon, or arising out of, under, or in connection with, this Subscription Agreement to the maximum extent permitted by law.
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(n) All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given (i) when delivered in person, (ii) when delivered by email, with affirmative confirmation of receipt, (iii) one business day after being sent, if sent by reputable, internationally recognized overnight courier service or (iv) three business days (five business days for international delivery) after being mailed, if sent by registered or certified mail, prepaid and return receipt requested, in each case to the applicable party at the following addresses (or at such other address for a party as shall be specified by like notice):
| If to Ispire, to: | with copies (which shall not constitute notice) to: | ||
| Ispire Technology Inc. | ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Schole LLP | ||
| ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ | ||
| Los Angeles, CA 90502 | New York, NY 10105 | ||
| Attn: | ▇▇▇▇▇▇▇ ▇▇▇▇, CFO | Attn: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. |
| Tel. No.: | (▇▇▇) ▇▇▇-▇▇▇▇ | ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq. | |
| Email: | ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇ | Email: | ▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ |
| ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ | |||
| Tel. No.: | (▇▇▇) ▇▇▇-▇▇▇▇ | ||
| Notice to the Subscriber shall be given to the address underneath the Subscriber’s name on the signature page hereto. | |||
(o) The headings set forth in this Subscription Agreement are for convenience of reference only and shall not be used in interpreting this Subscription Agreement. In this Subscription Agreement, unless the context otherwise requires: (i) whenever required by the context, any pronoun used in this Subscription Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa; (ii) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding or succeeding such term and shall be deemed in each case to be followed by the words “without limitation”; and (iii) the words “herein,” “hereto” and “hereby” and other words of similar import in this Subscription Agreement shall be deemed in each case to refer to this Subscription Agreement as a whole and not to any particular portion of this Subscription Agreement. As used in this Subscription Agreement, the term: (x) “business day” shall mean any day other than a Saturday, Sunday or a legal holiday on which commercial banking institutions in New York, New York are authorized to close for business (excluding as a result of “stay at home,” “shelter-in-place,” “non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer systems, including for wire transfers, of commercial banking institutions in New York, New York are generally open for use by customers on such day); (y) “person” shall refer to any individual, corporation, partnership, trust, limited liability company or other entity or association, including any governmental or regulatory body, whether acting in an individual, fiduciary or any other capacity; and (z) “affiliate” shall mean, with respect to any specified person, any other person or group of persons acting together that, directly or indirectly, through one or more intermediaries controls, is controlled by or is under common control with such specified person (where the term “control” (and any correlative terms) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract or otherwise).
(p) The parties hereto shall execute and deliver such additional documents and take such additional actions as the parties may reasonably deem practical and necessary in order to consummate the sale of the Shares as contemplated by this Subscription Agreement.
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9. Non-Reliance and Exculpation.
(a) The Subscriber acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person other than the statements, representations and warranties contained in this Subscription Agreement in making its investment or decision to invest in the Company. The Subscriber agrees that none of the Placement Agent, its respective affiliates or any of their or their affiliates’ respective control persons, officers, directors or employees, shall be liable to the Subscriber (including in contract, tort, under federal or state securities laws or otherwise) for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with this Subscription Agreement or the Offering.
(b) The Subscriber acknowledges that the Subscriber has not relied upon the Placement Agent in connection with the Subscriber’s due diligence review of the Offering. The Subscriber represents and warrants that it is relying exclusively on its own sources of information, investment analysis, independent investigation, assessment and due diligence (including professional advice it deems appropriate) with respect to the Offering, the Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Company, including but not limited to all business, legal, regulatory, accounting, credit and tax matters, and the Subscriber has satisfied itself concerning such matters relevant to its investment in the Shares.
(c) The Subscriber acknowledges and agrees that (i) it has been informed that the Placement Agent is acting solely as a placement agent in connection with the Offering and is not acting as an underwriter or in any other capacity in connection with the Offering and is not and shall not be construed as a fiduciary for the Subscriber in connection with the Offering, (ii) the Placement Agent has not made and will not make any representation or warranty, whether express or implied, of any kind or character and has not provided any advice or recommendation in connection with the Offering, in each case, to the Subscriber, (iii) the Placement Agent will have no responsibility to the Subscriber with respect to (a) any representations, warranties or agreements made by any person or entity under or in connection with the Offering or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (b) the business, condition (financial and otherwise), management, operations, properties or prospects of the Company, and (iv) the Placement Agent shall have no liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Subscriber), whether in contract, tort or otherwise, to the Subscriber, or to any person claiming through the Subscriber, in respect of the Offering.
(d) The Subscriber acknowledges that no disclosure or offering document has been prepared or reviewed by the Placement Agent or its affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing in connection with the Offering. The Subscriber acknowledges that none of the Placement Agent, nor any of its affiliates, control persons, officers, directors, employees, partners, agents or representatives has made any independent investigation with respect to the Company or its subsidiaries or any of their respective businesses, or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Company or its affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing.
{SIGNATURE PAGES FOLLOW}
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IN WITNESS WHEREOF, the parties hereto have caused this Subscription Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
| Ispire Technology Inc. | |||
| By: | |||
| Name: | |||
| Title: | |||
{Signature Page to Subscription Agreement}
{SUBSCRIBER SIGNATURE PAGE TO THE SUBSCRIPTION AGREEMENT}
IN WITNESS WHEREOF, the undersigned has caused this Subscription Agreement to be duly executed by its authorized signatory as of the date first indicated above.
| Name(s) of Subscriber: | |||
| Signature of Authorized Signatory of Subscriber: | |||
| Name of Authorized Signatory: | |||
| Title of Authorized Signatory: | |||
| Address for Notice to the Subscriber: | |||
| Attention: | |||
| Email: | |||
| Facsimile No.: | |||
| Telephone No.: | |||
| Address (if not same as address for notice): | |||
| Subscription Amount: | $ | ||
| Number of Shares: | |||
Subscriber status (mark one): ☐ U.S. accredited investor ☐ Non-U.S. ‘person
EIN Number:____________
Exhibit A
Accredited Investor Questionnaire
Capitalized terms used and not defined in this Exhibit A shall have the meanings given in the Subscription Agreement to which this Exhibit A is attached. The undersigned represents and warrants that the undersigned is an “accredited investor” (an “Accredited Investor”) as such term is defined in Rule 501(a) of Regulation D under the U.S. Securities Act of 1933, as amended (the “Securities Act”), for one or more of the reasons specified below (please check all boxes that apply):
| _________ | (i) | A natural person whose net worth, either individually or jointly with such person’s spouse or spousal equivalent, at the time of the Subscriber’s purchase, exceeds $1,000,000; |
The term “net worth” means the excess of total assets over total liabilities (including personal and real property, but excluding the estimated fair market value of the Subscriber’s primary home). For the purposes of calculating joint net worth with the person’s spouse or spousal equivalent, joint net worth can be the aggregate net worth of the Subscriber and spouse or spousal equivalent; assets need not be held jointly to be included in the calculation. There is no requirement that securities be purchased jointly. A spousal equivalent means a cohabitant occupying a relationship generally equivalent to a spouse.
| _________ | (ii) | A natural person who had an individual income in excess of $200,000, or joint income with the Subscriber’s spouse or spousal equivalent in excess of $300,000, in each of the two most recent years and reasonably expects to reach the same income level in the current year; |
In determining individual “income,” the Subscriber should add to the Subscriber’s individual taxable adjusted gross income (exclusive of any spousal or spousal equivalent income) any amounts attributable to tax exempt income received, losses claimed as a limited partner in any limited partnership, deductions claimed for depletion, contributions to an IRA or ▇▇▇▇▇ retirement plan, alimony payments, and any amount by which income from long-term capital gains has been reduced in arriving at adjusted gross income.
| _________ | (iii) | A director or executive officer of the Company; |
| _________ | (iv) | A natural person holding in good standing with one or more professional certifications or designations or other credentials from an accredited educational institution that the U.S. Securities Exchange Commission (“SEC”) has designated as qualifying an individual for accredited investor status; |
The SEC has designated the General Securities Representative license (Series 7), the Private Securities Offering Representative license (Series 82) and the Licensed Investment Adviser Representative (Series 65) as the initial certifications that qualify for accredited investor status.
| _________ | (v) | A natural person who is a “knowledgeable employee” as defined in Rule 3c-5(a)(4) under the Investment Company Act of 1940 (the “Investment Company Act”), of the issuer of the securities being offered or sold where the issuer would be an investment company, as defined in section 3 of the Investment Company Act, but for the exclusion provided by either section 3(c)(1) or section 3(c)(7) of the Investment Company Act; |
| _________ | (vi) | A bank as defined in Section 3(a)(2) of the Securities Act, or any 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-1
| _________ | (vii) | A broker or dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”); |
| _________ | (viii) | An investment adviser registered pursuant to section 203 of the Investment Advisers Act of 1940 (the “Investment Advisers Act”) or registered pursuant to the laws of a state, or an investment adviser relying on the exemption from registering with the SEC under the section 203(l) or (m) of the Investment Advisers Act; |
| _________ | (ix) | An insurance company as defined in section 2(13) of the Exchange Act; |
| _________ | (x) | An investment company registered under the Investment Company Act or a business development company as defined in Section 2(a)(48) of that Act; |
| _________ | (xi) | A 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; |
| _________ | (xii) | A Rural Business Investment Company as defined in section 384A of the Consolidated Farm and Rural Development Act; |
| _________ | (xiii) | 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; |
| (xiv) | 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; |
| _________ | (xv) | A private business development company as defined in Section 202(a)(22) of the Investment Advisers Act of 1940; |
| _________ | (xvi) | An organization described in Section 501(c)(3) of the Internal Revenue Code, or a corporation, business trust, partnership, or limited liability company, or any other entity not formed for the specific purpose of acquiring the Shares, with total assets in excess of $5,000,000; |
| _________ | (xvii) | A trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the Shares, whose purchase is directed by a sophisticated person who has such knowledge and experience in financial and business matters that such person is capable of evaluating the merits and risks of investing in ITAC; |
| _________ | (xviii) | A “family office” as defined in Rule 202(a)(11)(G)-1 under the Investment Advisers Act with assets under management in excess of $5,000,000 that is not formed for the specific purpose of acquiring the securities offered and whose prospective investment is directed by a person who has such knowledge and experience in financial and business matters that such family office is capable of evaluating the merits and risks of the prospective investment; |
| _________ | (xix) | A “family client” as defined in Rule 202(a)(11)(G)-1 under the Investment Advisers Act, of a family office meeting the requirements set forth in (xviii) and whose prospective investment in the issuer is directed by a person from a family office that is capable of evaluating the merits and risks of the prospective investment; |
| _________ | (xx) | A “qualified institutional buyer” as defined in Rule 144A under the Securities Act; |
| (xxi) | An entity, of a type not listed above, not formed for the specific purpose of acquiring the securities offered, owning investments in excess of $5,000,000; and/or |
| (xxii) | An entity in which all of the equity owners qualify as an accredited investor under any of the above subparagraphs. |
| (xxiii) | The Subscriber does not qualify under any of the investor categories set forth in (i) through (xxii) above. |
A-2
| 2.1 | Type of the Subscriber. Indicate the form of entity of the Subscriber: |
| ☐ | Individual | ☐ | Limited Partnership | |
| ☐ | Corporation | ☐ | General Partnership | |
| ☐ | Revocable Trust | ☐ | Limited Liability Company | |
| ☐ | Other Type of Trust (indicate type): | ________________________ | ||
| ☐ | Other (indicate form of organization): | ________________________ |
| 2.2.1 | If the Subscriber is not an individual, indicate the approximate date the Subscriber entity was formed: _____________________. |
| 2.2.2 | If the Subscriber is not an individual, initial the line below which correctly describes the application of the following statement to the Subscriber’s situation: the Subscriber (x) was not organized or reorganized for the specific purpose of acquiring the Shares and (y) has made investments prior to the date hereof, and each beneficial owner thereof has and will share in the investment in proportion to his or her ownership interest in the Subscriber. |
__________ True _________ False
If the “False” line is initialed, each person participating in the entity will be required to fill out a Subscription Agreement.
| Subscriber: | ||
| Subscriber Name: | ||
| By: | ||
| Signatory Name: | ||
| Signatory Title: | ||
| Date: |
A-3