|
|
EXHIBIT 10.1
|
Form of Subscription Agreement .
|
PROCERA NETWORKS, INC.
Restricted Common Stock at $2.00 per Share
1.
Subscription:
(a) The
undersigned (individually and/or collectively, the “
Participant ”) hereby applies to
purchase shares of restricted common stock (the "
Shares " or the “ Common
Stock ”) of Procera Networks, Inc., a Nevada
corporation (the “ Company ”), in
accordance with the terms and conditions of this Subscription
Agreement (the “ Subscription ”)
and the Confidential Private Placement Memorandum, dated May
25, 2007, to which this Subscription is attached (the “
Memorandum ”).
(b) Before
this Subscription is considered, the Participant must
complete, execute and deliver to the Company the
following:
(i)
This Subscription;
(ii)
The Registration Rights Agreement, attached to the
Memorandum as Exhibit C (the “
Rights Agreement ”);
(iii) The
Certificate of Accredited Investor Status, attached to the
Memorandum as Exhibit A ;
and
(iv) The
Participant’s check in the amount of $__________ in
exchange for _________ Shares purchased, or wire transfer sent
according to the Company’s instructions:
(c) This
Subscription is irrevocable by the Participant.
(d) This
Subscription is not transferable or assignable by the
Participant.
(e) This
Subscription may be rejected in whole or in part by the
Company in its sole discretion. In the event this
Subscription is rejected by the Company, all funds and
documents tendered by the Participant shall be
returned.
(f)
The Company’s placement agent, Chadbourn
Securities, Inc., and/or other advisors, placement agents,
broker dealers and/or finders, will be paid commissions, fees
and other consideration by the Company equal to: (i) Eight
Percent (8%) of Participant’s investment amount, and
(ii) a warrant to purchase shares of common stock of the
Company equal to Five Percent (5%) of the total Shares
purchased by Participant, at an exercise price equal to $2.00
per share.
(g) This
Offering, as defined in the Memorandum, is scheduled to close
no later than June 30, 2006 at 5:00 P.M. Pacific Standard Time
(the “ Closing Date ”),
provided, however , that the Company, at its sole
election, may extend this Offering up to an additional sixty
days. The Target Offering is for up to 3,000,000
Shares ($6,000,000) and an additional over-allotment at the
Company’s discretion of up to 1,000,000 Shares
($2,000,000), but this Offering has no prescribed minimum
amount and the Company may accept lessor amounts from
investors or have multiple closings of this
Offering.
(h) Until
the registration statement contemplated by the Rights
Agreement is declared effective, Participant hereby agrees not
to, and will cause its affiliates not to, enter into any
“put equivalent position” as such term is defined
in Rule 16a-1 under the Securities Exchange Act of 1934, as
amended, or short sale position with respect to the Common
Stock.
2.
Representations by Participant.
In consideration of the Company’s acceptance of
the Subscription, Participant makes the following representations
and warranties to the Company and to its principals, jointly and
severally, which warranties and representations shall survive any
acceptance of the Subscription by the Company:
(a) Prior
to the time of purchase of any Shares, Participant received a
copy of the Memorandum. Participant has reviewed
the Memorandum and the Company’s filings with the
Securities and Exchange Commission (the “ Public
Information ”). Participant has had
the opportunity to ask questions and receive any additional
information from persons acting on behalf of the Company to
verify Participant’s understanding of the terms thereof
and of the Company’s business and status thereof.
Participant acknowledges that no officer, director,
broker-dealer, placement agent, finder or other person
affiliated with the Company has given Participant any
information or made any representations, oral or written,
other than as provided in the Memorandum and the Public
Information, on which Participant has relied upon in deciding
to invest in the Shares, including without limitation, any
information with respect to future operations of the Company
or the economic returns which may accrue as a result of the
purchase of the Shares .
(b) Participant
acknowledges that Participant has not seen, received, been
presented with, or been solicited by any leaflet, public
promotional meeting, newspaper or magazine article or
advertisement, radio or television advertisement, or any other
form of advertising or general solicitation with respect to
the Shares.
(c)
The Shares are being purchased for Participant’s own account
for long-term investment and not with a view to immediately re-sell
the Shares. No other person or entity will have any
direct or indirect beneficial interest in, or right to, the
Shares. Participant or its agents or investment advisors
have such knowledge and experience in financial and business
matters that will enable Participant to utilize the information
made available to it in connection with the purchase of the Shares
to evaluate the merits and risks thereof and to make an informed
investment decision.
(d)
Participant
acknowledges that the Shares have not been registered under the
Securities Act of 1933, as amended (the "
Securities Act " ),
or qualified under the California Securities Law, or any other
applicable blue sky laws, in reliance, in part, on
Participant’s representations, warranties and agreements made
herein.
(e) Other
than the rights specifically set forth in this Subscription
and the Rights Agreement, Participant represents, warrants and
agrees that the Company and the officers of the Company (the
“ Company’s Officers ”) are
under no obligation to register or qualify the Shares under
the Securities Act or under any state securities law, or to
assist the undersigned in complying with any exemption from
registration and qualification.
(f) Participant
represents that Participant meets the criteria for
participation because: (i) Participant has a preexisting
personal or business relationship with the Company or one or
more of its partners, officers, directors or controlling
persons; or (ii) by reason of Participant’s business or
financial experience, or by reason of the business or
financial experience of its financial advisors who are
unaffiliated with, and are not compensated, directly or
indirectly, by the Company or any affiliate or selling agent
of the Company, Participant is capable of evaluating the risk
and merits of an investment in the Shares and of protecting
its own interests;
(g) Participant
represents that Participant is an “accredited
investor” within the meaning of Rule 501 of Regulation D
under the Securities Act and Participant has executed the
Certificate of Accredited Investor Status, attached hereto as
Exhibit A .
(h) Participant
understands that the Shares are illiquid, and until registered
with the Securities Exchange Commission, or an exemption from
registration becomes available, cannot be readily sold as
there will not be a public market for them, and that
Participant may not be able to sell or dispose of the Shares,
or to utilize the Shares as collateral for a
loan. Participant must not purchase the Shares
unless Participant has liquid assets sufficient to assure
Participant that such purchase will cause it no undue
financial difficulties, and that Participant can still provide
for current and possible personal contingencies, and that the
commitment herein for the Shares, combined with other
investments of Participant, is reasonable in relation to its
net worth.
(i) Participant
understands that the right to transfer the Shares will be
restricted unless the transfer is not in violation of the
Securities Act, the California Securities Law, and any other
applicable state securities laws (including investment
suitability standards), that the Company will not consent to a
transfer of the Shares unless the transferee represents that
such transferee meets the financial suitability standards
required of an initial participant, and that the Company has
the right, in its absolute discretion, to refuse to consent to
such transfer.
(j) Participant
has been advised to consult with its own attorney or attorneys
regarding all legal matters concerning an investment in the
Company and the tax consequences of purchasing the Shares, and
have done so, to the extent Participant considers
necessary.
(k) Participant
acknowledges that the tax consequences of investing in the
Company will depend on particular circumstances, and neither
the Company, the Company’s Officers, any other
investors, nor the partners, shareholders, members, managers,
agents, officers, directors, employees, affiliates or
consultants of any of them, will be responsible or liable for
the tax consequences to Participant of an investment in the
Company. Participant will look solely to and rely
upon its own advisers with respect to the tax consequences of
this investment
(l)
All information which Participant has provided to
the Company concerning Participant, its financial position and
its knowledge of financial and business matters, and any
information found in the Certificate of Accredited Investor
Status, is truthful, accurate, correct, and complete as of the
date set forth herein.
(l)
Each certificate or instrument representing
securities issuabl
|
