Exhibit 10.1
Securities
Purchase Agreement
THIS SECURITIES PURCHASE AGREEMENT
(this “Agreement”), dated as of September 29, 2008, is
made by and among Morgan Stanley, a Delaware corporation (the
“Company”), and Mitsubishi UFJ Financial Group, Inc., a
joint stock company organized under the laws of Japan (the
“Investor”).
W I T N E S S E T
H:
WHEREAS, each of the Investor and
the Company desires that the Investor will purchase and acquire
from the Company, and the Company will issue and sell to the
Investor, (i) 117,000,000 shares of Common Stock, par value $.01
per share, of the Company (the “Common Stock”) at a
purchase price of $25.25 per share, and (ii) 6,045,750 shares of a
newly created series of preferred stock designated the 10% Series B
Non-Cumulative Non-Voting Perpetual Convertible Preferred Stock,
par value $.01 per share (the “Preferred Stock”), of
the Company having the terms, rights, obligations and preferences
set forth in the Certificate of Designations (the “Preferred
Stock CoD”) attached as Exhibit A hereto at a purchase price
of $1,000.00 per share;
NOW THEREFORE, in consideration of
the premises and of the respective representations, warranties,
covenants and conditions contained herein, the parties hereto agree
as follows:
1. Authorization and Sale of Securities .
Upon the terms and subject to the conditions of this Agreement, on
the Closing Date the Company shall issue, sell and deliver to the
Investor (which it may do through a registered broker-dealer that
is an affiliate of the Company), and the Investor shall purchase
from the Company (i) 117,000,000 shares of Common Stock at a
purchase price of $25.25 per share, and (ii) 6,045,750 shares of
Preferred Stock at a purchase price of $1,000.00 per share, in each
case free and clear of all liens, encumbrances, equities or claims
for an aggregate purchase price of nine billion dollars
($9,000,000,000.00) in cash (the “Purchase Price”) to
be paid in full to the Company.
2. Closing and Delivery of Securities and
Funds .
2.1. The consummation of
the transactions contemplated hereby (the “Closing”)
shall take place, subject to the satisfaction or waiver of all
conditions to the Closing set forth in Section 3 hereof, at the
offices of Wachtell, Lipton, Rosen & Katz, 51 West 52nd Street,
New York City, at 8:00 a.m. New York City time, as promptly as
practicable (but no more than two (2) Business Days) following the
first date on which all conditions set forth in Section 3 have been
satisfied or waived (other than those conditions that by their
nature are to be satisfied by actions taken at the Closing). The
date on which the Closing occurs is the “Closing
Date.”
2.2. At the Closing,
the Investor shall deliver to the Company:
a. an amount equal to
the Purchase Price, such amount to be delivered in immediately
available funds by wire transfer to the
account set
forth in Schedule 3.3 hereto (or such other account as is
designated in writing to the Investor not less than two Business
Days prior to the Closing), and
b. all other documents
to be delivered to the Company by the Investor pursuant to Section
3.2 hereof.
2.3. At the Closing, the
Company shall deliver to the Investor:
a. an aggregate of
117,000,000 shares of Common Stock, registered in the name of the
Investor;
b. an aggregate of
6,045,750 shares of Preferred Stock, registered in the name of the
Investor; and
c. all other documents
and certificates to be delivered to the Investor by the Company
pursuant to Section 3.1 hereof.
3. Closing Conditions . The obligation of the parties to
complete the transactions contemplated by Section 2 hereof (the
“Stock Purchase”) shall be conditioned on the
satisfaction or waiver of the following conditions:
3.1. The obligation of
the Investor to complete the Stock Purchase shall be conditioned on
the satisfaction or waiver by the Investor of the following
conditions:
a. The Investor shall
have received an opinion, dated the Closing Date, from Wachtell,
Lipton, Rosen & Katz, and/or another nationally recognized law
firm, as counsel to the Company, as to the validity of the
Securities being sold in the Stock Purchase, substantially in the
form set forth in Schedule 3.1(a) to this Agreement.
b. The representations
and warranties of the Company contained in this Agreement shall be
true and correct on and as of the date hereof and on and as of the
Closing Date as if made on and as of the Closing Date (except for
any such representations or warranties made as of the date hereof
or as of another date, which shall be true and correct as of such
date), and the Investor shall have received a certificate of the
chief executive officer and chief financial officer of the Company,
dated as of the Closing Date, substantially in the form set forth
in Schedule 3.1(b) to this Agreement, certifying to that fact.
c. The Company shall
have performed in all material respects all of its covenants and
obligations in this Agreement that are to be performed at or prior
to the Closing, and the Investor shall have received a certificate
of a senior officer of the Company, dated as of the Closing Date,
certifying to that fact.
- 2 -
d.
On the Closing Date, the Company shall have duly executed and
delivered to the Investor an Investor Agreement in substantially
the form set forth as Exhibit B hereto (the “Investor
Agreement”) and a Registration Rights Agreement in
substantially the form set forth as Exhibit C hereto (the
“Registration Rights Agreement”).
3.2. The obligation of
the Company to complete the Stock Purchase shall be conditioned on
the satisfaction or waiver by the Company of the following
conditions:
a. The representations
and warranties of the Investor contained in this Agreement shall be
true and correct on and as of the date hereof and on and as of the
Closing Date as if made on and as of the Closing Date (except for
any such representations or warranties made as of the date hereof
or as of another date, which shall be true and correct as of such
date).
b. The Investor shall
have performed in all material respects all of its covenants and
obligations in this Agreement that are to be performed at or prior
to the Closing.
c. On the Closing Date,
the Investors shall have duly executed and delivered to the Company
each of the Registration Rights Agreement and the Investor
Agreement.
3.3. The obligation of
the parties to complete the Stock Purchase shall also be
conditioned on the satisfaction or waiver by both the Company and
the Investor of the following conditions.
a. The Company shall
have duly filed with the Secretary of State of the State of
Delaware the Preferred Stock CoD.
b. The shares of Common
Stock issuable at the Closing or upon conversion of the Preferred
Stock shall have been duly authorized for listing, subject to
official notice of issuance, on the New York Stock Exchange.
c. The Board of
Directors of the Federal Deposit Insurance Corporation shall have
granted a written “cross guarantee waiver” pursuant to
Section 5(e)(5) of the U.S. Federal Deposit Insurance Act in form
and substance reasonably acceptable to the Company and the
Investor.
d. The Board of
Governors of the Federal Reserve System shall have issued a written
determination that Investor does not and will not
“control” the Company or any of its subsidiaries for
purposes of the U.S. Bank Holding Company Act of 1956, as amended,
without the imposition of any term, condition or consequence the
acceptance of which would constitute a Substantial Detriment.
- 3 -
e.
The Staff of the Committee on Foreign Investment in the United
States shall have issued a “clearance letter” with
respect to the transactions contemplated by this Agreement, without
the imposition of any term, condition or consequence the acceptance
of which would constitute a Substantial Detriment.
f. The approvals or
authorizations of, filings and registrations with, and
notifications to, all governmental or regulatory authorities
(collectively, “Governmental Entities”) required for
the Investor’s acquisition of the Securities (but not for the
conversion of the Preferred Stock into Common Stock) (collectively,
with those set forth in 3.3(c), (d), and (e), the “Required
Approvals”) shall have been obtained or made and shall be in
full force and effect and all waiting periods under the Required
Approvals shall have expired or been terminated, in each case
without the imposition of any term, condition or consequence the
acceptance of which would constitute a Substantial Detriment, and
no provision of any applicable law or regulation, judgment,
injunction, order or decree shall be in effect that would prohibit
the Closing, and no Governmental Entity shall have instituted an
investigation or proceeding that could result in such a judgment,
injunction, order or decree.
4. Representations, Warranties and Covenants of
the Company . The Company
hereby represents and warrants to, and covenants with, the
Investor, that, except as otherwise disclosed in the
Company’s Annual Report on Form 10-K for the fiscal year
ended November 30, 2007 or its other reports and forms filed with
or furnished to the Securities and Exchange Commission (the
“Commission”) under Sections 12, 13, 14 or 15(d) of the
Securities Exchange Act of 1934 (the “Exchange Act”)
after November 30, 2007 (excluding disclosures of risks included in
any forward-looking statement disclaimers or other statements that
are similarly nonspecific and are predictive and forward-looking in
nature) (the “SEC Reports”) and before the date of this
Agreement, and subject to the disclosure letter (the
“Disclosure Letter”) delivered by the Company to the
Investor concurrently with the execution of this
Agreement:
4.1. Organization,
Authority and Significant Subsidiaries . The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the State of Delaware, with corporate power and authority to own
its properties and conduct its business as currently conducted,
and, except as would not be reasonably likely to have a Material
Adverse Effect, has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases
properties, or conducts any business so as to require such
qualification; each subsidiary of the Company that is a
“significant subsidiary” within the meaning of Rule
1-01(w) of Regulation S-X under the Securities Act (individually a
“Significant Subsidiary” and collectively the
“Significant Subsidiaries”) has been duly organized and
is validly existing in good standing under the laws of its
jurisdiction of organization.
- 4 -
4.2. Capitalization . The authorized capital
stock of Company consists of 3,500,000,000 shares of Company Common
Stock, and 30,000,000 shares of preferred stock (“Company
Preferred Stock”), par value $0.01 per share, of which, as of
September 26, 2008, (1) 1,061,212,996 shares of Common Stock were
issued and outstanding, (2) 218,635,270 shares of Common Stock were
reserved for issuance in respect of outstanding options, warrants,
convertible securities and the purchase contracts underlying the
PEPS Units issued by the Company in December 2007, and (3) 46,000
shares of Company Preferred Stock are designated as Floating Rate
Non-Cumulative Preferred Stock, Series A, 44,000 of which were
outstanding (the “Series A Preferred Stock”), which
shares of Series A Preferred Stock are represented by 44,000,000
depositary receipts, each representing 1/1,000 of a share of Series
A Preferred Stock. As of such date, the Company held 150,488,556
shares of Company Common Stock in its treasury. The Company
will reserve that number of shares of Common Stock sufficient for
issuance upon conversion of Preferred Stock being issued and sold
pursuant to this Agreement. The sum of (i) the number of shares of
Common Stock that Investor will purchase at the Closing and (ii)
the total number of shares of Common Stock Investor will receive
upon conversion of all shares of the Preferred Stock that Investor
will purchase at the Closing will not exceed 24.99% of the sum of
(x) the total number of Shares of Common Stock outstanding upon
consummation of the Stock Purchase (including the shares of Common
Stock that Investor will purchase at the Closing) and (y) the total
number of shares of Common Stock Investor will receive upon
conversion of all shares of the Preferred Stock that Investor will
purchase at the Closing.
4.3. Authorization,
Enforceability of Transaction Documents . The Company has the power and authority to
enter into the Transaction Documents (as defined below) and to
carry out its obligations hereunder and thereunder. The execution,
delivery and performance of the Transaction Documents by the
Company and the consummation of the transactions contemplated
hereby and thereby have been duly authorized by all necessary
corporate action on the part of the Company other than the filing
of the Preferred Stock CoD with the Secretary of State of the State
of Delaware pursuant to Section 6.5, which will be made prior to
the Closing.
As of the date of execution of the
Transaction Documents, neither the execution, delivery and
performance by the Company hereof and thereof, nor the consummation
of the transactions contemplated hereby and thereby, nor compliance
by the Company with any of the provisions thereof, will violate,
conflict with, or result in a breach of any provision of, or
constitute a default (or an event which, with notice or lapse of
time or both, would constitute a default) under, or result in the
termination of, or accelerate the performance required by, or
result in a right of termination or acceleration of or result in
the creation of, any lien, security interest, charge or encumbrance
upon any of the properties or assets of the Company or any
Significant Subsidiary under any of the terms, conditions or
provisions of (A) its certificate of incorporation or bylaws or (B)
any note,
bond, mortgage,
indenture, deed of trust, license, lease, agreement or other
instrument or obligation to which the Company or any Significant
Subsidiary is a party or by which it may be bound, or to which the
Company or any Significant Subsidiary or any of the properties or
assets of the Company or any Significant Subsidiary may be subject,
or (C) subject to compliance with the statutes and regulations
referred to in the next paragraph, any statute, rule or regulation
or any judgment, ruling, order, writ, injunction or decree
applicable to the Company or any Significant Subsidiary or any of
their respective properties or assets except, in the case of
clauses (B) and (C), for those occurrences that, individually or in
the aggregate, could not reasonably be expected to result in a
Material Adverse Effect.
Other than in connection or in
compliance with the provisions of the Securities Act and the
securities or blue sky laws of the various states, and other than
the Required Approvals, to the best knowledge of the Company, no
notice to, filing with, exemption or review by, or authorization,
consent or approval of, any Governmental Entity is necessary for
Investor’s acquisition of the Securities as contemplated by
the Transaction Documents, other than such authorizations, consents
and approvals as may be necessary in connection with the issuance
to Investor of shares of Common Stock upon conversion of the
Preferred Stock.
As used herein, the term
“Transaction Documents” refers collectively to this
Agreement, the Investor Agreement and the Registration Rights
Agreement.
4.4. Company Financial
Statements . The consolidated financial statements of the
Company and its consolidated subsidiaries included or incorporated
by reference in the SEC Reports present fairly in all material
respects the consolidated financial position of the Company and its
consolidated subsidiaries as of the dates indicated therein and the
consolidated results of their operations for the periods specified
therein; and except as stated therein, such financial statements
were prepared in conformity with GAAP applied on a consistent basis
(except as may be noted therein).
Deloitte & Touche LLP, who have
certified certain financial statements of the Company and its
subsidiaries, are independent public accountants as required by the
Act and the rules and regulations of the Commission.
The Company and its subsidiaries do
not have any liabilities or obligations (accrued, absolute,
contingent or otherwise), other than liabilities or obligations (i)
reflected on, reserved against, or disclosed in the notes to, the
Company’s consolidated balance sheet included in the
Company’s Quarterly Report on Form 10-Q for the fiscal
quarter ended May 31, 2008, (ii) disclosed in the Company’s
Current Reports on Form 8-K filed on August 12, 2008, September 15,
2008, September 16, 2008 and September 22, 2008 or (iii) that could
not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
- 6 -
4.5. No Material Adverse Effect . Since August
31, 2008 and except as described in the SEC Reports, no event or
circumstance has occurred that, individually or in the aggregate,
has had or could reasonably be expected to have a Material Adverse
Effect.
4.6. Proceedings .
Except as disclosed in the SEC Reports, there are no litigation or
similar proceedings pending or, to the Company’s knowledge,
threatened to which the Company or any of its subsidiaries is a
party or of which any property of the Company or any of its
subsidiaries is the subject which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect.
4.7. Compliance with
Laws; Permits . The Company and each of its Significant
Subsidiaries have conducted their businesses in compliance with all
applicable federal, state and foreign laws, regulations and
applicable stock exchange requirements, except where (i) the
failure to be in compliance could not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect
or (ii) the necessity of compliance, or the failure to comply,
therewith is being contested in good faith by appropriate
proceedings.
The Company and each of its
Significant Subsidiaries have all permits, licenses,
authorizations, orders and approvals of, and have made all filings,
applications and registrations with, any Governmental Entities that
are required in order to carry on their business as presently
conducted, except where the failure to have such permits, licenses,
authorizations, orders and approvals or the failure to make such
filings, applications and registrations, individually or in the
aggregate, could not reasonably be expected to have a Material
Adverse Effect; and all such permits, licenses, certificates of
authority, orders and approvals are in full force and effect and,
to the knowledge of the Company, no suspension or cancellation of
any of them is threatened, and all such filings, applications and
registrations are current, except where such absence, suspension or
cancellation, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
4.8. Authorization of
Common Stock, Preferred Stock .
The issuance of the shares of Common Stock and Preferred Stock to
be issued pursuant to this Agreement, and the issuance of Common
Stock upon conversion of the Preferred Stock, have been duly
authorized by all necessary corporate action on the part of the
Company, and no approval of the Company’s stockholders is
required under any law or under the regulations and policies of any
securities exchange in connection therewith. Upon the issuance and
sale of the shares of Common Stock and Preferred Stock to be issued
pursuant to this Agreement, such shares of Common Stock and
Preferred Stock will (A) be duly authorized by all necessary
corporate action on the part of the Company, (B) be validly issued,
fully paid and nonassessable, (C) not have been issued in violation
of any preemptive or other similar right, and (D) if such shares
are treasury shares, be free of any adverse claim.
- 7 -
4.9. Authorization of the Registration Rights
Agreement . As of the Closing
Date, the Registration Rights Agreement will have been duly
authorized by the Company, and will be validly executed and
delivered by the Company and assuming due authorization, execution
and delivery of such agreement by each other party thereto, will
constitute a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms,
except to the extent that the enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors’ rights
generally and general equitable principles, regardless of whether
such enforceability is considered in a proceeding at law or in
equity (“Bankruptcy Exceptions”) and except as rights
to indemnification and contribution under the Registration Rights
Agreement may be limited under applicable law or public
policy.
4.10. Authorization of
the Investor Agreement . As of the Closing Date, the Investor
Agreement will have been duly authorized by the Company, and will
be validly executed and delivered by the Company and assuming due
authorization, execution and delivery of such agreement by each
other party thereto, will constitute a valid and binding obligation
of the Company, enforceable against the Company in accordance with
its terms, except to the extent that the enforcement thereof may be
limited by the Bankruptcy Exceptions.
4.11. Authorization of
this Agreement . This Agreement has been duly authorized,
validly executed and delivered by the Company, and assuming due
authorization, execution and delivery of this Agreement by each
other party hereto, constitutes a valid and binding obligation of
the Company, enforceable against the Company in accordance with its
terms, except to the extent that the enforcement thereof may be
limited by the Bankruptcy Exceptions.
4.12. Reports .
Since November 30, 2006, the Company has timely filed all documents
required to be filed with the Commission pursuant to Sections
13(a), 14(a) or 15(d) of the Exchange Act, except where the failure
to so file could not reasonably be expected to have a Material
Adverse Effect.
The SEC Reports, when they became
effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make such statements, in the light of the
circumstances in which they were made, not misleading.
Since November 30, 2006, the Company
and each subsidiary have filed all material reports, registrations
and statements, together with any required amendments thereto, that
it was required to file with any applicable federal or state
securities or banking authorities, except where the failure to file
any such report, registration or statement, individually or in the
aggregate, could not
reasonably be
expected to have a Material Adverse Effect. As of their respective
dates, each of the foregoing reports complied with all applicable
rules and regulations promulgated by applicable foreign, federal or
state securities or banking authorities, as the case may be, except
for any failure that, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
The records, systems, controls, data
and information of the Company and its subsidiaries are recorded,
stored, maintained and operated under means (including any
electronic, mechanical or photographic process, whether
computerized or not) that are under the exclusive ownership and
direct control of the Company or the subsidiaries or their
accountants (including all means of access thereto and therefrom).
The Company (i) has implemented and maintains disclosure controls
and procedures (as defined in Rule 13a-15(e) under the Exchange
Act) to ensure that material information relating to the Company,
including its subsidiaries, is made known to the chief executive
officer and the chief financial officer of the Company by others
within those entities, and (ii) has disclosed, based on its most
recent evaluation prior to the date hereof, to the Company’s
outside auditors and the audit committee of the Company’s
board of directors (A) any significant deficiencies and material
weaknesses in the design or operation of internal controls over
financial reporting (as defined in Rule 13a-15(f) under the
Exchange Act) that, individually or in the aggregate, could
reasonably be expected to adversely affect the Company’s
ability to record, process, summarize and report financial
information and (B) any fraud, whether or not material, that
involves management or other employees who have a significant role
in the Company’s internal controls over financial reporting.
As of the date hereof, to the knowledge of the Company, there is no
reason that its outside auditors and its chief executive officer
and chief financial officer will not be able to give the
certifications and attestations required pursuant to the rules and
regulations adopted pursuant to Section 404 of the Sarbanes-Oxley
Act of 2002, without qualification, when next due.
4.13. Taxes . As
of the Closing, the Company is not, nor has been, a U.S. real
property holding corporation (as defined in Section 897(c)(2) of
the Code) during the applicable period specified in Section
897(c)(1)(A)(ii) of the Code.
4.14. Subprime
Exposure . As of August 31, 2008, the aggregate total U.S. ABS
CDO/Subprime Net Exposure of the Company and its subsidiaries was
$0.0 billion. As used in this paragraph, “Net Exposure”
means the potential loss to the Company in the event of a 100%
default, assuming zero recovery, over a period of time.
4.15. As used in this
Agreement, the term “ Material Adverse Effect
” means any fact,
circumstance, event, change, effect or occurrence that,
individually or in the aggregate with all other facts,
circumstances, events, changes, effects or occurrences, has a
material adverse effect on (i) the business, assets, liabilities,
results of operation or financial condition of the Company and its
subsidiaries
taken as a
whole or (ii) the ability of the Company to consummate the
transactions contemplated by this Agreement, other than, in each
case, any adverse effect resulting from the announcement of the
transactions contemplated by this Agreement.
5. Representations, Warranties and Covenants of
the Investor . The Investor
hereby represents and warrants to, and covenants with, the Company
that:
5.1. (1) It is (a)
a QIB and is an “accredited investor” within the
meaning of Rule 501 of Regulation D promulgated under the
Securities
Act, (b) aware that
the sale of Common Stock and Preferred Stock (collectively,
including the Common Stock issuable upon
conversion of the
Preferred Stock, the “Securities”) to it is being made
in reliance on a private placement exemption from registration
under the
Securities Act and (c) acquiring the Securities for its own account
or for the account of a QIB.
(2) It understands and
agrees on behalf of itself and on behalf of any investor account
for which it is purchasing Securities, and each subsequent holder
of shares of Securities by its acceptance thereof will be deemed to
agree, that such Securities are being offered in a transaction not
involving any public offering within the meaning of the Securities
Act, that such Securities have not been and, except as contemplated
by the Registration Rights Agreement, will not be registered under
the Securities Act and that such Securities may be offered, resold,
pledged or otherwise transferred only in accordance with the
applicable provisions of the Investor Agreement (i) in a
transaction not involving a public offering, (ii) pursuant to an
exemption from registration under the Securities Act provided by
Rule 144 thereunder (if available), (iii) pursuant to an effective
registration statement under the Securities Act, or (iv) to the
Company or one of its subsidiaries, in each of cases (i) through
(iv) in accordance with any applicable securities laws of any State
of the United States, and that it will, and each subsequent holder
is required to, notify any subsequent purchaser of Securities from
it of the resale restrictions referred to above, as applicable, and
will provide the Company and the transfer agent such certificates
and other information as they may reasonably require to confirm
that the transfer by it complies with the foregoing restrictions,
if applicable.
(3) It understands that,
unless sold pursuant to a registration statement that has been
declared effective under the Securities Act or in compliance with
Rule 144, the Company may require that the Securities will bear a
legend or other restriction substantially to the following effect
(it being agreed that if the Securities are not certificated, other
appropriate restrictions shall be implemented to give effect to the
following):
THIS SECURITY WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED
STATES
- 10 -
SECURITIES ACT
OF 1933, AS AMENDED, (THE “SECURITIES ACT”), AND THIS
SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM.
THE HOLDER OF THIS SECURITY AGREES
FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY MAY BE
OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN A
TRANSACTION NOT INVOLVING A PUBLIC OFFERING, (II) PURSUANT TO ANY
OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, INCLUDING RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE) SUBJECT TO THE ISSUER’S RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER PURSUANT
