UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
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Date of Report (Date of Earliest Event Reported):
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November 9, 2015
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VIASPACE Inc.
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(Exact name of registrant as specified in its charter)
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Nevada
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333-110680
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76-0742386
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(State or other jurisdiction
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(Commission
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(I.R.S. Employer
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of incorporation)
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File Number)
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Identification No.)
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382 N. Lemon Ave., Ste. 364, Walnut, California
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91789
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(Address of principal executive offices)
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(Zip Code)
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Registrants telephone number, including area code:
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626-768-3360
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Not Applicable
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Former name or former address, if changed since last report
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any
of the following provisions:
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement.
Loan Agreement
On November 9, 2015, Dr. Kevin Schewe, Director of the Registrant, made a $20,000 loan to the Registrant in conjunction with the Loan Agreement entered into with the Registrant on September 30, 2012. In the Loan Agreement, Schewe agreed, subject to satisfaction of certain conditions, including among other things, Schewe’s satisfaction with the use proceeds of past loans, to provide loans of up to $1,000,000 as required by the Registrant for a five-year period. The loans would be evidenced by a Secured Convertible Note. The loans accrue interest at 6% per annum and are secured by all assets of the Registrant. At Schewe's election, the notes are convertible into shares of Registrant common stock at a price equal to 20% of the average closing price of the Registrant's common stock for the 20 trading days immediately preceeding the date of the loan. Each note matures on the second anniversary of the issuance date of such note. If Schewe chooses to convert, the $20,000 loan made on November 9, 2015 would convert into 28,571,429 shares of Registrant common stock at a common stock price of $0.0007 per share.
Including the newest loan, Schewe has made cumulative loans to the Registrant totaling $937,000 since the execution of the Loan Agreement.
The Note for the loan on November 9, 2015 is attached hereto as Exhibit 10.1.
Notice of Conversion
On November 9, 2015, Dr. Kevin Schewe, Director of the Registrant, in conjunction with the Loan Agreement entered into with the Registrant on September 30, 2012, converted $20,000 of loans that he previously made to the Registrant into shares of Registrant common stock.
Schewe had made a $20,000 loan to the Registrant on November 9, 2015. The $20,000 loan owed to him converted into 28,571,429 shares of Registrant common stock at a conversion price of $0.0007 per common share.
Subscription Agreement
On November 9, 2015, the Registrant entered into a Subscription Agreement with Dr. Carl Kukkonen, Chief Technology Officer and Director of the Registrant, in which Dr. Kukkonen agreed to purchase 4,285,714 shares of common stock at a purchase price of $0.0007 per share for $3,000. The purchase price per share was equal to 20% of the average closing price of the Registrant's common stock for the 20 trading days immediately preceeding the date of the investment.
The Subscription Agreement is attached hereto as Exhibit 10.2.
Item 3.02 Unregistered Sales of Equity Securities.
On November 9, 2015, the Registrant issued 28,571,429 shares of Registrant common stock to Dr. Kevin Schewe, Director of the Registrant. The shares were issued related to the conversion by Schewe of one convertible note as discussed in detail in Item 1.01. The Registrant relied upon Section 4(2) of the Securities Act of 1933, as amended, for the offer and sale of its stock. It believed that Section 4(2) was available because the offer and sale was not a public offering of its securities and there was not general solicitation or general advertising involved in the offer or sale.
On November 9, 2015, the Registrant issued 4,285,714 shares of Registrant common stock to Dr. Carl Kukkonen, Chief Technology Officer and Director of the Registrant. The shares were issued related to the Subscription Agreement discussed in detail in Item 1.01. The Registrant relied upon Section 4(2) of the Securities Act of 1933, as amended, for the offer and sale of its stock. It believed that Section 4(2) was available because the offer and sale was not a public offering of its securities and there was not general solicitation or general advertising involved in the offer or sale.
Item 9.01 Financial Statements and Exhibits.
(c) Exhibits
Exhibit No. Description
10.1 Senior Secured Convertible Promissory Note dated November 9, 2015.
10.2 Subscription Agreement between Registrant and Carl Kukkonen dated November 9, 2015.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
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VIASPACE Inc.
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November 9, 2015
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By:
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Stephen J. Muzi
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Name: Stephen J. Muzi
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Title: Chief Financial Officer
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Exhibit Index
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Exhibit No.
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Description
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10.1
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Senior Secured Convertible Promissory Note dated November 9, 2015
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10.2
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Subscription Agreement between Registrant and Dr. Carl Kukkonen dated November 9, 2015
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Ex. 10.1
NEITHER THE ISSUANCE AND SALE OF THIS NOTE NOR THE SECURITIES INTO WHICH THIS NOTE IS CONVERTIBLE
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE
OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933 OR
(B) AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER
SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144, RULE 144A OR OTHER EXEMPTION UNDER SAID ACT.
THE TRANSFER OF THE SECURITIES REPRESENTED HEREBY IS PROHIBITED EXCEPT IN ACCORDANCE WITH THE
SECURITIES ACT OF 1933, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION.
VIASPACE INC.
SENIOR SECURED CONVERTIBLE PROMISSORY NOTE
$20,000.00 November 9, 2015
FOR VALUE RECEIVED, VIASPACE INC., a Nevada corporation (Company), promises to pay to Kevin
Schewe (Holder), or its registered assigns, in lawful money of the United States of America the
principal sum of TWENTY THOUSAND Dollars ($20,000.00), or such other amount as shall equal the
outstanding principal amount hereof, together with interest from the date of this Note on the
unpaid principal balance at a rate equal to six percent (6.0%) per annum, computed on the basis of
the actual number of days elapsed and a year of 365 days. Unless converted into Common Stock of
Company as set forth in Section 3 and/or Section 8 below, all unpaid principal, together with any
then unpaid and accrued interest, shall be due and payable on the earlier of (i) November 9, 2017
(the Maturity Date), (ii) upon prepayment of all amounts due and payable under this Note in
accordance with the terms hereof, or (iii) when, upon or after the occurrence of an Event of
Default (as defined below), such amounts are declared due and payable by Holder or made
automatically due and payable in accordance with the terms hereof. Immediately prior to the
issuance of this Note by Company, Holder acknowledges that it has delivered to Company the sum of
TWENTY THOUSAND Dollars ($20,000.00) reflecting the principal amount under this Note.
This Note is one of a series of notes (the Notes) having like tenor and effect (except for
variations necessary to express the name of the holder, the principal amount of each of the Notes
and the date on which each Note is funded) in an aggregate principal amount of up to $1,000,000
issued or to be issued by Company on or about the period from September 2012 to August 2017 (or
such other period as agreed upon by the Company and the Holder) pursuant to the terms of a Loan
Agreement, dated as of September 30, 2012, by and between Company and the Holder (or his designees)
of the Notes (the Loan Agreement). The Notes shall rank equally without preference or priority
of any kind over one another, and all payments on account of principal and interest with respect to
any of the Notes shall be applied ratably and proportionately on the outstanding Notes on the basis
of the principal amount of the outstanding indebtedness represented thereby.
The following is a statement of the rights of Holder and the conditions to which this Note is
subject, and to which Company by issuance of this Note, and Holder by the acceptance of this Note,
agree:
1. Definitions. As used in this Note, the following capitalized terms have the
following meanings:
(a) Common Stock shall mean the Companys Common Stock, par value $0.001.
(b) Collateral has the meaning given in Section 4 hereof.
(c) Company includes the corporation initially executing this Note and any Person which
shall succeed to or assume the obligations of Company under this Note.
(d) Conversion Notice has the meaning given in Section 8(e) hereof.
(e) Conversion Period shall mean the period from the date of the Note and ending on the
Maturity Date.
(f) Conversion Price has the meaning given in Section 8(b) hereof
(g) Event of Default has the meaning given in Section 6 hereof.
(h) Holder shall mean the Person specified in the introductory paragraph of this Note or any
Person who shall at the time be the registered holder of this Note. Holders shall mean the
Persons collectively specified in the introductory paragraph of this Note and the other Notes or
any Persons who shall at the time be the registered holders of this Note and the other Notes.
(i) Majority Holders shall mean Holders holding a majority of the aggregate principal amount
of the Notes then outstanding.
(j) Note shall mean this Senior Secured Convertible Promissory Note.
(k) Obligations shall mean and include all loans, advances, debts, liabilities and
obligations owed by Company to Holder of every kind and description, now existing or hereafter
arising under or pursuant to the terms of this Note including, all interest, fees, charges,
expenses, attorneys fees and costs and accountants fees and costs chargeable to and payable by
Company hereunder.
(l) Person shall mean and include an individual, a partnership, a corporation (including a
business trust), a joint stock company, a limited liability company, an unincorporated association,
a joint venture or other entity or a governmental authority.
(m) Prepayment Amount has the meaning given in Section 3 hereof
(n) Prepayment Notice has the meaning given in Section 3 hereof.
(o) Sale Transaction shall mean a transaction or series of related transactions involving
(i) the consolidation or merger of Company with another Person, (ii) a sale of all or substantially
all of the assets of Company, (iii) a purchase, tender or exchange offer that is accepted by the
holders of more than the 50% of the outstanding shares of capital stock of Company, (iv) the
consummation of a stock purchase agreement or other business combination with another Person
whereby such other Person acquires more than the 50% of the outstanding capital stock of Company.
(p) Securities Act has the meaning given in Section 5(b) hereof.
(q) Loan Agreement has the meaning in the second introductory paragraph of this Note.
(r) Successor Entity has the meaning given in Section 10 hereof.
Capitalized term not otherwise defined shall have the meaning set forth in the Loan Agreement.
2. Interest. Unless converted into Common Stock of Company as set forth in Section 8
below, or unless prepaid or converted as set forth in Section 3 below, accrued interest on this
Note shall be payable on the Maturity Date.
3. Prepayment. During the Conversion Period, Company may, at any time and from time
to time, prepay all or any portion of the principal due under this Note, together with accrued
interest, without penalty. Company shall effect such prepayment by providing Holder twenty (20)
days written notice prior to the date of such prepayment (such notice, a Prepayment Notice)
indicating the amount of principal and accrued interest Company desires to prepay (the Prepayment
Amount). Notwithstanding the foregoing, Holder shall have 10 days following receipt of such
Prepayment Notice to notify Company in writing of its election to convert the Prepayment Amount
into shares of Common Stock, in which case such Prepayment Amount shall be converted into shares of
Common Stock in accordance with the conversion procedures set forth in Section 8(e) hereof
(provided that, with respect to conversions effected pursuant to this Section 3, any references to
the Conversion Amount in Section 8(e) shall refer to the Prepayment Amount). Should Holder elect
to convert the Prepayment Amount into shares of Common Stock, the number of shares of Common Stock
into which such Prepayment Amount will be converted shall be determined by dividing the Prepayment
Amount by the then applicable Conversion Price.
4. Security Interest. As security for the payment and performance of the Obligations
under this Note and the other Notes, Company hereby grants to the holder of this Note and of the
other Notes a first lien security interest in all of Companys right, title and interest in, to and
under all of its personal property, wherever located and whether now existing or owned or hereafter
acquired or arising, including all accounts, chattel paper, commercial tort claims, deposit
accounts, documents, equipment (including all fixtures), general intangibles, intellectual property
(including all patents and patent applications, all copyrights and applications for copyright, all
state (including common law), federal and foreign trademarks, service marks and trade names, and
applications for registration of such trademarks, service marks and trade names, and all trade
secrets), instruments, inventory, investment property, letter-of-credit rights, money and all
products, proceeds and supporting obligations of any and all of the foregoing (collectively, the
Collateral). Notwithstanding the foregoing, the security interest granted herein shall not
extend to any property, rights or licenses to the extent the granting of a security interest
therein would be contrary to applicable law.
5. Representations and Warranties of Holder. Holder represents and warrants to Company
as follows:
(a) Binding Obligation. Holder has full legal capacity, power and authority to execute
and deliver this Note and to perform his obligations hereunder. This Note is a valid and binding
obligation of Holder, enforceable in accordance with its terms, except as limited by bankruptcy,
insolvency or other laws of general application relating to or affecting the enforcement of
creditors rights generally and general principles of equity.
(b) Securities Law Compliance. Holder has been advised that this Note has not been
registered under the Securities Act of 1933, as amended (the Securities Act), or any state
securities laws and, therefore, cannot be resold unless they are registered under the Securities
Act and applicable state securities laws or unless an exemption from such registration requirements
is available. Holder is aware that Company is under no obligation to effect any such registration
with respect to this Note, or the Common Stock issuable or issued pursuant to the conversion of
this Note, or to file for or comply with any exemption from registration. Holder has not been
formed solely for the purpose of making this investment and is purchasing this Note for its own
account for investment, not as a nominee or agent, and not with a view to, or for resale in
connection with, the distribution thereof. Holder has such knowledge and experience in financial
and business matters that Holder is capable of evaluating the merits and risks of such investment,
is able to incur a complete loss of such investment and is able to bear the economic risk of such
investment for an indefinite period of time.
(c) Accredited Investor. Holder is an accredited investor within the meaning of SEC
Rule 501 of Regulation D of the Securities Act, as presently in effect.
(d) Restricted Securities. Holder understands that this Note is a restricted
security under the federal securities laws inasmuch as it is being acquired from Company in a
transaction not involving a public offering and that under such laws and applicable regulations
such Note may be resold without registration under the Securities Act only in certain limited
circumstances. In the absence of an effective registration statement covering the Note or an
available exemption from registration under the Securities Act, the Note must be held indefinitely.
Holder represents that it is familiar with SEC Rule 144, and understands the resale limitations
imposed thereby and by the Securities Act.
(e) Access to Information. Holder acknowledges that Company has given Holder access
to the corporate records and accounts of Company and to all information in its possession relating
to Company, has made its officers and representatives available for interview by Holder, and has
furnished Holder with all documents and other information required for Holder to make an informed
decision with respect to the purchase of this Note.
6. Events of Default. The occurrence of any of the following shall constitute an
Event of Default under this Note:
(a) Failure to Pay. Company shall fail to pay (i) when due any principal or interest
payment on the due date hereunder or (ii) any other payment required under the terms of this Note
on the date due, and (in either case) such payment shall not have been made within twenty (20) days
of Companys receipt of Holders written notice to Company of such failure to pay;
(b) Failure to Perform. Company fails to perform any obligation under this Note and
does not cure that failure within twenty (20) days of Companys receipt of Holders written notice
to Company of such failure to perform; or
(c) Voluntary Bankruptcy or Insolvency Proceedings. Company shall (i) apply for or
consent to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a
substantial part of its property, (ii) be unable, or admit in writing its inability, to pay its
debts generally as they mature, (iii) make a general assignment for the benefit of its or any of
its creditors, (iv) be dissolved or liquidated, (v) become insolvent (as such term may be defined
or interpreted under any applicable statute), (vi) commence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such
relief or to the appointment of or taking possession of its property by any official in an
involuntary case or other proceeding commenced against it, or (vii) take any action for the purpose
of effecting any of the foregoing; or
(d) Involuntary Bankruptcy or Insolvency Proceedings. Proceedings for the appointment
of a receiver, trustee, liquidator or custodian of Company or of all or a substantial part of the
property thereof, or an involuntary case or other proceedings seeking liquidation, reorganization
or other relief with respect to Company or the debts thereof under any bankruptcy, insolvency or
other similar law now or hereafter in effect shall be commenced and an order for relief entered or
such proceeding shall not be dismissed or discharged within thirty (30) days of commencement.
7. Rights of Holder upon Default. Upon the occurrence or existence of any Event of
Default (other than an Event of Default referred to in Sections 6(c) and 6(d)) and at any time
thereafter during the continuance of such Event of Default, the Majority Holders may, by written
notice to Company, declare all outstanding Obligations payable by Company under the Notes to be
immediately due and payable without presentment, demand, protest or any other notice of any kind,
all of which are hereby expressly waived. Upon the occurrence or existence of any Event of Default
described in Sections 6(c) and 6(d), immediately and without notice, all outstanding Obligations
payable by Company under the Notes shall automatically become immediately due and payable, without
presentment, demand, protest or any other notice of any kind, all of which are hereby expressly
waived. In addition to the foregoing remedies, upon the occurrence or existence of any Event of
Default, Holder may exercise any other right power or remedy permitted to him by law, either by
suit in equity or by action at law, or both.
8. Conversion.
(a) Conversion. Holder shall have the right to convert, at any time during the
Conversion Period, all or any portion of the principal amount, together with any unpaid and accrued
interest, then outstanding under this Note into fully paid and non-assessable shares of Common
Stock at a conversion price per share equal to the Conversion Price (as defined below). The number
of shares of Common Stock into which such principal and interest then outstanding under this Note
will be converted shall be determined by dividing the amount of principal, together with all unpaid
and accrued interest, then outstanding under this Note to be converted (the Conversion Amount) by
the Conversion Price.
(b) Conversion Price. Subject to Section 8(c), the Conversion Price shall be equal
to 20% of the Average Trading Price as reported by the principal trading exchange on which the
Companys Common Stock is traded for the twenty (20) trading days preceding the date of the Note.
(c) Adjustments to Conversion Price. The Conversion Price shall be subject to
proportional adjustments for stock splits, stock dividends, combinations, consolidations,
reclassifications and the like.
(d) Conversion Procedure. Before Holder shall be entitled to convert the Conversion
Amount then outstanding under this Note into shares of Common Stock, Holder shall surrender this
Note at the office of this Company, and shall give written notice (a form of which is attached to
this Note, the Conversion Notice) to Company at its principal corporate office, of the election
to convert the same and shall state therein the total Conversion Amount. Company shall not be
obligated to issue certificates evidencing the shares of Common Stock issuable upon such conversion
unless (i) Holder executes and delivers to Company the Conversion Notice for the converted shares
and (ii) this Note is delivered to Company. Company shall, as soon as practicable after such
delivery, issue and deliver certificates (bearing such legends as are required by applicable state
and federal securities laws in the opinion of counsel to Company and required by this Note and the
Loan Agreement), representing the number of fully paid and non-assessable shares of the Common
Stock into which the Conversion Amount will be converted in accordance with the provisions herein,
and a new promissory note having like tenor as this Note for the principal amount and interest then
outstanding under this Note that are not being so converted. Any conversion pursuant to this
Section 8 shall be deemed to have been made immediately prior to the close of business on the date
of Companys receipt of the Conversion Notice, so that the rights of Holder under this Note to the
extent of the Conversion Amount shall cease at such time and Holder shall be treated for all
purposes as having become the record holder of such shares of Common Stock at such time.
(e) Fractional Shares; Effect of Conversion. No fractional shares shall be issued
upon conversion of this Note. In lieu of Company issuing any fractional shares to Holder upon the
conversion of this Note, Company shall pay to Holder an amount equal to the product obtained by
multiplying the Conversion Price by the fraction of a share not issued pursuant to the previous
sentence. Upon conversion of this Note in full and the payment of the amounts specified in this
Section 9(f), Company shall be forever released from all its obligations and liabilities under this
Note.
(f) Reservation of Stock Issuable Upon Conversion. Company shall at all times reserve
and keep available out of its authorized but unissued shares of Common Stock solely for the purpose
of effecting the conversion of this Note such number of its shares of Common Stock as shall from
time to time be sufficient to effect the conversion of this Note.
9. Reserved
10. Effect of Sale Transaction. Upon the occurrence of any Sale Transaction, the
Successor Entity (as defined below) shall succeed to, and be substituted for the Company (so that
from and after the date of such Sale Transaction, the provisions of this Note referring to the
Company shall refer instead to the Successor Entity), and may exercise every right and power of
the Company and shall assume all of the obligations of the Company under this Note with the same
effect as if such Successor Entity had been named as the Company herein. Upon consummation of the
Sale Transaction, the Successor Entity shall deliver to the Holder confirmation that there shall be
issued upon conversion of this Note at any time after the consummation of the Sale Transaction, in
lieu of the shares of the Common Stock purchasable upon the conversion of the Notes prior to such
Sale Transaction, such shares of common stock (or other securities, cash, assets or other property)
of the Successor Entity. The provisions of this Section shall apply similarly and equally to
successive Sale Transactions and shall be applied without regard to any limitations on the
conversion of this Note. As used in this Section 10, Successor Entity means the Person, which
may be the Company, formed by, resulting from or surviving any Sale Transaction, or the parent
entity of such Person, as applicable.
11. Successors and Assigns. Subject to the restrictions on transfer described in
Sections 12 and 13 below, the rights and obligations of Company and Holder of this Note shall be
binding upon and benefit the successors, assigns, heirs, administrators and transferees of the
parties.
12. Waiver and Amendment. Any term of this Note may be amended or waived only with
the written consent of Company and the Majority Holders; provided, however, that any such amendment
or modification which by its terms would not apply equally to all holders of the Notes shall not be
applicable to any holder whose rights under the Notes would be adversely affected by such amendment
or modification in a different manner than other holders thereof without such adversely affected
holders written consent.
13. Transfer of this Note or Securities Issuable on Conversion Hereof. With respect
to any offer, sale or other disposition of this Note or securities into which such Note may be
converted, Holder will give written notice to Company prior thereto, describing briefly the manner
thereof, together with a written opinion of Holders counsel, or other evidence if reasonably
satisfactory to Company, to the effect that such offer, sale or other distribution may be effected
without registration or qualification (under any federal or state law then in effect). Upon
receiving such written notice and reasonably satisfactory opinion, if so requested, or other
evidence, Company, as promptly as practicable, shall notify Holder that Holder may sell or
otherwise dispose of this Note or such securities, all in accordance with the terms of the notice
delivered to Company. If a determination has been made pursuant to this Section 12 that the
opinion of counsel for Holder, or other evidence, is not reasonably satisfactory to Company,
Company shall so notify Holder promptly after such determination has been made. Each Note thus
transferred and each certificate representing the securities thus transferred shall bear a legend
as to the applicable restrictions on transferability in order to ensure compliance with the
Securities Act, unless in the opinion of counsel for Company such legend is not required in order
to ensure compliance with the Securities Act. Company may issue stop transfer instructions to its
transfer agent in connection with such restrictions. Subject to the foregoing, transfers of this
Note shall be registered upon registration books maintained for such purpose by or on behalf of
Company. Prior to presentation of this Note for registration of transfer, Company shall treat the
registered Holder hereof as the owner and Holder of this Note for the purpose of receiving all
payments of principal and interest hereon and for all other purposes whatsoever, whether or not
this Note shall be overdue and Company shall not be affected by notice to the contrary.
14. Notices. Any notices, consents, waivers or other communications required or
permitted to be given under the terms of this Agreement must be in writing and will be deemed to
have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by
facsimile (provided confirmation of transmission is mechanically or electronically generated and
kept on file by the sending party); or (iii) one business day after deposit with an overnight
courier service, in each case properly addressed to the party to receive the same. The addresses
and facsimile numbers for such communications shall be to the respective addresses or facsimile
numbers of the parties as set forth in the Loan Agreement, or at such other address or facsimile
number as such parties shall have furnished in writing.
15. Usury. In the event any interest is paid on this Note which is deemed to be in
excess of the then legal maximum rate, then that portion of the interest payment representing an
amount in excess of the then legal maximum rate shall be deemed a payment of principal and applied
against the principal of this Note.
16. Waivers. Company hereby waives notice of default, presentment or demand for
payment, protest or notice of nonpayment or dishonor and all other notices or demands relative to
this instrument.
17. Governing Law and Forum. This Note and all actions arising out of or in
connection with this Note shall be governed by and construed in accordance with the laws of the
State of Colorado, United States of America, without regard to the conflicts of law provisions of
the State of Colorado, or of any other state. All disputes or controversies relating to or arising
from this Note shall be adjudicated in the state and federal courts located in the state of
Colorado. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION
WITH RESPECT TO THIS NOTE AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS
WAIVER. The Convention on Contracts for the International Sale of Goods shall not apply to this
Note.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, Company has caused this Note to be issued as of the date first written
above and Holder agrees to the terms and conditions of this Note.
VIASPACE INC.
By: /S/ HARIS BASIT
Name: Haris Basit
Its: CEO
KEVIN SCHEWE
/S/ KEVIN SCHEWE
NOTICE OF CONVERSION
(To be executed by the Registered Holder in order to convert the Note)
The undersigned hereby elects to convert $20,000.00 of the principal and $ 0 of the
interest due on the Note issued by VIASPACE Inc. on November 9, 2015 into Shares of Common Stock of
VIASPACE Inc. (the Borrower) according to the conditions set forth in such Note, as of the date
written below.
Date of Conversion: November 9, 2015
Conversion Price: $0.0007
Shares To Be Delivered: 28,571,429
Signature: /S/ KEVIN L. SCHEWE
Print Name: Kevin L. Schewe
Address: 400 Indiana St., Suite 220, Golden, CO 80401
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Ex. 10.2
VIASPACE INC.
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (this Agreement), made as of this 9th day of
November 2015, by and between VIASPACE Inc., a Nevada corporation (the Company), and the
undersigned (the Subscriber).
1) Subscription; Purchase Price.
a) Subject to the terms and conditions herein, the Subscriber, intending to be legally bound,
hereby, irrevocably agrees to purchase from the Company 4,285,714 shares of common stock
(Shares) at the Purchase Price Per Share. The Purchase Price per Share shall be equal
to 20% of the Average Trading Price (defined as the daily closing price) as reported by the
principal trading exchange on which the Companys Common Stock is traded for the twenty (20)
trading days preceding the date of this agreement which the parties agree is $0.0007. The aggregate
purchase price of the Shares shall be $3,000.00 (the Purchase Price).
b) The Subscriber hereby acknowledges and agrees that: (i) subject to Section 3 below, this
Agreement shall not be deemed to have been accepted by the Company until the Company indicates its
acceptance by returning to Subscriber a copy of this Agreement executed by an authorized
representative of the Company; and (ii) acceptance by the Company of this Agreement is conditioned
upon the information and representations and warranties of Subscriber contained herein being
complete, true and correct as of the date hereof.
2) Payment of Purchase Price.
a) Simultaneously with Subscribers receipt of a copy of this Agreement accepted and executed
by an authorized representative of the Company, the Purchase Price shall be due and payable by the
Subscriber. Such payment shall be made to the Companys operating account. These funds may be
used by the Company from time to time as the Officers of the Company deems appropriate, in the sole
discretion of the Officers of the Company and without notice to the Subscriber.
3) Deliveries. The Subscriber shall deliver or cause to be delivered to the Company
the following:
a) this Agreement duly executed by Subscriber;
b) a complete, accurate and executed confidential Accredited Investor Questionnaire, attached
hereto as Exhibit A; and
c) the Subscribers aggregate Purchase Price, payable by personal or business cashiers check,
wire transfer of immediately available funds or money order made payable to VIASPACE Inc.. If
paying the Purchase Price by wire transfer, Subscriber should deliver said wire transfer to:
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Bank Name:
Bank Address:
ABA:
SWIFT-BIC (International):
Account Number:
Account Name:
Required Information:
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Bank of America, N.A.
100 West 33rd Street, New York, NY 10001
026009593
BOFAUS3N
6550113516
Merrill Lynch
Further Credit to VIASPACE Inc. Account 7BR-01G34 |
4) Closing Conditions. The obligations of the Company hereunder in connection with
the acceptance of this subscription are subject to the following conditions being met:
a) the accuracy in all material respects when made and on the date hereof of the
representations and warranties of the Subscriber contained herein and in the Accredited Investor
Questionnaire attached hereto as Exhibit A;
b) all obligations, covenants and agreements of the Subscriber required to be performed at or
prior to the date hereof shall have been performed;
c) the delivery by the Subscriber of the items set forth in Section 3 above.
5) Reserved.
6) Representations, Warranties and Agreements of Subscriber. The Subscriber hereby
acknowledges, represents and warrants to the Company as follows:
a) If the Subscriber is an entity, the Subscriber is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization with full right, corporate or
partnership power and authority to enter into and to consummate the transactions contemplated by
this Agreement and otherwise to carry out its obligations thereunder. The execution, delivery and
performance by the Subscriber of the transactions contemplated by this Agreement have been duly
authorized by all necessary corporate or similar action on the part of the Subscriber. Each
transaction document to which it is a party has been duly executed by the Subscriber, and when
delivered by the Subscriber in accordance with the terms hereof, will constitute the valid and
legally binding obligation of the Subscriber, enforceable against it in accordance with its terms,
except (i) as limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting enforcement of
creditors rights generally, (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable law.
b) The Subscriber acknowledges and understands that the offering and sale of the Shares has
not been registered under the Securities Act of 1933, as amended (the Act) and is
intended to be exempt from registration under the Act by virtue of Rules 504, 505, and 506 of
Regulation D promulgated under the Act and by virtue of Sections 4(6) and 4(2) of the Act. In
accordance therewith and in furtherance thereof, the Subscriber represents and warrants and agrees
as follows:
i) The Subscriber is purchasing the Shares for the Subscribers own account for investment
purposes only and not with the intent toward the further sale or distribution thereof.
ii) The Subscriber acknowledges and agrees that the Shares have not been registered under the
Act and may not be transferred, sold, assigned, hypothecated or otherwise disposed of, unless (i)
the terms of the Shares and (ii) such transaction is the subject of a registration statement, filed
with and declared effective by the United States Securities and Exchange Commission (the
SEC), or unless an exemption from the registration requirements under the Act is
available.
iii) The Subscriber is an accredited investor, as that term is defined in Regulation D
promulgated under the Act. The Subscriber has reviewed the definition of accredited investor
contained in Accredited Investor Questionnaire in Exhibit A attached hereto and hereby
represents and warrants that the Subscriber understands such definition. Prior to or in connection
with the execution of this Agreement, the Subscriber shall submit to the Company the confidential
Accredited Investor Questionnaire pursuant to which the Subscriber represents and warrants to the
Company that the Subscriber is an accredited investor and sets forth the factual basis therefor.
The Subscriber was informed of the significance of the foregoing representations and hereby
represents that the information provided and the representations made by the Subscriber in the
confidential Accredited Investor Questionnaire are true and correct in all respects as of the date
hereof.
iv) If the Subscriber is a natural person, the Subscriber has reached the age of majority in
the jurisdiction in which the Subscriber resides, the Subscriber has adequate means of providing
for the Subscribers current financial needs and contingencies, is able to bear the substantial
economic risks of an investment in the Shares for an indefinite period of time, has no need for
liquidity in such investment, and, at the present time, could afford a complete loss of such
investment.
v) The purchase of the Shares involves a high degree of risk and the Subscriber acknowledges
that the Subscriber can bear the complete economic risk of the purchase of the Shares, including
the total loss of the investment represented hereby.
vi) The Subscriber has such knowledge and experience in financial, tax and business matters so
as to enable the Subscriber to utilize the information made available to the Subscriber in
connection herewith to evaluate the merits and risks of this investment and to make an informed
investment decision with respect thereto.
vii) The Subscriber acknowledges that the Subscriber, or the Subscribers attorney,
accountant, or adviser(s), has/have had a reasonable opportunity to inspect all documents and
records pertaining to this subscription for the Shares.
viii) The Subscriber and/or the Subscribers adviser(s) has/have had a reasonable opportunity
to ask questions and receive answers from a person or persons acting on behalf of the Company
concerning the subscription for the Shares and all such questions have been answered to the full
satisfaction of the Subscriber.
ix) In making a decision to purchase the Shares, the Subscriber has not relied on any
information other than information supplied to it by the Company and in this Agreement.
x) The Subscriber is not relying on the Company or any agent thereof with respect to any
legal, tax or economic advice related to an investment in the Shares.
xi) The Subscriber is not subscribing for the Shares as a result of or subsequent to any
advertisement, article, notice or other communication published in any newspaper, magazine, or
similar media or broadcast over television or radio, or presented at any seminar or meeting, or any
solicitation of a subscription by a person other than a representative of the Company. Subscriber
is acquiring the Shares for his own account, for investment purposes only and not with a view to
the resale or distribution thereof.
xii) The Subscriber understands and acknowledges that the certificate representing the Shares
will bear the following legend and any other legend required by the laws of the jurisdiction in
which the Subscriber resides, and any legend required by any applicable law, including without
limitation, any legend that will be useful to aid compliance with Regulation D or other regulations
adopted by the SEC under the Act:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED FOR SALE, SOLD,
TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR
THE SECURITIES UNDER THE SECURITIES ACT OF 1933 OR (B) AN OPINION OF COUNSEL, IN A GENERALLY
ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD
PURSUANT TO RULE 144, RULE 144A OR OTHER EXEMPTION UNDER SAID ACT.
THE TRANSFER OF THE SECURITIES REPRESENTED HEREBY IS PROHIBITED EXCEPT IN ACCORDANCE WITH
THE SECURITIES ACT OF 1933, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION.
c) The Subscriber hereby agrees to provide such information and to execute and deliver such
documents as the Company may deem reasonably appropriate with regard to the Subscribers
suitability or otherwise in connection with this Agreement.
d) The execution, delivery and performance of this Agreement by the Subscriber: (i) will not
constitute a default under or conflict with any agreement or instrument to which the Subscriber is
a party or by which it or its assets are bound; (ii) will not conflict with or violate any order,
judgment, decree, statute, ordinance or regulation applicable to the Subscriber (including, without
limitation, any applicable laws relating to permissible legal investments); and (iii) except as set
forth herein, does not require the consent of any person or entity, other than those that have been
obtained prior to the date hereof. This Agreement has been duly authorized, executed and delivered
by the Subscriber and constitutes the valid and binding agreement of the Subscriber enforceable
against it in accordance with its terms.
e) The Subscriber has not retained, or otherwise entered into any agreement or understanding
with, any broker or finder in connection with the purchase of the Shares by the Subscriber, and the
Company will not incur any liability for any fee, commission or other compensation on account of
any such retention, agreement or understanding by the Subscriber.
f) The Subscriber understands, acknowledges and agrees that:
i) The Shares has not been recommended by any federal or state securities commission or
regulatory authority.
ii) The representations, warranties, and agreements of the Subscriber contained in this
Agreement shall survive the execution and delivery of this Agreement and the purchase of the
Shares.
iii) The Subscriber will have absolutely no decision-making authority over any matters
concerning the Company. As a holder of Shares, the Subscriber acknowledges and agrees that the
Subscriber will not (i) be able to participate in the management of the Company or the conduct of
its business; or (ii) have any right to approve any decision or action of the Officers of the
Company in connection with the business of the Company, except as provided by the Companys
Articles of Incorporation and Bylaws.
g) The Subscriber recognizes that the purchase of the Shares involves a high degree of risk
including, but not limited to, the following: (i) the Company remains a development stage business
with limited operating history and requires funds in addition to the proceeds of this offering;
(ii) an investment in the Company is highly speculative and only investors who can afford the loss
of their entire investment should consider investing in the Company and the Shares; (iii) the
Subscriber may not be able to liquidate its investment; (iv) transferability of the Shares is
extremely limited; (v) in the event of a Company disposition, the Subscriber could sustain the loss
of its entire investment; and (vi) the Company has not paid any distributions since its inception
and does not anticipate paying any distributions in the near future.
7) Miscellaneous.
a) This Agreement shall be governed by, and construed in accordance with, the laws of the
State of California, without giving effect to principles of conflicts of law. The Parties agree
that jurisdiction and venue in any action brought by any party pursuant to this Agreement shall
properly lie in any federal or state court located in the City of Los Angeles, State of California.
By execution and delivery of this Agreement each party irrevocably submits to the jurisdiction of
such courts for itself and in respect of its property with respect to such action.
b) In the event that any provision of this Agreement is invalid or unenforceable under any
applicable statute, rule of law or regulation, then such provision shall be deemed inoperative to
the extent that it may conflict therewith and shall be deemed modified to conform to such statute,
rule of law or regulation. Any provision hereof which may prove invalid or unenforceable shall not
affect the validity or enforceability of any other provision hereof.
c) Each party shall indemnify each other party against any loss, expense or damages (including
reasonable attorneys fees but excluding consequential damages) incurred as a result of such
parties breach of any representation, warranty, covenant or agreement in this Agreement.
d) This Agreement may be executed in counterparts, each of which shall be an original, but all
of which shall constitute one instrument.
e) This Agreement constitutes the entire agreement between the parties hereto with respect to
the subject matter hereof. Any provision of this Agreement may be amended and the observance
thereof may be waived (either generally or in a particular instance and either retroactively or
prospectively), only by a writing executed by the Company and the Subscriber.
f) Any notice or other communication given hereunder shall be deemed sufficient if in writing
and sent by: (i) electronic mail to the Companys email address as prescribed by the officer(s) (i)
registered or certified mail, return receipt requested; or (iii) a nationally recognized overnight
carrier, in each case addressed to VIASPACE Inc., 382 N. Lemon Ave., Suite 364. Walnut, CA 91789
Attention: Chief Executive Officer, and to the Subscriber at the address indicated on the last page
of this Subscription Agreement. Notices shall be deemed to have been given on the date of
transmission or mailing, except notices of change of address, which shall be deemed to have been
given when received.
g) The signatures on this Agreement are contained in the applicable Signature Page attached
hereto.
INDIVIDUAL SIGNATURE PAGE
(To be completed if Subscriber is a natural person)
IN WITNESS WHEREOF, subject to acceptance by the Company, the undersigneds signature on this
Individual Signature Page evidences the undersigneds agreement to be bound by the foregoing
Agreement as a Subscriber.
If the undersigned is purchasing the Shares with his or her spouse, both the undersigned and his or
her spouse must sign this Individual Signature Page.
The undersigned represents that (a) he/she has read and understands this Agreement and (b) he/she
shall immediately notify the Company in writing if any material change in any of the information
contained in this Agreement occurs before the acceptance of his/her subscription.
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$0.0007
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November 9, 2015 |
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Purchase Price
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Date
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4,285,714 /S/ CARL KUKKONEN
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Shares |
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Signature |
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____Carl Kukkonen___________ |
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Name (Please Type or Print) |
_ |
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_____________ |
Address |
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United States Social Security Number |
_________ |
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____________________________ |
Address (continued) |
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Signature of Spouse if Co-Owner |
__________________ |
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____________________________ |
(Telephone Number) (Fax Number) |
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Name of Spouse if Co-Owner |
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(Please Type or Print) |
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(Email) United States Social Security Number of Spouse if Co-Owner
Check one if more than one subscriber:
[ ] tenants in common (both parties sign each owns one-half);
[ ] joint tenants with rights of survivorship (both parties sign survivor upon death gets all
except if married, see below);
[ ] tenants by the entireties (both parties sign survivor between husband and wife gets all)
[ ] community property (both parties sign)
SIGNATURE PAGE FOR ENTITIES
(To be completed if Subscriber is other than a natural person)
IN WITNESS WHEREOF, subject to acceptance by the Company, the undersigneds signature on this
Entity Signature Page evidences the undersigneds agreement to be bound by the foregoing
Agreement.
The undersigned represents that (a) it has read and understands this Agreement, and (b) it shall
immediately notify the Company in writing if any material change in any of the information
contained in this Agreement occurs before the acceptance of his/her subscription.
The undersigned warrants that he/she has full power and authority to execute this Subscription
Agreement on behalf of the above entity, and investment in the Company is not prohibited by the
governing documents of the entity or by any law applicable to such entity.
Entity Name
Form of Organization: By:
Signature
Partnership, Corporation, LLC
Trust Other: Its:
Print Name
Address Federal Tax ID No. (FEIN)
Address (continued) Telephone Number Fax Number
Email
ACCEPTANCE OF SUBSCRIPTION
(to be filled out only by the Company)
The Company hereby accepts the above application for subscription for Shares on behalf of the
Company.
Dated: November 9, 2015
VIASPACE INC.
By: /S/ HARIS BASIT
Name: Haris Basit
Title: Chief Executive Officer
Exhibit A
CONFIDENTIAL
ACCREDITED INVESTOR QUESTIONNAIRE
Exhibit B
Definition of Accredited Investor Under Regulation D
Accredited investor shall mean any person who comes within any of the following categories, or who
the Company reasonably believes comes within any of the following categories, at the time of the
sale of the Shares to that person:
(1) Any bank as defined in Section 3(a)(2) of the Act, or a savings and loan association or
other institution as defined in Section 3(a)(5)(A) of the Act, whether acting in its individual or
fiduciary capacity; any broker dealer registered pursuant to Section 15 of the Securities and
Exchange Act of 1934; any insurance company as defined in Section 2(13) of the Act; any investment
company registered under the Investment Company Act of 1940 or a business development company as
defined in Section 2(a)(48) of that Act; any Small Business Investment Company licensed by the
United States Small Business Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958; any plan established and maintained by a state, its political subdivisions,
or any agency or instrumentality of a state or its political subdivisions, for the benefit of its
employees, if such plan has total assets in access of $5,000,000; any employee benefit plan within
the meaning of the Employee Retirement Income Security Act of 1974, if the investment decision is
made by a plan fiduciary, as defined in Section 3(21) of such Act, which is either a bank, savings
and loan association, insurance company, or registered investment adviser, or if the employee
benefit plan has total assets in excess of $5,000,000, or, if a self directed plan with the
investment decisions made solely by persons that are accredited investors;
(2) Any private business development company as defined in Section 202(a)(22) of the
Investment Advisers Act of 1940;
(3) Any organization described in Section 501(c)(3) of the Internal Revenue Code, corporation,
Delaware or similar business trust, or partnership, not formed for the specific purpose of
acquiring the securities offered with total assets in excess of $5,000,000;
(4) Any director, executive officer, or general partner of the issuer of the securities being
offered or sold, or any director, executive officer, or general partner of a general partner of
that issuer;
(5) Any natural person whose individual net worth, or joint net worth with that persons
spouse, at the time of such persons purchase exceeds $1,000,000, excluding the value and equity in
that persons primary residence;
(6) Any natural person who had an individual income in excess of $200,000 in each of the two
most recent years or joint income with that persons spouse in excess of $300,000 in each of those
years and has a reasonable expectation of reaching the same income level in the current year;
(7) Any trust with total assets in excess of $5,000,000, not formed for the specific purpose
of acquiring the securities offered, whose purchase is directed by a sophisticated person as
described in Rule 506(b)(2)(ii); and
(8) Any entity in which all of the equity owners are accredited investors.
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