ex10-93.htm


Exhibit 10.93


 


SUBSCRIPTION AGREEMENT UNITS



 



	TO: 	
VistaGen Therapeutics, Inc., a Nevada corporation, (the “Corporation”)


	RE:	Purchase of Units of VistaGen Therapeutics, Inc.





                 






	
Instructions: 


 


 

	
Complete and sign this Subscription Agreement. Please be sure to initial the appropriate “accredited investor” category in Box C.


 


	 	
A completed and originally executed copy of, and the other documents required to be delivered with, this Subscription Agreement, must be delivered to the following address:


 


	
Shawn K. Singh, JD 


Chief Executive Officer 


VistaGen Therapeutics, Inc. 


343 Allerton Avenue 


South San Francisco, CA 94080 


(650) 627-3483 


ssingh@vistagen.com







 




1.    The  undersigned   (the  “Subscriber”)   hereby  irrevocably  subscribes  for  and  agrees  to  purchase  from  the Corporation  the number of units of the Corporation  (“Units”) at the price and for the aggregate  consideration  set forth in Box A of Section 6 below (the “Subscription Price”).  Each Unit will consist of (i) an unsecured convertible promissory note (a “Note”) in the face amount of $5,000 bearing interest at a rate of ten percent (10.0%) per annum and  maturing  on  July  30,  2014;  (ii)  TEN  THOUSAND  (10,000)  shares  of unregistered  Common  Stock  of the Corporation (the “Shares”) and (iii) a warrant to purchase TEN THOUSAND (10,000) shares of Common Stock of the Corporation  at a price of $1.00 per share through July 30, 2016 (each warrant to purchase shares of Common Stock, a “Warrant”). The Subscription  Price for each Unit shall be $5,000. The Subscriber acknowledges  that this Subscription  Agreement  is  subject  to  acceptance  by  the  Corporation.    The  Corporation  may  also  accept  this Subscription Agreement in part.  The Subscriber agrees that if this Subscription Agreement is not accepted in full, any funds related to the portion of this Subscription  Agreement  not accepted will be returned to the undersigned, without interest.


 


2.    By executing this Subscription Agreement, the Subscriber represents, warrants and covenants (on its own behalf and, if applicable, on behalf of each beneficial purchaser for whom it is contracting hereunder) to the Corporation (and acknowledges that the Corporation is relying thereon) that:


 




	
  

	

(a) it is authorized to consummate the purchase of the Units;















	
  

	
(b)  it understands that the Note, the Shares, the Warrants and the Shares issuable upon conversion of the Note or exercise of the Warrants (collectively, the “Securities”) have not been and will not be registered under the Securities Act of 1933 (the “Securities Act”), or any applicable state securities laws,  and that the offer  and sale of the Note,  the Shares  and Warrants  to it is being  made  in reliance on a private placement exemption available under Section 4(2) of the Securities Act and Rule 506 of Regulation D under the Securities Act (“Regulation D”) to accredited investors (“Accredited Investors”), as defined in Rule 501(a) of Regulation D;










	
  

	

(c) it has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Units and is able to bear the economic risks of, and withstand the complete loss of, such investment;









 





	
  

	
(d) it is an Accredited  Investor  acquiring  the Units  for its own  account  or, if the Units  are to be purchased for one or more accounts (“Investor Accounts”)  with respect to whom it is exercising sole investment discretion, each such investor account is an Accredited Investor on a like basis.  In each case, the undersigned has completed Box C of Section 6 to indicate under which category of Rule 501(a) the investor qualifies as an Accredited Investor;







 




  





  











  







 






	
  

	
(e) it is not acquiring the Units with a view to any resale, distribution or other disposition of the Units in violation of federal or applicable state securities laws, and, in particular, it has no intention to distribute either directly or indirectly any of the Units in the U.S. or to U.S. persons; provided, however, that the holder may sell or otherwise dispose of any of the Units pursuant to registration thereof under the Securities Act and any applicable state securities laws or pursuant to an exemption from such registration requirements;







  



	
  

	

(f) in the case of the purchase by the Subscriber of the Units as agent or trustee for any other person, the Subscriber has due and proper authority to act as agent or trustee for and on behalf of such beneficial purchaser in connection with the transactions contemplated hereby;

















 





	
  

	
(g) it is not purchasing the Units as a result of any general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act), including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising;

















	
  

	
(h) it understands that the Securities are “restricted securities” as defined in Rule 144(a)(3) under the Securities Act and agrees that if it decides to offer, sell or otherwise transfer the Securities, such Securities may be offered, sold or otherwise transferred only (A) to the Corporation,  (B) outside the U.S. in accordance with Rule 904 of Regulation S under the Securities Act, (C) within the U.S. or to or for the account or benefit of a U.S. Person in accordance with an exemption from the registration requirements of the Securities Act and all applicable state securities laws, (D) in a transaction that does not require registration under the Securities Act or any applicable U.S. state securities laws or (E) pursuant to an effective registration statement under the Securities Act, and in each case in accordance with any applicable state securities laws in the U.S. or securities laws of any other applicable jurisdiction; provided that with respect to sales or transfers under clauses (C)  or  (D),  only  if the  holder  has  furnished  to  the  Corporation  a written  opinion  of  counsel, reasonably satisfactory to the Corporation, prior to such sale or transfer;







 



	
  

	
(i) it has been independently  advised as to the applicable holding period and resale restrictions with respect to trading imposed in respect of the Securities, by securities legislation in the jurisdiction in which it resides or to which it is otherwise subject, and confirms that no representation has been made respecting  the applicable  holding  periods for the Securities  and is aware of the risks and other characteristics of the Securities and of the fact that the undersigned may not be able to resell the Securities except in accordance with applicable securities legislation and regulations;







 




	
  

	
(j) no person has made to the Subscriber any written or oral representations:







 




(i)           that any person will resell or repurchase any of the Securities;







(ii)           that any person will refund the purchase price of the Securities; or







(iii)           as to the future price or value of any of the Securities;


 




	
  

	
(k) it understands and acknowledges that certificates representing the Note, the Shares and the Warrants shall bear the following legend:









 




	
  

	



“THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THESE SECURITIES, AGREES FOR THE BENEFIT OF THE CORPORATION, THAT THESE SECURITIES MAY BE OFFERED, SOLD, PLEDGED

















  





  











  







  



 






	
  

	



OR OTHERWISE TRANSFERRED ONLY (A) TO THE CORPORATION, (B) OUTSIDE THE U.S. IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT, (C) IN COMPLIANCE WITH AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, (D) IN ANOTHER TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE U.S. SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS, OR (E) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND, IN THE CASE OF (C) AND (D), THE SELLER FURNISHES TO THE CORPORATION A WRITTEN OPINION OF COUNSEL OF RECOGNIZED STANDING IN FORM AND SUBSTANCE SATISFACTORY TO THE CORPORATION TO SUCH EFFECT.”











 








	
  

	

(l) it consents to the Corporation making a notation on its records or giving instructions to any transfer agent of the Shares in order to implement the restrictions on transfer set forth and described herein;









 





	
  

	
(m) the office or other address of the undersigned at which the undersigned received and accepted the offer to purchase the Units is the address listed in Box B of Section 6 below;







 




	
  

	

(n) if required by applicable securities laws, regulations, rule or order or by any securities commission, stock exchange or other regulatory authority, it will execute, deliver and file, within the approved time periods, all documentation as may be required thereunder, and otherwise assist the Corporation in filing reports, questionnaires, undertakings and other documents with respect to the issuance of the Units;









 





	
  

	
(o) this subscription agreement has been duly and validly authorized, executed and delivered by and constitutes a legal, valid, binding and enforceable obligation of the Subscriber; and













	
  

	
(p)  it is not an affiliate (as defined in Rule 144 under the Securities Act) of the Corporation and is not acting on behalf of an affiliate of the Corporation.












3.    The Subscriber acknowledges that the representations and warranties and agreements contained herein are made by it with the intention  that they may be relied upon by the Corporation  and its legal counsel in determining  its eligibility  or, if applicable,  the eligibility  of others  on whose  behalf  it is contracting  hereunder,  to purchase  the Units.  The Subscriber further agrees that by accepting delivery of the Units or by having its agent accept delivery of the  Units  on  its behalf,  it shall  be  representing  and  warranting  that  the  representations,  warranties, acknowledgements  and agreements contained herein are true and correct as at the time of accepting delivery of the Units  with  the  same  force  and  effect  as  if  they  had  been  made  by  the  Subscriber  at  such  time  and  that  the representations  and warranties shall survive the purchase by the Subscriber of the Units and shall continue in full force and effect notwithstanding any subsequent disposition by the Subscriber of the Units.  The Corporation and its directors, officers, employees, shareholders and its legal counsel shall be entitled to rely on the representations  and warranties of the Subscriber contained in this subscription agreement, and the Subscriber shall indemnify and hold harmless the Corporation, its legal counsel for any loss, costs or damages any of them may suffer as a result of any misrepresentations or any breach or failure to comply with any agreement herein.


 


4.    The contract  arising out of the acceptance  of this subscription  by the Corporation  shall be governed  by and construed in accordance with the laws of the State of California and represents the entire agreement of the parties hereto relating to the subject matter hereof.


 


5.    The Corporation  shall be entitled to rely on delivery of a facsimile  copy of this subscription  agreement,  and acceptance  by the Corporation  of a facsimile  copy of this subscription  agreement  shall create a legal, valid and binding agreement among the undersigned and the Corporation in accordance with the terms hereof.






  





  











  






 


6.      SUBSCRIPTION  PARTICULARS


 



	
 


 BOX A


 


Particulars of Purchase of Units


 



Number of Units subscribed for:  ___________________________________________







Subscription Price ($5,000 X number of Units) __________________________________




 


 







 




	
  


 


BOX B


 


Subscriber Information


 

	 
	
 Name 


 

	 	 
	
 Street Address


 

	 	 
	
 Street Address (2)


 

	 	 
	
 City and State


 

	 	 
	
 Zip Code


 

	 	 
	
 Contact Name


 

	 	 
	
 Alternate Contact


 

	 	 
	
 Phone No.


 

	 	 
	
 E-mail Address


 

	 	 
	 	 	 











  





  











  











 


BOX C




Accredited Investor Status


 


The  Subscriber  represents  and  warrants  that  it is an “accredited  investor”,  as defined  in Rule  501(a)  under  the Securities Act, by virtue of satisfying one or more of the categories indicated below (please write your initials on the line next to each applicable category):








	
0

	
Category 1.

	
A bank, as defined in section 3(a)(2) of the Securities Act.


 


A  savings   and  loan  association   or  other  institution,   as  defined   in  section 3(a)(5)(A) of the Securities Act, whether acting in its individual or fiduciary capacity.


	  	  	
 


	  	  	
A broker or dealer registered  pursuant to section 15 of the Securities  Exchange Act of 1934.


	  	  	
 


	  	  	
An insurance company as defined in section 2(a)(13) of the Securities Act.


 


	  	  	
An investment company registered under the Investment Corporation Act of 1940 or a business development company as defined in section 2(a)(48) of that Act.


	  	  	
 


	  	  	
A Small Business  Investment  Corporation  licensed  by the U.S. Small Business Administration under section 301(c) or (d) of the Small Business Investment Act of 1958.


	  	  	
 


	  	  	
A plan established  and maintained  by a state, its political  subdivisions,  or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, if such plan has total assets in excess of $5,000,000.


	  	  	
 


	  	  	
An  employee  benefit  plan  within  the  meaning  of  the  Employee  Retirement Income Security Act of 1974 if the investment decision is made by a plan fiduciary, as defined in section 3(21) of such Act, which is either a bank, savings and loan association, insurance company, or registered investment adviser, or if the employee benefit plan has total assets in excess of $5,000,000 or, if a self-directed plan, with investment decisions made solely by persons that are accredited investors.


 


	    0	    Category 2. 

 

	

Any private business development company as defined in section 202(a)(22) of the Investment Advisers Act of 1940.




	
 


0

	
 


Category 3.

	
 


An organization described in Section 501(c)(3) of the Internal Revenue Code, a corporation, a Massachusetts or similar business trust, or a partnership, not formed for the specific purpose of acquiring the Shares, with total assets in excess of $5,000,000.


	  	  	 
	
0

	
Category 4.

	
A director or executive officer of the Corporation.


	 	 	 
	
0

	
Category 5.

	
A natural person whose individual net worth, or joint net worth with that person’s spouse, at the time of this purchase exceeds $1,000,000, excluding the value of the person’s primary residence, if any.


	  	  	
 


	
0

	
Category 6.

	
A natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person’s spouse in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year.











  





  











  






 



	
0

	
Category 7.

	
A trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the Shares, whose purchase is directed by a sophisticated person as described in Rule 506(b)(2)(ii) of Regulation D under the U.S. Securities Act


	  	  	
.


	    0 	       Category 8. 	   An entity in which each of the equity owners is an accredited investor.





 


 7.      A certified check or bank draft in the amount of the Subscription Price as set forth in Box A of Section 6 above, accompanies this Subscription Agreement.


 


SIGNATURE OF SUBSCRIBER







Signature of Subscriber (on its own behalf and, if applicable, on behalf of each person for whom it is contracting hereunder):




 



	 	
 


 

	 
	 	 (Full Name of Subscriber)	 
	 	
 


 

	 
	 	 (Authorized Signature)	 
	 	
 


 

	 
	 	 (Name and Official Capacity – PLEASE PRINT)	 





 


ACCEPTANCE BY CORPORATION







The Corporation hereby accepts the above subscription as of this __ day of October 2013.


 







VistaGen Therapeutics, Inc.


 



	 	 	 
	 	 (Signature)	 
	 	
 


 


 

	 
	 	 Shawn K. Singh, JD, Chief Executive Officer