COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF THE
SECURITIES OR PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION FOR SUCH
SECURITIES PRIOR TO THE QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES
IS EXEMPT FROM QUALIFICATIONS BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA
CORPORATIONS CODE.
THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY
CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO
EXEMPT.
[Remainder of Page Intentionally Left Blank]
9
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
date first written above.
CNS RESPONSE, INC.
By:
Name:
Paul Buck
Title: Chief
Financial Officer
[SIGNATURE PAGE TO AMENDED AND RESTATED NOTE PURCHASE AGREEMENT]
INVESTOR:
By:
Name:
Title:
[SIGNATURE PAGE TO AMENDED AND RESTATED NOTE PURCHASE AGREEMENT]
SCHEDULE A
Investor
Purchase Price / Principal
Amount of Note
Name:
Address:
Fax:
$______________
Email:
Tax
ID:
TOTAL:
$______________
EXHIBIT A
FORM OF NOTE
EXHIBIT B
SECURITY AGREEMENT
EXHIBIT C
REPRESENTATIVE SECURED PARTY AGREEMENT
EXHIBIT D
REGISTRATION RIGHTS AGREEMENT
APPENDIX I
CERTAIN DEFINITIONS
As used in the Agreement, the following terms shall have the meanings indicated:
"U.S. Person":
(a)
"U.S. person" means:
(i)
Any natural person resident in the United States;
(ii)
Any partnership or corporation organized or incorporated under the
laws of the United States;
(iii)
Any estate of which any executor or administrator is a U.S. person;
(iv)
Any trust of which any trustee is a U.S. person;
(v)
Any agency or branch of a foreign entity located in the United
States;
(vi)
Any non-discretionary account or similar account (other than an
estate or trust) held by a dealer or other fiduciary for the benefit or account
of a U.S. person;
(vii)
Any discretionary account or similar account (other than an estate
or trust) held by a dealer or other fiduciary organized, incorporated, or (if an
individual) resident in the United States; and
(viii)
Any partnership or corporation if:
(A)
Organized or incorporated under the laws of any foreign
jurisdiction; and
(B)
Formed by a U.S. person principally for the purpose of investing in
securities not registered under the Act, unless it is organized or incorporated,
and owned, by accredited investors (as defined in §230.501(a)) who are not
natural persons, estates or trusts.
(b)
The following are not "U.S. persons":
(i)
Any discretionary account or similar account (other than an estate
or trust) held for the benefit or account of a non-U.S. person by a dealer or
other professional fiduciary organized, incorporated, or (if an individual)
resident in the United States;
(ii)
Any estate of which any professional fiduciary acting as executor
or administrator is a U.S. person if:
(A)
An executor or administrator of the estate who is not a U.S. person
has sole or shared investment discretion with respect to the assets of the
estate; and
(B)
The estate is governed by foreign law;
(iii)
Any trust of which any professional