Appendix A: Example Documents

This term sheet summarizes the principal terms pursuant to which [Company], a [Delaware/etc.] ________ corporation (the “Company”), will raise up to $________ through the issuance of promissory notes (the “Notes”) to a limited number of “accredited” investors. The Company will make available to each investor all information the investor reasonably requests so that the investor can familiarize him/her/itself with the Company’s business. To the extent that these terms are inconsistent with the underlying legal documents (a Promissory Note), the terms of the Note control.

THE FOREGOING SUMMARY DOES NOT PURPORT TO BE A COMPLETE SUMMARY OF THE PROMISSORY NOTES. EACH INVESTOR SHOULD READ THE FORM OF PROMISSORY NOTE IN ITS ENTIRETY. IN ADDITION, INVESTORS SHOULD CONSULT THEIR TAX AND LEGAL ADVISORS AS TO THE IMPLICATIONS OF AN INVESTMENT IN THE NOTES.

This Term Sheet is non-binding, and is meant to try to capture the parties’ intentions about the terms of a potential investment. However, neither of the parties have any obligations to one another until they enter into and sign definitive agreements.

This Agreement is made and entered into as of ________, 20__ (“Effective Date”), by and between [Company], a ____________ corporation (“Company”) and _____________ (“Other Party”).

1. Definition of Confidential Information. “Confidential Information” as used in this Agreement shall mean information concerning a party’s business, property or technology not generally known to the public which is disclosed by a party (a “Disclosing Party”) to the other (a “Recipient”) and which is either identified as “Confidential” at the time of disclosure or which under the circumstances surrounding the disclosure should reasonably be considered to be Confidential Information.
2. Nondisclosure and Nonuse Obligation. Recipient shall not in any way disclose any Confidential Information of the Disclosing Party to any third party, and shall only use Confidential Information of Disclosing Party in connection with its internal evaluations of the proposed transaction or business relationship between the parties. Recipient will treat all Confidential Information with the same degree of care as it accords its own Confidential Information, but in no case less than reasonable care. Recipient will disclose Confidential Information only to those of its employees and independent contractors who need to know such information and who have entered into written confidentiality agreements with Recipient which protect the Confidential Information.
3. Exclusions from Nondisclosure and Nonuse Obligations. Recipient’s obligations under Paragraph 2 shall not apply to Confidential Information that Recipient can document (a) was in the public domain at or subsequent to the time communicated to Recipient by Disclosing Party through no fault of Recipient, (b) was rightfully in Recipient’s possession free of any obligation of confidentiality at or subsequent to the time communicated to Recipient by Disclosing Party, or (c) was developed by employees or agents of Recipient independently of and without reference to any Confidential Information communicated to Recipient by Disclosing Party. A disclosure of any portion of Confidential Information either (i) in response to a valid order by a court or other governmental body, or (ii) otherwise required by law, shall not be considered to be a breach of this Agreement or a waiver of confidentiality for other purposes; provided, however, that Recipient shall provide prompt prior written notice thereof to Disclosing Party to enable Disclosing Party to seek a protective order or otherwise prevent such disclosure.
4. Ownership. All Confidential Information shall remain the property of the Disclosing Party, and no license or other rights to a Disclosing Party’s Confidential Information are granted or implied hereby. Upon request from Disclosing Party at any time, Recipient will, at Disclosing Party’s option, return or destroy all Confidential Information no later than five (5) days following such a request, and certify such destruction or return in writing.
5. Independent Development. Disclosing Party understands that Recipient may currently or in the future be developing information internally, or receiving information from other parties that may be similar to Disclosing Party’s Confidential Information. Nothing in this Agreement will be construed as a representation or inference that Recipient will not develop products or services, or have products or services developed for it that, without violation of this Agreement, compete with the products or services contemplated by Disclosing Party’s Confidential Information.
6. Disclosure of Third Party Information. Neither party shall communicate any information to the other in violation of the proprietary rights of any third party.
7. No Warranty. Disclosing Party supplies Confidential Information “AS IS,” and without express or implied warranties of any kind. Disclosing Party shall not be responsible or liable for any business decision made by Recipient in reliance on disclosures made pursuant to this Agreement.
8. Injunctive Relief. The parties acknowledge and agree that monetary damages would not be a sufficient remedy for any breach of obligations under this Agreement and that a Disclosing Party shall be entitled to injunctive relief as a remedy for any such breach by the Recipient. Such remedy will not be deemed the exclusive remedy for a breach of Recipient’s obligations under this Agreement, but will be in addition to all other available legal and equitable remedies.
9. Term. This Agreement will govern all communications between Disclosing Party and Recipient from the Effective Date and remain in full force and effect for two (2) years; provided, however, that either party will maintain the trade secrets of the other party indefinitely.
10. Binding Effect. This Agreement will benefit and be binding upon the parties and their respective successors and assigns.
11. Governing Law; Venue. This Agreement shall be governed by, and construed in accordance with the laws of the State of ________ without giving effect to any conflict of laws principles to the contrary. Venue for any disputes arising under this Agreement will lie exclusively in the state or federal courts located in ________ County, ________. The parties irrevocably waive any right to raise forum non conveniens or any other argument that ________ County, ________ is not the proper venue, and irrevocably consent to personal jurisdiction in the state and federal courts of ________.
12. Attorneys’ Fees. The prevailing party in any such action will be entitled to recover its reasonable attorney fees and costs in such action and upon any appeals.
13. Non-Waiver; Modification. No failure or delay by either party in exercising any right, power, or remedy under this Agreement will operate as a waiver of any such right, power, or remedy. No waiver or modification of any provision of this Agreement will be effective unless in writing and signed by both parties.
14. Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties relating to the subject matter hereof and supersedes all prior and contemporaneous agreements, negotiations, and understandings between the parties, both oral and written.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

[Date]

Re: Your investment in [Company], a [Delaware] corporation

Dear Investor:

Thank you for your investment in [Name of Company], a [Delaware] corporation (referred to as the “Company” or as “us” and “we” in this letter). We very much appreciate your support and trust. This letter agreement will confirm the agreement between us and you (“you” or the “Investor”), effective as of the execution of your securities purchase agreements with us. [Insert description of securities purchased.] In consideration for your investment in us, you are hereby entitled to the following rights, in addition to any other rights you are entitled to under law or as provided in the other agreements you entered into with us:

Information Rights.

Upon your request, the Company shall deliver to you, for so long as you hold our securities (unless this letter agreement otherwise terminates per below), [in each case to the extent that the Company has prepared such financial statements,] the following information:

(a) Copies of our balance sheet as of the end of such fiscal year and our statements of income, changes in financial position and shareholders’ equity for such fiscal year, prepared in accordance with U. S. generally accepted accounting principles (“GAAP”) (all unaudited unless our financial statements are otherwise audited, in which case we will send you the audited statements);

(b) Copies of our balance sheet and statement of income for each quarter, prepared in accordance with GAAP and subject to routine year-end adjustments; and

(c) Such other information relating to the financial condition, business or corporate affairs of the Company as you may from time to time reasonably request, including but not limited to information prepared by the Company for its quarterly Board of Directors meetings; provided, however, that the Company shall not be obligated under this Section 1 to provide information that (i) it deems in good faith to be a trade secret or highly confidential information, or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel.

You agree to maintain the confidentiality of all of the information provided under this Section 1, and agree not to use such information other than for a purpose reasonably related to your investment in the Company or as requested by the Company.

Section 4(a)(7).

For so long as you hold our securities, upon request we agree to furnish promptly to you any information required for you to claim exemption for resale of the securities under Section 4(a)(7) of the Securities Act of 1933, as amended (or any successor or replacement provision thereto, the “Resale Exemption”), including, without limitation:

(a) The current address of the Company’s executive offices;

(b) A current capitalization table of the Company reflecting the number of shares outstanding by class as of the end of the Company’s most recent fiscal year prior to the date of the request;

(c) Name and address of the transfer agent, corporate secretary or other person responsible for transferring the Securities;

(d) A brief statement of the nature of the business of the Company and the products and services it offers;

(e) Names of the current officers and directors of the Company;

(f) Financial statements for the Company prepared in accordance with US generally accepted accounting principles [or IFRS for a non-US company] that satisfy the requirements of the Resale Exemption, including balance sheets and profit and loss or income statements, covering the 2 most recent prior fiscal years of operation (or such shorter period as the Company has been in operation) and any interim period that has been prepared by the Company; and

(g) Such other information relating to the Company as you may request that is reasonably necessary for you to transfer the securities in accordance with the Resale Exemption.

Pro Rata Rights.

You shall have the right (but not the obligation) to purchase your [pro rata share/up to $[insert dollar amount] of equity securities issued by the Company in the next financing in which we are raising capital (the “Next Financing”), on the same terms as such equity securities are offered to other investors who do not purchase such equity securities via the conversion of indebtedness; provided, however, that you will demonstrate to the Company’s reasonable satisfaction that you are at the time of the proposed issuance of such equity securities an “accredited investor” as such term is defined in Regulation D under the Securities Act of 1933, as amended. For the avoidance of doubt, you shall not have a pro rata right in the Company’s next convertible note or convertible equity financing.

Your “pro rata share” means, with respect to Next Financing securities, the sum of: (i) if you hold any convertible promissory notes issued by us, the ratio of the principal amount under any such notes to the pre-money valuation at which such Next Financing securities are issued, plus (ii) the ratio of the number of shares of capital stock of the Company then held by you (calculated on an as-converted to Common Stock basis) to the number of fully diluted shares immediately prior to the issuance of such Next Financing securities. Following the conversion or repayment in full of the outstanding amount under your Note, your “pro rata share” shall mean the ratio of the number of shares of capital stock of the Company then held by you (calculated on an as-converted to Common Stock basis) to the number of fully diluted shares immediately prior to the issuance of Next Financing securities. The number of fully diluted shares assumes full conversion and exercise of all options and other outstanding convertible and exercisable securities, calculated as of immediately prior to the issuance of the Next Financing securities. If we propose to issue equity securities covered under this pro rata right, we shall promptly give you written notice of our intention, describing the Next Financing equity securities, the price, the terms and conditions upon which we propose to issue the same, and your pro rata number of Next Financing equity securities (the “Notice”). [Our determination of your pro rata share of the Next Financing equity securities shall be binding on you.] In order to exercise this right, you must give the Company notice of your intent to exercise this right within ten (10) days of receiving the Notice and you shall invest and fund the purchase price for the equity securities and execute the principal financing documents for such Next Financing within ten (10) days after the initial closing of the Next Financing.

Most Favored Nation. You will be entitled to receive the benefit of any more favorable terms or conditions that we provide to other convertible debt lenders or convertible equity investors in any convertible debt or convertible equity financing that we consummate before your [note/SAFE] is converted into shares of our stock; provided, however, that if we are accepted into an accelerator or incubator program and in addition to any equity financing we obtain from such accelerator or incubator we are also provided substantial services, or space, any such equity financing will not be considered a convertible debt financing triggering this most favored nations clause.

Board Observer Right.

[As long as you own not less than _____ percent (____%) of the shares of the [Series A] Preferred Stock you are purchasing under the Purchase Agreement (or an equivalent amount of Common Stock issued upon conversion thereof).]

[In the event of any breach of this letter agreement, a default under the note, or a breach or default of or under any agreement between you and us], then you or your representative shall thereafter have the right to attend all of our Board of Directors meetings in a nonvoting observer capacity and, in this respect, we shall give you or your representative copies of all notices, minutes, consents, and other materials that we provide to our directors [at the same time and in the same manner as provided to such directors]; provided, however, that you and/or your representative shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and provided further, that we reserve the right to withhold any information and to exclude you and/or your representative from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if you or your representative is a competitor of the Company.

Attorneys’ Fees.

The prevailing party in any action to enforce this letter agreement will be entitled to its attorneys’ fees and costs.

Termination of this Letter Agreement.

The contractual rights set forth above shall terminate and be of no further force or effect upon (a) the consummation of the sale of the Company’s securities pursuant to a registration statement filed by the Company under the Securities Act of 1933, as amended, in connection with the firm commitment underwritten offering of its securities to the general public; (b) the consummation of a merger or consolidation of the Company that is effected (i) for independent business reasons unrelated to extinguishing such rights and (ii) for purposes other than (A) the reincorporation of the Company in a different state or (B) the formation of a holding company that will be owned exclusively by the Company’s stockholders and will hold all of the outstanding shares of capital stock of the Company’s successor; (c) our liquidation and dissolution; or (d) when you cease holding the Convertible Promissory Note or after conversion of the Note you cease to hold at least 1% of our issued and outstanding stock.

Waiver and Amendments.

Any provision of this letter agreement may only be amended, waived or modified only upon the written consent of the Company and the Investor.

General.

To the extent that this letter agreement conflicts with any of the other documents or agreements entered into by and between the parties, including the [Convertible Promissory Note], this letter agreement will control. This letter agreement shall be governed by and construed in accordance with the laws of the State of [__________] (regardless of its or any other jurisdiction’s choice-of-law principles). This letter agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Sincerely yours, [Company]

___________________________ _____________, President

Agreed and Accepted:

___________________________

(print name of investor)

___________________________

Name: ____________________

Title: ___________________

THIS OBSERVER AGREEMENT (the “Agreement”) is entered into as of ________, 20__, by and between _____________ (“Observer”), and ____________, Inc., a [Delaware] corporation (the “Company”).

1.1 Observer Rights. As long as Observer owns at least ___% of the issued and outstanding common stock of the Company, the Company shall invite [a representative of Observer /_____________, an individual] to attend all meetings of its board of directors in a non-voting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors and at the same time it provides such materials to its directors; provided, however, that such representative shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and provided further, that the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if the Observer or its representative is a competitor of the Company.

1.2 Termination of Information and Observer Rights. The covenants set forth in Section 1.1 shall terminate and be of no further force or effect (i) immediately before the consummation of an underwritten public offering of the Company’s common stock, or (ii) when the Company first becomes subject to the periodic reporting requirements of Section 12(g) or 15(d) of the Exchange Act, or (iii) upon the liquidation or dissolution of the Company, whichever event occurs first.

1.3 Confidentiality. The Observer agrees that the Observer and its representative will keep confidential and will not disclose, divulge, or use for any purpose (other than to monitor its investment in the Company) any confidential information obtained from the Company pursuant to the terms of this Agreement (including notice of the Company’s intention to file a registration statement), unless such confidential information (a) is known or becomes known to the public in general (other than as a result of a breach of this Section 1.3 by the Observer or its representative), (b) is or has been independently developed or conceived by the Observer without use of the Company’s confidential information, or (c) is or has been made known or disclosed to the Observer by a third party without a breach of any obligation of confidentiality such third party may have to the Company; provided, however, that an Observer may disclose confidential information (i) to its attorneys, accountants, consultants, and other professionals to the extent necessary to obtain their services in connection with monitoring its investment in the Company; (ii) to any prospective purchaser of securities from the Observer, if such prospective purchaser agrees to be bound by the provisions of this Section 1.3; (iii) to any existing or prospective affiliate, partner, member, stockholder, or wholly owned subsidiary of the Observer in the ordinary course of business, provided that the Observer informs such person that such information is confidential and directs such person to maintain the confidentiality of such information; or (iv) as may otherwise be required by law, provided that the Observer promptly notifies the Company of such disclosure and takes reasonable steps to minimize the extent of any such required disclosure.

SECTION 2

MISCELLANEOUS

2.1 Miscellaneous. The Observer may not assign its rights under this Agreement. This Agreement shall be governed by and construed under the internal laws of the State of __________ as applied to agreements among __________ residents entered into and to be performed entirely within __________, without reference to principles of conflict of laws or choice of laws. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Observer and the Company. If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provision(s) shall be excluded from this Agreement and the balance of the Agreement shall be interpreted as if such provision(s) were so excluded and shall be enforceable in accordance with its terms.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

[Investor]

Re: Anti-Dilution Protection

Dear Sir or Madam:

This letter will confirm our agreement that pursuant to and effective as of your purchase of __________ shares of common stock of __________, Inc., a [Delaware] corporation (the “Company”) for the total amount of $__________, you (the “Investor”) shall be entitled to the following contractual rights:

1. If within [two (2)] years after the date of this Agreement, the Company sells shares in a transaction whose primary purpose is to raise capital for the Company at a price per share less than [$0.__] (as adjusted for any dividends, stock splits, or similar events) (whatever that price per share, the “Lower Price”), the Company will issue additional shares of common stock to the Investor until the total number of shares of common stock owned by the Investor equals that number of shares of common stock the Investor would have received had he/she originally purchased all of their shares at the Lower Price.

2. The foregoing paragraph does not apply to:

   (a) Shares of stock issuable upon exercise of any options, warrants or rights to purchase any securities of the Company outstanding as of the date of this Agreement

   (b) Shares of stock issued in connection with any stock split or stock dividend or recapitalization

   (c) Shares of stock (or options, warrants or rights therefore) granted or issued hereafter to employees, officers, directors, contractors, consultants, or advisors to, the Company or any subsidiary of the Company pursuant to incentive agreements, stock purchase or stock option plans, stock bonuses or awards, warrants, contracts, or other arrangements that are approved by the Company’s board of directors

   (d) Any other shares of stock (and/or options or warrants therefor) issued or issuable primarily for other than equity financing purposes and approved by the board, and

   (e) Shares of stock issued or issuable by the Company to the public pursuant to a registration statement filed under the Securities Act.

3. The rights described herein shall terminate and be of no further force or effect upon (a) two [(2)] years after the date of this Agreement, (b) such time as no shares of the Company’s stock are held by the Investor or its affiliates; (c) the consummation of the sale of the Company’s securities pursuant to a registration statement filed by the Company under the Securities Act of 1933, as amended, in connection with the firm commitment underwritten offering of its securities to the general public, or (d) the consummation of a merger or consolidation of the Company that is effected (i) for independent business reasons unrelated to extinguishing such rights and (ii) for purposes other than (A) the reincorporation of the Company in a different state or (B) the formation of a holding company that will be owned exclusively by the Company’s stockholders and will hold all of the outstanding shares of capital stock of the Company’s successor. The confidentiality obligations referenced herein will survive any such termination.

A meeting of the Board of Directors (the “Board”) of _____________, Inc., a [Delaware) corporation (the “Company”) was held at [insert location of meeting], on [insert date], commencing at [insert start time]. Directors in attendance included Messrs. [insert directors attending]. The following directors were not in attendance: [insert]. [Also in attendance was [__________ of legal counsel], and [insert others]. __________ was the Chairman of the meeting, and [__________] served as Acting Secretary for the meeting.

The Chairman called the meeting to order.

The first order of business was approval of minutes from the prior board meeting held on __________ . Upon motion duly made, seconded and approved, the board approved the minutes of the prior meeting [in the form presented/with certain changes].

The next item of business was [indicate which items of business were discussed].

If a motion is passed, say, “Upon motion duly made, seconded and adopted, the board approved…”

[If there are stock options to be issued, then more detailed resolutions are required.]

The board then discussed a variety of issues affecting the business, including [e.g., product development, marketing, product rollout and implementation, strategic relationships, media relations, staffing, the status of the certain significant contracts issues related thereto]. [The board then discussed financial issues, including the Company’s current cash position, outstanding bills, payroll, budget, burn rate, and the status of the Company’s stock offering. Finally, the board discussed its meeting schedule for future meetings.]

There being no further business, the meeting was adjourned at [insert time]. Respectfully submitted,

___________________________, Acting Secretary

Approved by:

___________________________, Chair

Note Series: ___________________________

Date of Note: ___________________________

Principal Amount of Note: ___________________________

For value received XYZ Inc., a [Delaware/other] corporation (the “Company”), promises to pay to the undersigned holder (“Holder”) the principal amount set forth above with all accrued and unpaid interest thereon, each due and payable in the manner set forth below upon request of the Majority Holders* on or after the second anniversary of the issuance of the first Note of the Note Series set forth above (the “Maturity Date”).

1. Basic Terms.

   a. Series of Notes. This convertible promissory note (the “Note”) is issued as part of a series of notes designated by the Note Series above (collectively, the “Notes”) and issued in a series of multiple closings to certain persons and entities (collectively, the “Holders”).

   b. Payments. All payments of interest and principal shall be in lawful money of the United States of America and shall be made pro rata among all Holders. All payments shall be applied first to accrued interest and thereafter to principal.

   c. Interest Rate. The Company promises to pay simple interest on the outstanding principal amount hereof from the date funds are received by the Company until payment in full, which interest shall be payable at the rate of ___%* per annum or the maximum rate permissible by law, whichever is less. Interest shall be due and payable on the Maturity Date and shall be calculated on the basis of a 365-day or 366-day year, as the case may be, for the actual number of days elapsed.

   No Prepayment. The Company may not prepay this Note prior to the Maturity Date without the consent of the Majority Holders (as defined below).

2. Conversion; Repayment Upon Sale of the Company.

   a. Conversion upon a Qualified Financing. In the event that the Company issues and sells shares of its Equity Securities (defined below) to investors (the “Investors”) on or before the date of the repayment in full of this Note in an arms-length equity financing resulting in gross proceeds to the Company, in one or more closings, of at least $250,000 (excluding the conversion of the Notes and any other debt) (a “Qualified Financing”), then the outstanding principal balance of this Note and any unpaid accrued interest shall automatically convert in whole without any further action by the Holder into such Equity Securities sold in the Qualified Financing at a conversion price equal to the lesser of (i) ____%* of the price paid per share for Equity Securities by the Investors in the Qualified Financing or (ii) the price equal to the quotient of the valuation cap of $______* (the “Valuation Cap”) divided by the aggregate number of outstanding shares of the Company’s common stock as of immediately prior to the initial closing of the Qualified Financing (assuming full conversion or exercise of all convertible and exercisable securities then outstanding, but excluding the shares of equity securities of the Company issuable upon the conversion of the Notes or any other debt). The issuance of Equity Securities pursuant to the conversion of this Note shall be upon and subject to the same terms and conditions applicable to the Equity Securities sold in such Qualified Financing, except as otherwise set forth herein (e.g., the conversion price); provided, however, that such documents have customary exceptions to any drag-along applicable to the Holder, including, without limitation, limited representations and warranties and limited liability and indemnification obligations on the part of the Holder. For the avoidance of doubt, the initial closing of the Qualified Financing is the first closing in which the Company accepts which funds which meet or exceed the Qualified Financing threshold.

   b. Maturity Date Conversion. In the event that a Qualified Financing is not consummated prior to the Maturity Date, then, at the written election of the Majority Holders made at least five days prior to the Maturity Date, effective upon the Maturity Date, the outstanding principal balance and any unpaid accrued interest under this Note shall be converted into shares of the Company’s common stock at a conversion price equal to the quotient of the Valuation Cap divided by the aggregate number of outstanding shares of the Company’s common stock as of the Maturity Date (assuming full conversion or exercise of all convertible and exercisable securities then outstanding, but excluding the shares of equity securities of the Company issuable upon the conversion of the Notes or any other debt).

   c. Sale of the Company. Notwithstanding any provision of this Note to the contrary, if the Company consummates a Sale of the Company (as defined below) prior to the conversion or repayment in full of this Note, then (i) the Company will give the Holder at least five days prior written notice of the anticipated closing date of such Sale of the Company and (ii) at the closing of such Sale of the Company, in full satisfaction of the Company’s obligations under this Note, the Company will pay the Holder an aggregate amount equal to the greater of (x) the aggregate amount of principal and unpaid accrued interest then outstanding under this Note or (y) the amount the Holder would have been entitled to receive in connection with such Sale of the Company if the aggregate amount of principal and unpaid accrued interest then outstanding under this Note had been converted into shares of the Company’s common stock at a conversion price equal to the quotient of the Valuation Cap divided by the aggregate number of outstanding shares of the Company’s common stock as of immediately prior to the closing of such Sale of the Company (assuming full conversion or exercise of all convertible and in-the-money exercisable securities then outstanding, but excluding the shares of equity securities of the Company issuable upon the conversion of the Notes or other debt being converted or deemed to be converted in connection with such Sale of the Company).

   d. Procedure for Conversion. In connection with any conversion of this Note into capital stock, the Holder shall surrender this Note to the Company and deliver to the Company any documentation reasonably required by the Company (including, in the case of a Qualified Financing, all financing documents executed by other investors in connection with such Qualified Financing). The Company shall not be required to issue or deliver the capital stock into which this Note may convert until the Holder has surrendered this Note to the Company and delivered to the Company any such documentation. Upon the conversion of this Note into capital stock pursuant to the terms hereof, in lieu of any fractional shares to which the Holder would otherwise be entitled, the Company shall pay the Holder cash equal to such fraction multiplied by the price at which this Note converts; provided, however, if such amount is less than $100.00, no such payment shall be required, and no fractional shares shall be issued. To secure the Holder’s obligations to execute and deliver the documentation required by this Note, the Holder hereby appoints the Chief Executive Officer of the Company as the Holder’s true and lawful attorney, with the power to act alone and with full power of substitution, to execute and deliver all such documentation required by this Note if, and only if, the Holder fails execute or deliver such documentation as required by this Note. The power granted by the Holder pursuant to this paragraph is coupled with an interest and is given to secure the performance of the Holder’s duties under this Note, is irrevocable and will survive the death, incompetency, disability, merger or reorganization of the Holder.

   e. Interest Accrual. If a Sale of the Company or Qualified Financing is consummated, all interest on this Note shall be deemed to have stopped accruing as of the signing of the definitive agreement for the Sale of the Company or Qualified Financing or an earlier date, determined by the Company, which may be as many as ten days prior to the signing of such definitive agreement.

   f. Certain Definitions. For purposes of this Note:

   i. “Equity Securities” shall mean the Company’s preferred stock issued in the Company’s next fixed-price financing, except that such defined term shall not include any security granted, issued and/or sold by the Company to any employee, director or consultant in such capacity. The Equity Securities may be sold in one more closings.

   ii. “Majority Holders” shall mean the Holders holding Notes that represent a majority of the outstanding unpaid principal amount of all Notes.

   iii. “Sale of the Company” shall mean (i) any consolidation or merger of the Company with or into any other corporation or other entity or person, or any other corporate reorganization, other than any such consolidation, merger or reorganization in which the stockholders of the Company immediately prior to such consolidation, merger or reorganization, continue to hold at least a majority of the voting power of the surviving entity in substantially the same proportions (or, if the surviving entity is a wholly owned subsidiary, its parent) immediately after such consolidation, merger or reorganization; (ii) any transaction or series of related transactions to which the Company is a party in which in excess of 50% of the Company’s voting power is transferred; or (iii) the sale or transfer of all or substantially all of the Company’s assets, or the exclusive license of all or substantially all of the Company’s material intellectual property; provided, however, that a Sale of the Company shall not include any transaction or series of transactions principally for bona fide equity financing purposes in which cash is received by the Company or any successor, indebtedness of the Company is cancelled or converted, or a combination thereof.

3. Representations and Warranties.

   a. Representations and Warranties of the Company. The Company hereby represents and warrants to the Holder, as of the date the first issuance of a note in this Note Series, as follows:

   i. Organization, Good Standing and Qualification. The Company is a corporation duly organized, validly existing and in good standing under the laws of the state of its incorporation or organization. The Company has the requisite corporate power to own and operate its properties and assets and to carry on its business as now conducted and as proposed to be conducted. The Company is duly qualified and is authorized to do business and is in good standing as a foreign corporation in all jurisdictions in which the nature of its activities and of its properties (both owned and leased) makes such qualification necessary, except for those jurisdictions in which failure to do so would not have a material adverse effect on the Company or its business.

   ii. Corporate Power. The Company has all requisite corporate power to issue this Note and to carry out and perform its obligations under this Note. The Company’s Board of Directors (the “Board”) has approved the issuance of this Note based upon a reasonable belief that the issuance of this Note is appropriate for the Company after reasonable inquiry concerning the Company’s financing objectives and financial situation.

   iii. Authorization. All corporate action on the part of the Company, the Board and the Company’s stockholders necessary for the issuance and delivery of this Note has been taken.

   iv. Enforceability. This Note constitutes a valid and binding obligation of the Company enforceable in accordance with its terms, subject to laws of general application relating to bankruptcy, insolvency, the relief of debtors and, with respect to rights to indemnity, subject to federal and state securities laws. Any securities issued upon conversion of this Note (the “Conversion Securities”), when issued in compliance with the provisions of this Note, will be validly issued, fully paid, nonassessable, free of any liens or encumbrances and issued in compliance with all applicable federal and securities laws.

   v. Governmental Consents.

   All consents, approvals, orders or authorizations of, or registrations, qualifications, designations, declarations or filings with, any governmental authority required on the part of the Company in connection with issuance of this Note has been obtained.

   vi. Compliance with Laws. The Company is not in violation of any applicable statute, rule, regulation, order or restriction of any domestic or foreign government or any instrumentality or agency thereof in respect of the conduct of its business or the ownership of its properties, which violation of which would materially and adversely affect the business, assets, liabilities, financial condition, operations or prospects of the Company.

   vii. Compliance with Other Instruments. The Company is not in violation or default of any term of its certificate of incorporation or bylaws, or of any provision of any mortgage, indenture or contract to which it is a party and by which it is bound or of any judgment, decree, order or writ, other than such violation(s) that would not individually or in the aggregate have an adverse effect on the Company. The execution, delivery and performance of this Note will not result in any such violation or be in conflict with, or constitute, with or without the passage of time and giving of notice, either a default under any such provision, instrument, judgment, decree, order or writ or an event that results in the creation of any lien, charge or encumbrance upon any assets of the Company or the suspension, revocation, impairment, forfeiture, or nonrenewal of any material permit, license, authorization or approval applicable to the Company, its business or operations or any of its assets or properties. Without limiting the foregoing, the Company has obtained all waivers reasonably necessary with respect to any preemptive rights, rights of first refusal or similar rights, including any notice or offering periods provided for as part of any such rights, in order for the Company to consummate the transactions contemplated hereunder without any third party obtaining any rights to cause the Company to offer or issue any securities of the Company as a result of the consummation of the transactions contemplated hereunder.

   viii. No “Bad Actor” Disqualification. The Company has exercised reasonable care to determine whether any Company Covered Person (as defined below) is subject to any of the “bad actor” disqualifications described in Rule 506(d)(1)(i) through (viii), as modified by Rules 506(d)(2) and (d)(3), under the Securities Act of 1933, as amended (“Disqualification Events”). To the Company’s knowledge, no Company Covered Person is subject to a Disqualification Event. The Company has complied, to the extent required, with any disclosure obligations under Rule 506(e) under the Securities Act of 1933, as amended (the “Act”). For purposes of this Note, “Company Covered Persons” are those persons specified in Rule 506(d)(1) under the Act; provided, however, that Company Covered Persons do not include (a) any Holder, or (b) any person or entity that is deemed to be an affiliated issuer of the Company solely as a result of the relationship between the Company and any Holder.

   ix. Offering. Assuming the accuracy of the representations and warranties of the Holder contained in subsection (b) below, the offer, issue, and sale of this Note and any Conversion Securities are and will be exempt from the registration and prospectus delivery requirements of the Act, and have been registered or qualified (or are exempt from registration and qualification) under the registration, permit or qualification requirements of all applicable state securities laws.

   x. Use of Proceeds. The Company shall use the proceeds of this Note solely for the operations of its business, and not for any personal, family or household purpose.

   b. Representations and Warranties of the Holder. The Holder hereby represents and warrants to the Company as of the date hereof as follows:

   i. Purchase for Own Account. The Holder is acquiring this Note and the Conversion Securities (collectively, the “Securities”) solely for the Holder’s own account and beneficial interest for investment and not for sale or with a view to distribution of the Securities or any part thereof, has no present intention of selling (in connection with a distribution or otherwise), granting any participation in, or otherwise distributing the same, and does not presently have reason to anticipate a change in such intention.

   ii. Information and Sophistication. Without lessening or obviating the representations and warranties of the Company set forth in subsection (a) above, the Holder hereby: (A) acknowledges that the Holder has received all the information the Holder has requested from the Company and the Holder considers necessary or appropriate for deciding whether to acquire the Securities, (B) represents that the Holder has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering of the Securities and to obtain any additional information necessary to verify the accuracy of the information given the Holder and (C) further represents that the Holder has such knowledge and experience in financial and business matters that the Holder is capable of evaluating the merits and risk of this investment.

   iii. Ability to Bear Economic Risk. The Holder acknowledges that investment in the Securities involves a high degree of risk, and represents that the Holder is able, without materially impairing the Holder’s financial condition, to hold the Securities for an indefinite period of time and to suffer a complete loss of the Holder’s investment.

   iv. Further Limitations on Disposition. Without in any way limiting the representations set forth above, the Holder further agrees not to make any disposition of all or any portion of the Securities unless and until:

   (1) There is then in effect a registration statement under the Act covering such proposed disposition and such disposition is made in accordance with such registration statement; or

   (2) The Holder shall have notified the Company of the proposed disposition and furnished the Company with a detailed statement of the circumstances surrounding the proposed disposition, and if reasonably requested by the Company, the Holder shall have furnished the Company with an opinion of counsel, reasonably satisfactory to the Company, that such disposition will not require registration under the Act or any applicable state securities laws, provided that no such opinion shall be required for dispositions in compliance with Rule 144 under the Act, except in unusual circumstances.

   (3) Notwithstanding the provisions of paragraphs (1) and (2) above, no such registration statement or opinion of counsel shall be necessary for a transfer by the Holder to a partner (or retired partner) or member (or retired member) of the Holder in accordance with partnership or limited liability company interests, or transfers by gift, will or intestate succession to any spouse or lineal descendants or ancestors, if all transferees agree in writing to be subject to the terms hereof to the same extent as if they were the Holders hereunder.

   v. Accredited Investor Status. The Holder is an accredited investor as defined in Rule 501(a) of Regulation D promulgated under the Act. The Holder is an investor in securities of companies in the development stage and acknowledges that Holder is able to fend for itself, can bear the economic risk of its investment, and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment in this note. If other than an individual, Holder also represents it has not been organized for the purpose of acquiring this note. vi. No “Bad Actor” Disqualification. The Holder represents and warrants that neither (A) the Holder nor (B) any entity that controls the Holder or is under the control of, or under common control with, the Holder, is subject to any Disqualification Event, except for Disqualification Events covered by Rule 506(d)(2)(ii) or (iii) or (d)(3) under the Act and disclosed in writing in reasonable detail to the Company. The Holder represents that the Holder has exercised reasonable care to determine the accuracy of the representation made by the Holder in this paragraph, and agrees to notify the Company if the Holder becomes aware of any fact that makes the representation given by the Holder hereunder inaccurate.

   vii. Foreign Investors. If the Holder is not a United States person (as defined by Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended (the “Code”)), the Holder hereby represents that he, she or it has satisfied itself as to the full observance of the laws of the Holder’s jurisdiction in connection with any invitation to subscribe for the Securities or any use of this Note, including (A) the legal requirements within the Holder’s jurisdiction for the purchase of the Securities, (B) any foreign exchange restrictions applicable to such purchase, (C) any governmental or other consents that may need to be obtained, and (D) the income tax and other tax consequences, if any, that may be relevant to the purchase, holding, redemption, sale, or transfer of the Securities. The Holder’s subscription, payment for and continued beneficial ownership of the Securities will not violate any applicable securities or other laws of the Holder’s jurisdiction.

   viii. Forward-Looking Statements. With respect to any forecasts, projections of results and other forward-looking statements and information provided to the Holder, the Holder acknowledges that such statements were prepared based upon assumptions deemed reasonable by the Company at the time of preparation. There is no assurance that such statements will prove accurate, and the Company has no obligation to update such statements.

4. Events of Default.

   a. Upon the occurrence and continuance of any Event of Default (as defined below), at the option and upon the declaration of the Majority Holders and upon written notice to the Company (which election and notice shall not be required in the case of an Event of Default under subsection (ii) or (iii) below), this Note shall accelerate and all principal and unpaid accrued interest shall become due and payable. The occurrence of any one or more of the following shall constitute an “Event of Default”:

   i. The Company fails to pay timely any of the principal amount due under this Note on the date the same becomes due and payable or any unpaid accrued interest or other amounts due under this Note on the date the same becomes due and payable (unless the Company cures such failure within 15 business days of notice thereof from the Majority Holders);

   ii. The Company files any petition or action for relief under any bankruptcy, reorganization, insolvency or moratorium law or any other law for the relief of, or relating to, debtors, now or hereafter in effect, or makes any assignment for the benefit of creditors or takes any corporate action in furtherance of any of the foregoing; or

   iii. An involuntary petition is filed against the Company (unless such petition is dismissed or discharged within 60 days under any bankruptcy statute now or hereafter in effect, or a custodian, receiver, trustee, assignee for the benefit of creditors (or other similar official) is appointed to take possession, custody or control of any property of the Company).

   b. In any action to enforce the terms of this Note, the prevailing party will be entitled to an award of its reasonable attorneys’ fees and other related costs.

5. Tax Withholding. If the Company is required to remit to any governmental authority an amount of money which represents a withholding from amounts paid or considered paid to the Holder, then the Holder agrees to provide the Company with the funds, in immediately available U.S. dollars, so that the Company has the funds to remit to such governmental authority. In all events, any amounts will be considered paid for the benefit of the Holder. The Holder hereby authorizes the Company to make any withholding required by law. The Holder agrees to provide to the Company a Form W-9 or comparable form as requested by the Company.

6. Miscellaneous Provisions.

   a. Waivers. The Company hereby waives demand, notice, presentment, protest and notice of dishonor.

   Further Assurances. The Holder agrees and covenants that at any time and from time to time the Holder will promptly execute and deliver to the Company such further instruments and documents and take such further action as the Company may reasonably require in order to carry out the full intent and purpose of this Note and to comply with state or federal securities laws or other regulatory approvals.

   Transfers of Notes. This Note may be transferred only (i) in compliance with this instrument and (ii) upon its surrender to the Company for registration of transfer, duly endorsed, or accompanied by a duly executed written instrument of transfer in form satisfactory to the Company. Thereupon, this Note shall be reissued to, and registered in the name of, the transferee, or a new Note for like principal amount and interest shall be issued to, and registered in the name of, the transferee. Interest and principal shall be paid solely to the registered holder of this Note. Such payment shall constitute full discharge of the Company’s obligation to pay such interest and principal.

   Market Standoff. The Holder hereby agrees that the Holder shall not sell, dispose of, transfer, make any short sale of, grant any option for the purchase of, or enter into any hedging or similar transaction with the same economic effect as a sale of, any shares of common stock (or other securities) of the Company held by the Holder (other than those included in the registration) during the 180-day period following the effective date of the initial public offering of the Company (or such longer period, not to exceed 34 days after the expiration of the 180-day period, as the underwriters or the Company shall request in order to facilitate compliance with NASD Rule 2711 or NYSE Member Rule 472 or any successor or similar rule or regulation). The Holder agrees to execute and deliver such other agreements as may be reasonably requested by the Company or the managing underwriters that are consistent with the foregoing or that are necessary to give further effect thereto. In addition, if requested by the Company or the representative of the underwriters of common stock (or other securities of the Company), the Holder shall provide, within ten days of such request, such information as may be required by the Company or such representative in connection with the completion of any public offering of the Company’s securities pursuant to a registration statement filed under the Act. The obligations described in this paragraph shall not apply to a registration relating solely to employee benefit plans on Form S-1 or Form S-8 or similar forms that may be promulgated in the future, or a registration relating solely to a transaction on Form S-4 or similar forms that may be promulgated in the future. In order to enforce the foregoing covenant, the Company may impose stop-transfer instructions with respect to such common stock (or other securities of the Company) until the end of such period. The Holder agrees that any transferee of any of the Securities (or other securities of the Company) held by the Holder shall be bound by this paragraph. The underwriters of the Company’s stock are intended third-party beneficiaries of this paragraph and shall have the right, power and authority to enforce the provisions hereof as though they were a party hereto.

   e. Amendment and Waiver. Any term of this Note may be amended or waived with the written consent of Company and the Majority Holders.

   f. Governing Law; Venue. This Note shall be governed by and construed under the laws of the State of ________, as applied to agreements among _______ residents, made and to be performed entirely within the State of ______, without giving effect to conflicts of laws principles. The venue for any dispute arising out of or related to this Note will lie exclusively in the state or federal courts located in King County, Washington, and the parties to this Note irrevocably waive any right to raise forum non conveniens or any other argument that King County, Washington is not the proper venue. The parties to this Note irrevocably consent to personal jurisdiction in the state and federal courts of the state of Washington.

   g. Waiver of Jury Trial. THE HOLDER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY RELATING TO THIS NOTE OR THE TRANSACTIONS CONTEMPLATED HEREBY, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER THEORY.

   h. Binding Agreement. The terms and conditions of this Note shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Note, expressed or implied, is intended to confer upon any third party any rights, remedies, obligations, or liabilities under or by reason of this Note, except as expressly provided in this Note.

   i. Counterparts. This Note may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Note may also be executed and delivered by facsimile signature, PDF or any electronic signature complying with the U.S. federal ESIGN Act of 2000 (e.g., www.docusign.com).

   j. Titles and Subtitles. The titles and subtitles used in this Note are used for convenience only and are not to be considered in construing or interpreting this Note.

   k. Notices. All notices, requests, or other communications required or permitted to be delivered hereunder shall be delivered in writing, in each case to the address specified below or to such other address as such party may from time to time specify in writing in compliance with this section. Notices (i) if mailed by certified or registered mail or sent by hand or overnight courier service shall be deemed to have been given when received or (ii) if sent by email or other electronic means shall be deemed received upon receipt by the sender of an acknowledgment from the intended recipient.

   l. Expenses. The Company and the Holder shall each bear its respective expenses and legal fees incurred with respect to the negotiation, execution and delivery of this Note and the transactions contemplated herein.

   m. Delays or Omissions. It is agreed that no delay or omission to exercise any right, power or remedy accruing to the Holder, upon any breach or default of the Company under this Note shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any such breach or default, or any acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. It is further agreed that any waiver, permit, consent or approval of any kind or character by the Holder of any breach or default under this Note, or any waiver by the Holder of any provisions or conditions of this Note, must be in writing and shall be effective only to the extent specifically set forth in writing and that all remedies, either under this Note, or by law or otherwise afforded to the Holder, shall be cumulative and not alternative. This Note shall be void and of no force or effect in the event that the Holder fails to remit the full principal amount to the Company within five calendar days of the date of this Note.

   n. Entire Agreement. This Note constitutes the full and entire understanding and agreement between the parties with regard to the subjects hereof and no party shall be liable or bound to any other party in any manner by any representations, warranties, covenants and agreements except as specifically set forth herein.

   o. Exculpation among Holders. The Holder acknowledges that the Holder is not relying on any person, firm or corporation, other than the Company and its officers and Board members, in making its investment or decision to invest in the Company.

   p. Senior Indebtedness. The indebtedness evidenced by this Note is subordinated in right of payment to the prior payment in full of any Senior Indebtedness in existence on the date of this Note or hereafter incurred. “Senior Indebtedness” shall mean, unless expressly subordinated to or made on a parity with the amounts due under this Note, all amounts due in connection with (i) indebtedness of the Company to banks or other lending institutions regularly engaged in the business of lending money (excluding venture capital, investment banking or similar institutions and their affiliates, which sometimes engage in lending activities but which are primarily engaged in investments in equity securities), and (ii) any such indebtedness or any debentures, notes or other evidence of indebtedness issued in exchange for such Senior Indebtedness, or any indebtedness arising from the satisfaction of such Senior Indebtedness by a guarantor.

   q. Broker’s Fees. Each party hereto represents and warrants that no agent, broker, investment banker, person or firm acting on behalf of or under the authority of such party hereto is or will be entitled to any broker’s or finder’s fee or any other commission directly or indirectly in connection with the transactions contemplated herein. Each party hereto further agrees to indemnify each other party for any claims, losses or expenses incurred by such other party as a result of the representation in this section titled “Broker’s Fees” being untrue.

   r. Confidentiality. The Holder shall not in any way disclose any Confidential Information of the Company that the Holder may receive from time to time to any third party, and shall not use the Confidential Information of the Company for any purpose other than to monitor its investment in the Company. The Holder will treat all Confidential Information with the same degree of care as it accords its own Confidential Information, but in no case less than reasonable care. Notwithstanding the foregoing, the Holder may disclose the Company’s Confidential Information to its attorneys, accountants or other professionals who are bound by confidentiality, to the extent necessary to obtain their services in connection with monitoring the Holder’s investment in the Company. “Confidential Information” means information concerning a party’s business, finances, property or technology not generally known to the public which is either identified as “Confidential” at the time of disclosure or which under the circumstances surrounding the disclosure should reasonably be considered to be Confidential Information.

   s. California Corporate Securities Law. THE SALE OF THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO SUCH QUALIFICATION OR IN THE ABSENCE OF AN EXEMPTION FROM SUCH QUALIFICATION IS UNLAWFUL. PRIOR TO ACCEPTANCE OF SUCH CONSIDERATION BY THE COMPANY, THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED OR AN EXEMPTION FROM SUCH QUALIFICATION BEING AVAILABLE.

Notice Regarding Oral Commitments under Washington Law. ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO FORBEAR FROM ENFORCING PAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON LAW.