Form of Subscription Agreement

SUBSCRIPTION BOOKLET

 

FOR THE PURCHASE OF

 

COMMON STOCK

 

OF

 

KAL ENERGY, INC.,

a Delaware corporation

 

 

(Non-U.S. Subscribers Only)

 

 

 

PLEASE CAREFULLY REVIEW AND FOLLOW THE “INSTRUCTIONS

TO SUBSCRIBERS” IMMEDIATELY FOLLOWING THIS COVER PAGE

 

KAL ENERGY, INC.

93-95 Gloucester Place

London, W1U 6JQ

UNITED KINGDOM

Telephone: +44 (0)20 7487 8426

Fax: +44 (0)20 7487 8402

 

In order to subscribe to purchase shares of Common Stock of KAL ENERGY, Inc., a Delaware corporation (the “Company”), the following instructions need to be complied with:

 

1.    Complete and return two (2) executed copies of the attached Subscription Agreement Stradling Yocca Carlson & Rauth, 660 Newport Center Drive, Suite 1600; Newport Beach, California 92660 (Attention: Shivbir S. Grewal). Please note that incomplete documents will be returned to subscribers for completion. If you have any questions about completion of the documents, please contact Jorge Nigaglioni, Chief Financial Officer of KAL ENERGY, Inc. at 44 (0)20 7487 8426.

 

2.    Please print the name of the prospective investor, contact person, telephone number and facsimile number in the upper right-hand corner page 1 and fill in the amount of your aggregate investment.

 

3.    In Section 1(b), please fill in the required subscription information.

 

4.    In Section 4, please initial each investor category to which you belong. Only investors who qualify as “non-U.S. persons” will be eligible to purchase Shares from the Company pursuant to this Subscription Agreement.

 

5.    Note your obligations to update your representations and warranties, as set forth in the final paragraph of Section 5.

 

6.    You should complete all required information on the signature page and sign the Subscription Agreement.

 

7.    If you have not received copies of the Company’s SEC Filings referred to in Section 5 of the attached Subscription Agreement, please contact Jorge Nigaglioni, the Chief Financial Officer of the Company at 44 (0)20 7487 8426 and copies will be provided to you free of charge.

 

8.    When you return your documents, please remit to KAL ENERGY, Inc., an amount equal to the aggregate amount of your investment by wire transfer of immediately available funds to:

 

Account Name: KAL Energy, Inc.

Bank Name: ___________________________

Account Number:_______________________

Swift or ABA Routing No.: ________________

For credit to the account of: KAL Energy, Inc.

 

 

STRADLING YOCCA CARLSON & RAUTH

Attn: Shivbir S. Grewal

660 Newport Center Drive, Suite 1600

Newport Beach, CA 92660

(949) 725-4000

 

Name of Prospective Investor: __________________________

Contact Person: _____________________________________

Telephone Number: __________________________________

Fax Number: ________________________________________

Amount: ___________________________________________

 

KAL ENERGY, INC.,

a Delaware corporation

 

 

TO:          KAL ENERGY, INC.

Attn: Jorge Nigaglioni

93-95 Gloucester Place

London, W1U 6JQ

UNITED KINGDOM

 

The undersigned (“Subscriber”), on the terms and conditions herein set forth, tenders this subscription to KAL Energy, Inc., a Delaware corporation (the “Company”), and hereby offers to purchase a specified number of shares of Common Stock of the Company (the “Shares”) as provided herein.

 

 

(a) The Securities. This Subscription Agreement relates to the offer and sale by the Company of its Shares for a purchase price of $0.80 per Share (the “Subscription”). The Subscriber must subscribe to a minimum of 250,000 Shares.

 

(b) Subscription and Method of Payment. The Subscriber hereby agrees, on the terms and conditions set forth in this Subscription Agreement, to purchase __________ Shares (the “Interest”) at an aggregate purchase price of $____________ (the “Purchase Price”). The Subscriber acknowledges that by executing this Subscription Agreement the Subscriber is making an irrevocable offer to purchase the Interest from the Company against payment by him of the Subscription. This Subscription may be rejected by the Company in its sole discretion. The Subscriber hereby agrees to deliver to the Company the Subscription at the Closing by wire transfer of immediately available funds.

 

(c) For each Share that the Subscriber purchases hereunder, the Subscriber shall receive a warrant to purchase one Share with an exercise price equal to the closing offer price of the Shares on the OTC Bulletin Board on the date of Closing (as hereinafter defined), plus a premium of five percent (5%). The warrant shall have a two (2) year exercise period.

 

2.    Acceptance of Agreement. The Company proposes to issue an aggregate of 1,000,000 shares of Common Stock to non-U.S. Subscribers, for an aggregate purchase price of U.S.$800,000. The Company shall have the right to accept or reject this Subscription, in whole or in part, in its sole and absolute discretion. In addition, the Company shall have the right to reject this Subscription Agreement if it believes for any reason that Subscriber is not a “non-U.S. person” within the meaning of Regulation

 

S (“Regulation S”) promulgated by the Securities Act of 1933, as amended (the “Securities Act”). This Subscription Agreement shall be deemed to be accepted by the Company only when the Company executes the Subscription Agreement in the space provided. Upon execution of this Subscription Agreement by the Company, the Company will forward a fully executed copy of same to Subscriber’s address as set forth on the signature page hereof.

 

 

(a) Time and Place of Closing. Subject to Section 3(b) below, the closing of the sale and purchase of the Shares and the payment by Subscriber of the Purchase Price therefor shall take place in the offices of the Company on such date and at such time as shall be selected by the Company (the “Closing”).

 

(b) Subscriber’s Conditions to Closing. Subscriber’s obligations hereunder are subject to the fulfillment, prior to or at the Closing, of each of the following conditions:

 

(i) Representations and Warranties. The representations and warranties of the Company contained in this Agreement shall be true and correct, in all material respects, at the Closing.

 

(ii) Performance of the Company. The Company shall have performed and complied with all agreements and conditions required by this Agreement to be performed or complied with by it prior to or at the Closing.

 

(c) Company’s Conditions to Closing. The Company’s obligations hereunder are subject to acceptance by the Company of the Subscription, and to the fulfillment, prior to or at the Closing, of each of the following conditions:

 

(i) Representations and Warranties. The representations and warranties of the Subscriber contained in this Agreement shall be true and correct at the Closing.

 

(ii) Proceedings and Documents. The Company and Stradling Yocca Carlson & Rauth, its counsel, shall have received all such counterpart originals or certified or other copies of such documents as the Company may reasonably request.

 

(iii) Contribution. The Company shall have received from Subscriber the Purchase Price.

 

4.    Representation as to Investor Status. In order for the Company to offer and sell the Shares in compliance with Regulation S of the Securities Act the following information must be obtained regarding your investor status. Please initial each category applicable to you as an investor in the Company.

 

________ (a) SUBSCRIBER IS NOT A “U.S. PERSON” as defined in Exhibit A (“U.S. Person”) attached hereto.

________ (b) At the time the offer to purchase the Shares was originated, Subscriber was outside the United States and is outside the United States as of the date of the execution and delivery of this Agreement.

 

________ (c) Subscriber is purchasing the Shares for its own account and not on behalf of any U.S. Person and has no present intention of reselling the Shares into the United States. Subscriber has not pre-arranged a sale of the Shares to any U.S. Person. Subscriber will not use the Shares to cover short positions in the U.S. for at least a one (1) year period commencing on the date of the purchase (the “Restricted Period”).

 

5.    Other Representations and Warranties of the Undersigned. The undersigned hereby represents and warrants to the Company as follows:

 

(a) Subscriber acknowledges and agrees that the offer and sales of the Shares have not been registered under the Securities Act and the Shares may not be offered or sold in the United States or to a U.S. Person during the Restricted Period except pursuant to a registration statement which has been declared effective under Section 5 of the Securities Act unless an exemption from the registration requirements of the Securities Act is available. Subscriber acknowledges and agrees that the certificates evidencing the Shares will contain a legend setting forth the foregoing restriction.

 

(b) Subscriber acknowledges and agrees that any offer or sale in the United States or to a U.S. Person after expiration of the Restricted Period will be made in accordance with the requirements of the Securities Act. In that regard, any such offer or sale will be registered under the Securities Act or will be made pursuant to an exemption from such registration requirements. Subscriber hereby confirms that it is acquiring the Shares for investment purposes and not with a view to the distribution of the Shares.

 

(c) The Shares are being acquired for the undersigned’s own account for investment, with no intention of distributing or selling any portion thereof within the meaning of the Securities Act, and will not be transferred by the undersigned in violation of the Securities Act or the then applicable rules or regulations thereunder. No one other than the undersigned has any interest in or any right to acquire the Shares. The undersigned understands and acknowledges that the Company will have no obligation to recognize the ownership, beneficial or otherwise, of such Shares by anyone but the undersigned.

 

(d) The undersigned’s financial condition is such that the undersigned is able to bear the risk of holding the Shares for an indefinite period of time and the risk of loss of the undersigned’s entire investment in the Company.

 

(e) The undersigned has had the opportunity to review the Company’s Annual Report on Form 10-K for the fiscal year ended May 31, 2006 (the “10-K”), the Company’s latest Quarterly Report on Form 10-Q for the quarter ended February 28, 2007, and the other filings made by the Company with the United States Securities and Exchange Commission (the “SEC”) from time-to-time including, without limitation, the risk factors included in the 10-K (the “SEC Filings”).

 

(f) The Company has made available all additional information which the undersigned has requested in connection with the Company and its representatives, and the undersigned has been afforded an opportunity to make further inquiries of the Company and its representatives and the opportunity to obtain any additional information (to the extent the Company has such information or could acquire it without unreasonable effort or expense) necessary to verify the accuracy of information contained in the SEC Filings.

 

(g) No representations or warranties have been made to the undersigned by the Company, or any representative of the Company. The undersigned expressly acknowledges that it has made its own investigation regarding the Company and is not relying on any other information regarding the Company other than as may be set forth in the SEC Filings and such information as may have been provided to the undersigned in writing to verify the accuracy of information contained in the SEC Filings pursuant to Section 5(f) above.

 

(h) The undersigned has investigated the acquisition of the Shares to the extent the undersigned deemed necessary or desirable and the Company has provided the undersigned with any assistance the undersigned has requested in connection therewith.

 

(i) The undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of an investment in the Shares and of making an informed investment decision with respect thereto.

 

(j) The undersigned agrees that the Company may refuse to register any transfer of the Shares not made in accordance with the provisions of Regulation S pursuant to registration under the Securities Act and qualification under the securities laws of all applicable states, or pursuant to an exemption from such registration or qualification requirements.

 

(k) The undersigned acknowledges that the undersigned is purchasing the Shares without being furnished any offering literature or prospectus other than the SEC Filings and this Subscription Agreement.

 

(l) The undersigned has full power and authority to make the representations referred to herein, to purchase the Shares and to execute and deliver this Subscription Agreement.

 

(m) The undersigned acknowledges and is aware of the following:

 

(i) The investment in the Shares is speculative and involves a high degree of risk of loss of the entire investment in the Company.

 

(ii) Certificates representing the Shares will carry substantially the following legend condition (in addition to any legends required under applicable state securities laws):

 

THE OFFER AND SALE OF THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, (THE “1933 ACT”) AND SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED EXCEPT PURSUANT TO (i) THE PROVISIONS OF REGULATION S, PROMULGATED UNDER THE 1933 ACT, (ii) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT COVERING THE OFFER, SALE OR OTHER TRANSFER OF SUCH SECURITIES OR (iii) AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE COMPANY, STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE 1933 ACT.

 

(iii) There are substantial restrictions on the transferability of the Shares; the undersigned may not be able to take advantage of the provisions of Rule 144 adopted by the Securities and Exchange Commission under the Securities Act with respect to the resale of the Shares and

 

accordingly may have to hold the Shares indefinitely, and it may not be possible for the undersigned to liquidate the investment in the Company.

 

(iv) No state or federal agency has made any finding or determination as to the fairness of the terms of the sale of the Shares or any recommendation or endorsement thereof.

 

(v) It never has been represented, guaranteed or warranted to the undersigned by the Company, its agents or employees or any other person, expressly or impliedly, any of the following:

 

(A) The approximate or exact length of time that the undersigned will be required to remain as owner of the Shares; or

 

(B) The profit or return, if any, to be realized by making an investment in the Company.

 

(n) The undersigned understands that the foregoing representations and warranties are to be relied upon by the Company as a basis for exemption of the sale of the Shares under the Securities Act, under the securities laws of all applicable states and for other purposes.

 

The foregoing representations and warranties are true and accurate as of the date hereof and shall survive such date. If in any respect such representations and warranties shall not be true and accurate prior to the acceptance of the Subscription by the Company, the undersigned shall give notice of such fact to the Company by facsimile with written confirmation of receipt, specifying which representations and warranties are not true and accurate and the reasons therefor.

 

 

(a) Registration on Form SB-2

 

(i) Within one hundred and twenty (120) days from the date of the Closing, the Company shall use its best efforts to ensure that a registration statement on Form SB-2 (the “Form SB-2”) is filed with the SEC and that of the Subscribers’ Shares are included in such Registration Statement; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this paragraph 6(b): (A) if the Form SB-2 is not available for such offering by the Subscribers; or, (B) if the Company shall furnish to the Subscriber a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such Form SB-2 Registration to be effected at such time, in which event the Company shall have the right to defer the filing of the Form SB-2 Registration Statement or proportionally reduce the number of Shares included in such filing.

 

(ii) Subject to the foregoing, the Company shall use its best efforts to ensure that a registration statement covering the Shares is filed as soon as practicable after receipt of the request or requests of the Subscriber. If the Form SB-2 is not available for such offering by the Subscriber, the Company shall use its best efforts to ensure that a registration statement on Form S-1 or other available form of registration statement is filed within one hundred fifty (150) days from the date of the Closing.

 

(b) “Piggy Back” Registration. If at any time prior to the filing of the Form SB-2 the Company shall determine to register under the Securities Act the offer and sale of any of its Shares

 

(other than a registration relating solely to the sale of securities to participants in a Company employee benefits plan, a registration on any form which does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Shares or a registration in which the offer and sale of the only Common Stock being registered is Common Stock issuable upon conversion of debt securities which are also being registered), it shall send to each Subscriber written notice of such determination and, if within fifteen (15) days after receipt of such notice, such Subscriber shall so request in writing, the Company shall use its best efforts to ensure that such registration statement includes all or any part of the Shares that such Subscriber requests to be registered. If the total amount of shares requested by Subscriber to be included in such offering exceeds the amount of securities that the managing underwriter determines in its sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including the Shares, which the managing underwriter determines in its sole discretion will not jeopardize the success of the offering (the securities so included to be (A) first, to the Company, and (B) among Subscribers of the Shares requesting to sell the Shares and to other Subscribers of Common Stock holding registration rights, pro rata among the selling shareholders according to the total amount of securities owned by each such shareholder); all of the Company’s selling shareholders, including Subscriber(s), shall not be reduced below 20% of the total number of securities to be provided in the registration. For purposes of the preceding parenthetical concerning apportionment, for any selling Subscriber which is a Subscriber of registrable Shares and which is a partnership or corporation, the partners, retired partners and shareholders of such holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling shareholder”, and any pro rata reduction with respect to such “selling shareholder” shall be based upon the aggregate amount of shares carrying registration rights owned by all entities and individuals included in such “selling shareholder,” as defined in this sentence. If any Subscriber disapproves of the terms of such underwriting, he may elect to withdraw therefrom by written notice to the Company and the underwriter.

 

(c) Expenses. In the case of a registration under this Section 6, the Company shall bear all costs and expenses of such registration, including, but not limited to, SEC filing fees, “blue sky” fees and expenses, and all OTC Bulletin Board, stock exchange listing and qualification fees; provided, however, that the Company shall nave no obligation to pay or otherwise bear (i) any portion of the underwriter’s commissions or discounts attributable to the Shares being offered and sold by the Subscribers of the Shares, (ii) any stock transfer taxes, (iii) any fees of counsel for the selling Subscribers, or (iv) any of such expenses if the payment of such expenses by the Company is prohibited by the laws of a state in which such offering is qualified and only to the extent so prohibited; provided, however, that the Company shall not be required to pay for any expenses of any registration proceeding begun if the registration request is subsequently withdrawn at the request of the Subscribers initiating such registration (in which case, all Subscribers initiating such registration shall bear such expenses pro rata based upon the total number of Shares requested to be included therein by each such Subscriber.

 

(d) Transfer of Registration Rights. The registration rights of a Subscriber of Shares under this Section 6 may be transferred to any transferee provided that the transferor shall provide the Company with prompt written notice of such transfer. Notwithstanding the foregoing, the registration rights of a Subscriber under this Subscription Agreement may not be transferred to an entity, or a person controlled by, under common control with or controlling such entity, which is a direct competitor of the Company.

 

(e) Termination of Registration Rights. The obligations of the Company to register any Subscriber’s registrable Shares pursuant to this Section 6 shall terminate at such time as all Shares held by and issuable to such Subscriber (and its affiliates, partners, former partners, members and

 

former members) may be sold pursuant to Rule 144, or pursuant to Regulation S, during any ninety (90) day period.

 

7.    Indemnification. The undersigned acknowledges that the undersigned understands the meaning and legal consequences of the representations and warranties made by the undersigned herein, and that the Company is relying on such representations and warranties in making the determination to accept or reject this Subscription. The undersigned hereby agrees to indemnify and hold harmless the Company and each employee and agent thereof from and against any and all loss, damage or liability due to or arising out of a breach of any representation or warranty of the undersigned contained in this Subscription Agreement.

 

8.    Transferability. The undersigned agrees not to transfer or assign this Subscription Agreement, or any interest herein, unless in accordance with applicable federal and state securities laws.

 

9.    No Revocation. The undersigned agrees that this Subscription Agreement and any agreement of the undersigned made hereunder is irrevocable, and that this Subscription Agreement shall survive the death or disability of the undersigned, except as provided below in Section 10.

 

10.    Termination of Agreement. If this Subscription is rejected by the Company, then and in any such event this Subscription Agreement shall be null and void and of no further force and effect, and no party shall have any rights against any other party hereunder, and the Company shall promptly return or cause to be returned to the undersigned this Subscription Agreement and the Purchase Price tendered hereunder.

 

11.    Notices. All notices or other communications given or made hereunder shall be in writing and shall be delivered or mailed by registered or certified mail, return receipt requested, postage prepaid, or delivered by facsimile with written confirmation of receipt to the undersigned at the address set forth below and to the Company at the address set forth on the cover hereof, or at such other place as the Company or the undersigned may designate by written notice to the other party.

 

12.    Expenses. The undersigned will pay the undersigned’s own expenses relating to this Subscription Agreement, the ancillary documents attached hereto and the purchase of the Shares.

 

13.    Amendments. Unless otherwise expressly provided herein or any document attached hereto, neither this Subscription Agreement nor any term hereof may be changed, waived, discharged or terminated orally but only with the written consent of the undersigned and the Company.

 

14.    Counterparts; Facsimile. This Subscription Agreement may be executed in any number of counterparts and may be delivered by telecopy or facsimile, each of which shall be an original but all of which taken together shall constitute one Subscription Agreement.

 

15.    Governing Law; Venue. This Agreement shall in all respects be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of law doctrine. Seller hereby agrees to submit to the personal jurisdiction of the state or federal courts located in the County of Orange, State of California, U.S.A. for any lawsuit filed, arising from or related to this Subscription.

 

16.    Headings. The headings in this Subscription Agreement are for convenience of reference, and shall not by themselves determine the meaning of this Subscription Agreement or of any part hereof.

 

17.    Obligations of Subscriber. The Subscriber hereby acknowledges and agrees that the Subscription hereunder is irrevocable, that the Subscriber is not entitled to cancel, terminate or revoke this Subscription Agreement or any agreements of the Subscriber hereunder and that this Subscription Agreement and such other agreements shall survive the death or disability of the Subscriber and shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, administrators, successors, legal representatives and permitted assigns. If the Subscriber is more than one person, the obligations of such persons hereunder shall be joint and several and the representations, warranties, covenants, agreements and acknowledgments of the Subscriber herein contained shall be deemed to be made by and be binding upon each such person and his or her respective heirs, executors, administrators, successors, legal representatives and permitted assigns.

 

18.    Severability. In case any provision of this Subscription Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Subscription Agreement shall not in any way be affected or impaired thereby.

 

19.    Gender, Number and Headings. As used in this Subscription Agreement, the masculine gender will include the feminine and neuter, and vice versa, as the context so requires; and the singular number will include the plural, and vice versa, as the context so requires. As used in this Subscription Agreement, section and subsection headings are for convenience of reference only and shall not be used to modify, interpret, limit, expand or construe the terms of this Subscription Agreement.

 

20.    Attorneys Fees. If any action or proceeding relating to this Agreement, or the enforcement of any provision of this Agreement is brought by a party hereto against any party hereto, the prevailing party shall be entitled to recover reasonable attorneys’ fees, costs and disbursements (in addition to any other relief to which the prevailing party may be entitled).

 

 

IN WITNESS WHEREOF, the parties have executed this Subscription Agreement this ____ day of _____, 2007.

 

TYPE OF OWNERSHIP (CHECK ONE)

 

INDIVIDUAL SUBSCRIBER(S)	ENTITY SUBSCRIBER
_____ Individual Ownership	_____ Corporation (Please affix corporate seal on signature page)
_____ Joint Tenants with Right of Survivorship (both Tenants must sign)	_____ Partnership   _____ Trust: Name of Trustee:   ____________________________
_____ Husband and Wife as Community Property (both Spouses must sign)	Name of Trust:   ____________________________
_____ Tenants-in-Common (all Tenants must sign)	Date of Trust Instrument:
_____ A Married (Man) (Woman) as (His) (Her) Separate Property	Beneficiary(ies):   ___________________________   _____ Other (Explain):   State of Formation of Entity:

A.	Number of Shares for which Subscriber is subscribing: _________________

 

B.	Subscription Amount (the number filled in A. multiplied by U.S.$1.00): U.S.$_______________

 

(FOR INDIVIDUAL SUBSCRIBER(S))		(FOR ENTITY SUBSCRIBER)
Signature		Signature and Capacity
Signature		Signature and Capacity
Name(s) Typed or Printed		Name(s) Typed or Printed
Social Security No.(s)		Tax Identification or Social Security Numbers
Residence Address		Address
City, State and Zip Code		City, State and Zip Code
Mailing Address, if different		Mailing Address, if different
City, State and Zip Code		City, State and Zip Code

 

 

ACCEPTED AS OF __________ ____, 2007:   KAL ENERGY, INC., a Delaware corporation   By:  ___________________________________ Its:  ___________________________________

 

 

 

“U.S. person” shall mean:

 

a.

any natural person resident in the United States;

 

b.

any partnership or corporation organized or incorporated under the laws of the United States;

 

c.

any estate of which any executor or administrator is a U.S. person;

 

d.

any trust of which the trustee is a U.S. person;

 

e.

any agency or branch of a foreign entity located in the United States;

 

f.

any non-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;

 

g.

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

 

h.

any partnership or corporation if:

 

i)

organized or incorporated under the laws of any foreign jurisdiction; and

 

ii)

formed by a U.S. person principally for the purpose of investing in securities not registered under the Securities Act, unless it is organized or incorporated, and owned, by accredited investors (as defined in Rule 501(a) of the Securities Act) who are not natural persons, estates or trusts

 

“U.S. person” shall not include:

 

a.

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;

 

b.

any estate of which any professional fiduciary acting as executor or administrator is a U.S. person, if:

 

i)

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

 

ii)

the estate is governed by foreign law;

 

c.

any trust of which any professional fiduciary acting as trustee is a U.S. person, if a trustee who is not a U.S. person has sole or shared investment discretion with respect to the trust assets, and no beneficiary of the trust (and no settlor if the trust is revocable) is a U.S. person;

 

d.

an employee benefit plan established and administered in accordance with the law of a country other than the United States and customary practices and documentation of such country;

 

e.

any agency or branch of a U.S. person located outside the United States, if:

 

i)

the agency or branch operates for valid business reasons; and

 

ii)

the agency or branch is engaged in the business of insurance or banking and is subject to substantive insurance or banking regulation, respectively, in the jurisdiction where located; and

 

f.

the International Monetary Fund, the International Bank for Reconstruction and Development, the Inter-American Development Bank, the Asian Development Bank, the African Development Bank, the United Nations, and their agencies, affiliates and pension plans, and any other similar international organizations, their agencies, affiliates and pension plans.