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1 [ ] TERM SHEET FOR SUBORDINATED VARIABLE PAYMENT DEBT (DEMAND DIVIDEND) THIS TERM SHEET outlines the principal terms of a proposed financing for [ ] (hereafter, the Company ), a [ ] corporation by [ ] (hereafter, the Holder or Holders ). This Term Sheet does NOT constitute a binding agreement among the parties and instead is intended solely to outline the material terms and conditions to be incorporated into definitive agreements and such other agreements, documents and instruments related to the Transaction. The term Holder/Holders as used herein will mean a Holder of the Subordinated Variable Payment Debt ( Demand Dividend ) obligation issued and payable by the Company under the terms herein (the Financing ), and the term Investors as used herein will mean the holders of a Demand Dividend obligation. Offering Terms Company: [ ] a [ ] corporation. 1 Amount of Financing: Up to a maximum of [ ] 2 Type of Security: A Subordinated Variable Payment Debt Obligation (the Demand Dividend ) 3 Investors: Offered to accredited investors only. 4 Anticipated Closing Date: Business Plan: Use of Proceeds: A final closing is anticipated to occur on or about [ ]. The Company shall include an outline of projected spending, revenue, and capital use covering at least the Debt Term of this Demand Dividend and attach such plan as Exhibit A hereto (the Business Plan ). The Business Plan may be amended only with the written consent of a majority-in-interest of the Investors. The Business Plan is hereby incorporated into the terms of this Term Sheet. Proceeds from the investment will be used primarily for funding of the Company s Business Plan. Proceeds from the investment may not be used to satisfy debt obligations, unless included in the Business Plan.5, 6 Terms of the Demand Dividend Maturity: Total Obligation: The maturity (the Debt Term ) for payment of accrued principal and interest of the Demand Dividend shall be [48] months from the Closing Date. The aggregate payment owed to the Holders by the Company in connection with the Demand Dividend will be [one to three] times the amount of the original Financing (the Total Obligation ). For clarity, such amount shall include any interest accrued under the Demand Dividend. Upon satisfying the Total Obligation, all rights under the Demand Dividend will be extinguished. If the Total Obligation is not repaid within the Debt Term then the Business Plan Extension Provision (below) shall apply. 7 Interest Rate: Repayment Holiday: The principal balance under the Financing shall accrue interest at a rate of [ ] compounding quarterly. 8 Repayment obligations under the Demand Dividend will not commence until [ ] months after the Closing Date. 9 Interest [will/will not] accrue during the Repayment Holiday. 1 of 7

2 Payment Provisions: The Company shall be obligated to repay principal and interest on a variable payment schedule depending on Free Cash Flow (as defined below) of the Company, and shall continue to pay a fixed portion of its Free Cash Flow to the Holders until the amounts paid have reached the Total Obligation. After the completion of the Repayment Holiday the Holders shall receive [ %] of the Free Cash Flow of the Company on a quarterly basis. Such payments shall apply first to accrued interest due up to the reporting period, then to principal remaining under the Financing, and finally to payment of the Total Obligation. There shall be no pre-payment penalty. 10 Business Plan Extension: If the Total Obligation is not repaid within the Debt Term, the Company and Investors will make best efforts to agree on a business plan extension. The extension should cover a term sufficient to allow repayment of the Total Obligation. If the Company and Investors cannot mutually agree on a plan, the default Plan will be for a minimum annual Free Cash Flow equal to four (4) times the average free cash flow of the preceding eight (8) quarters. The annual cash flow shall be allocated quarterly in equal proportion to the prior year s quarters. During the Business Plan Extension term all Default Provisions (below) will apply. If the Total Obligation is not paid off by the end of the Business Plan Extension the Investors shall have the right to demand full payment of the remaining Total Obligation. Calculation of Free Cash Flow: Specific elements of the calculation for the purposes of this Financing shall be negotiated between the parties and included in the Business Plan. In general, Free Cash Flow shall be calculated as gross sales, less discounts, cost of goods sold, operating expenses approved under the Business Plan, and periodic payments of prior outstanding debt due within the reporting period (current quarter). Priority: Change of Control: Board of Directors: Indemnification: Negative Covenants: In the event of any liquidation or winding up of the Company, the holders of the Demand Dividend will be entitled to receive the remaining Total Obligation due under this Financing prior to any holders of the Company s equity securities, or each holder s pro rata percentage of all remaining assets if such assets do not fully repay the Total Obligation. In the event of a merger or consolidation of the Company in which its shareholders do not retain a majority of the voting power in the surviving corporation, or a sale of all or substantially all of the Company s assets (including the exclusive licensing of the Company s intellectual property), then the remaining Total Obligation due to the Holders of the Demand Dividend will be immediately due and payable prior to or coincident with close of such a merger, consolidation, or sale. The Holders will be entitled to one board seat on the Company s Board of Directors. The Board s meetings will be held quarterly until such time as the Board unanimously determines otherwise. The Company will indemnify Board members to the maximum extent permitted by applicable law. So long as any repayment obligations on the Demand Dividend remain outstanding, the Company will not, without the written consent of a majority-in-interest of the Holders: 2 of 7

3 (i) liquidate, dissolve or windup the business and affairs of the Company, or effect any Deemed Liquidation Event (as defined in the Company s Certificate of Incorporation) or consent to any of the foregoing; (ii) amend, alter, or repeal any provision of the Certificate of Incorporation or Bylaws; (iii) create or authorize the creation of or issue or obligate itself to issue shares of, any other security convertible into or exercisable for any equity security, having rights, preferences or privileges senior to or on parity with the Demand Dividend (iv) reclassify, alter or amend any existing obligation that is junior to or on parity with the Demand Dividend, if such reclassification, alteration or amendment would render such other obligation senior to or on parity with the Demand Dividend; (v) incur any debt that is senior to or on parity with the Demand Dividend, if the principal of such obligation is greater than 10% of the Demand Dividend (vi) purchase or redeem or pay any dividend on any capital stock prior to the full Payment of the Demand Dividend, other than stock repurchased from former employees or consultants in connection with the cessation of their employment/services, at the lower of fair market value or cost; (vii) create or hold capital stock in any subsidiary that is not a wholly-owned subsidiary or dispose of any subsidiary stock or all or substantially all of any subsidiary assets; (viii) merge or consolidate with another corporation in which the holders of the Company s voting equity securities immediately prior to the transactions own 50% or less of the voting securities of the surviving corporation; (ix) sell, license, encumber or dispose of all or substantially all of the Company s assets, technology or intellectual property, or; (x) increase or decrease the size of the Board of Directors. Event of Default The following events shall constitute an Event of Default: (i) actual revenue or Free Cash Flow is more than [40-60]% below the Business Plan, as computed on a quarterly basis, (ii) the Company admits in writing its inability to pay its debts generally as they mature, (iii) the Company makes a general assignment for the benefit of its or any of its creditors, (iv) the Company commences proceedings to be or is subject to proceedings which shall cause the Company to be dissolved or liquidated, or (v) the Company commences a case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law or (vi) a force majeure which prevents the Company from engaging in the normal course of business. In an Event of Default, to the extent the Investors are not aware of such Event of Default, the Company shall notify the Investors within 3 days of such Event of Default. The Investors shall then notify the Company that the Company is in default and shall give the Company [5-30] days to cure such default. If the Company is unable to cure such default, the remaining Total Obligation due under the Demand Dividend shall become due and payable immediately. Information Rights: The Company will deliver to the Holders un-audited quarterly financial statements no later than 30 days, unless otherwise agreed to, following the close of such period and audited (or, at the sole discretion of the Company s Board of Directors, un-audited) annual financial statements no later than 180 days following the close of the fiscal year. Any discrepancies which caused a variation in payment to the Holder, based on inaccurate financial statements will be reimbursed within 30 days. The Company will also furnish the Holders with a copy of the Company s annual operating plan no later than 30 days prior to the beginning of the fiscal year. Each Holder will also be entitled to standard inspection and visitation rights, including the right to demand audited financial statements, at such Holder s expense and provided that such audit will not unduly burden the Company or interrupt the normal course of business. Additionally, a Holder may demand to see properly certified 3 of 7

4 bank statements from the bank where the Company maintains its account upon demand, provided, however, that the Company shall not be obligated to provide such bank statements more frequently than once per 30 day period. Participation Rights: Purchase Agreement: The Holders will be entitled to participate in any subsequent financing, provided that the Demand Dividend is not repaid at the close of such financing. The Holders will have the right to purchase an amount securities issued in such financing equal to three times the remaining Demand Dividend principal outstanding. For the avoidance of doubt, if an Investor has issued the Company a Demand Dividend in the amount of $10,000 and the Company undertakes a subsequent financing, such Investor will be entitled to purchase up to $30,000 minus the amount the Company has paid back to the Investor at the close of the subsequent financing. The investment will be made pursuant to a Demand Dividend Obligation Agreement reasonably acceptable to the Company and the Holders, which agreement will contain, among other things, appropriate representations and warranties of the Company, covenants of the Company reflecting the provisions set forth herein and appropriate conditions of closing, including satisfactory completion of financial and legal due diligence. Other Matters Currency: Transfer of Rights: No Finder Fee: Conditions Precedent to Financing: All payments to Holders will be made in U.S. Dollars. The Company shall take reasonable measures to ensure payments to the Holders comply with both local and U.S. laws. Any rights accorded to the Holders may be transferred to (i) any partner or retired partner of any Holder which is a partnership, (ii) any member or former member of any Holder which is a limited liability company, (iii) any family member or trust for the benefit of any individual Holder, or (iv) any affiliated investment fund of a Holder; provided the Company is given written notice thereof and subject to applicable securities regulations. The Holders and Company agree that the Company will not pay any broker or finder fees related to this financing, including any payments made as cash equivalents, and that any such fees paid by an Investor will be additional to the amount invested by such Investor in the financing and will not be reimbursed by Company. This Term Sheet is a non-binding document which expresses the present intent of the parties hereto. Closing of the transaction contemplated hereunder is subject to the approval of each of the Holders and to the satisfaction of the Holders due diligence requirements, including financial and legal diligence, and the signing of mutually acceptable definitive agreements containing additional provisions customary in transactions of this type. [SIGNATURE PAGE FOLLOWS] 4 of 7

5 below: IN WITNESS WHEREOF, the parties have executed this Term Sheet as of the date set forth AGREED AND ACCEPTED: [ ] By: Name: Title: Date:, 2013 AGREED AND ACCEPTED: [ ] BY: NAME: TITLE: DATE:, 2013 Profit and Loss Forecast and Cap Table 5 of 7 WHO, INC. CONFIDENTIAL INFORMATION

6 EXHIBIT A Approved Business Plan including Pro Forma X-Year Income and Cash Flow Forecast 1 Investors may want to require re-incorporation into a Delaware corporation as a condition to financing. There can be significant tax and enforcement problems with international legal structures. Whether to impose US corporate formation as a condition to financing will largely be a function of the amount of the investment and the investor s comfort level with investing in foreign entities. Additionally, it may be necessary to engage local counsel wherever the Company is conducting significant business activities. 2 The Demand Dividend Investment Vehicle is designed for use in connection with investments between $20, , Optional Conversion Provision Conversion: The Holders will have the right to convert all outstanding amounts due under the Financing at any time, at the option of the Holders, into shares of Common Stock. The conversion price will be the average price of Company Common Stock over the previous 12 months, as declared by the Board of Directors, or at a price offered in good faith by the Company, whichever is lower. 4 From the Company s perspective, it may be worthwhile to include an accredited investor questionnaire with the term sheet, to ensure compliance with securities regulations. Additionally, if such Company is based internationally, advice from local counsel is highly recommended to ensure compliance with local laws. 5 Details governing Business Plan covenants and/or requiring consent for departing from the Business Plan will be included in the definitive financing documents, but given that such a covenant does impose a restriction on how the Company can use the money, it is beneficial to both parties to at least preview the issue in the term sheet. 6 If an Investor would like additional protection in addition to the Default provisions the following language could be added: A post-financing change in the ratio of Free Cash Flow to revenue of more than 20%, as contained in the Business Plan, must be approved by the board of directors, including the director appointed as a representative of the Investors 7 The Business Plan Extension provision is designed to protect Investors from significant changes in free cash flow in the event that the total obligation is not satisfied after the debt term has expired. If Investors wish to delete this provision then the company is still obligated to pay the agreed upon percentage of free cash flow to Holders until the total obligation is met, however the default provisions will no longer be binding. 8 Interest rate may require input from local counsel in a foreign country to ensure compliance with usury laws. U.S. based companies will likely see an interest rate between 5-9%. 9 The length of the Repayment Holiday will vary depending on the type of business. The Repayment Holiday is designed to allow time for the money raised to be invested and put to use by the Company for a sufficient amount of time to begin to yield results before such money is required to be taken out of the Company. 10 Equity rights with Demand Dividend Replacement Option Replacement Provisions: The Demand Dividend in this Term Sheet can be replaced with a new Demand Dividend. If a new Demand Dividend is issued to replace this Obligation, then the Investors have the option to purchase up to [2]% of outstanding shares of the company as newly issued shares. The 6 of 7

7 purchase price will be the average price of Company Common Stock over the previous 12 months, as declared by the Board of Directors, or at a price offered in good faith by the Company, whichever is lower. 7 of 7

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