SUBSCRIPTION AGREEMENT
SUBSCRIPTION
AGREEMENT (this “Agreement”) made as of this __ day of April, 2008 for the
benefit of Xxxxxxx’x Cove Acquisition Corporation, a Delaware corporation (the
“Company”), having its principal place of business at 000 Xxxx Xxxxxxxxx, Xxxxx
000, Xxxxxxx, Xxxxxxx 00000 by Xxxxxxx’x Cove Holdings, LLC (the “Initial
Subscriber”), and the subscribers identified on the signature page hereto the
“Additional Subscribers”, together with the Initial Subscriber, the
“Subscribers”).
WHEREAS,
the Company and the Initial Subscriber entered into a Subscription Agreement
(the “Original Subscription Agreement”) on March 11, 2008, pursuant to which the
Initial Subscriber agreed to purchase warrants of the Company.
WHEREAS,
the parties intend this Agreement to modify, amend and supercede the Original
Subscription Agreement;
WHEREAS,
the Company desires to sell on a private placement basis (the “Offering”) an
aggregate of 3,050,000 warrants (the “Warrants”) of the Company for a purchase
price of $1.00 per Warrant. Each Warrant is exercisable to purchase one share
of
the Company’s common stock, par value $0.0001 per share (the “Common Stock”), at
an exercise price of $7.50 per share during the period commencing on the later
of: (i) the date that is 12 months from the date of the final prospectus
relating to the Company’s IPO (as defined below) and (ii) the date on which the
Company completes its Business Combination (as defined in Section 5 below),
and
ending on the earlier of: (i) the date that is five years from the date of
the
Company’s final prospectus for the Company’s IPO and (ii) the Business Day (as
defined below) preceding the date on which such Warrants are redeemed or
otherwise expire. For purposes of this Agreement, “Business Day” means any day
on which the American Stock Exchange is open for trading and which is not a
Saturday, a Sunday or any other day on which banks in the City of New York,
New
York, are authorized or required by law to close; and
WHEREAS,
the Subscribers wishe to purchase the Warrants and the Company wishes to accept
such subscription.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants hereinafter
set forth and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Company and the Subscribers hereby agree
as follows
1.
Agreement
to Subscribe
1.1. Purchase
and Issuance of the Warrants.
Upon
the terms and subject to the conditions of this Agreement, the Subscribers
hereby agree to purchase from the Company, and the Company hereby agrees to
sell
to the Subscribers, on the Closing Date, the Warrants for an aggregate purchase
price of $3,050,000 (the “Purchase Price”) in the amounts corresponding with the
subscription amount (“Subscription Amount”) set forth opposite each Subscriber’s
name on Schedule I hereto.
1.2. Delivery
of the Purchase Price.
Upon
execution of this Agreement, the undersigned are hereby bound to fulfill their
obligations hereunder and hereby irrevocably commit to deliver into a trust
account (the “Trust Account”) at a financial institution to be chosen by the
Company, maintained by American Stock Transfer & Trust Company, acting as
trustee, on the Closing Date (as defined below), the Subscription Amount in
immediately available funds by certified bank check, wire transfer or such
other
form of payment as shall be acceptable to the Trustee, in its sole and absolute
discretion, at the Closing.
1.3. Closing.
The
closing (the “Closing”) of the Offering, shall take place at the offices of the
Company, immediately prior to the effective date of the registration statement
pursuant to which the Company proposes to register its initial public offering
(the “IPO”) of 10,000,000 units of Common Stock and Warrants (the “Closing
Date”).
2.
Representations
and Warranties of the Subscribers
Each
Subscriber represents and warrants, severally and not jointly, to the Company
that:
2.1. No
Government Recommendation or Approval.
Subscriber understands that no United States federal or state agency has passed
upon or made any recommendation or endorsement of the Company or the Offering
of
the Warrants or the Common Stock underlying the Warrants (the “Warrant Shares”
and, collectively with the Warrants, the “Securities”).
2.2. Regulation
D Offering.
Each
Subscriber represents that it is an “accredited investor” as such term is
defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as
amended (the “Securities Act”) and acknowledges the sale contemplated hereby is
being made in reliance on a private placement exemption to “accredited
investors” within the meaning of Section 501(a) of Regulation D under the
Securities Act or similar exemptions under state law and, accordingly, the
Securities will be “restricted securities” within the meaning of Rule 144(a)(3)
under the Securities Act, and therefore may not be offered, pledged or sold
by
him, directly or indirectly, in the United States without registration under
United States federal and state securities laws and each Subscriber understands
the certificates representing such securities will contain a legend in respect
of such restrictions.
2.3. Intent.
Each
Subscriber is purchasing the Warrants solely for investment purposes, for each
Subscriber’s own account and not for the account or benefit of any U.S. Person,
and not with a view towards the distribution thereof and each Subscriber has
no
present arrangement to sell the Securities to or through any person or entity.
Each Subscriber shall not engage in hedging transactions with regard to the
Warrants and the underlying securities unless in compliance with the Securities
Act.
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2.4. Restrictions
on Transfer.
Each
Subscriber acknowledges and understands the Warrants are being offered in a
transaction not involving a public offering in the United States within the
meaning of the Securities Act. The Securities have not been registered under
the
Securities Act, and, if in the future the Subscriber decides to offer, resell,
pledge or otherwise transfer the Securities, such Securities may be offered,
resold, pledged or otherwise transferred only (i) pursuant to an effective
registration statement filed under the Securities Act, (ii) pursuant to an
exemption from registration under Rule 144 promulgated under the Securities
Act,
if available, or (iii) pursuant to any other available exemption from the
registration requirements of the Securities Act, and in each case in accordance
with any applicable securities laws of any state or any other jurisdiction.
Each
Subscriber agrees that if any transfer of its Securities or any interest therein
is proposed to be made, as a condition precedent to any such transfer, such
Subscriber may be required to deliver to the Company an opinion of counsel
satisfactory to the Company. Absent registration or another available exemption
from registration, each Subscriber agrees it will not resell the Securities.
Each Subscriber explicitly understands and acknowledges the Securities and
Exchange Commission (the “SEC”) has taken the position the Subscriber would be
considered a promoter under the Securities Act and that promoters or affiliates
of a blank check company and their transferees, both before and after a business
combination, would act as “underwriters” under the Securities Act when reselling
the securities of that blank check company. Accordingly, Rule 144 promulgated
under the Securities Act will not be available to any Subscriber for the resale
of the Securities despite technical compliance with the requirements of Rule
144, in which event the resale transactions would need to be made through a
registered offering.
2.5. Sophisticated
Investor.
(i)
Each Subscriber is sophisticated in financial matters and is able
to evaluate the risks and benefits of the investment in the
Securities.
(ii)
Each Subscriber is aware that an investment in the Warrants is
highly speculative and subject to substantial risks because, among other things,
none of the Securities have been registered under the Securities Act and
therefore cannot be sold unless subsequently registered under the Securities
Act
or an exemption from such registration is available. Each Subscriber is able
to
bear the economic risk of its investment in the Securities for an indefinite
period of time.
2.6.
Independent
Investigation.
Each
Subscriber, in making the decision to purchase the Warrants, has relied upon
an
independent investigation of the Company and has not relied upon any information
or representations made by any third parties or upon any oral or written
representations or assurances from the Company, its officers, directors or
employees or any other representatives or agents of the Company, other than
as
set forth in this Agreement. Each Subscriber is familiar with the business,
operations and financial condition of the Company and has had an opportunity
to
ask questions of, and receive answers from, the Company’s officers and directors
concerning the Company and the terms and conditions of the offering of the
Warrants and has had full access to such other information concerning the
Company as the Subscriber has requested. Each Subscriber confirms that all
documents that it has requested have been made available and that such
Subscriber has been supplied with all of the additional information concerning
this investment which Subscriber has requested.
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2.7. Authority.
This
Agreement has been validly authorized, executed and delivered by each Subscriber
and is a valid and binding agreement enforceable in accordance with its terms,
subject to the general principles of equity and to bankruptcy or other laws
affecting the enforcement of creditors’ rights generally. The execution,
delivery and performance of this Agreement by each Subscriber does not and
will
not conflict with, violate or cause a breach of any agreement, contract or
instrument to which Subscriber is a party.
2.8. No
Legal Advice from Company.
Each
Subscriber acknowledges it has had the opportunity to review this Agreement
and
the transactions contemplated by this Agreement and the other agreements entered
into between the parties hereto with the Subscriber’s own legal counsel and
investment and tax advisors. Except for any statements or representations of
the
Company made in this Agreement and the other agreements entered into between
the
parties hereto, each Subscriber is relying solely on such counsel and advisors
and not on any statements or representations of the Company or any of its
representatives or agents for legal, tax or investment advice with respect
to
this investment, the transactions contemplated by this Agreement or the
securities laws of any jurisdiction.
2.9.
Reliance
on Representations and Warranties.
Each
Subscriber understands the Warrants are being offered and sold to such
Subscriber in reliance on exemptions from the registration requirements under
the Securities Act, and analogous provisions in the laws and regulations of
various states, and that the Company is relying upon the truth and accuracy
of
the representations, warranties, agreements, acknowledgments and understandings
of the Subscriber set forth in this Agreement in order to determine the
applicability of such provisions.
2.10. No
General Solicitation or Advertising.
None of
the Subscribers entered into this Agreement as a result of any general
solicitation or general advertising within the meaning of Rule 502 under the
Securities Act.
2.11. Legend.
Each
Subscriber acknowledges and agrees the certificates evidencing the Warrants
and
the Warrant Shares shall bear a restrictive legends (the “Legends”), in form and
substance as set forth in Section 4 hereof, prohibiting the offer, sale, pledge
or transfer of the securities, except (i) pursuant to an effective registration
statement covering these securities under the Securities Act or (ii) pursuant
to
any other exemptions from the registration requirements under the Securities
Act
and such laws which, in the opinion of counsel for this Company, is
available.
3.
Representations
and Warranties of the Company
The
Company represents and warrants to Subscriber that:
3.1.
Valid
Issuance of Capital Stock.
The
total number of shares of all classes of capital stock which the Company will
have authority to issue is 75,000,000 shares of Common Stock and 1,000,000
shares of Preferred Stock. As of the date hereof, the Company has 2,875,000
shares of Common Stock and no shares of Preferred Stock issued and outstanding.
All of the issued shares of capital stock of the Company have been duly
authorized, validly issued, and are fully paid and non-assessable.
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3.2.
Organization
and Qualification.
The
Company is a corporation duly incorporated and existing in good standing under
the laws of the state of Delaware and has the requisite corporate power to
own
its properties and assets and to carry on its business as now being
conducted.
3.3.
Authorization;
Enforcement.
(i) The
Company has the requisite corporate power and authority to enter into and
perform its obligations under this Agreement and to issue the Warrants and
the
underlying securities in accordance with the terms hereof, (ii) the execution,
delivery and performance of this Agreement by the Company and the consummation
by it of the transactions contemplated hereby have been duly authorized by
all
necessary corporate action, and no further consent or authorization of the
Company or its Board of Directors or stockholders is required, and (iii) this
Agreement constitutes valid and binding obligations of the Company enforceable
against the Company in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
moratorium, reorganization, or similar laws relating to, or affecting generally
the enforcement of, creditors’ rights and remedies or by equitable principles of
general application and except as enforcement of rights to indemnity and
contribution may be limited by federal and state securities laws or principles
of public policy.
3.4.
No
Conflicts.
The
execution, delivery and performance of this Agreement and the consummation
by
the Company of the transactions contemplated hereby do not (i) result in a
violation of the Company’s Certificate of Incorporation or Bylaws or (ii)
conflict with, or constitute a default under any agreement, indenture or
instrument to which the Company is a party. Other than any SEC or state
securities filings which may be required to be made by the Company subsequent
to
the Closing, and any registration statement which may be filed pursuant thereto,
the Company is not required under federal, state or local law, rule or
regulation to obtain any consent, authorization or order of, or make any filing
or registration with, any court or governmental agency or self-regulatory entity
in order for it to perform any of its obligations under this Agreement or issue
the Common Stock in accordance with the terms hereof.
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4.
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Appointment
of Initial Subscriber as
Representative
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The
Additional Subscribers hereby appoint the Initial Subscriber to act as the
Representative of the Subscribers, as the attorney-in-fact for and on behalf
of
each such Additional Subscriber, and the taking by the Representative of any
and
all actions and the making of any decisions required or permitted to be taken
by
it under this Agreement including the exercise of power to agree to, negotiate
and enter into an amendment to the terms of the Warrants and this Agreement;
provided, however, that the Representative shall only agree to, negotiate or
enter into an amendment to the terms of the Warrants or this Agreement, if
the
terms of the Additional Subscribers’ Warrants are substantially similar to the
Initial Subscriber’s Warrants.
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5.
Legends
5.1.
Legend.
The
Company will issue the Warrants, and when issued, the Warrant Shares, purchased
by the Subscribers in the names of the Subscribers. The Warrants will bear
the
following Legend and appropriate “stop transfer” instructions:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE (INCLUDING THE SHARES OF COMMON
STOCK
OF THE COMPANY ISSUABLE UPON EXERCISE OF SUCH SECURITIES) HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES
LAWS, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE
STATE SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE. IN
ADDITION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
TRANSFER RESTRICTIONS SET FORTH IN A WARRANT AGREEMENT AND UNDER AN ESCROW
AGREEMENT.
SECURITIES
EVIDENCED BY THIS CERTIFICATE AND SHARES OF COMMON STOCK OF THE COMPANY ISSUABLE
UPON EXERCISE OF SUCH SECURITIES WILL BE ENTITLED TO REGISTRATION RIGHTS UNDER
A
REGISTRATION RIGHTS AGREEMENT.
The
Warrant Shares shall bear the following Legend and appropriate “stop transfer”
instructions
“THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS AND
NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD,
TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR SUCH LAWS OR AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT AND SUCH LAWS WHICH, IN THE OPINION
OF COUNSEL FOR THIS CORPORATION, IS AVAILABLE.”
SECURITIES
EVIDENCED BY THIS CERTIFICATE WILL BE ENTITLED TO REGISTRATION RIGHTS UNDER
A
REGISTRATION RIGHTS AGREEMENT TO BE EXECUTED BY THE COMPANY.
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND
CONDITIONS CONTAINED IN A SECURITIES ESCROW AGREEMENT (THE “AGREEMENT”) AND MAY
NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED DURING THE
TERM
OF THE ESCROW PERIOD (AS DEFINED IN THE AGREEMENT).”
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5.2.
Subscribers’
Compliance.
Nothing
in this Section 5 shall affect in any way the Subscribers’ obligations and
agreements to comply with all applicable securities laws upon resale of the
Securities.
5.3.
Company’s
Refusal to Register Transfer of the Securities.
The
Company shall refuse to register any transfer of the Securities, if in the
sole
judgment of the Company such purported transfer would not be made (i) pursuant
to an effective registration statement filed under the Securities Act, or (ii)
pursuant to an available exemption from the registration requirements of the
Securities Act.
6.
Escrow.
On
the
date of the final prospectus relating to the IPO, the holders of the Warrants
shall enter into a securities escrow agreement (the “Escrow Agreement”) with
American Stock Transfer & Trust Company, whereby the Warrants shall be held
in escrow until 30 days following the consummation by the Company of a Business
Combination or earlier upon the consummation of a transaction after the
Company’s Business Combination that results in all of the Company’s stockholders
at the time of the transaction having the right to exchange their shares of
Common Stock for cash, securities or other property.
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7.
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Securities
Laws Restrictions.
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In
addition to the restrictions contained in the Escrow Agreement and the warrant
agreement to be entered into between American Stock Transfer & Trust Company
and the Company upon the consummation of the IPO, each Subscriber agrees not
to
sell, transfer, pledge, hypothecate or otherwise dispose of all or any part
of
the Securities unless, prior thereto (i) a registration statement on the
appropriate form under the Securities Act and applicable state securities laws
with respect to the Securities proposed to be transferred shall then be
effective or (ii) the Company shall have received an opinion from counsel
reasonably satisfactory to the Company, that such registration is not required
because such transaction complies with the Securities Act and the rules
promulgated by the Securities and Exchange Commission thereunder and with all
applicable state securities laws.
8.
Waiver
of Liquidation Distributions.
In
connection with the Securities purchased pursuant to this Agreement, and with
respect to any Common Stock purchased by the Subscribers prior to the private
placement, each Subscriber hereby waives any and all right, title, interest
or
claim of any kind in or to any liquidating distributions by the Company in
the
event of a liquidation of the Company upon the Company’s failure to timely
complete a Business Combination. For purposes of clarity, in the event
Subscriber purchases shares of Common Stock in the IPO or in the aftermarket,
any additional shares so purchased shall be eligible to receive any liquidating
distributions by the Company. In no event will a Subscriber have the right
to
exercise any Warrants prior to the later of: (i) the date that is 12 months
from
the date of the final prospectus relating to the Company’s IPO and (ii) the date
on which the Company completes its Business Combination.
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9.
Forfeiture
of Warrants.
9.1. Failure
to Consummate Business Combination.
The
Warrants shall be forfeited to the Company in the event that the Company does
not consummate a Business Combination within 24 months from the date of the
final prospectus relating to the Company’s IPO (or 36 months in the event the
Company has entered into a definitive agreement with respect to a business
consummation and the stockholders have approved an extension for the purpose
of
consummating a Business Combination).
9.2. Termination
of Rights as Holder; Escrow.
If the
Warrants are forfeited in accordance with this Section 8, then after such time
the Subscribers (or successor in interest), shall no longer have any rights
as a
holder of such Warrants, and the Company shall take such action as is
appropriate to cancel such Warrants. To effectuate the foregoing, all
certificates representing the Warrants shall be held in escrow as provided
in
Section 5 hereof. In addition, Subscriber hereby irrevocably grants the Company
a limited power of attorney for the purpose of effectuating the
foregoing.
10. Rescission
Right Waiver and Indemnification.
10.1.
Each
Subscriber understands and acknowledges an exemption from the registration
requirements of the Securities Act requires there be no general solicitation
of
purchasers of the Warrants. In this regard, if the IPO were deemed to be a
general solicitation with respect to the Warrants, the offer and sale of such
Warrants may not be exempt from registration and, if not, the Subscribers may
have a right to rescind its purchase of the Warrants. In order to facilitate
the
completion of the Offering and in order to protect the Company, its stockholders
and the trust account from claims that may adversely affect the Company or
the
interests of its stockholders, each Subscriber hereby agrees to waive, to the
maximum extent permitted by applicable law, any claims, right to xxx or rights
in law or arbitration, as the case may be, to seek rescission of its purchase
of
the Warrants. Each Subscriber acknowledges and agrees this waiver is being
made
in order to induce the Company to sell the Warrants to the Subscribers. Each
Subscriber agrees the foregoing waiver of rescission rights shall apply to
any
and all known or unknown actions, causes of action, suits, claims or proceedings
(collectively, “Claims”) and related losses, costs, penalties, fees, liabilities
and damages, whether compensatory, consequential or exemplary, and expenses
in
connection therewith, including reasonable attorneys’ and expert witness fees
and disbursements and all other expenses reasonably incurred in investigating,
preparing or defending against any Claims, whether pending or threatened, in
connection with any present or future actual or asserted right to rescind the
purchase of the Warrants hereunder or relating to the purchase of the Warrants
and the transactions contemplated hereby.
10.2. Each
Subscriber agrees not to seek recourse against the Trust Account for any reason
whatsoever in connection with its purchase of the Warrants or any Claim that
may
arise now or in the future.
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10.3. Each
Subscriber acknowledges and agrees the stockholders of the Company, UBS
Securities LLC and Xxxxxx Xxxxxx & Co., Inc. are and shall be third-party
beneficiaries of the foregoing provisions of this Agreement.
10.4.
Each
Subscriber agrees that to the extent any waiver of rights under this Section
9
is ineffective as a matter of law, such Subscriber has offered such waiver
for
the benefit of the Company as an equitable right that shall survive any
statutory disqualification or bar that applies to a legal right. Each Subscriber
acknowledges the receipt and sufficiency of consideration received from the
Company hereunder in this regard.
11. Terms
of the Warrant
The
Warrants are substantially identical to the warrants included in the units
offered in the IPO, except: (i) they
(and
the Warrant Shares) will be placed in escrow and not released before, except
in
limited circumstances, until after the consummation of a Business Combination,
as more fully described in Section 5, (ii) they are being purchased in a
private placement pursuant to an exemption from the registration requirements
of
the Securities Act and will become freely tradable only after they are
registered pursuant to a registration rights agreement to be entered on or
before the date of the final prospectus relating to the Company’s IPO,
(iii) they will be non-redeemable so long as they are held by
the
initial holder thereof (or any of its permitted transferees),
and
(iv) they are exercisable (a) on a “cashless” basis if
held
by the initial holder thereof or its permitted assigns
at any
time after the consummation of the Business Combination and (b) in the absence
of an effective registration statement covering the Warrant Shares. In
no
event will the Company be required to net cash settle the Warrant
exercise.
12.
Governing
Law and Jurisdiction;
Waiver
of Jury Trial
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware for agreements made and to be wholly performed within such
state. The parties hereto hereby waive any right to a jury trial in connection
with any litigation pursuant to this Agreement and the transactions contemplated
hereby.
13. Assignment;
Entire Agreement; Amendment
13.1. Assignment.
Neither
this Agreement nor any rights hereunder may be assigned by any party to any
other person other than by Subscriber to a person agreeing to be bound by the
terms hereof.
13.2. Entire
Agreement.
This
Subscription Agreement sets forth the entire agreement and understanding between
the parties as to the subject matter thereof and merges and supersedes all
prior
discussions, agreements and understandings of any and every nature among
them.
13.3. Amendment.
Except
as expressly provided in this Agreement, neither this Agreement nor any term
hereof may be amended, waived, discharged or terminated other than by a written
instrument signed by the party against whom enforcement of any such amendment,
waiver, discharge or termination is sought.
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13.4.
Binding
upon Successors.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and to their respective heirs, legal representatives, successors and permitted
assigns.
14.
Notices;
Indemnity
14.1
Notices.
Unless
otherwise provided herein, any notice or other communication to a party
hereunder shall be sufficiently given if in writing and personally delivered
or
sent by facsimile or other electronic transmission with copy sent in another
manner herein provided or sent by courier (which for all purposes of this
Agreement shall include Federal Express or other recognized overnight courier)
or mailed to said party by certified mail, return receipt requested, at its
address provided for herein or such other address as either may designate for
itself in such notice to the other. Communications shall be deemed to have
been
received when delivered personally, on the scheduled arrival date when sent
by
next day or 2-day courier service, or if sent by facsimile upon receipt of
confirmation of transmittal or, if sent by mail, then three days after deposit
in the mail. If given by electronic transmission, such notice shall be deemed
to
be delivered (a) if by electronic mail, when directed to an electronic mail
address at which the stockholder has consented to receive notice; (b) if by
a
posting on an electronic network together with separate notice to the
stockholder of such specific posting, upon the later of (1) such posting and
(2)
the giving of such separate notice; and (c) if by any other form of electronic
transmission, when directed to the stockholder.
14.2
Indemnification.
Each
party shall indemnify the other against any loss, cost or damages (including
reasonable attorney’s fees and expenses) incurred as a result of such party’s
breach of any representation, warranty, covenant or agreement in this
Agreement.
15.
Counterparts
This
Agreement may be executed in one or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to
the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by facsimile
transmission or by e-mail delivery of a “.pdf” format data file, such signature
shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect as if such
facsimile or “.pdf” signature page were an original thereof.
16.
Survival;
Severability
16.1. Survival.
The
representations, warranties, covenants and agreements of the parties hereto
shall survive the Closing.
16.2. Severability.
In the
event that any provision of this Agreement becomes or is declared by a court
of
competent jurisdiction to be illegal, unenforceable or void, this Agreement
shall continue in full force and effect without said provision; provided that
no
such severability shall be effective if it materially changes the economic
benefit of this Agreement to any party.
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17. Headings.
The
titles and subtitles used in this Agreement are used for convenience only and
are not to be considered in construing or interpreting this
Agreement.
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This
subscription is accepted by the Company on the date first written
above.
| XXXXXXX’X COVE ACQUISITION CORPORATION | ||
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| By: | ||
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Name: Xxxxxxx X. Xxxx |
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| Title: Chief Executive Officer | ||
S-1
Signature
Page for Individuals:
Subscriber
has caused this Subscription Agreement to be executed as of the date first
written above.
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$________________________________________________
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___________________________________
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Purchase
Price ($1.00 per Warrant)
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Number of Warrants
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_________________________________________________
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Print
or Type Name
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_________________________________________________
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Signature
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S-2
Signature
page for Partnerships, Corporations or Other Entities:
IN
WITNESS WHEREOF, Subscriber has caused this Subscription Agreement to be
executed as of the date indicated above.
$
_____________________________ _____________________________
Total
Purchase Price ($1.00 per Warrant)
Number
of
Warrants
____________________________________
Print
or
Type Name of Entity
______________________________________________________________________________
Address
By:
____________________________________ ____________________________________
Signature:
Name:
Print
or
Type Name and Indicate
Title:
Title
or
Position with Entity
S-3
