SUBSCRIPTION AGREEMENT
Exhibit
10.6
This
Subscription Agreement, dated April 26, 2019 (this
“Agreement”),
has been executed by the advisors set forth on the signature page
hereof (each an “Advisor” and collectively the
“Advisors”) in
connection with the placement (the “Offering”) by True Drink Holdings,
Inc, a Nevada corporation (the “Company” or “Pubco”) of the securities
discussed herein.
R E C I T A L S
A. Simultaneous with
or immediately after the entry into this Agreement, the Company
will enter into a Securities Exchange Agreement (the
“Exchange
Agreement”) with Charlie’s Chalk Dust, LLC, a
Delaware limited liability company (“CCD”), the Class A Members of CCD,
the Class B Members of CCD and holders of existing warrants of CCD
pursuant to which such security holders of CCD will exchange all of
such securities of CCD for equity securities of the Company (the
“Exchange”).
B. The Advisors have
provided advisory services on behalf of the Company in connection
with the Exchange (the “Advisory Services”).
C. As compensation for
the Advisory Services, the Company has agreed and hereby agrees to
issue to the Advisors and their designees (each a
“Subscirber”) those securities set forth opposite such
Subscriber’s names on Exhibit A hereto (the
“Securities”).
AGREEMENT
In consideration of the premises and
the mutual covenants contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company and each Advisor hereby agree as
follows:
1.
ISSUANCE
OF SECURITIES.
(a) Issuance of the Securities.
Subject to the satisfaction (or waiver) of the conditions set forth
in this Agreement, the Company shall issue to each Subscriber in
exchange for the Advisory Services previously provided by the
Advisors the Securities set forth opposite each Subscriber’s
name on Exhibit A hereto.
(b) Issuance
Time. The issue of the Securities shall occur simultaneous
with (or immediately before) the Exchange (the “Issuance Time”).
(c) Delivery.
At the Issuance Time, (i) the Company shall deliver irrevocable
instructions to Corporate Stock Transfer, the Company’s
transfer agent, or such other person as the parties shall jointly
designate in writing, to issue to each Subscriber certificates
representing the Securities (collectively, “Issuable Securities”) registered
in the name of such Subscriber, and for the number and kind of
Issuable Securities set forth on Exhibit A hereto. Within two weeks
after the Issuance Date, Corporate Stock Transfer shall deliver the
Securities to the Subscribers.
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2.
ADVISORS’
REPRESENTATIONS AND WARRANTIES.
Each
Advisor, severally and not jointly, represents and warrants to the
Company with respect to only itself that (except where expressly
stated otherwise), as of the date hereof and as of the Issuance
Time:
(a) Investment Purpose. The
Subscriber is acquiring the Securities for its own account for
investment only and not with a view towards, or for resale in
connection with, the public sale or distribution thereof, except
pursuant to sales registered or exempted under the Securities Act;
provided, however, that by making the representations herein, such
Subscriber reserves the right to dispose of the Securities at any
time in accordance with or pursuant to an effective registration
statement covering such Securities or an available exemption under
the Securities Act. Such Subscriber does not presently have any
agreement or understanding, directly or indirectly, with any Person
to distribute any of the Securities.
(b) Accredited
Investor Status. Each Subscriber is an “Accredited
Investor” as that term is defined in Rule 501(a)(3) of
Regulation D.
(c) Reliance
on Exemptions. The Advisor understands that the Securities
are being offered and sold to it in reliance on specific exemptions
from the registration requirements of United States federal and
state securities laws and that the Company is relying in part upon
the truth and accuracy of, and such Advisor’s compliance
with, the representations, warranties, agreements, acknowledgments
and understandings of each Subscriber set forth herein in order to
determine the availability of such exemptions and the eligibility
of such Subscriber to acquire the Securities.
(d) Information.
Each Subscriber has been furnished with all materials relating to
the business, finances and operations of the Company and
information he deemed material to making an informed investment
decision regarding his purchase of the Securities, which have been
requested by such Subscriber. Each Subscriber has been afforded the
opportunity to ask questions of the Company and its management.
Neither such inquiries nor any other due diligence investigations
conducted by a Subscriber or its representatives shall modify,
amend or affect such Subscriber’s right to rely on the
Company’s representations and warranties contained in Article
3 below. Each Subscriber understands that its investment in the
Securities involves a high degree of risk. Each Subscriber has
sought such accounting, legal and tax advice, as it has considered
necessary to make an informed investment decision with respect to
its acquisition of the Securities.
(e) Transfer
or Resale. Each Subscriber understands that: (i) the
Securities have not been registered under the Securities Act or any
state securities laws, and may not be offered for sale, sold,
assigned or transferred unless (A) subsequently registered
thereunder, (B) each Subscriber shall have delivered to the Company
an opinion of counsel, in a generally acceptable form, to the
effect that such Securities to be sold, assigned or transferred may
be sold, assigned or transferred pursuant to an exemption from such
registration requirements, or (C) each Subscriber provides the
Company with reasonable assurances (in the form of seller and
broker representation letters) that such Securities can be sold,
assigned or transferred pursuant to Rule 144 promulgated under the
Securities Act, as amended (or a successor rule thereto)
(collectively, “Rule
144”), in each case following the applicable holding
period set forth therein; and (ii) any sale of the Securities made
in reliance on Rule 144 may be made only in accordance with the
terms of Rule 144 and further, if Rule 144 is not applicable, any
resale of the Securities under circumstances in which the
seller (or the person through whom the sale is made) may be
deemed to be an underwriter (as that term is defined in the
Securities Act) may require compliance with some other exemption
under the Securities Act or the rules and regulations of the SEC
thereunder.
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(f) Legends.
The Advisor agrees to the imprinting, so long as its required by
this Article 2(f), of a restrictive legend on the Securities (and
any securities into which the Securities may be converted) in
substantially the following form:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE [AND INTO WHICH THIS
SECURITY MAY BE CONVERTED] HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS. THE SECURITIES HAVE BEEN ACQUIRED SOLELY FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TOWARD RESALE AND MAY NOT BE OFFERED
FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS, OR AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM,
THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE
STATE SECURITIES LAWS.
Certificates
evidencing the Securities (and any securities into which the
Securities may be converted) shall not contain any legend
(including the legend set forth above), (i) while a registration
statement covering the resale of such security is effective under
the Securities Act, (ii) following any sale of such Securities (or
any securities into which the Securities are converted) pursuant to
Rule 144, (iii) if such Securities (or any securities into which
the Securities are converted) are eligible for sale under Rule 144,
or (iv) if such legend is not required under applicable
requirements of the Securities Act (including judicial
interpretations and pronouncements issued by the staff of the SEC).
The Advisor agrees that the removal of restrictive legend from
certificates representing Securities as set forth in this Article
3(f) is predicated upon the Company’s reliance that each
Subscriber will sell any Securities pursuant to either the
registration requirements of the Securities Act, including any
applicable prospectus delivery requirements, or an exemption
therefrom, and that if Securities are sold pursuant to a
registration statement, they will be sold in compliance with the
plan of distribution set forth therein.
(g) Organization. Authority. Such
Advisor, if an entity, is an entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of
its organization with the requisite power and authority to enter
into and to consummate the transactions contemplated by this
Agreement and otherwise to carry out its obligations hereunder and
thereunder.
(h) Authorization,
Enforcement. If the Advisor is an entity, this Agreement has
been duly and validly authorized, executed and delivered on behalf
of such Advisor and shall constitute the legal, valid and binding
obligations of such Advisor enforceable against such Advisor in
accordance with its terms, except as such enforceability may be
limited by general principles of equity or to applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation and
other similar laws relating to, or affecting generally, the
enforcement of applicable creditors' rights and
remedies.
(i) No
Conflicts. The execution, delivery and performance by such
Advisor of this Agreement and the consummation by such Advisor of
the transactions contemplated hereby will not (i) result in a
violation of the organizational documents of such Advisor, (ii)
conflict with, or constitute a default (or an event which with
notice or lapse of time or both would become a default) under, or
give to others any rights of termination, amendment, acceleration
or cancellation of, any agreement, indenture or instrument to which
such Advisor is a party or (iii) result in a violation of any law,
rule, regulation, order, judgment or decree (including federal and
state securities laws) applicable to such Advisor, except, in the
case of clauses (ii) and (iii) above, for such conflicts, defaults,
rights or violations which could not, individually or in the
aggregate, reasonably be expected to have a material adverse effect
on the ability of such Advisor to perform its obligations
hereunder.
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3.
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.
The
Company makes the representations and warranties set out in Article
4.6 to and through Article 4.36 of the Exchange Agreement to the
Subscribers (substituting the term “Subscriber/s” for
“Member/s and Direct Investor/s” where applicable) and
agrees that the Subscribers may rely on such representations and
warranties as if such representations and warranties were set forth
below. Additionally, the Company hereby makes the representations
and warranties set forth below to the Subscribers:
(a) Authorization. Enforcement.
Validity. The Company has the requisite power and authority
to enter into and perform its obligations under this Agreement and
to issue the Securities in accordance with the terms hereof and
thereof. The execution and delivery of this Agreement by the
Company and the consummation by the Company of the transactions
contemplated hereby (including, without limitation, the issuance of
the Securities and the securities into which the Securities may be
converted) have been duly authorized by the Company's board of
directors and no further filing, consent or authorization is
required by the Company, its board of directors or its stockholders
or other governmental body. This Agreement has been duly executed
and delivered by the Company, and each constitutes the legal, valid
and binding obligations of the Company, enforceable against the
Company in accordance with its respective terms, except as such
enforceability may be limited by general principles of equity or
applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to, or affecting generally,
the enforcement of applicable creditors' rights and remedies and
except as rights to indemnification and to contribution may be
limited by federal or state securities law.
(b) Issuance
of Securities. The issuance of the Securities are duly
authorized and shall be validly issued, fully paid and
nonassessable and free from all preemptive or similar rights,
mortgages, defects, claims, liens, pledges, charges, taxes, rights
of first refusal, encumbrances, security interests and other
encumbrances (collectively “Liens”) with respect to
the issuance thereof. Upon issuance or conversion in accordance
with the Securities, the securities into which the Securities are
converted, when issued, will be validly issued, fully paid and
nonassessable and free from all preemptive or similar rights or
Liens with respect to the issue thereof, with the holders being
entitled to all rights accorded to a holder of Common
Stock.
(c) No
Conflicts. The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby (including, without limitation,
the issuance of the Securities and the issuance of securities into
which the Securities may be converted) will not (i) result in a
violation of the Company’s Articles of Incorporation (as
amended), Bylaws (as amended), certificate of formation, memorandum
of association, articles of association, bylaws or other
organizational documents of the Company, or any capital stock or
other securities of the Company, (ii) conflict with, or constitute
a default under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which the Company, or (iii) result in a
violation of any law, rule, regulation, order, judgment or decree
(including, without limitation, U.S. federal and state securities
laws and regulations, the securities laws of the jurisdictions of
the Company's incorporation or in which it or its subsidiaries
operate) and including all applicable laws, rules and regulations
of the State of Nevada) applicable to the Company or any of its
Subsidiaries or by which any property or asset of the Company is
bound or affected, except in the case of (ii) and (iii) for any
conflict, default, right or violation that would not reasonably be
expected to result in a Material Adverse Effect.
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(d) Consents.
The Company is not required to obtain any material consent from,
authorization or order of, or make any filing or registration with
(other than any filings as may be required by any state securities
agencies), any Governmental Entity (as defined below) or any
regulatory or selfregulatory agency or any other Person in
order for it to execute, deliver or perform any of its obligations
under or contemplated by this Agreement, in each case, in
accordance with the terms hereof or thereof. All consents,
authorizations, orders, filings and registrations which the Company
is required to obtain pursuant to the preceding sentence have been
or will be obtained or effected on or prior to the Issuance Time,
and the Company is not aware of any facts or circumstances which
might prevent the Company from obtaining or effecting any of the
registration, application or filings contemplated by this
Agreement. “Governmental Entity”
means any nation, state, county, city, town, village, district, or
other political jurisdiction of any nature, federal, state, local,
municipal, foreign, or other government, governmental or
quasigovernmental authority of any nature (including any
governmental agency, branch, department, official, or entity and
any court or other tribunal), multinational organization or
body. or body exercising, or entitled to exercise, any
administrative, executive, judicial, legislative, police,
regulatory, or taxing authority or power of any nature or
instrumentality of any of the foregoing, including any entity or
enterprise owned or controlled by a government or a public
international organization or any of the foregoing.
(e) The
Company acknowledges that the Advisors may sign the Registration
Rights Agreement to be entered on the date hereof among the Company
and certain shareholders of the Company on the date hereof on
behalf of the other Subscribers set out in Exhibit and that the
Subscribers shall be deemed to be parties to such Registration
Rights Agreement.
4.
CONDITIONS
TO THE COMPANY’S OBLIGATION TO SELL.
The
obligation of the Company hereunder to issue and sell the
Securities to each Subscriber is subject to the satisfaction, at or
before the Issuance Time, of each of the following conditions,
provided that these conditions are for the Company's sole benefit
and may be waived by the Company at any time in its sole discretion
by providing each Subscriber with prior written notice
thereof:
(a) the Advisors shall
have executed each of this Agreement and a Registration Rights
Agreement, the form of which is attached hereto as Exhibit B, and
delivered the same to the Company.
(b) The representations
and warranties of such Advisor shall be true and correct in all
material respects, and such Advisor shall have performed, satisfied
and complied in all material respects with the covenants,
agreements and conditions required by this Agreement to be
performed, satisfied or complied with by such Advisor.
5.
CONDITIONS
TO EACH SUBCRIBER'S OBLIGATION TO PURCHASE.
The
obligation of each Advisor hereunder to acquire its Securities is
subject to the satisfaction of each of the following conditions,
provided that these conditions are for each Advisor's sole benefit
and may be waived by such Advisor at any time in its sole
discretion by providing the Company with prior written notice
thereof:
(a) The
Company shall have duly executed and delivered to such Advisor each
of this Agreement and a Registration Rights Agreement, the form of
which is attached hereto as Exhibit B, and delivered the same to
such Advisor.
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(b) Each
and every representation and warranty of the Company shall be true
and correct in all material respects (other than representations
and warranties qualified by materiality, which shall be true and
correct in all respects), and the Company shall have performed,
satisfied and complied in all respects with the covenants,
agreements and conditions required to be performed, satisfied or
complied with by the Company.
(c) The
Company shall have obtained all governmental, regulatory or
third-party consents and approvals, if any, necessary for the sale
of the Securities, if any.
(d) No
statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or
endorsed by any court or Governmental Entity of competent
jurisdiction that prohibits the consummation of any of the
transactions contemplated by the Transaction
Documents.
(e) The
Company and its Subsidiaries shall have delivered to such Advisor
such other documents, instruments or certificates relating to the
transactions contemplated by this Agreement as such Advisor or its
counsel may reasonably request.
6.
INDEMNIFICATION
6.1 Indemnification.
(a) Subject
to the provisions of this Article 6, and irrespective of any due diligence
investigation conducted by a Subscriber with regard to the
transactions contemplated hereby, Pubco agrees to indemnify
fully in respect of, hold harmless and defend each Subscriber, and
each of the officers, agents and directors of such Subscriber
against any damages, liabilities, costs, claims, proceedings,
investigations, penalties, judgments, deficiencies, including
taxes, expenses (including, but not limited to, any and all
interest, penalties and expenses whatsoever reasonably incurred in
investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever) and losses (each,
a “Claim” and
collectively “Claims”) to which it or they may
become subject arising out of or based on any breach of or
inaccuracy in any of the representations and warranties or
covenants or conditions made by Pubco in this
Agreement.
(b) Subject
to the provisions of this Article 6, each Subscriber
agrees to indemnify fully in respect of, hold harmless and defend
Pubco and each of its officers, agents and directors against any
Claims to which they may become subject arising out of or based on
any breach of or inaccuracy in any of the representations and
warranties or covenants or conditions made by such Subscriber and
in this Agreement; provided no Subscriber shall have any
responsibility hereunder except for representations, warranties,
covenants or conditions made by it; and further provided that the
liability of any Subscriber shall not exceed the value at the
Issuance Time of the Securities received by it
hereunder.
6.2 Survival
of Representations and Warranties. Notwithstanding any
provision in this Agreement to the contrary, the representations
and warranties given or made by Pubco, and the Subscribers under
this Agreement shall survive the date hereof for a period of
forty-eight (48) months from and after the Issuance Date (the last
day of such period is herein referred to as the “Expiration Date”), except that any
written claim for breach thereof made and delivered prior to the
Expiration Date to the party against whom such indemnification is
sought shall survive thereafter and, as to any such claim, such
applicable expiration will not effect the rights to indemnification
of the party making such claim; provided, however, that any
representations and warranties that were fraudulently made shall
not expire on the Expiration Date and shall survive indefinitely
and claims with respect to fraud by Pubco or the Subscribers must
be made at any time, as long as such claim is made within a
reasonable period of time after discovery by the claiming
party.
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6.3 Method
of Asserting Claims, Etc. The party claiming indemnification
is hereinafter referred to as the “Indemnified Party” and the party
against whom such claims are asserted hereunder is hereinafter
referred to as the “Indemnifying Party.” All Claims
for indemnification by any Indemnified Party under this
Article 6 shall be
asserted as follows:
(a) In
the event that any Claim or demand for which an Indemnifying Party
would be liable to an Indemnified Party hereunder is asserted
against or sought to be collected from such Indemnified Party by a
third party, said Indemnified Party shall, within ten (10) business
days from the date upon which the Indemnified Party has Knowledge
of such Claim, notify the Indemnifying Party of such claim or
demand, specifying the nature of and specific basis for such claim
or demand and the amount or the estimated amount thereof to the
extent then feasible (which estimate shall not be conclusive of the
final amount of such Claim or demand) (the “Claim Notice”). The Indemnified
Party’s failure to so notify the Indemnifying Party in
accordance with the provisions of this Agreement shall not relieve
the Indemnifying Party of liability hereunder unless such failure
materially prejudices the Indemnifying Party’s ability to
defend against the claim or demand. The Indemnifying Party shall
have 30 days from the giving of the Claim Notice (the
“Notice Period”)
to notify the Indemnified Party: (i) whether or not the
Indemnifying Party disputes the liability of the Indemnifying Party
to the Indemnified Party hereunder with respect to such Claim or
demand, and (ii) whether or not the Indemnifying Party desires, at
the sole cost and expense of the Indemnifying Party, to defend the
Indemnified Party against such Claims or demand; provided, however,
that any Indemnified Party is hereby authorized prior to and during
the Notice Period to file any motion, answer or other pleading
which he shall deem necessary or appropriate to protect his
interests or those of the Indemnifying Party and not prejudicial to
the Indemnifying Party. In the event that the Indemnifying Party
notifies the Indemnified Party within the Notice Period that he,
she or it does not dispute liability for indemnification under this
Article 6 and that
such person desires to defend the Indemnified Party against such
claim or demand and except as hereinafter provided, the
Indemnifying Party shall have the right to defend by all
appropriate proceedings, which proceedings shall be promptly
settled or prosecuted by him to a final conclusion. The Indemnified
Party shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such
Indemnified Party except to the extent that the employment thereof
has been specifically authorized by the Indemnifying Party in
writing, the Indemnifying Party has failed after a reasonable
period of time to assume such defense and to employ counsel or in
such action there is, in the reasonable opinion of such separate
counsel, a material conflict on any material issue between the
position of the Indemnifying Party and the position of such
Indemnified Party (a “Material Conflict”). If requested
by the Indemnifying Party and there is no Material Conflict, the
Indemnified Party agrees to cooperate with the Indemnifying Party
and his, her or its counsel in contesting any Claim or demand which
the Indemnifying Party elects to contest or, if appropriate and
related to the Claim in question, in making any Counterclaim
against the person asserting the third party Claim or demand, or
any cross-complaint against any person. No Claim for which
indemnity is sought hereunder and for which the Indemnifying Party
has acknowledged liability for indemnification under this
Article 6 may be
settled without the consent of the Indemnifying Party, which
consent shall not be unreasonably withheld or delayed.
(b) In
the event any Indemnified Party should have a Claim against any
Indemnifying Party hereunder which does not involve a Claim or
demand being asserted against or sought to be collected from him by
a third party, the Indemnified Party shall give a Claim Notice with
respect to such Claim to the Indemnifying Party. If, after receipt
of a Claim Notice, the Indemnifying Party does not notify the
Indemnified Party within the Notice Period that he, she or it
disputes such Claim, then the Indemnifying Party shall be deemed to
have admitted liability for such Claim in the amount set forth in
the Claim Notice.
(c) The
Indemnifying Party shall be given the opportunity to defend the
respective Claim.
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7.
MISCELLANEOUS.
(a) Governing Law. Jurisdiction. Jury
Trial. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed
by the internal laws of the State of New York, without giving
effect to any choice of law or conflict of law provision or rule
(whether of the State of New York or any other jurisdictions) that
would cause the application of the laws of any jurisdictions other
than the State of New York. The Company hereby irrevocably submits
to the exclusive jurisdiction of the state and federal courts
sitting in The City of New York, Borough of Manhattan, for the
adjudication of any dispute hereunder or in connection herewith or
under any of the other Transaction Documents or with any
transaction contemplated hereby or thereby, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is brought in
an inconvenient forum or that the venue of such suit, action or
proceeding is improper. Each party hereby irrevocably waives
personal service of process and consents to process being served in
any such suit, action or proceeding by mailing a copy thereof to
such party at the address for such notices to it under this
Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained
herein shall be deemed to limit in any way any right to serve
process in any manner permitted by law. Nothing contained herein
shall be deemed or operate to preclude any Subscriber from bringing
suit or taking other legal action against the Company in any other
jurisdiction to collect on the Company's obligations to such
Subscriber or to enforce a judgment or other court ruling in favor
of such Subscriber. EACH PARTY
HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT
TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE
HEREUNDER OR UNDER ANY OTHER TRANSACTION DOCUMENT OR IN CONNECTION
WITH OR ARISING OUT OF THIS AGREEMENT, ANY OTHER TRANSACTION
DOCUMENT OR ANY TRANSACTION CONTEMPLATED HEREBY OR
THEREBY.
(b) Counterparts. This Agreement
may be executed in two or more identical counterparts, all of which
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. In the event that any signature is
delivered by facsimile transmission or by an email which
contains a portable document format (.pdf) file of an executed
signature page, such signature page 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
signature page were an original thereof.
(c) Headings. Gender. The headings
of this Agreement are for convenience of reference and shall not
form part of, or affect the interpretation of, this Agreement.
Unless the context clearly indicates otherwise, each pronoun herein
shall be deemed to include the masculine, feminine, neuter,
singular and plural forms thereof. The terms "including,"
"includes," "include" and words of like import shall be construed
broadly as if followed by the words "without limitation." The terms
"herein," "hereunder," "hereof" and words of like import refer to
this entire Agreement instead of just the provision in which they
are found.
(d) Entire Agreement, Amendments.
This Agreement supersedes all other prior oral or written
agreements between the Subscriber, the Company, their affiliates
and persons acting on their behalf with respect to the matters
discussed herein, and this Agreement and the instruments referenced
herein contain the entire understanding of the parties with respect
to the matters covered herein and therein and, except as
specifically set forth herein or therein, neither the Company nor
any Subscriber makes any representation, warranty, covenant or
undertaking with respect to such matters. No provision of this
Agreement may be waived or amended other than by an instrument in
writing signed by the party to be charged with
enforcement.
(e) Successors and Assigns. This
Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and assigns. The Company
shall not assign this Agreement or any rights or obligations
hereunder without the prior written consent of the Subscribers. In
connection with any transfer of any or all of its Securities, a
Subscriber may assign all, or a portion, of its rights and
obligations hereunder in connection with such Securities without
the consent of the Company, in which event such assignee shall be
deemed to be a Subscriber hereunder with respect to such
transferred Securities.
(f) No Strict Construction. The
language used in this Agreement will be deemed to be the language
chosen by the parties to express their mutual intent, and no rules
of strict construction will be applied against any
party.
[REMAINDER
PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, each Subscriber and the Company have
caused their respective signature page to this Subscription
Agreement to be duly executed as of the date first written
above.
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COMPANY:
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By:
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Name:
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Title:
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IN WITNESS WHEREOF, each Subscriber and the Company have
caused their respective signature page to this Subscription
Agreement to be duly executed as of the date first written
above.
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ADVISOR:
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Name:
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Title:
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EXHIBIT B
Form of Registration Rights Agreement
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