Re: Securities Purchase Agreement, dated as of August 22, 2008 (the “Purchase Agreement”), between Adrenalina, a Nevada corporation (the “Company”) and the purchasers signatory thereto (each, a “Purchaser” and, collectively, the “Purchasers”)
August
22, 2008
Each
Purchaser referenced below:
|
Re:
|
Securities
Purchase Agreement, dated as of August 22, 2008 (the “Purchase
Agreement”),
between Adrenalina, a Nevada corporation (the “Company”)
and the purchasers signatory thereto (each, a “Purchaser”
and, collectively, the “Purchasers”)
|
Ladies
and Gentlemen:
Defined
terms not otherwise defined in this letter agreement (the “Letter
Agreement”)
shall
have the meanings set forth in the Purchase Agreement. Pursuant to Section
2.2(a) of the Purchase Agreement and in satisfaction of a condition of the
Company’s obligations under the Purchase Agreement, the undersigned irrevocably
agrees with the Company that, from the date hereof until 180 calendar days
after
the Effective Date (or, if the Effective Date does not occur within 180 calendar
days of the Closing Date, then 180 calendar days after the Purchasers may first
sell their Conversion Shares pursuant to Rule 144) (such period, the
“Restriction
Period”),
the
undersigned will not offer, sell, contract to sell, hypothecate, pledge or
otherwise dispose of (or enter into any transaction which is designed to, or
might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the undersigned or any Affiliate of the undersigned or any person
in privity with the undersigned or any Affiliate of the undersigned), directly
or indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Exchange Act with respect
to,
any shares of Common Stock or Common Stock Equivalents beneficially owned,
held
or hereafter acquired by the undersigned (the “Securities”).
Notwithstanding the foregoing, the undersigned may transfer the Securities
(i)
as a bona fide gift or gifts, or (ii) to any trust for the direct or indirect
benefit of the undersigned or the immediate family of the undersigned, provided
that any such transfer shall not involve a disposition for value; provided,
however,
this
Letter Agreement shall be binding on all successors and assigns of the
undersigned with respect to the Securities and any such successor or assign
shall enter into a similar agreement for the benefit of the
Purchasers.
For
purposes of this Letter Agreement, “immediate family” shall mean any
relationship by blood, marriage or adoption, not more remote than first cousin.
Beneficial
ownership shall be calculated in accordance with Section 13(d) of the Exchange
Act. In order to enforce this covenant, the Company shall impose irrevocable
stop-transfer instructions preventing the Transfer Agent from effecting any
actions in violation of this Letter Agreement.
The
undersigned acknowledges that the execution, delivery and performance of this
Letter Agreement is a material inducement to each Purchaser to complete the
transactions contemplated by the Purchase Agreement and that each Purchaser
(which shall be a third party beneficiary of this Letter Agreement) and the
Company shall be entitled to specific performance of the undersigned’s
obligations hereunder. The undersigned hereby represents that the undersigned
has the power and authority to execute, deliver and perform this Letter
Agreement, that the undersigned has received adequate consideration therefor
and
that the undersigned will indirectly benefit from the closing of the
transactions contemplated by the Purchase Agreement.
This
Letter Agreement may not be amended or otherwise modified in any respect without
the written consent of each of the Company, each Purchaser and the undersigned.
This
Letter Agreement shall be construed and enforced in accordance with the laws
of
the State of New York without regard to the principles of conflict of laws.
Each
party agrees that all legal proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this Agreement
and
any other Transaction Documents (whether brought against a party hereto or
its
respective affiliates, directors, officers, shareholders, employees or agents),
as well as any dispute between the parties relating to the Transaction
Documents, shall be resolved
by binding arbitration in San Francisco, California before an arbitrator with
experience in commercial disputes relating to securities. The arbitration shall
be administered by JAMS pursuant to its Comprehensive Arbitration Rules and
Procedures, or, if for any reason JAMS refuses to administer such arbitration
or
JAMS is no longer in business, by the American Arbitration Association (“AAA”)
in accordance with its rules and procedures. Unless the arbitrator determines
that there is exceptional need for additional discovery, discovery in the
arbitration shall be limited as follows: (1) the parties
shall exchange non-privileged relevant documents including, without
limitation, all documents that the parties intend to use as evidence in the
arbitration; and (2) each party shall be entitled to take one
deposition of seven hours duration of either an opposing party or a
non-party. If one party fails to respond within 20 days after the other party
mails a written list of proposed arbitrators to that party by either agreeing
to
one of the proposed arbitrators or suggesting 3 or more alternate arbitrators,
the proposing party may select the arbitrator from among its initial list of
proposed arbitrators and JAMS (or AAA if it is administering the arbitration)
shall then appoint that arbitrator to preside over the arbitration. If the
parties are unable to agree on an arbitrator, the parties shall select an
arbitrator pursuant to the rules of JAMS (or AAA if it is administering the
arbitration). Where reasonable, the arbitrator shall schedule the
arbitration hearing within four (4) months after being appointed. The arbitrator
must render a decision in writing, explaining the legal and factual basis for
decision as to each of the principal controverted issues. The arbitrator’s
decision will be final and binding upon the parties. A judgment upon any
award may be entered in any court of competent jurisdiction. This clause shall
not preclude the parties from seeking provisional remedies in aid of
arbitration, such as injunctive relief, from any court of competent
jurisdiction. Each
party shall be responsible for advancing one-half of the costs of arbitration,
including all JAMS (or AAA) fees; provided that, in the award, the prevailing
party shall be entitled to recover all of its costs and expenses, including
reasonable attorneys’ fees and costs, arbitrator fees, JAMS (or AAA) fees and
costs, and any attorneys’ fees and costs incurred in compelling arbitration.
The parties are not waiving, and expressly reserve, any rights they may
have under federal securities laws, rules, and regulations, and any such rights
shall be determined in the arbitration provided for herein. Each
party hereby irrevocably agrees and submits to the jurisdiction of the federal
and state courts located in the City of San Francisco, California, for any
suit,
action or proceeding enforcing this arbitration provision or entering judgment
upon any arbitral award made pursuant to this arbitration provision, and
each
party
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
such courts, or that such suit, action or proceeding is an inconvenient venue.
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 via registered or certified mail or overnight delivery (with evidence
of
delivery) to such party at the address in effect for 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 other manner permitted
by
law. This
provision will be interpreted, construed and governed according to the Federal
Arbitration Act (9 U.S.C. Sections 1 et seq.).
2
The
undersigned agrees and understands that this Letter Agreement does not intend
to
create any relationship between the undersigned and each Purchaser and that
each
Purchaser is not entitled to cast any votes on the matters herein contemplated
and that no issuance or sale of the Securities is created or intended by virtue
of this Letter Agreement.
By
its
signature below, the Transfer Agent hereby acknowledges and agrees that,
reflecting this Letter Agreement, it has placed an irrevocable stop transfer
instruction on all Securities beneficially owned by the undersigned until the
end of the Restriction Period. This Letter Agreement shall be binding on
successors and assigns of the undersigned with respect to the Securities and
any
such successor or assign shall enter into a similar agreement for the benefit
of
the Purchasers.
***
SIGNATURE PAGE FOLLOWS***
3
This
Letter Agreement may be executed in two or more counterparts, all of which
when
taken together may be considered one and the same agreement.
_________________________
|
Signature
|
|
__________________________
|
|
Print
Name
|
|
__________________________
|
|
Position
in Company
|
Address
for Notice:
|
__________________________________
|
|
__________________________________
|
|
__________________________________
|
|
Number
of shares of Common Stock
|
Number
of
shares of Common Stock underlying subject to warrants, options, debentures
or
other convertible securities
By
signing below, the Company agrees to enforce the restrictions on transfer set
forth in this Letter Agreement.
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
Acknowledged
and agreed to
as
of the
date set forth above:
|
By:
|
|
|
Name:
|
|
4
