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EXHIBIT 10.12
FORM OF
REGULATION S SUBSCRIPTION AGREEMENT
ARTIFICIAL LIFE, INC.
VOTING COMMON STOCK
Artificial Life, Inc.
Four ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇
Gentlemen:
This Regulation S Subscription Agreement is made by and between
Artificial Life, Inc., a Delaware corporation (the "Company"), and the
undersigned prospective purchaser (the "Investor"), who is subscribing hereby to
purchase shares of either Voting or Non-Voting Common Stock, $.01 par value per
share, of the Company (the "Shares"). The terms governing the Investor's
subscription for the Shares are set forth herein and in the Confidential
Business Plan of Artificial Life, Inc. and the accompanying Offering Supplement
(collectively, the "Offering Materials") distributed to a limited number of
selected persons resident and physically located outside the United States in
connection with the offering of the Shares, a copy of which has been received by
the Investor. Each Investor's subscription for Shares is being made in reliance
upon the provisions of Regulation S ("Regulation S"), as promulgated under the
Securities Act of 1933, as amended (the "Securities Act"). The terms of the
offering and the Shares are more fully described in the Offering Materials.
In consideration of the Company's agreement to sell the Shares to the
undersigned upon the terms and conditions set forth in the Offering Materials,
the Investor agrees and represents as follows:
A. SUBSCRIPTION
1. Subject to the terms of this Subscription Agreement, the Investor
hereby irrevocably subscribes for and agrees to purchase Shares, the number of
which is indicated on the signature page hereto (the "Subscription").
Simultaneously with the delivery of the combined signature page to this
Subscription Agreement, the Stockholders Agreement and the Questionnaire
referred to below, (the "Combined Signature Page"), the Investor shall deliver
to ▇▇▇▇▇▇ & Dodge LLP, counsel to the Company, the appropriate completed
questionnaire (the "Questionnaire") and payment by wire transfer of the
subscription price for the Shares.
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The Combined Signature Page and Questionnaire should be sent to:
▇▇▇▇▇▇ & Dodge LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
The purchase price for the Shares should be sent by wire transfer to:
Federal Reserve Bank (FedWire)
ABA #▇▇▇▇▇▇▇▇▇
STATE ST BOS/CUST/BC99/CA0006
A/C ▇▇▇▇▇▇ & Dodge LLP
F/B/O Artificial Life, Inc.
Attn. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
2. The Investor hereby acknowledges receipt of a copy of the Offering
Materials and hereby specifically accepts and adopts each and every term of the
offering stated therein and agrees to be bound thereby upon (a) the execution
and delivery by the Investor to the Company of the Combined Signature page to
this Subscription Agreement, the Stockholders Agreement and the appropriate
completed Questionnaire and (b) acceptance by the Company of the Investor's
Subscription.
B. REPRESENTATIONS, WARRANTIES AND COVENANTS
The Investor hereby represents and warrants to, and agrees with the
Company, as follows:
(1) The Investor understands that the Shares are being offered
and sold to it in reliance on specified exemptions from the
registration requirements of the United States federal and state
securities laws and that the Company (and the Chairman) is relying upon
the truth and accuracy of, and the Investor's compliance with, the
representations, warranties, agreements, acknowledgments and
understandings set forth herein in order to determine the availability
of such exemptions and the eligibility of the Investor to acquire the
Shares. The Investor understands that the Shares have not been
registered under the Securities Act and are being offered and sold
pursuant to an exemption from registration contained in the Securities
Act, based in part upon the representations of Investor contained
herein.
(2) The Investor is purchasing the Shares for its own account
or for an account with respect to which it exercises sole investment
discretion. The investor or the holder of such account is a purchaser
that is not a "US person" (as that term is defined in Rule 902(o) of
Regulation S) and at the time of receipt of the Offering Materials and
execution of this Subscription Agreement it was located outside the
United States for purposes of Regulation S. The re-sale of the Shares
has not been pre-arranged with any buyer located in the United States.
The Investor is not a "Distributor" as that term is defined in Rule
902(c) of Regulation S.
(3) The Shares have not been and will not be registered under
the Securities Act and may not be offered or sold in the United States
or to, or for the account or benefit of, US persons, except as
permitted below.
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(4) The Investor will not offer, resell, pledge or otherwise
transfer Shares except (a) in an offshore transaction in accordance
with Rule 903 or 904 of Regulation S or (b) pursuant to an exemption
from registration under the Securities Act, in each case in accordance
with any applicable securities laws of any state of the United States
or any other jurisdiction.
(5) The Investor covenants that neither it nor any affiliate
nor any other person or entity acting on its or their behalf has the
intention of entering or will enter until the first anniversary of the
date of its purchase of the Shares any put option, short position or
similar instrument or position with respect to the Shares, or use the
Shares at any time to settle any put option, short position, or other
similar instrument or position entered into prior to execution of this
Agreement.
(6) Neither the Investor nor any person or entity acting on
the Investor's behalf has conducted or will conduct any "directed
selling efforts" as that term is defined in Rule 902(b) of Regulation S
or has conducted or will conduct any general solicitation relating to
the offer and sale of the Shares. The Investor knows of no public
solicitation or advertisement of an offer in connection with the
issuance and sale of the Shares.
(7) The Investor has been furnished with, and has carefully
read, the Offering Materials, this Subscription Agreement, the
Stockholders Agreement and any documents that have been made available
to the Investor upon request (to the extent the Investor deemed
necessary or appropriate). The Investor is familiar with the business
and operations of the Company and understands and has evaluated the
merits and risks of a purchase of the Shares. The Investor has been
given ample opportunity to ask of and receive answers from Company
officials concerning the terms and conditions of the offering and to
obtain additional information necessary to verify the accuracy of the
information contained in the Offering Materials, as amended, and the
Company and the Chairman have made available to the Investor all
documents and information that the Investor has requested relating to
an investment in the Shares. The Investor has not received or been
furnished with any information, statement or representation, oral or
written, which varies in any material way from the information
presented and the statements made in the Offering Materials. The
Investor has carefully considered and has, to the extent the Investor
believes such discussion necessary, discussed with the Investor's
professional, legal, tax, accounting and financial advisors the
suitability of an investment in the Shares and has determined that the
Shares being subscribed for by the Investor are a suitable investment
for the Investor.
(8) The Investor recognizes that an investment in the Company
involves substantial risk. The Investor has read and understands all of
the risk factors related to the purchase of the Shares including, but
not limited to, those set forth under the caption "Risk Factors" in the
Offering Materials.
(9) The Investor: (i) has a pre-existing personal or business
relationship with the Company or any of its officers, directors or
controlling persons or (ii) by reason of the Investor's business or
financial experience or the business or financial experience of the
Investor's professional advisors who are unaffiliated with and who are
not compensated by the Company, directly or indirectly, can be
reasonably assumed to have the capacity to protect the Investor's
interests in connection with the investment in the Shares.
(10) The Investor or the Investor's purchaser representative,
as the case may be, has such knowledge and experience in financial,
tax, and business matters so as to enable the Investor to utilize the
information made available to the Investor in connection with the
offering of the Shares
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to evaluate the merits and risks of an investment in the Shares and to
make an informed investment decision with respect thereto.
(11) This Subscription Agreement has been duly authorized,
executed and delivered by the Investor and is a valid and binding
obligation of the Investor, enforceable against the Investor in
accordance with its terms.
(12) The information presented and the statements made by the
Investor in the Questionnaire completed and delivered to the Company
with this Subscription, including, without limitation, the information
relating to the Investor's income and net worth, are complete and
accurate as of this date and may be relied upon by the Company in
determining whether to accept this Subscription.
(13) The Investor, if a corporation, partnership (general or
limited), trust or other similar entity, has not been formed,
organized, reorganized, expanded or altered for the specific purpose of
acquiring the Shares or for the purpose of investing in any Regulation
S securities.
(14) The Investor shall indemnify and hold harmless the
Company, the Chairman and any officer, director, partner, employee,
agent or controlling person of the Company who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of or arising from any actual or alleged
misrepresentation or misstatement of facts or omission to represent or
state facts made by the Investor to any such party concerning the
Investor or the Investor's financial position in connection with the
offering or sale of the Shares including, without limitation, any such
misrepresentation, misstatement or omission contained in the
Questionnaire submitted by the Investor, against losses, liabilities
and expenses for which the Company or any officer, director, partner,
employee, agent or controlling person of the Company has not otherwise
been reimbursed (including attorneys' fees, judgments, fines and
amounts paid in settlement) actually and reasonably incurred by such
person or entity in connection with such action, suit or proceeding.
C. UNDERSTANDINGS
The Investor understands, acknowledges and agrees with the Company and
the Chairman as follows:
(1) The Subscription may be rejected, in whole or in part, by
the Company in its sole and absolute discretion, at any time before the
closing of the Offering, notwithstanding prior receipt by the Investor
of notice of acceptance of the Investor's Subscription.
(2) The Subscription is and shall be irrevocable by the
Investor until the closing of the sale of all shares being offered
except that the Investor shall have no obligation hereunder in the
event that the Subscription is not accepted for any reason on or prior
to the final closing of the Offering on June 30 or any extension
thereof.
(3) No United States or state agency has made any finding or
determination as to the accuracy or adequacy of the Offering Materials
or as to the fairness of the terms of this offering for investment, nor
any recommendation or endorsement of the Shares.
(4) Except as set forth in Section D of this Subscription
Agreement, the Company is not under any obligation to register the
Shares on behalf of the Investor or to assist the Investor in
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complying with any exemption from registration therefor. The Investor
further acknowledges that neither the Company nor any registrar will
register any transfer of the Shares not made in accordance with
paragraph B above.
(5) All assumptions, estimates and budgets set forth in the
Offering Materials have been included therein for purposes of
illustration only, and no assurance is given that actual results will
correspond with the results contemplated by the various estimates,
budgets and assumptions set forth therein.
(6) The Investor acknowledges that the information contained
in the Offering Materials is confidential and non-public and agrees
that all such information shall be kept in confidence by the Investor
and neither used by the Investor to the Investor's personal benefit
(other than in connection with this Subscription) nor disclosed to any
third party for any reason; provided, however, that this obligation
shall not apply to any such information which (a) is part of the public
knowledge or literature and readily accessible on the date hereof; (b)
becomes part of the public knowledge or literature and readily
accessible by publication (except as a result of a breach of this
provision); or (c) is received from third parties (except third parties
who disclose such information in violation of any confidentiality
agreements including, without limitation, any subscription agreement
they may have entered into with the Company).
(7) The Investor acknowledges that all certificates for the
Shares shall bear the following legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") AND THESE SECURITIES MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) IN AN
OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S
UNDER THE SECURITIES ACT OR (B) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER JURISDICTION.
D. REGISTRATION RIGHTS
1. As used herein, "Holder" shall refer to the Investor or the
Investor's assigns. "Restricted Securities" shall refer to the Shares.
2. (i) If the Company at any time proposes, for any reason, to register
any of its equity securities under the Securities Act (other than pursuant to a
registration statement on Forms ▇-▇, ▇-▇ or similar or successor forms), it
shall each such time promptly give written notice to the Holder of its intention
to do so. Within 30 days after receipt of any such notice of the Company, the
Holder may request the Company to register Restricted Securities, which request
shall specify the number of Restricted Securities intended to be sold or
disposed of by such Holder and shall state the intended method of disposition of
such Restricted Securities by the prospective selling Holder; provided, however,
that the number of Shares to be registered by all prospective selling Holders
shall, in accordance with the LOI (as defined in the Offering Materials) and any
underwriting agreement entered into thereunder, not exceed 200,000 shares in the
aggregate or 20% of such Holder's Shares in any instance. Such right is subject
in its entirety to the terms of the LOI and any underwriting agreement and is
granted to the Holder on the condition that such Holder agrees to sign an
agreement not to dispose of any such Shares in any way for a period of six
months after the effective date of such registration statement and the remainder
of their Shares
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for a period of one year after the effective date, or such longer period as may
be required by Nasdaq as a condition for listing. Except as hereinafter
provided, the Company shall include Restricted Securities in the registration
statement, all to the extent requisite to permit the sale or other disposition
(in accordance with the intended methods thereof, as aforesaid) by the Holder.
If such registration statement becomes effective, the Company shall keep said
registration statement current for a period of nine (9) months.
(ii) Notwithstanding the foregoing, in the event that any
registration statement under Section D(2)(i) covers, in whole or in part, an
underwritten public offering of securities of the Company and the managing
underwriter advises the Company in writing that market factors (including,
without limitation, the aggregate number of shares of Common Stock requested to
be registered, the general condition of the market, and the status of the
persons proposing to sell securities pursuant to the registration) require a
limitation of the number of shares of selling stockholders to be included in the
offering or in such registration statement, some or all of such Restricted
Securities (as required by the underwriter) shall be excluded from the
registration statement.
(iii) The Holder hereby agrees that, in the event Holder holds
at least five percent (5%) of the aggregate number of shares of Common Stock
deemed to be outstanding immediately before the effective date of the
registration statement for a public offering of securities of the Company
(including any convertible securities or upon the exercise of options, warrants
or other rights), and if so requested by the Company and the managing
underwriter (if any), such Holder shall agree not to sell or otherwise transfer
any Restricted Securities or other securities of the Company during the 180-day
period following the effective date of a registration statement of the Company
filed under the Securities Act; provided that all Holders holding not less than
five percent (5%) of the aggregate number of shares of Common Stock outstanding
(including any convertible securities or upon the exercise of options, warrants
or other rights) and all officers and directors of the Company enter into
similar agreements.
(iv) In connection with any Registration Statement to be filed
herein, the Company shall:
(a) Furnish to Holder such number of copies of
such registration statement and of each such amendment or supplement thereto (in
each case including all exhibits), including a preliminary prospectus, in
conformity with the requirements of the Securities Act;
(b) Use its best efforts to register or qualify
the Restricted Securities covered by such registration statement under the
securities or blue sky laws of such jurisdictions as the number of shares
initially proposed to be registered is qualified.
(c) Notify each seller of Restricted
Securities covered by such registration statement, at any time when a prospectus
relating thereto covered by such registration statement is required to be
delivered under the Securities Act of the happening of any event as a result of
which the Registration Statement, the prospectus or any document incorporated
therein by reference, includes an untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading and at the request of such seller, prepare and
furnish to such seller a post-effective amendment or supplement to the
registration statement or the related prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of such shares, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
(v) All expenses incurred by the Company in complying with its
obligations under Section D hereof, including, without limitation, all
registration and filing fees, fees and expenses of
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complying with securities and blue sky laws (not to exceed five (5) states),
printing expenses and fees and disbursements of counsel and of independent
certified public accountants of the Company shall be paid by the Company;
provided, however, that all selling commissions and stock transfer taxes
applicable to Restricted Securities covered by the registration effected hereof,
and Holder's counsel fees, shall be borne by the Holders.
(vi) Indemnification
(a) In the event of any registration of any
Restricted Securities under the Securities Act pursuant to this Section D, the
Company shall indemnify and hold harmless the seller of such shares, each
underwriter of such shares, if any, each broker or any other person acting on
behalf of such seller and each other person, if any, who controls any of the
foregoing persons, within the meaning of the Securities Act, against any losses,
claims, damages or liabilities (including reasonable attorneys' fees), joint or
several, to which any of the foregoing persons may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
registration statement under which such Restricted Securities were registered
under the Securities Act, final prospectus contained therein, any document
incorporated by reference therein or any amendment or supplement thereto, or any
document prepared and/or furnished by the Company incident to the registration
or qualification of any Restricted Securities pursuant to Section D hereof,
provided, however, that the Company shall not be liable in any such case to the
extent that such loss, claim, damage or liability arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged omission
of a material fact made in said registration statement, said prospectus or said
amendment or supplement or any document incident to the registration or
qualification of any Restricted Securities pursuant to Section D hereof in
reliance upon and in conformity with written information furnished to the
Company through an instrument duly executed by such seller or such underwriter
specifically for use in the preparation thereof or arises out of information
relating to any of the foregoing prior to the sale hereby as reflected in
documents, exhibits and financial statements delivered hereunder.
(b) Before Restricted Securities held by any
prospective seller shall be included in any registration pursuant to Section D,
such prospective seller and any underwriter acting on its behalf shall have
agreed to indemnify and hold harmless (in the same manner and to the same extent
as set forth in the preceding paragraph (a) of this Section D(vi)) the Company,
each director of the Company, each officer of the Company who shall sign such
registration statement and any person who controls the Company within the
meaning of the Securities Act, with respect to any untrue statement or omission
of a material fact from such registration statement, any preliminary prospectus
or final prospectus contained therein, or any amendment or supplement thereto,
if such untrue statement or omission of a material fact was made in reliance
upon and in conformity with written information furnished to the Company through
an instrument duly executed by such seller or such underwriter specifically for
use in the preparation of such registration statement, final prospectus or
amendment or supplement. The foregoing shall not affect the indemnification
obligation of paragraph (a) of Section D(vi) hereof.
(c) Promptly after receipt by an indemnified
party of notice of the commencement of any actions involving a claim referred to
in Section D(vi)(a) or Section D(vi)(b) of this Section (vi), such indemnified
party will, if a claim in respect thereof is made against an indemnifying party,
give written notice to the latter of the commencement of such action. In case
any such action is brought against an indemnified party, the indemnifying party
will be entitled to participate in and to assume the defense thereof, jointly
with any other indemnified party similarly notified to the extent that it may
wish, with counsel reasonably satisfactory to such indemnified party, and after
notice from indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be
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responsible for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof; provided, however,
that if any indemnified party shall have reasonably concluded that there may be
one or more legal defenses available to such indemnified party which are
different from or additional to those available to the indemnifying party, or
that such claim or litigation involves or could have an effect upon matters
beyond the scope of the indemnity agreement provided in this Section D, the
indemnifying party shall reimburse such indemnified party for that portion of
the fees and expenses of counsel retained by the indemnified party which are
reasonably related to the matters covered by the indemnify agreement provided in
this Section D.
(d) The failure to notify an indemnifying
party of the commencement of any such action, if materially prejudicial to the
ability of the indemnifying party to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
D, but the omission so to notify the indemnifying party will not relieve the
indemnifying party of any liability that it may have to any indemnified party
otherwise than under this Section D(vi).
The indemnifying party shall not make any settlement
of any claims indemnified against hereunder without the written consent of the
indemnified party or parties, which consent shall not be unreasonably withheld.
(e) If the indemnification otherwise provided
for in Section D(vi) is unavailable to or insufficient to hold harmless an
indemnified party under subsection D(vi)(a) or D(vi)(b) above in respect of any
losses, claims, damages or liabilities (or actions in respect thereof) referred
to therein, each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received from the offering by the Company, the
holders of Restricted Securities and any underwriter; but if such allocation is
not permitted by applicable law or if the indemnified party failed to give the
notice required under Section D(vi)(c) above, each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportions as are appropriate to reflect not only such relative benefits but
also relative fault of the Company, the holders of Restricted Securities and any
underwriter in connection with the statements or omission which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The parties agree that the
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or omission or alleged
untrue statement of a material fact relates to information supplied by the
Company, the holders of Restricted Securities or underwriter and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission; that it would not be just and equitable if
contribution pursuant to such agreement were determined by pro rata allocation
or by any other method of allocation which does not take into account the
equitable consideration referred to above in Section D(vi)(a) that the amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof), referred to above in
Section D(vi)(a) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim; that the holders of Restricted Securities
shall not be required to contribute any amount in excess of the dollar amount by
which the proceeds to be received by such holders from the sale of their
respective Restricted Shares exceeds the amount of damages such holders of
Restricted Securities would have otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission, and no
underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the shares or securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such underwriter has otherwise been required to pay by reason
of any untrue or alleged untrue statement or omission or alleged omission; and
that no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities
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Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
(vi) Holder Information. Each Holder shall provide the Company
or any underwriter with such documentation and information as is generally
customary to be provided by a seller of registered securities and such other
information as the Company may reasonably request.
(vii) Rule 144. Notwithstanding any other provision herein,
the provisions of this Section D shall not be applicable to the extent a Holder
may sell shares pursuant to Rule 144 promulgated under the Securities Act.
E. MISCELLANEOUS
1. Capitalized terms used in this Subscription Agreement, if not
otherwise defined herein, shall have the respective meanings attributed to such
terms in the Offering Materials. All pronouns and any variations thereof used
herein shall be deemed to refer to the masculine, feminine, impersonal, singular
or plural as the identity of the persons or person may require.
2. Neither this Subscription Agreement nor any provision hereof shall
be waived, modified, changed, discharged, terminated, revoked or cancelled
except by an instrument in writing signed by the party against whom any waiver,
modification, change, discharge, termination, revocation or dissolution is
sought.
3. Notices required or permitted to be given hereunder shall be in
writing and shall be deemed to be sufficiently given when personally delivered
or sent by registered or certified mail (or its equivalent in the Investor's
jurisdiction of residence), return receipt requested, if to the Investor, at its
address set forth in the Questionnaire submitted by the Investor; if to the
Company, at the address of the Company first above written, or to such party at
such other address furnished by notice given in accordance with this Section E.
4. Failure of the Company to exercise any right or remedy under this
Subscription Agreement or any other agreement between the Company, the Chairman
of its Board of Directors (the "Chairman") and the Investor, or otherwise, or
delay by the Company in exercising such right or remedy, will not operate as a
waiver thereof.
5. The Investor and the Company agree that the Company and the Chairman
is entitled to rely upon the representations and agreements of the Investor made
herein and in the Questionnaire.
6. This Subscription Agreement shall be enforced, governed and
construed in all respects in accordance with the laws of the State of Delaware,
as such laws are applied by Delaware courts to agreements entered into and to be
performed in Delaware by and between residents of Delaware, and shall be binding
upon the Investor, the Investor's heirs, estate, legal representatives,
successors and assigns and shall inure to the benefit of the Company and the
Chairman and their successors and assigns. In the event that any provision of
this Subscription Agreement is invalid or unenforceable under any applicable
statute or rule of law, then such provision shall be deemed inoperative to the
extent that it may conflict therewith and shall be deemed modified to conform
with such statute or rule of law. Any provision hereof which may prove invalid
or unenforceable under any law shall not affect the validity or enforceability
of any other provision hereof.
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7. This Subscription Agreement constitutes the entire agreement among
the parties hereto with respect to the subject matter thereof and may be amended
only by a writing executed by all parties hereto.
F. EXECUTION OF AGREEMENT BY POWER OF ATTORNEY
THE INVESTOR ACKNOWLEDGES THAT THE INVESTOR HAS SIGNED THIS
SUBSCRIPTION AGREEMENT ON THE INVESTOR'S OWN BEHALF, AND NOT BY POWER OF
ATTORNEY, UNLESS SUCH POWER OF ATTORNEY EXPRESSLY PROVIDES FOR THE FURTHER
DELEGATION OF SUCH POWER OF ATTORNEY BY THE HOLDER THEREOF, AND IN SUCH EVENT,
THE INVESTOR REPRESENTS THAT ATTACHED HERETO IS A TRUE AND COMPLETE COPY OF SUCH
POWER OF ATTORNEY.
G. SIGNATURE
The signature page to this Subscription Agreement is contained as part
of the applicable Subscription Materials, entitled "Signature Page to Regulation
S Subscription Agreement, Shareholders Agreement and Questionnaire," located at
the front of this Subscription Package.
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