SECURITIES PURCHASE AGREEMENT
THISPURCHASE AGREEMENT (“Agreement”) ismade asof the 15thday ofMarch,2018 byand betweenRich Pharmaceuticals, Inc., (the“Company”), andGHSInvestments, LLC (the“Investor”).
Recitals
A. TheInvestor wishes topurchasefrom theCompanyand theCompany wishes tosell andissueto theInvestor, upon theterms and conditions statedin thisAgreement:
1.Up to$56,500 ofSecurities,in theformof aConvertible Promissory Note(the"Note"), attached hereto inaccordance with thefollowing schedule:
Twenty fivethousand dollars($25,000) bywiretransfer on orabout March15,2018, and up toan additional twentyfivethousanddollars($25,000) attheInvestor's discretion, onorabout March 30,2018.
Inconsiderationof themutual promises made herein andforother goodand valuable consideration, thereceipt andsufficiencyofwhich arehereby acknowledged, theparties hereto agree as follows:
1. Definitions. Inaddition tothosetermsdefined above and elsewherein thisAgreement,for thepurposesof thisAgreement,the following termsshall have themeaningssetforthbelow:
“Affiliate” means, with respecttoany Person, any other Person which directly orindirectly through oneormore intermediaries Controls, iscontrolledby,or isunder common controlwith,such Person.
“Business Day” meansaday, other than aSaturdayorSunday, onwhich banks inNew YorkCityareopenfor thegeneral transactionofbusiness.
“Common Stock Equivalents” means any securitiesof theCompanyor theSubsidiaries which would entitle theholder thereof toacquire at any timeCommon Stock, including without limitation, any debt, preferred stock, rights, options, warrants orother instrument that isat any timeconvertibleinto orexchangeablefor, orotherwise entitles theholder thereof toreceive, Common Stock.
“Company’s Knowledge”means theactualknowledge of theexecutive officers (asdefinedinRule 405under the 1933Act)of theCompany, after dueinquiry.
“ConfidentialInformation”meanstradesecrets, confidential information and know-how (including but notlimitedtoideas, formulae, compositions,processes,procedures and techniques, research and development information, computer program code, performance specifications, support documentation, drawings, specifications, designs, business and marketing plans, and customer and supplier lists and related information).
“Control”(including the terms“controlling”, “controlledby”or“under common controlwith”) means thepossession,direct orindirect,ofthepower todirectorcause thedirection of themanagement and policies of aPerson,whether through theownership of votingsecurities,bycontractorotherwise.
“Intellectual Property” means allof thefollowing:(i)patents, patent applications, patent disclosures and inventions (whether ornotpatentable and whether or notreduced topractice);(ii)trademarks, service marks, trade dress, tradenames,corporatenames, logos, slogans and Internetdomain names, togetherwithall goodwill associated with each of the foregoing;(iii) copyrightsand copyrightableworks; (iv)registrations, applications and renewals forany of the foregoing;and(v) proprietarycomputer software (includingbut notlimited todata, data bases and documentation).
“Material AdverseEffect”meansamaterialadverseeffecton (i) theassets,liabilities, resultsofoperations, condition (financial orotherwise),business, orprospects of theCompany and itsSubsidiaries taken as awhole, or(ii) theabilityof theCompany toperform itsobligations under theTransaction Documents.
“Person” means an individual, corporation,partnership,limited liability company, trust, business trust, association,jointstockcompany, jointventure, sole proprietorship, unincorporated organization, governmental authority orany other form ofentitynotspecifically listed herein.
“Purchase Price”means $50,000,representinga 10% pro-rataoriginal issuance discount oneach Tranche and aninitial $1,500being withheld by theInvestor tooffset transaction costs.
“SEC” meanstheUnited States Securities and Exchange Commission.
“Securities” meanstheNote and thecommonsharesissuable at conversion.
“Subsidiary”ofany Person means anotherPerson,an amountof thevoting securities, other votingownership or votingpartnership interestsofwhich issufficient toelect at least a majority of itsBoard ofDirectorsorother governing body(or, if there are nosuch votinginterests,50% or moreof theequity interestsofwhich)isowned directlyorindirectlybysuch first Person.
“Transaction Documents” meansthisAgreement,theNote, theCompany Representation Letter, and supporting documents.
“1933 Act” meanstheSecurities Act of 1933,as amended, oranysuccessorstatute, and the rulesand regulations promulgated thereunder.
“1934 Act” meanstheSecuritiesExchangeAct of 1934,as amended, orany successor statute, and the rulesand regulations promulgated thereunder.
2. Purchase and Sale of theSecurities. Subjectto the termsand conditionsofthisAgreement, theCompany shall sell andissue totheInvestoraPromissory Note in theprincipal amountof$56,500.
2.1 SecurityAs Security for theCompany's obligations contained herein and in allNotesissued by theCompanyto theHolder, following anyEvent ofDefault which remains uncured forthirty (30) calendar days,theHolder shall begranted an unconditionalfirst priority interest in andto, any and allpropertyof the Company and itssubsidiaries, of any kind ordescription, tangible orintangible, whether nowexistingorhereafter arising oracquired untilthebalanceof allNoteshasbeen reduced to $0."Any and allproperty," asdescribed herein shallbeinclusiveof, but notlimitedto,assets reported by theCompany on itsSEC filings,cash,inventory, accounts receivable, intellectual property rights, equipment andproperty. The Investorisauthorized tomake allfilingstheInvestor, in itsdiscretion, deemsnecessary toevidence itssecurity interests.
3. Closing. Upon confirmationthattheotherconditions toclosing specified herein have been satisfied or dulywaived by theInvestor,theCompany shall deliver to theInvestor,aNote registered thename of theInvestor and theInvestor shall cause a wiretransfer insame day funds to besent to theaccount of theCompanyasinstructed in writing by theCompany,inan amount representing thePurchasePrice for theNote (the“Closing Date”).
4. Representations and Warranties of theCompany.TheCompany hereby represents and warrants to theInvestor that, except asset forth in theschedules delivered herewith (collectively, the“Disclosure Schedules”) and as disclosed in theCompany’s SECFilings:
4. 1Organization, Good Standing and Qualification. EachoftheCompany and itsSubsidiaries is a corporation dulyorganized, validly existingandin goodstanding under thelaws of thejurisdiction of itsincorporation and has all requisite corporatepower and authority tocarryon itsbusiness as nowconducted andtoown itsproperties. Each of theCompany and itsSubsidiaries is dulyqualified to dobusiness as a foreign corporationand is in goodstanding ineach jurisdictioninwhich theconductof itsbusiness or itsownership orleasing ofproperty makes such qualificationorleasing necessary unless the failure to soqualify has notand could notreasonably be expected tohave aMaterial Adverse Effect.TheCompany’s Subsidiaries arelistedon theCompany’s public disclosures filedwiththeSEC.
4.2 Authorization. TheCompany hasfullpower and authorityand, has taken all requisite action on the part of theCompany, itsofficers, directors and stockholders necessary
for (i) theauthorization, execution and delivery of theTransaction Documents, (ii) authorization of the performance ofall obligations of theCompany hereunder orthereunder, and (iii) theauthorization, issuance (orreservationforissuance) and delivery of theSecurities.TheTransaction Documents constitute thelegal,validand bindingobligations of theCompany, enforceable against theCompanyinaccordance with their terms,subjecttobankruptcy, insolvency, fraudulenttransfer, reorganization, moratoriumand similar laws ofgeneral applicability, relating to oraffecting creditors’ rights generally.
4.3 Capitalization. As of thedatehereof, theauthorized common stock of theCompany on the date hereof is2,010,000,0;00(b) the number of shares ofcapital stock issuedand outstandingas of3.15.18 is1,550,477,82;1(c) the number of shares ofcapital stock issuablepursuant to theCompany’s stock plans30,000,000 ;and(d) thenumberofshares ofcapital stock issuable and reserved forissuance pursuant tosecurities(otherthan theSecurities) exercisablefor, orconvertible into orexchangeableforany shares ofcapital stock of theCompany as of3.15.18are429,522,179.All of the issuedand outstanding shares of theCompany’scapital stockhave been dulyauthorized and validlyissuedand arefullypaid, nonassessableand free of pre-emptive rights. All of theissuedand outstanding shares ofcapital stock ofeach Subsidiary have been dulyauthorized and validlyissuedand are fullypaid, nonassessable andfree ofpre-emptive rights, wereissued in fullcompliance with applicable state and federal securities law and any rights of thirdparties and areowned by theCompany, beneficially and ofrecord, subject to nolien, encumbranceorother adverse claim. No Person isentitledtopre-emptive orsimilar statutoryorcontractual rightswith respect toanysecurities of theCompany.Otherthan described herein and in theCompany'speriodic reports filedwith theSEC, there are nooutstanding warrants, options, convertible securities orother rights, agreements orarrangementsofany characterunderwhichtheCompany orany ofitsSubsidiaries is ormay beobligatedtoissueany equity securities ofanykindandexceptas contemplated by thisAgreement, neithertheCompany norany of itsSubsidiariesiscurrently innegotiations for theissuance ofany equity securities ofany kind.
Theissuance and sale of theSecurities hereunder will notobligate theCompany toissueshares ofCommon Stockorother securities toany other Person (otherthan theInvestor) and will notresult in theadjustmentof theexercise,conversion, exchangeorreset priceofany outstanding security.
TheCompany doesnothave outstanding stockholder purchase rights or“poison pill” orany similar arrangement ineffect givingany Person the right topurchaseany equity interest in theCompany upon theoccurrenceofcertain events.
4.4 Valid Issuance. TheissuedSecurities have been dulyand validly authorized and, whenissuedand paid forpursuantto thisAgreement, shall be freeand clear ofall encumbrances and restrictions (otherthan those created by theInvestor),exceptforrestrictions ontransferset forth in theTransaction Documents orimposed byapplicable securities laws. Uponthe dueconversionof theDebenture,theConverted Shares will bevalidly issued, fullypaid and non-assessable freeandclear ofall encumbrances and restrictions,except forrestrictions ontransferset forth in theTransaction Documentsorimposed byapplicable securities laws and except forthose created by theInvestor.TheCompany has reserved a
sufficient numberofsharesofCommon Stock forissuanceupon theexerciseof theDebenture, freeand clearofall encumbrances and restrictions,except forrestrictionsontransfersetforthin theTransaction Documents orimposedbyapplicable securities laws and except forthose created by theInvestor.
4.5 Consents. Theexecution, delivery and performance by theCompany of theTransaction Documents, and theoffer, issuance and sale of theSecuritiesrequire noconsent of,action by or inrespect of, orfiling with,any Person, governmental body,agency, orofficial other than filingsthat have been made pursuant toapplicable state securities laws, and post-sale filingspursuanttoapplicable state and federal securities laws which theCompany undertakes to filewithin theapplicabletimeperiods. Subject to theaccuracyof therepresentations and warranties of theInvestorsetforth inSection 5 hereof, theCompany has taken all action necessary to exempt (i) theissuance and sale of theSecurities, (ii) theissuanceof theShares upon dueconversion of theDebenture, and (iii) the othertransactions contemplated by theTransaction Documents from theprovisionsof anyshareholder rightsplan orother “poison pill”arrangement, any anti-takeover, business combination or controlshare law orstatutebinding on theCompanyor towhichtheCompanyoranyof itsassets andpropertiesmaybesubject and any provision of theCompany’s Articles ofIncorporationor By-lawsthat is orcould reasonablybeexpected tobecome applicable to theInvestor as aresult of thetransactions contemplated hereby, including without limitation, theissuanceof theSecurities and theownership, disposition or voting of theSecuritiesby theInvestor or the exercise ofanyrightgranted to theInvestor pursuantto thisAgreement or theother Transaction Documents.
4.6 Delivery ofSEC Filings;Business.TheCompany has made availableorshall make available, within twenty calendar days from theexecutionof thisAgreement,to theInvestor through theEDGAR system,trueand complete copies of theCompany’s most recent Annual Report onForm 10-K for itslast fiscalyear (the“10-K”), and all other reports filed by theCompany pursuant to the 1934Act since the filing of the10-K and prior tothedate hereof (collectively,the“SEC Filings”). TheSEC Filings are the only filings required of theCompany pursuant to the 1934Act forsuch period. TheCompanyand itsSubsidiariesareengagedinall material respectsonly in thebusiness described in the SEC FilingsandtheSEC Filings containacomplete and accurate description inall materialrespectsof thebusiness of theCompany and itsSubsidiaries, taken as awhole.
4.7 Use ofProceeds.Thenet proceeds of thesaleoftheNote hereunder shall beused by theCompanyfor workingcapitalandgeneral corporatepurposes. TheCompany agrees that itshallnotuse the fundsfrom thisAgreement,at any time, tolend money, givecreditormake advances toany officers, directors,employees,subsidiaries and affiliatesof theCompany.
4.8 No Conflict, Breach, Violation orDefault.Theexecution, delivery and performance of theTransaction Documents bytheCompany and theissuance and sale of theSecurities will notconflict with orresult in abreachorviolation ofany of the termsand provisions of, orconstitute adefault under (i)theCompany’s Articlesof Incorporation or theCompany’s Bylaws, bothasineffect on thedate hereof (true and complete copies ofwhich have been made available to theInvestor through theEDGAR system), or(ii)(a) any statute, rule,
regulationor order ofany governmental agency or body orany court, domestic or foreign,having jurisdiction over theCompany, any Subsidiary oranyoftheirrespectiveassetsorproperties, or (b)any agreementorinstrument towhich theCompanyorany Subsidiary is a party or bywhichtheCompany or aSubsidiary is bound or towhich any oftheir respective assetsor properties issubject.
4.9 Brokers and Finders. No Person will have, as aresultof thetransactions contemplated by theTransaction Documents, any valid right, interest orclaim against or upon theCompany, any Subsidiary oran Investorforanycommission, fee orother compensation pursuant toany agreement, arrangement orunderstanding entered into by or onbehalf of theCompany.
4.10 No Directed Selling EffortsorGeneral Solicitation. Neither theCompanynorany Person acting onitsbehalf has conducted any general solicitationorgeneral advertising (asthoseterms areused inRegulationD)inconnection with theofferorsale ofanyoftheSecurities.
4.11 No Integrated Offering. Neither theCompanynorany of itsAffiliates, norany Person acting on its ortheir behalf has, directly orindirectly, made any offersorsales ofany Company security orsolicited any offers to buyany security, under circumstances that would adversely affect reliance by theCompany onSection 4(2) for theexemption fromregistrationfor thetransactions contemplated hereby orwould require registrationoftheSecurities under the 1933Act.
4.12 PrivatePlacement. Theoffer and sale of theSecurities to theInvestor as contemplated hereby isexemptfrom theregistration requirements of the 1933Act.
5. Representations and Warranties of theInvestor.TheInvestor hereby represents and warrants to theCompany that:
5.1 Organization and Existence. Such Investor is avalidlyexisting corporation,limited partnershiporlimited liability company and has all requisite corporate, partnership orlimited liability company powerand authority toinvest in theSecurities pursuantto thisAgreement.
5.2 Authorization. Theexecution, delivery and performance bysuch Investor of theTransaction Documents towhich such Investor is a partyhave been dulyauthorized and will each constitute thevalid and legally bindingobligation ofsuch Investor, enforceable against such Investor inaccordance with theirrespective terms, subject tobankruptcy, insolvency, fraudulenttransfer, reorganization, moratorium andsimilar laws ofgeneral applicability, relating to oraffecting creditors’ rightsgenerally.
5.3 Purchase Entirely forOwn Account.TheSecurities to bereceived bysuch Investor hereunder willbeacquiredforsuchInvestor’s own account,notas nomineeoragent, and notwithaviewto theresaleordistribution ofany partthereofinviolationof the 1933Act, and such Investor has nopresent intention ofselling,grantingany participationin,or
otherwise distributingthesameinviolationof the 1933Act without prejudice, however, tosuch Investor’s rightat all times tosellorotherwisedispose ofalloranypart ofsuch Securities incompliance with applicable federal and state securities laws. Nothing contained herein shall bedeemedarepresentationorwarranty bysuch Investor to holdtheSecuritiesforany period oftime. Such Investor is not abroker-dealer registered with the SECunderthe 1934Act oran entity engagedin abusiness that wouldrequire it to besoregistered.
5.4 Investment Experience. Such Investor acknowledges that itcan bear theeconomic risk and complete loss of itsinvestmentin theSecurities and has such knowledge and experience infinancialorbusiness matters that it iscapableofevaluating the meritsand risks of theinvestment contemplated hereby.
5.5 Disclosure ofInformation. Such Investor has had an opportunity toreceive all informationrelatedto theCompany requested by itand toaskquestions ofand receive answers from theCompany regardingtheCompany, itsbusiness and the termsand conditions of theoffering of theSecurities. Such Investor acknowledges receipt ofcopiesof the SECFilings. Neither such inquiries noranyother duediligence investigation conductedbysuch Investor shall modify,amendoraffect such Investor’s right to rely on theCompany’s representations and warranties contained inthisAgreement.
5.6 Restricted Securities. Such Investor understands that theSecuritiesarecharacterized as “restricted securities” under the U.S.federal securities laws inasmuch as they arebeing acquired from theCompanyin atransaction notinvolving a publicoffering and that under such laws and applicable regulations such securities mayberesold without registration underthe 1933Actonly incertain limited circumstances.
5.7 Legends. It isunderstood that,exceptas provided below, certificates evidencing theSecurities may bear the followingorany similar legend:
(a) “Thesecurities represented hereby maynot betransferredunless
(i)such securities have been registered forsale pursuant to theSecurities Actof 1933,as amended, (ii) such securities may besold pursuant toRule 144(i), or(iii) theCompany has received an opinionofcounsel reasonably satisfactory to itthat such transfer may lawfully bemade without registration under theSecurities Act of 1933 orqualification under applicable state securities laws.”
(b) If required by theauthoritiesofany state inconnection with theissuanceofsale of theSecurities,thelegend requiredbysuch state authority.
5.8 Accredited Investor. Such Investor isan accredited investor as defined inRule 501(a) ofRegulation D, as amended,under the1933Act.
5.9 No General Solicitation. Such Investordidnotlearn of theinvestment in theSecurities as aresultofany publicadvertising orgeneral solicitation.
5.10 Brokers and Finders. No Person will have, as aresultof thetransactions contemplated by theTransaction Documents, any valid right, interest orclaim against or upon theCompany, any Subsidiary oran Investorforanycommission, fee orother compensation pursuant toany agreement, arrangement orunderstanding entered into by or onbehalf ofsuch Investor.
6.1 Conditions to theInvestor’s Obligations. Theobligation of theInvestor topurchase theNote at Closing issubject to thefulfillmenttosuch Investor’s satisfaction, on or prior to theClosing Date, of the followingconditions, any ofwhich may bewaived by theInvestor:
(a) Therepresentations and warranties made bytheCompany inSection4hereof qualified as tomateriality shall be trueand correct at all times prior toandon theClosing Date,except to theextentany such representation orwarrantyexpresslyspeaks as ofan earlier date, inwhichcasesuch representation orwarranty shall betrue and correct as ofsuch earlier date, and, therepresentations andwarrantiesmade by theCompanyinSection4hereof notqualified as tomateriality shall be trueandcorrectinall material respects at alltimesprior toandon theClosing Date,except to theextentany such representation orwarrantyexpresslyspeaksas ofan earlier date, inwhichcasesuch representation orwarranty shall betrue and correct inall material respects as ofsuch earlierdate. TheCompany shall have performedinall material respects all obligations and conditions herein required to beperformed orobservedby it on orprior to theClosing Date.
(b) TheCompany shall have obtained any and allconsents,permits, approvals, registrations and waivers necessary or appropriate forconsummation of thepurchase and sale of theSecurities, and theconsummationof theother transactions contemplated by theTransaction Documents, allofwhich shall be infullforceand effect.
(c) No judgment, writ,order,injunction, awardordecreeof or byany court, orjudge, justiceormagistrate, including any bankruptcy courtorjudge,orany order of or byany governmental authority, shall have beenissued,and noaction orproceeding shall have been instituted byany governmental authority, enjoining orpreventingtheconsummation of thetransactions contemplated hereby or in theotherTransaction Documents.
(d) TheCompany shall haveexecutedand delivered theConvertible Note and supporting documentation.
(e) TheCompany shall haveexecutedand delivered theIrrevocable Transfer Agent Instructions.
(f) No stoporder orsuspensionof tradingshall have been imposedby the publicmarketsonwhich theCompany’s common stock istradedorquoted, the SECorany other governmentalorregulatory bodywith respect to public trading in theCommon Stock.
6.2 Conditions toObligationsoftheCompany.TheCompany's obligation tosell andissue theNote at Closing issubjectto thefulfillmentto thesatisfactionof theCompany on or prior to theClosing Date of the followingconditions, any ofwhich may bewaived by theCompany:
(a) Therepresentations and warranties made by theInvestor inSection5 hereof,otherthan therepresentations and warranties contained inSections 5.3,5.4, 5.5, 5.6, 5.7,5.8 and 5.9 (the“Investment Representations”), shall be trueand correct inall material respects when made, and shall be trueand correct inall material respects on theClosing Date with thesameforceand effect as ifthey had been made onand as ofsaid date. TheInvestment Representations shall be trueand correctinall respects when made, and shall be trueand correct inall respectson theClosing Date with thesame forceand effect as ifthey had been made onand as ofsaid date. TheInvestor shall have performed inall material respects all obligations and conditions hereinrequired to beperformedorobservedbythem onorpriorto theClosingDate.
(b) TheInvestor shall have delivered thePurchase Price to theCompanyinaccordance with theschedule outlined herein.
| 6.3 | TerminationofObligationsto EffectClosing;Effects. |
(a) Theobligationsof theCompany,on the onehand, andtheInvestor, on theother hand, toeffecttheClosing shallterminateas follows:
(i) Uponthemutual written consent of theCompanyand the Investor;
(ii) BytheCompanyifany of theconditionssetforth inSection6.2shall have become incapable offulfillment, and shall nothave been waived by theCompany;
| (iii) | BytheInvestorifanyof theconditionssetforthinSection |
6.1shall have become incapable offulfillment,andshall nothave been waived by theInvestor; orprovided,however, that,except in thecase ofclause(i)above, the partyseeking toterminate itsobligation toeffecttheClosing shall notthen be inbreach ofany of itsrepresentations, warranties, covenants oragreements contained in thisAgreementor theother Transaction Documents ifsuch breach has resulted in thecircumstances givingrisetosuch party’s seekingtoterminateitsobligation toeffect theClosing.
| 7. | Survivaland Indemnification. |
7.1 Survival. Therepresentations, warranties, covenants and agreements contained in thisAgreement shall survive theClosingof thetransactions contemplatedby thisAgreement.
7.2 Indemnification. TheCompanyagreestoindemnify and holdharmless each Investor and itsAffiliates andtheirrespective directors, officers, employees and agents from and against any and alllosses,claims, damages,liabilitiesand expenses (includingwithout limitation reasonable attorney fees and disbursements and otherexpenses incurred inconnection with investigating, preparing ordefending any action,claimorproceeding, pending orthreatened and thecosts ofenforcement thereof)(collectively,“Losses”)towhich such Person may become subject as aresultofanybreach ofrepresentation, warranty, covenant oragreement made by or to beperformedon the part of theCompany under theTransaction Documents, and will reimburse any such Person forall such amounts as theyareincurredbysuchPerson.
7.3ConductofIndemnification Proceedings. Promptlyafterreceipt byany Person (the“Indemnified Person”) ofnotice ofany demand, claim orcircumstances which would or might giveriseto aclaim or thecommencement ofany action, proceeding orinvestigationinrespect ofwhich indemnity may besought pursuant toSection 7.2,suchIndemnifiedPerson shall promptly notifytheCompanyin writingandtheCompany shallassume thedefense thereof, including theemployment ofcounsel reasonably satisfactorytosuch IndemnifiedPerson, and shallassume thepayment ofall fees andexpenses;provided,however,thatthefailure ofany IndemnifiedPersonso to notify theCompany shallnotrelieve theCompany of itsobligations hereunderexcept to theextentthat theCompanyismaterially prejudiced bysuch failure tonotify. Inany such proceeding, any Indemnified Person shall have the right toretain itsown counsel, but thefees and expenses ofsuch counsel shall beat theexpense ofsuch Indemnified Person unless: (i)theCompany and theIndemnifiedPersonshall have mutually agreed to theretentionofsuchcounsel;or (ii) in thereasonable judgment ofcounsel tosuch IndemnifiedPersonrepresentation of bothparties by thesame counsel would be inappropriate due toactual orpotential differing interests between them. TheCompany shall not beliableforany settlementofany proceeding effected withoutitswritten consent, which consent shall not beunreasonably withheld, but ifsettledwith such consent,or if there be a finaljudgment for theplaintiff, theCompany shall indemnify and holdharmless such IndemnifiedPersonfromand against any loss orliability(to theextent statedabove)byreason ofsuch settlement orjudgment. Without theprior written consentof the IndemnifiedPerson, which consent shall not beunreasonably withheld, theCompanyshall notaffect any settlement ofany pending orthreatened proceeding inrespect ofwhichany IndemnifiedPersonisorcould have been a partyand indemnity could have been sought hereunder bysuchIndemnifiedParty, unless such settlement includes an unconditional release ofsuch IndemnifiedPerson fromall liability arising out ofsuch proceeding.
8.1 Successors andAssigns.ThisAgreement maynot beassignedby a partyhereto without theprior written consent of theCompany or theInvestor, as applicable, provided,however, that an Investor mayassignits rightsanddelegate itsduties hereunder inwhole or in part toan Affiliate or to athird partyacquiring some orall of itsSecurities in aprivate transaction without theprior written consent oftheCompany, after notice dulygiven bysuch Investor to theCompany. Theprovisions of thisAgreement shall inure to thebenefit ofand be binding upon therespective permittedsuccessorsand assigns of theparties. Nothing inthisAgreement,expressorimplied, isintended toconferuponany party other than theparties hereto
ortheir respective successors and assigns any rights, remedies, obligations, orliabilities underor byreasonof thisAgreement,exceptas expresslyprovided in thisAgreement.
8.2 Counterparts; ThisAgreement may beexecuted intwoormorecounterparts, eachofwhich shallbedeemed an original, butallofwhich together shall constitute oneand thesame instrument. ThisAgreement may also beexecuted viafacsimile, which shall bedeemed an original.
8.3 Titlesand Subtitles. Thetitles and subtitles used in thisAgreementareusedforconvenience onlyand are not to beconsidered inconstruingorinterpreting thisAgreement.
8.4 Notices. Unless otherwise provided,any notice requiredorpermitted under thisAgreement shall begiven inwritingand shall bedeemed effectively given as hereinafter described (i)ifgivenbypersonaldelivery, then such notice shall bedeemed given uponsuch delivery, (ii)ifgiven byfax,then such notice shall bedeemed givenuponreceipt of confirmation ofcomplete transmittal, (iii)ifgiven bymail, then such notice shall bedeemed given upon theearlierof (A)receipt ofsuch notice by therecipient or(B) threedaysaftersuch notice isdeposited infirst class mail, postage prepaid, and (iv) ifgiven byan internationally recognized overnightair courier,then such notice shall bedeemed given onebusiness day after delivery tosuch carrier. All notices shall beaddressedto the party to be notifiedat theaddress as follows, orat such other address as such party may designate byten days’ advance written notice to theotherparty:
If to theCompany:
____________________
____________________
Attn:
Fax:
Tel:
If to theInvestor:
GHS Investments,LLC
420Jericho Turnpike, Suite 207
Jericho, NY11753
8.5 Expenses. Theparties hereto shall pay their own costs and expenses inconnection herewith. In theevent that legal proceedings arecommenced byanyparty to thisAgreement against another party tothisAgreement inconnection with thisAgreementor theother Transaction Documents, the partyorparties which do notprevailinsuch proceedings shall severally, but notjointly, pay their pro ratashareof thereasonable attorneys’ fees and other
reasonable out-of-pocket costs and expensesincurred by theprevailingparty insuch proceedings.
8.6 Amendments and Waivers. Any termofthisAgreement may beamended and theobservance ofany term of thisAgreement may bewaived (either generallyor in aparticular instance and either retroactively orprospectively),onlywith thewritten consent of theCompany and theInvestor. Any amendmentorwaiver effected inaccordance withthisparagraph shallbe binding uponeach holderof anySecurities purchased underthisAgreement at the timeoutstanding, each future holder ofall such Securities, and theCompany.
8.7 Severability. Any provision of thisAgreement that is prohibited orunenforceable inany jurisdiction shall, as tosuch jurisdiction, beineffectiveto theextent ofsuch prohibition orunenforceability without invalidating theremaining provisions hereof butshall beinterpreted as if itwere writtensoasto beenforceable to themaximumextentpermitted byapplicable law, and any such prohibition orunenforceability inany jurisdiction shall notinvalidate orrender unenforceable such provision inany other jurisdiction.Totheextentpermitted byapplicable law, theparties hereby waive any provision oflaw which rendersany provision hereof prohibitedorunenforceable inanyrespect.
8.8 EntireAgreement. ThisAgreement, including theExhibits and theDisclosure Schedules, and theotherTransaction Documents constitute theentire agreement among theparties hereof with respect to thesubjectmatter hereof and thereof and supersede all prioragreements and understandings, bothoral andwritten, between theparties with respect to thesubject matter hereof and thereof.
8.9 FurtherAssurances. Theparties shallexecuteand deliver all such furtherinstruments and documents and take all such other actions as may reasonably be required to carry out thetransactions contemplated herebyandtoevidence thefulfillmentof theagreements herein contained.
8.10 GoverningLaw;ConsenttoJurisdiction; WaiverofJury Trial. ThisAgreement shall begovernedby,and construed inaccordance with, theinternal laws of theState ofNevada, withoutregard toprinciples ofconflicts oflaw. Each of theparties hereto irrevocably submitto theexclusivejurisdictionofthestate and federal courts sittinginNew YorkCity, New Yorkover any action orproceeding arising out oforrelatingto thisAgreement and theparties hereto hereby irrevocably agreethatall claims inrespect ofsuch action orproceeding may beheard and determined insuch court. Theparties hereto agreethat a finaljudgment inany such action orproceeding shall beconclusive and maybeenforcedinother jurisdictions bysuiton thejudgmentor inany other manner provided bylaw.Theparties hereto furtherwaive any objection tovenue in theStateofNew Yorkand any objection toan action orproceedingin theStateofNewYork on thebasis offorum nonconveniens.
[signature page follows]
INWITNESS WHEREOF, theparties have executedthisAgreement orcaused their dulyauthorized officers toexecute thisAgreement as of thedatefirstabove written.
| TheCompany: | Rich Pharmaceuticals,Inc. By:/s/ Ben Chang Name: Ben Chang Title: CEO |
| | |
| The Investor: | GHS Investments,LLC. By:/s/ Sarfraz Hajee Member |
Disclosure Schedules/ Exhibits
