SECURITIESPURCHASEAGREEMENT
THISSECURITIESPURCHASEAGREEMENT("Agreement")ismadeasofthe24thdayofOctober,2014byandbetweenAlkameHoldingsInc., (the "Company"), andWHC Capital,LLC(the"Investor").
Recitals
A. TheInvestorwishestopurchasefromtheCompany,andtheCompany wishestosellandissuetotheInvestor,upon thetermsandconditions statedin thisAgreement, $55,000.00of principalamountofconvertible securities,intheformattachedheretoasExhibit A (the"Note").
Inconsideration ofthemutualpromisesmadehereinandforothergoodand valuableconsideration,thereceipt andsufficiency ofwhichare herebyacknowledged, the parties hereto agree as follows:
1. Definitions.Inadditiontothosetermsdefinedaboveandelsewhereinthis Agreement,forthe purposesofthis Agreement,thefollowingterms shall havethe meaningsset forth below:
"Affiliate"means,withrespecttoanyPerson,anyother Personwhichdirectlyor indirectlythroughoneormoreintermediariesControls,iscontrolled by, or isunder common control with, such Person.
"BusinessDay"meansaday,otherthanaSaturdayor Sunday,onwhichbanksin NewYorkCityareopenforthegeneraltransactionof business.
"CommonStock Equivalents"means any securitiesofthe Company ortheSubsidiarieswhichwouldentitletheholderthereoftoacquireatanytimeCommon Stock,includingwithout limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any timeconvertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
"Company'sKnowledge"meanstheactualknowledgeoftheexecutiveofficers (asdefinedinRule405under the1933Act)ofthe Company, afterdue inquiry.
"ConfidentialInformation" meanstradesecrets,confidentialinformationand know-how(includingbutnotlimitedtoideas,formulae,compositions,processes,proceduresand techniques,research anddevelopment information, computer program code, performance specifications, support documentation, drawings,specifications, designs, businessand marketing plans,and customerand supplier lists and relatedinformation).
"Control"(includingtheterms"controlling","controlledby"or"undercommoncontrolwith")meansthepossession,direct or indirect, of the power todirect or cause the direction of the managementand policies of a Person, whether throughtheownership of voting securities, by contract or otherwise.
"IntellectualProperty"meansallofthefollowing:(i)patents,patentapplications, patentdisclosuresandinventions(whetherornot patentable and whetheror not reduced to practice); (ii)trademarks,service marks, tradedress,trade names,corporatenames,logos, slogans and Internet domain names,togetherwith all goodwill associatedwith each of the foregoing; (iii)copyrights and copyrightableworks; (iv)registrations, applications andrenewals for any of the foregoing; and (v) proprietary computer software (including but not limited to data,data bases anddocumentation).
"Material Adverse Effect" meansa material adverse effect on(i) theassets,liabilities,resultsofoperations,condition (financial orotherwise),business,orprospectsoftheCompany and its Subsidiariestakenas awhole, or (ii) the ability of the Companyto performits obligations under the Transaction Documents.
"Person"meansanindividual,corporation,partnership,Limited Liability Company,trust,businesstrust,association,jointstockcompany,jointventure,soleproprietorship,unincorporated organization, governmental authority or any otherform of entitynotspecifically listed herein.
"PurchasePrice"meansFiftyThousand($50,000)representingaFivethousand dollar($5,000)originalissuancediscount ("OID") on the Note.
"SEC"meanstheUnitedStatesSecuritiesandExchangeCommission."Securities"meanstheNotes,theIncentiveShares and the Shares.
"Shares"meansthesharesofCommonStockissuableuponconversionoftheNote.
"Subsidiary"ofanyPersonmeansanotherPerson,anamountofthevotingsecurities,othervotingownershiporvotingpartnership interests of whichis sufficienttoelectat least a majority ofits Board of Directors or other governingbody(or, if thereare nosuch voting interests, 50% ormore ofthe equity interests ofwhich) is owned directly orindirectly by such first Person.
"TransactionDocuments"meansthisAgreement,theNote,theCompany RepresentationLetterandtheIrrevocableTransferAgentInstructions.
"1933Act"meanstheSecuritiesActof1933,asamended,oranysuccessorstatute, and the rules and regulations promulgated thereunder.
"1934Act"meanstheSecuritiesExchangeActof1934,asamended,orany successorstatute,andtherulesand regulations promulgated thereunder.
2. PurchaseandSaleoftheNote.Subjecttothetermsandconditionsofthis Agreement,theCompanyshallsellandissuetotheInvestor(i) Convertible Note(s) in the principal amount of $55,000.
3. Closing.Uponconfirmationthattheotherconditionstoclosingspecifiedherein havebeensatisfiedordulywaivedbytheInvestor,theCompanyshalldelivertotheInvestor,aNote registeredthe nameof theInvestor,and theInvestorshall causea wire transferin same day funds tobe sentto the account ofthe Company as instructed in writingby theCompany, inan amount representingthe Purchase Price for the Note(the "Closing Date").
4. Representations and Warranties ofthe Company. TheCompanyherebyrepresentsandwarrantstotheInvestorthat,exceptassetforthintheschedules deliveredherewith (collectively, the "Disclosure Schedules"):
4.1 Organization. Good Standing and Qualification. EachoftheCompanyanditsSubsidiariesisa corporationdulyorganized,validlyexistingandingoodstanding under the lawsof the jurisdiction of its incorporationand hasall requisite corporate powerandauthoritytocarry on its business as now conducted and toown its properties. Each of the Companyandits Subsidiaries is duly qualified to do business as a foreign corporation and isin good standingineach jurisdiction in whichthe conduct ofitsbusinessor its ownership orleasing of propertymakes suchqualificationor leasingnecessary unless the failureto soqualifyhas notand could not reasonablybe expected tohave a Material Adverse Effect. TheCompany's Subsidiariesarelistedonthe Company's public disclosures filed withthe SEC.
4.2 Authorization.The Companyhasfullpowerandauthorityand,bastaken allrequisiteactiononthepartoftheCompany,itsofficers,directorsandstockholdersnecessary for(i)theauthorization, execution anddeliveryoftheTransaction Documents, (ii)authorization of the performance of all obligations of the Company hereunder or thereunder, and (iii) the authorization, issuance (or reservation for issuance)and delivery ofthe Securities. The Transaction Documents constitute the legal, valid and binding obligations of the Company, enforceable againstthe Company inaccordance with theirterms, subject to bankruptcy,insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability,relatingto or affectingcreditors' rights generally.
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4.3 Capitalization.Schedule4.3setsforth(a)theauthorizedcapitalstockof theCompanyonthedatehereof;(b)thenumberofsharesofcapital stockissued and outstanding; (c) the numberof shares of capitalstockissuablepursuantto the Company's stock plans; and(d) thenumberofsharesofcapitalstock issuableandreserved for issuancepursuant to securities (otherthan the Securities) exercisable for,or convertible into orexchangeablefor any shares of capital stock of theCompany. All of theissued andoutstanding shares of the Company's capital stock have beenduly authorized and validlyissued and are fullypaid, nonassessable and free of pre-emptive rights. Exceptasdescribed onSchedule 4.3, allofthe issuedand outstandingshares of capital stock of eachSubsidiary havebeen duly authorizedand validly issued andare fully paid, nonassessable and free of pre-emptive rights, were issued in full compliance with applicablestate andfederal securities law and anyrights of third parties and are ownedby the Company, beneficially and ofrecord, subject to no lien, encumbrance or other adverse claim. Except as described onSchedule 4.3, no Person is entitled to pre-emptive or similar statutory or contractual rightswithrespect toany securities of theCompany. Except as described onSchedule 4.3,there arenooutstanding warrants, options,convertible securities or other rights,agreements or arrangementsofany character under which theCompany or any of its Subsidiaries is or may be obligated to issue any equity securities of any kind and except as contemplated by thisAgreement,neither theCompany nor any ofits Subsidiariesiscurrently in negotiations for the issuance of any equitysecurities of any kind.
ExceptasdescribedonSchedule4.3,theissuance andsaleofthe Securities hereunderwillnotobligatetheCompanytoissueshares ofCommonStock or other securitiesto any otherPerson (other than theInvestor) andwill not resultinthe adjustmentof the exercise, conversion, exchange or reset price of any outstanding security.
ExceptasdescribedonSchedule4.3,theCompanydoesnothaveoutstanding stockholderpurchaserightsor"poisonpill" oranysimilararrangement ineffectgivingany Person the right to purchaseany equity interest in the Company upon the occurrence of certain events.
4.4 ValidIssuance. TheNotehasbeendulyandvalidlyauthorizedand,when issuedandpaidforpursuanttothisAgreement,shall befree and clearofallencumbrances and restrictions(otherthanthosecreated by the Investor), except for restrictionson transfer set forth in the Transaction Documents orimposed by applicable securities laws.Uponthe due conversion oftheNote, the Shareswillbevalidlyissued,fullypaid and non-assessable free and clear of all encumbrances and restrictions, except for restrictions on transfer set forth in the TransactionDocumentsor imposed byapplicable securities lawsand except for thosecreatedby the Investor. TheCompany hasreserved asufficient number of shares ofCommon Stock for issuance upon the exercise of the Note, free and clear of all encumbrances and restrictions, exceptfor restrictions on transfer setforthin the Transaction Documents or imposed by applicablesecurities laws andexcept for thosecreated by the Investor.
4.5 Consents.Theexecution,deliveryandperformancebytheCompanyof theTransactionDocuments,and theoffer,issuanceand saleof theSecurities requireno consent of, action by or in respectof,orfilingwith, any Person, governmental body, agency, orofficial other than filingsthat have been made pursuant to applicable state securities laws,and post-sale filings pursuant toapplicable state and federal securities laws which the Company undertakes to file within the applicable time periods. Subject tothe accuracy of the representationsand warranties of the Investor set forth in Section 5hereof, the Company has taken all action necessary to exempt (i)theissuance andsaleof the Securities, (ii) theissuanceofthe Shares upon due conversionof the Note, and (iii) the other transactions contemplated by the Transaction Documentsfrom the provisions of any shareholder rights planor other "poison pill" arrangement, any anti-takeover, business combinationor control share laworstatute bindingon the Company or to whichthe Companyor any of its assets and propertiesmay be subject andany provisionof the Company's Articles of Incorporationor By-laws thatisor couldreasonably be expected to become applicable to the Investor as a result of the transactions contemplatedhereby, including without limitation,theissuance of theSecurities andtheownership,dispositionorvoting ofthe Securities by the Investor or theexerciseofany rightgrantedtothe Investor pursuant to this Agreement or the other Transaction Documents.
4.6 DeliveryofSECFilings;Business.TheCompanyhasmadeavailableto theInvestorthroughtheEDGARsystem,trueandcomplete copies of theCompany's most recent Annual Report onForm 10-K for its lastfiscal year (the"10-K"),and allother reports filedbytheCompany pursuant to the 1934 Actsince the filing of the 10-K andpriorto thedate hereof (collectively, the "SECFilings"). The SEC Filings arethe only filings required ofthe Company pursuant to the 1934 Act forsuch period.TheCompany and its Subsidiariesare engagedinall material respects only in the business described in the SEC Filingsand the SEC Filings contain a complete and accurate descriptionin all material respects of the businessof the Company and its Subsidiaries, taken as a whole.
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4.7 UseofProceeds.ThenetproceedsofthesaleoftheNotehereundershall beusedbytheCompanyforworkingcapitalandgeneral corporate purposes.
4.8 NoConflict.Breach.ViolationorDefault.Theexecution,deliveryand performanceoftheTransactionDocumentsbytheCompanyandtheissuanceandsaleofthe Securities will not conflict with or result in a breach or violation of any of the terms andprovisions of, orconstituteadefault under (i) the Company's Articles of Incorporationor the Company's Bylaws, both as in effect on the date hereof (true and complete copies of which have beenmade availableto theInvestor through theEDGAR system), or(ii)(a)anystatute, rule,regulation or order ofany governmental agency or body or any court, domestic or foreign, having jurisdictionover the Company, any Subsidiary or any oftheir respective assets orproperties, or(b) anyagreement or instrument to whichthe Company oranySubsidiaryis a party orbywhich theCompany oraSubsidiary isbound ortowhichany oftheirrespective assets or properties is subject.
4.9 BrokersandFinders.NoPersonwillhave,asa resultofthetransactionscontemplatedbytheTransactionDocuments, anyvalid right,interest or claimagainstor upon the Company, any Subsidiary oran Investor foranycommission, fee or other compensation pursuant to anyagreement, arrangement or understanding entered into byor on behalf of the Company.
4.10 NoDirectedSellingEfforts orGeneralSolicitation.NeithertheCompany nor anyPersonactingonitsbehalfhasconductedanygeneralsolicitationor generaladvertising (as those terms are usedin Regulation D) in connection with the offer or sale of any of the Securities.
4.11 No IntegratedOffering.NeithertheCompanynoranyofitsAffiliates,nor anyPersonactingonitsortheirbehalf has, directly or indirectly,madeanyoffersorsalesofany Company security or solicited any offers to buy any security, under circumstances that would adverselyaffectreliancebytheCompanyon Section 4(2)for theexemption from registration for the transactions contemplated hereby or would require registrationof theSecurities underthe 1933Act.
4.12 PrivatePlacement.TheofferandsaleoftheSecuritiestotheInvestoras contemplatedherebyisexemptfromtheregistrationrequirementsofthe 1933 Act.
5. Representationsand Warrantiesofthe Investor. The Investor herebyrepresentsandwarrantstotheCompanythat:
5.1 OrganizationandExistence.SuchInvestorisavalidlyex1stmgcorporation,limitedpartnershiporlimitedliabilitycompanyandhas all requisite corporate, partnership orlimited liabilitycompanypower and authority to invest inthe Securities pursuant to thisAgreement.
5.2 Authorization.Theexecution,deliveryandperformancebysuchInvestoroftheTransactionDocumentstowhichsuchInvestor isa partyhave beendulyauthorizedand will eachconstitute the validand legally binding obligation ofsuchInvestor, enforceable againstsuch Investor in accordance withtheirrespective terms,subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium andsimilar laws of generalapplicability, relating to or affectingcreditors' rights generally.
5.3 Purchase Entirelyfor Own Account. TheSecuritiestobereceivedbysuchInvestor hereunder willbeacquired forsuchInvestor'sownaccount,notas nominee oragent, andnot with a view to theresale or distribution of any part thereofin violation ofthe 1933Act, and such Investor has no present intention of selling, granting any participation in, or otherwise distributing the same in violation of the 1933 Act without prejudice, however, to suchInvestor's right at all times to sellorotherwise dispose of all or any partof such Securities incompliance with applicablefederal and state securities laws. Nothing contained herein shall bedeemed a representation or warrantyby such Investorto holdthe Securities for any periodoftime. Such Investor is not a broker-dealer registered with the SEC underthe 1934 Act or anentity engaged inabusiness that would require it to be so registered.
5.4 InvestmentExperience.SuchInvestoracknowledgesthatitcanbearthe economicriskandcompletelossofitsinvestmentintheSecuritiesandhas such knowledgeand experienceinfinancial or business mattersthat it iscapableof evaluatingthe meritsand risksof the investment contemplated hereby.
5.5 Disclosure of Information. Such Investor has had an opportunity to receive all information related to the Company requested by it and to ask questions of and receive answers from the Company regarding the Company, its business and the terms and conditions of the offering of the Securities. Such Investor acknowledges receipt of copies of the SEC Filings. Neither such inquiries nor any other due diligence investigation conducted by such Investor shall modify, amend or affect such Investor's right to rely on the Company's representations and warranties contained in this Agreement.
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5.6 RestrictedSecurities.SuchInvestorunderstandsthattheSecuritiesare characterizedas"restrictedsecurities"undertheU.S.federalsecuritieslawsinasmuchasthey are beingacquired from theCompany in atransactionnotinvolvinga public offeringandthat undersuch laws andapplicableregulations suchsecurities may beresoldwithoutregistration under the 1933 Act only in certain limited circumstances.
5.7 Legends.Itisunderstoodthat,exceptasprovidedbelow,certificates evidencingtheSecuritiesmaybearthefollowingoranysimilarlegend:
(a) "Thesecuritiesrepresentedherebymaynotbetransferredunless (i)suchsecuritieshavebeenregisteredforsale pursuant to the Securities Act of 1933, as amended, (ii) such securities may be sold pursuant to Rule 144(i), or (iii)the Company has receivedan opinion of counsel reasonably satisfactory to it that such transfermaylawfully be made without registration under the Securities Act of 1933 or qualification under applicable state securities laws."
(b) Ifrequiredbytheauthoritiesofanystateinconnectionwiththe issuanceofsaleoftheSecurities,the legendrequiredby such state authority.
5.7 AccreditedInvestor.SuchInvestorisanaccreditedinvestorasdefinedin Rule501(a)ofRegulationD,asamended,under the1933 Act.
5.8 NoGeneralSolicitation.SuchInvestordidnotlearn oftheinvestmentin theSecuritiesasaresultofanypublicadvertisingorgeneral solicitation.
5.9 BrokersandFinders.NoPersonwillhave,asaresultofthetransactions contemplatedbytheTransactionDocuments,anyvalidright, interest or claimagainst orupon the Company, any Subsidiary or an Investor for any commission, feeor other compensation pursuant toanyagreement,arrangement or understanding entered into by oronbehalf ofsuch Investor.
6. ConditionstoClosing.
6.1 Conditionsto theInvestor'sObligations.Theobligationof theInvestorto purchasetheNoteatClosingissubjecttothefulfillmenttosuchInvestor'ssatisfaction,onor prior to the Closing Date, ofthe following conditions, any of which maybe waived bythe Investor:
(a) TherepresentationsandwarrantiesmadebytheCompanyin Section4hereofqualifiedastomaterialityshallbetrueandcorrectatalltimespriortoandon the Closing Date, exceptto the extentany such representation or warrantyexpressly speaks as of an earlier date,in which case such representationor warrantyshall be trueand correctas of such earlier date,and, therepresentations and warranties made by the Company in Section 4 hereof not qualifiedas to materialityshall be true and correct in all materialrespectsat all times priorto andonthe Closing Date, except to the extent anysuchrepresentation or warranty expressly speaks as ofanearlier date, inwhich casesuch representation or warranty shall betrue and correctin allmaterial respects asof such earlier date. TheCompany shall have performed in all material respects all obligations and conditions herein required tobe performed or observed byit onor priortothe Closing Date.
(b) TheCompanyshallhaveobtainedanyandallconsents, permits, approvals,registrationsandwaiversnecessaryorappropriateforconsummationofthepurchase andsaleoftheSecurities,andtheconsummationof theother transactionscontemplatedby the TransactionDocuments, all of which shallbe in full force and effect.
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(c) Nojudgment, writ,order,injunction,awardordecreeoforbyany court,orjudge,justiceormagistrate,includinganybankruptcycourtorjudge,oranyorder of or by anygovernmentalauthority, shall have been issued, andno action orproceeding shallhave been instituted by any governmental authority, enjoiningor preventing theconsummation ofthe transactions contemplatedhereby or in the otherTransactionDocuments.
(d) TheCompanyshallhaveexecutedanddelivered theConvertible noteandsupportingdocumentation.
(e) TheCompanyshallhaveexecutedanddeliveredtheIrrevocable TransferAgentInstructions.
(f) Nostoporderorsuspensionoftradingshallhavebeenimposedby thepublicmarketsonwhichtheCompany'scommonstockistradedor quoted, the SECorany other governmentalorregulatorybody with respectto public trading in the Common Stock.
6.2 Conditionsto Obligations oftheCompany.TheCompany'sobligationtosellandissuetheNoteatClosingissubjecttothefulfillmenttothesatisfaction oftheCompanyon or prior totheClosingDate ofthe following conditions, any ofwhich may bewaived by the Company:
(a) TherepresentationsandwarrantiesmadebytheInvestorinSection 5 hereof,otherthantherepresentationsandwarrantiescontained in Sections 5.3, 5.4, 5.5, 5.6, 5.7, 5.8 and5.9 (the "Investment Representations"), shall be true and correct in all material respects when made,and shallbe true andcorrect in all materialrespects on the ClosingDate withthesame force and effect as iftheyhadbeen madeon and as of saiddate.The Investment Representations shallbe trueandcorrect inallrespectswhenmade, andshall betrue andcorrect in all respects onthe ClosingDatewiththe same force and effect as iftheyhad been made on andas of said date. The Investor shall haveperformed in all material respects all obligations and conditionsherein requiredto beperformed or observedby them on or prior to theClosing Date.
(b) TheInvestorshallhavedeliveredthePurchasePrice tothe Companyinaccordancewiththescheduleoutlinedherein.
6.3 TerminationofObligationstoEffectClosing:Effects.
(a) TheobligationsoftheCompany,ontheonehand,andtheInvestor, ontheotherhand,toeffecttheClosingshallterminateasfollows:
(i) Uponthemutualwritten consentoftheCompanyandthe Investor;
(ii) BytheCompanyifanyoftheconditionssetforthin Section6.2shallhavebecomeincapableoffulfillment,andshallnothavebeenwaivedby the Company;
(iii) �� BytheInvestorifanyoftheconditionssetforthinSection 6.1shallhave becomeincapableoffulfillment,andshallnot have been waived bythe Investor; or provided, however, that, except inthe case ofclause (i) above,the partyseekingto terminate its obligation toeffect the Closingshall not then beinbreach of anyof its representations, warranties, covenants oragreements contained in thisAgreement or theother Transaction Documents ifsuch breachhas resulted inthecircumstances givingrise tosuch party's seeking to terminate its obligation to effecttheClosing.
7. SurvivalandIndemnification.
7.1 Survival.Therepresentations,warranties,covenantsand agreements containedinthisAgreementshallsurvivetheClosingofthetransactionscontemplatedby this Agreement.
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7.2 Indemnification.TheCompanyagreestoindemnifyandholdharmlesseach InvestoranditsAffiliatesandtheirrespectivedirectors,officers, employees and agents from and againstanyand alllosses, claims, damages,liabilitiesandexpenses(including without limitation reasonable attorney fees anddisbursements andother expensesincurredin connection with investigating, preparing or defending any action, claim or proceeding,pending or threatened and the costsof enforcement thereof) (collectively, "Losses") to which such Person may become subjectas a result of any breach ofrepresentation, warranty,covenant or agreement madebyor tobe performed on thepartof the Company under the TransactionDocuments,and will reimburse anysuch Person for allsuchamountsas they are incurredby such Person.
7.3 ConductofIndemnification Proceedings. Promptly afterreceiptbyanyPerson(the "Indemnified Person") of notice of any demand,claim or circumstances whichwouldormight give rise to a claim orthe commencement ofany action, proceedingorinvestigation in respect of which indemnity may be sought pursuant to Section 7.2, suchIndemnified Personshall promptly notify theCompanyin writingand the Company shall assume the defense thereof, including the employment of counsel reasonably satisfactory to suchIndemnified Person, and shall assume the payment of all fees and expenses;provided,however, that the failureofanyIndemnified Person so to notify the CompanyshallnotrelievetheCompany ofits obligations hereunder except to the extent that the Company is materiallyprejudiced bysuch failure to notify. Inany such proceeding, anyIndemnified Person shallhave the right toretain its own counsel, but the feesandexpenses of such counsel shall be at the expenseof such IndemnifiedPerson unless: (i)theCompany andtheIndemnified Person shall have mutually agreed to the retention of such counsel; or (ii)in the reasonable judgment of counselto such Indemnified Person representation of both parties by thesame counselwould be inappropriate due to actual or potentialdiffering interests betweenthem. The Company shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall notbe unreasonably withheld, but if settled withsuchconsent, or if there be a final judgment for the plaintiff, the Company shallindemnify and hold harmless suchIndemnified Personfrom and against any loss or liability (tothe extent stated above) by reason ofsuch settlement or judgment. Without the prior written consentof the IndemnifiedPerson, which consentshall not be unreasonablywithheld, the Company shallnot affect any settlement of any pending orthreatened proceeding inrespectof which anyIndemnifiedPerson is or could have been a partyand indemnitycould have beensought hereunderbysuchIndemnified Party, unless such settlement includesanunconditional releaseofsuch Indemnified Person from all liability arising out of such proceeding.
8. Miscellaneous.
8.1 Successorsand Assigns.ThisAgreementmaynotbeassignedbyaparty heretowithoutthepriorwrittenconsentoftheCompanyor the Investor,as applicable,provided, however, that an Investor mayassign itsrights anddelegate itsdutieshereunder inwhole or in part to an Affiliateor to a third party acquiringsome or all of itsSecuritiesin a private transaction without the prior written consent of the Company, after notice duly givenby such Investor totheCompany: The provisions of thisAgreement shall inuretothebenefit of and be binding upon the respective permitted successors and assigns of the parties. Nothing in this Agreement, express or implied,is intendedtoconfer uponany partyotherthan theparties hereto or theirrespective successorsand assignsany rights, remedies,obligations,or liabilitiesunder or by reason of this Agreement,exceptas expressly providedin this Agreement.
8.2 Counterparts;ThisAgreementmaybeexecutedintwoormore counterparts,eachofwhichshallbedeemed anoriginal,butall of which togethershallconstitute one andthe same instrument. This Agreement mayalsobe executed via facsimile, which shall be deemed an original.
8.3 Titles and Subtitles. ThetitlesandsubtitlesusedinthisAgreement areusedforconvenienceonlyand arenot tobe consideredinconstruing orinterpreting this Agreement.
8.4 Notices.Unlessotherwiseprovided, anynoticerequiredorpermitted underthisAgreementshallbegiveninwritingandshallbedeemed effectively given as hereinafter described (i) if given bypersonal delivery, then such notice shall be deemed given upon such delivery, (ii) if givenby fax,then suchnotice shall be deemed given upon receipt of confirmation of complete transmittal, (iii) if given by mail, then such notice shall be deemed given upon the earlier of (A) receipt of such notice bytherecipient or (B)three days after such notice is depositedin first class mail, postage prepaid, and (iv) if given by an internationally recognized overnight aircourier,then such notice shall be deemed given one business day after deliveryto suchcarrier. All notices shall be addressed totheparty tobe notified attheaddress as follows, or at such other address as such party may designate by ten days' advance written notice to the other party:
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IftotheCompany:
AlkameHoldings,Inc.
IftotheInvestor:
WHCCapital,LLC
200StonehingeLane
Suite3
CarlePlace,NY11514
718.530.0182
8.5 Expenses.Thepartiesheretoshallpaytheirowncostsandexpensesin connectionherewith.Intheeventthatlegalproceedingsarecommencedby any partyto this Agreement against anotherpartytothisAgreement inconnection withthisAgreement orthe other Transaction Documents, the party or parties which do not prevail in such proceedings shall severally,but not jointly, pay their prorata shareof the reasonable attorneys' feesandother reasonable out-of-pocket costs and expenses incurred by the prevailing party in such proceedings.
8.6 AmendmentsandWaivers.AnytermofthisAgreementmaybeamended andtheobservanceofanytermofthisAgreement may be waived (either generally orina particular instance andeither retroactively or prospectively), onlywiththe written consent of the Companyand theInvestor.Any amendment or waiver effected in accordance with this paragraph shall be binding uponeach holderof anySecurities purchased underthis Agreement at the time outstanding, eachfuture holder ofall suchSecurities, and the Company.
8.7 Severability.AnyprovisionofthisAgreementthatisprohibitedor unenforceableinanyjurisdictionshall,astosuch jurisdiction, be ineffective to theextentof such prohibition or unenforceabilitywithout invalidating theremaining provisionshereof but shallbe interpreted asif it were written so as tobe enforceable tothe maximum extent permitted by applicable law, and anysuch prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To theextent permitted by applicable law, thepartieshereby waiveany provision of lawwhich renders any provisionhereof prohibitedor unenforceable in any respect.
8.8 EntireAgreement.ThisAgreement,includingtheExhibitsandthe DisclosureSchedules,andtheotherTransactionDocuments constitutetheentireagreement among the parties hereof with respect to the subject matter hereof and thereof and supersedeall prior agreementsand understandings,both oral and written, between the parties withrespect to the subject matter hereof and thereof.
8.9 FurtherAssurances.Thepartiesshallexecuteanddeliverallsuchfurther instrumentsanddocumentsandtakeall suchother actions as mayreasonably be required to carry out the transactions contemplated hereby and to evidencethefulfillmentof theagreements herein contained.
8.10 GoverningLaw; Consent to Jurisdiction; Waiver of Jury Trial. ThisAgreementshallbegovernedby,andconstruedinaccordancewith,theinternal lawsoftheStateofNewYork,without regard to principles of conflicts of law. THE COMPANY ANDINVESTOR WAIVE ANY RIGHT TO AWRYTRIAL OF ANY CLAIM OR CAUSE OFACTION BASED UPON OR ARISING OUTOF THIS NOTEORANYTRANSACTIONCONTEMPLATED HEREIN, INCLUDING CLAIMS BASED ON CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER COMMONLAW OR STATUTORY BASIS. Eachparty hereby submits to theexclusivejurisdiction of the stateand federal courts located in the County of New York,State of New York.If the jury waiver set forth in this Section is not enforceable, then anydispute, controversy or claim arising out of orrelating tothis Agreement oranyofthe transactions contemplatedherein will befinally settledby binding arbitration in New York, New Yorkin accordancewith the then current Commercial Arbitration Rules of the AmericanArbitration Association byone arbitrator appointedinaccordance with said rules.The arbitratorshallapply New York law to theresolution of any dispute,without reference to rulesof conflicts of law or rules of statutory arbitration. Judgment on the award rendered by the arbitrator may be entered in any court havingjurisdiction thereof. Notwithstanding the foregoing,the parties may applyto anycourt of competent jurisdiction for preliminaryorinterim equitable relief, or to compel arbitration inaccordancewiththisparagraph.The expenses of the arbitration, including the arbitrator's fees and expert witness fees, incurred by theparties tothearbitration,may be awarded tothe prevailing party, in the discretion of the arbitrator, ormay be apportioned between the partiesinany mannerdeemed appropriateby the arbitrator. Unlessanduntil the arbitrator decides that oneparty is to pay for all (or a share) of such expenses, both parties shall share equally in the payment of the arbitrator's fees as andwhen billedby the arbitrator.
[signaturepagefollows]
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INWITNESSWHEREOF, thepartieshaveexecutedthisAgreementorcaused theirdulyauthorizedofficerstoexecutethisAgreementas of thedatefirst above written.
TheCompany: | AlkameHoldings,Inc. |
By:/s/ Robert Eakle | |
Name: Robert Eakle | |
Title: CEO | |
TheInvestor: | WHCCAPITAL,LLC, |
By:/s/ Authorized Signatory | |
Authorized Signatory | |
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DisclosureSchedules
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