Montague Law | Free Legal Form Template
This Series Seed Preferred Stock Purchase Agreement (this "Agreement") is entered into as of [DATE], by and among [COMPANY NAME], a [STATE] corporation (the "Company"), and each of the purchasers listed on the Schedule of Purchasers attached hereto as Exhibit A (each, a "Purchaser" and collectively, the "Purchasers").
WHEREAS, the Company desires to issue and sell to the Purchasers, and the Purchasers desire to purchase from the Company, shares of the Company’s Series Seed Preferred Stock, par value $0.0001 per share (the "Series Seed Preferred Stock" or the "Shares"), on the terms and conditions set forth herein;
WHEREAS, the Company’s Board of Directors (the "Board") has authorized the sale and issuance of the Shares to the Purchasers pursuant to this Agreement and has approved the filing of the Amended and Restated Certificate of Incorporation in the form attached hereto as Exhibit B (the "Restated Certificate") with the Secretary of State of the State of [STATE];
WHEREAS, the parties desire to set forth the terms and conditions upon which the Shares will be issued to the Purchasers and to establish certain rights, preferences, privileges, and restrictions with respect to the Shares as more fully described in the Restated Certificate;
NOW, THEREFORE, in consideration of the mutual promises, representations, warranties, covenants, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows.
TOKEN WARRANT (this "Warrant"), dated as of [DATE] (the "Issuance Date"), is entered into by and between [COMPANY NAME], a [STATE] limited liability company (the "Company"), and [HOLDER NAME] (the "Holder").
This Warrant is being issued in connection with, and as additional consideration for, that certain Simple Agreement for Future Equity (the "SAFE"), dated on or about the date hereof, by and between the Company and the Holder, pursuant to which the Holder has agreed to provide certain funds to the Company in exchange for the right to receive equity of the Company upon the occurrence of certain events described therein. The Company and the Holder are sometimes referred to herein individually as a "Party" and collectively as the "Parties."
WHEREAS, the Company is developing, or intends to develop, a decentralized protocol, blockchain-based network, or distributed ledger technology platform (the "Protocol") and, in connection therewith, may create and distribute digital cryptographic tokens that are designed to have utility within or be integral to the operation of the Protocol (the "Tokens");
WHEREAS, the Company desires to grant the Holder the right to receive certain Tokens, subject to and contingent upon the occurrence of a Token Generation Event (as defined below), and the Holder desires to receive such right, each on the terms and subject to the conditions set forth in this Warrant;
WHEREAS, the issuance of this Warrant and the underlying Token rights are intended to align the interests of the Holder with those of the Company and to incentivize the Holder’s ongoing support of the Company’s development and commercialization of the Protocol; and
WHEREAS, this Warrant is being issued in reliance upon applicable exemptions from registration under the Securities Act of 1933, as amended (the "Securities Act"), and applicable state securities laws.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows.
This Master Services Agreement (this "Agreement") is entered into as of [DATE] (the "Effective Date"), by and between [COMPANY NAME], a [STATE] [corporation/limited liability company] with its principal place of business at [ADDRESS] ("Service Provider"), and [CLIENT NAME], a [STATE] [corporation/limited liability company] with its principal place of business at [ADDRESS] ("Client"). Service Provider and Client are each referred to herein individually as a "Party" and collectively as the "Parties."
WHEREAS, Service Provider is engaged in the business of providing professional services, including without limitation consulting, technology, creative, advisory, and related services, and possesses the expertise, personnel, and resources necessary to perform such services;
WHEREAS, Client desires to engage Service Provider from time to time to perform certain professional services on Client’s behalf, and Service Provider desires to perform such services for Client, in each case subject to the terms and conditions set forth herein;
WHEREAS, the Parties desire to establish a master framework agreement that will govern the terms and conditions under which Service Provider will provide services to Client pursuant to individual Statements of Work executed hereunder, thereby facilitating an efficient and ongoing working relationship between the Parties without the need to negotiate a separate agreement for each engagement; and
WHEREAS, the Parties intend that this Agreement shall serve as the overarching agreement governing all services rendered by Service Provider to Client, with each Statement of Work specifying the particular scope, timeline, fees, and other engagement-specific terms applicable to a given project or set of services.
NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties, and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows.
1.1 Sale and Issuance of Series Seed Preferred Stock. Subject to the terms and conditions of this Agreement, each Purchaser agrees, severally and not jointly, to purchase at the Closing (as defined in Section 3.1), and the Company agrees to sell and issue to each such Purchaser at the Closing, that number of shares of Series Seed Preferred Stock set forth opposite such Purchaser’s name on the Schedule of Purchasers at a purchase price per share equal to $[PRICE PER SHARE] (the "Purchase Price Per Share"). The aggregate number of shares of Series Seed Preferred Stock to be sold and issued to all Purchasers pursuant to this Agreement shall not exceed [TOTAL SHARES] shares (the "Maximum Authorized Shares"), for an aggregate purchase price not to exceed $[AGGREGATE PURCHASE PRICE] (the "Aggregate Purchase Price").
1.2 Authorization of Shares. On or prior to the Closing, the Company shall have authorized (a) the sale and issuance of the Shares to the Purchasers pursuant to this Agreement and (b) the reservation of shares of Common Stock of the Company ("Common Stock") for issuance upon conversion of the Shares (the "Conversion Shares"). The Shares shall have the rights, preferences, privileges, and restrictions set forth in the Restated Certificate.
1.3 Use of Proceeds. The Company shall use the proceeds from the sale of the Shares for general corporate purposes, including but not limited to product development, hiring of key personnel, working capital, and other lawful business activities as determined by the Board, and shall not use any portion of the proceeds for (a) repayment of indebtedness owed to any officer, director, or stockholder of the Company, (b) any personal expenditure by any officer, director, or stockholder of the Company, or (c) any purpose that would violate applicable law.
1.4 Defined Terms. Capitalized terms used and not otherwise defined in this Agreement have the meanings set forth in Section 12 of this Agreement.
"Affiliate" means, with respect to any Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, where "control" means the direct or indirect ownership of more than fifty percent (50%) of the outstanding voting securities of an entity, or the right to receive more than fifty percent (50%) of the profits or earnings of an entity, or the right to direct the management or policies of an entity.
"Applicable Law" means all applicable federal, state, local, and foreign laws, statutes, regulations, ordinances, codes, rules, orders, decrees, judgments, directives, and governmental requirements, in each case as in effect from time to time and as applicable to the performance of obligations under this Agreement or any Statement of Work.
"Business Day" means any day other than a Saturday, Sunday, or any day on which banks located in the State of [STATE] are authorized or required by Applicable Law to close.
"Change Order" means a written document, substantially in the form attached hereto as Exhibit B or as otherwise mutually agreed, executed by authorized representatives of both Parties, that modifies, amends, or supplements the scope, timeline, Fees, Deliverables, or other terms of an existing Statement of Work in accordance with Section 4 of this Agreement.
"Client Materials" means all documents, data, information, know-how, specifications, requirements, content, media, trademarks, logos, and other materials provided or made available by Client or its representatives to Service Provider in connection with the performance of Services under this Agreement or any Statement of Work, including all Confidential Information of Client.
"Confidential Information" has the meaning set forth in Section 9.1 of this Agreement.
"Deliverables" means all work product, documents, reports, analyses, designs, software, code, configurations, creative works, materials, and other tangible and intangible items to be developed, created, prepared, or delivered by Service Provider to Client in connection with the performance of Services, as specified in the applicable Statement of Work.
"Effective Date" has the meaning set forth in the preamble of this Agreement.
"Fees" means the compensation payable by Client to Service Provider for the performance of Services and delivery of Deliverables under this Agreement and the applicable Statement of Work, as specified in such Statement of Work and subject to the terms of Section 6 of this Agreement.
"Force Majeure Event" has the meaning set forth in Section 17.1 of this Agreement.
As used in this Warrant, the following terms shall have the meanings set forth below. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the SAFE.
"Affiliate" means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common control with such Person. For purposes of this definition, "control" (including the terms "controlled by" and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
"Applicable Law" means, with respect to any Person, all provisions of laws, statutes, ordinances, rules, regulations, permits, certificates, judgments, decisions, decrees, or orders of any governmental authority applicable to such Person or any of its assets or properties, including, without limitation, all applicable common law, and all applicable provisions of (a) the Securities Act and the rules and regulations promulgated thereunder, (b) the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, (c) applicable state securities or "blue sky" laws, and (d) applicable anti-money laundering, sanctions, and counter-terrorist financing laws and regulations.
"Business Day" means any day other than a Saturday, Sunday, or any day on which banking institutions in the State of [STATE] are authorized or required by Applicable Law to close.
"Company" has the meaning set forth in the Preamble.
"Conversion Rate" means the rate at which the Purchase Amount is converted into Tokens, calculated as the Purchase Amount divided by the Token Price, subject to adjustment as provided in Section 3.3.
"Exercise Notice" means a written notice delivered by the Holder to the Company in substantially the form attached hereto as Exhibit A, indicating the Holder’s election to exercise this Warrant in whole or in part in accordance with Article IV.
"Exercise Period" means the period commencing on the date of a Token Generation Event and ending on the earlier of (a) the date that is five (5) years following the Issuance Date and (b) the Termination Date.
"Exercise Price" means the price per Token at which this Warrant may be exercised, which shall be equal to the Token Price established in connection with the Token Generation Event, or such other price as may be agreed upon by the Parties in writing prior to the Token Generation Event.
"Holder" has the meaning set forth in the Preamble, and includes any Permitted Transferee to whom this Warrant has been validly transferred in accordance with Article X.
"KYC/AML" means know-your-customer and anti-money laundering compliance procedures and requirements under Applicable Law, including, without limitation, the Bank Secrecy Act, the USA PATRIOT Act, and regulations promulgated by the Financial Crimes Enforcement Network (FinCEN), the Office of Foreign Assets Control (OFAC), and any analogous non-U.S. regulatory authority.
"Lockup Period" means the period during which Tokens delivered to the Holder pursuant to this Warrant are subject to transfer restrictions as set forth in Section 6.2.
"Network Launch" means the date on which the Protocol is deployed on a public blockchain mainnet and is operational and accessible by end users for its intended purpose, as determined in good faith by the Company’s board of directors or comparable governing body (the "Board").
"OFAC" means the Office of Foreign Assets Control of the United States Department of the Treasury.
"Permitted Transferee" means (a) any Affiliate of the Holder, (b) any trust for the benefit of the Holder or the Holder’s immediate family members, (c) any individual retirement account or other tax-advantaged retirement vehicle for the benefit of the Holder, or (d) any other Person approved in writing by the Company, such approval not to be unreasonably withheld, conditioned, or delayed.
2.1 Optional Tranched Closing Structure. If the Schedule of Purchasers designates the financing as a "Tranched Financing," the purchase and sale of the Shares shall occur in multiple tranches (each, a "Tranche") as set forth in the Milestone Schedule attached hereto as Exhibit F (the "Milestone Schedule"). In such event, the Aggregate Purchase Price shall be allocated among the Tranches as specified in the Milestone Schedule, and the provisions of this Section 2 shall apply in addition to, and not in limitation of, the provisions of Sections 1 and 3.
2.2 Milestone Definitions and Achievement Criteria. Each Tranche following the Initial Tranche (as defined below) shall be conditioned upon the Company’s achievement of the milestone or milestones (each, a "Milestone") set forth in the Milestone Schedule corresponding to such Tranche. The first Tranche (the "Initial Tranche") shall close on the Closing Date without regard to Milestone achievement. Each subsequent Tranche (each, a "Subsequent Tranche") shall close within fifteen (15) Business Days following delivery by the Company of a written Milestone Achievement Certificate (as defined in Section 2.3) to the Purchasers. A Milestone shall be deemed achieved only upon (a) the occurrence of the events or satisfaction of the criteria described in the Milestone Schedule with respect to such Milestone, and (b) written certification thereof by the Company’s Chief Executive Officer, confirmed by the Board (including the affirmative vote of at least one director elected by the holders of Series Seed Preferred Stock, if any), that such Milestone has been achieved in all material respects.
2.3 Milestone Achievement Certificate and Financial Commitment Notice. Upon achievement of a Milestone, the Company shall deliver to each Purchaser a written certificate executed by the Chief Executive Officer of the Company (a "Milestone Achievement Certificate") setting forth in reasonable detail (a) the Milestone achieved, (b) the date of achievement, (c) supporting documentation evidencing such achievement, and (d) the number of shares of Series Seed Preferred Stock to be issued in the corresponding Subsequent Tranche and the aggregate purchase price therefor (collectively, a "Financial Commitment Notice"). Each Purchaser shall have ten (10) Business Days following receipt of the Financial Commitment Notice to deliver written objection to the Company, setting forth in reasonable detail the basis for such Purchaser’s good faith belief that the applicable Milestone has not been achieved. If no objection is timely delivered, the Milestone shall be conclusively deemed achieved for purposes of this Agreement.
2.4 Obligation to Fund Subsequent Tranches. Subject to satisfaction of the conditions set forth in Section 2.2 and Section 6 (as applied to each Subsequent Tranche closing), each Purchaser shall be obligated to fund its pro rata portion (determined by reference to such Purchaser’s percentage of the Aggregate Purchase Price set forth on the Schedule of Purchasers) of each Subsequent Tranche within fifteen (15) Business Days following the conclusive determination of Milestone achievement pursuant to Section 2.3. Time is of the essence with respect to each Purchaser’s funding obligations under this Section 2.4.
2.5 Consequences of Failure to Fund. If any Purchaser fails to fund its pro rata portion of a Subsequent Tranche within the time period specified in Section 2.4 (a "Defaulting Purchaser"), then (a) the Defaulting Purchaser’s shares of Series Seed Preferred Stock previously acquired hereunder shall, at the election of the Company (exercisable by written notice to the Defaulting Purchaser within thirty (30) days following such failure), automatically convert into shares of Common Stock at a conversion price equal to seventy-five percent (75%) of the then-applicable Purchase Price Per Share (the "Reduced Conversion Price"), (b) the Defaulting Purchaser shall forfeit any information rights, board observer rights, and pro rata participation rights under the Related Agreements, and (c) the Company may, at its option, offer the unfunded portion of such Subsequent Tranche to the non-defaulting Purchasers on a pro rata basis, or to third parties approved by the Board. For the avoidance of doubt, the conversion described in clause (a) shall not affect the rights of non-defaulting Purchasers.
2.6 Milestone Schedule Amendments. The Milestone Schedule may be amended only with the written consent of the Company and the Majority Purchasers. If a Milestone becomes incapable of achievement due to circumstances beyond the Company’s reasonable control (excluding the Company’s failure to perform), the Company and the Majority Purchasers shall negotiate in good faith to establish a substitute milestone of reasonably equivalent difficulty and commercial significance.
"Intellectual Property" or "Intellectual Property Rights" means all intellectual property rights of any kind, whether arising under statutory or common law, and whether registered or unregistered, including without limitation all patents, patent applications, inventions, copyrights, moral rights, works of authorship, trademarks, service marks, trade names, trade dress, trade secrets, know-how, database rights, mask work rights, rights in designs, rights of publicity and privacy, and all registrations, applications, renewals, extensions, continuations, divisions, reissues, and foreign counterparts thereof, together with all rights to sue for past, present, and future infringement, misappropriation, or dilution of any of the foregoing.
"Key Personnel" means those individuals identified by name or role in a Statement of Work as being essential to the performance of Services under such Statement of Work, whose removal or replacement is subject to the terms set forth in Section 3.5 of this Agreement.
"Personnel" means all employees, agents, independent contractors, subcontractors, and other individuals engaged by Service Provider to perform Services or deliver Deliverables under this Agreement or any Statement of Work.
"Pre-Existing IP" means, with respect to either Party, all Intellectual Property Rights owned or controlled by such Party as of the Effective Date or developed or acquired by such Party independently of this Agreement and any Statement of Work, including without limitation all methodologies, tools, frameworks, software, libraries, know-how, processes, techniques, concepts, and algorithms.
"Services" means the professional services, consulting, advisory, development, creative, technical, and other services to be performed by Service Provider for Client as described in and pursuant to each Statement of Work, including the creation and delivery of Deliverables specified therein.
"Statement of Work" or "SOW" means a written document, substantially in the form attached hereto as Exhibit A or as otherwise mutually agreed, executed by authorized representatives of both Parties pursuant to Section 3 of this Agreement, that sets forth the specific scope of Services, Deliverables, timelines, Fees, acceptance criteria, and other engagement-specific terms for a particular project or set of services to be performed under this Agreement.
"Subcontractor" means any third party engaged by Service Provider to perform any portion of the Services or to deliver any Deliverables under this Agreement or any Statement of Work, as further described in Section 3.6 of this Agreement.
"Term" has the meaning set forth in Section 7.1 of this Agreement.
"Work Product" means all inventions, discoveries, improvements, works of authorship, designs, software, code, algorithms, trade secrets, know-how, data, analyses, reports, documentation, and other tangible and intangible work product created, conceived, developed, or reduced to practice by Service Provider or its Personnel, whether solely or jointly with Client or its representatives, in the course of performing Services or delivering Deliverables under this Agreement or any Statement of Work.
"Person" means any individual, corporation, partnership, limited liability company, trust, unincorporated organization, governmental authority, or any other entity or body.
"Protocol" has the meaning set forth in the Recitals.
"Purchase Amount" means the aggregate amount paid or payable by the Holder under the SAFE, or such other amount as the Parties may designate in Schedule A hereto.
"Restricted Jurisdiction" means any jurisdiction that is the subject of comprehensive economic or trade sanctions administered or enforced by OFAC, the United Nations Security Council, the European Union, His Majesty’s Treasury of the United Kingdom, or any other relevant sanctions authority, including, as of the Issuance Date, Cuba, Iran, North Korea, Syria, the Crimea, Donetsk, and Luhansk regions of Ukraine, and any other jurisdiction designated by the Company in its sole discretion as a restricted jurisdiction.
"SAFE" has the meaning set forth in the Recitals.
"Smart Contract" means a self-executing computer program deployed on a public blockchain that automatically enforces and executes the terms of an agreement or protocol, including, without limitation, any smart contract used by the Company to effect the lockup, vesting, or distribution of Tokens.
"Token" or "Tokens" means the digital cryptographic tokens created or to be created by or on behalf of the Company (or any Affiliate or foundation established by the Company for such purpose) in connection with the Protocol, which tokens are designed to have utility within or be integral to the operation of the Protocol. For the avoidance of doubt, the term "Tokens" refers to the specific tokens associated with the Protocol and does not include any other digital assets, cryptocurrencies, or tokens.
"Token Allocation" means the number of Tokens to which the Holder is entitled upon exercise of this Warrant, as determined in accordance with Section 3.2 and subject to adjustment as provided in Section 3.3.
"Token Generation Event" or "TGE" means the initial creation, minting, or generation of Tokens by or on behalf of the Company (or any Affiliate, foundation, or other entity established by or at the direction of the Company for such purpose), whether in connection with the Network Launch or otherwise, in each case as determined in good faith by the Board.
"Token Price" means the price per Token established by the Company in connection with the Token Generation Event, whether through a public sale, private placement, listing on a digital asset exchange, or other pricing mechanism, as determined in good faith by the Board.
"Wallet Address" means a valid blockchain address designated by the Holder in accordance with Section 6.1 for the receipt and custody of Tokens delivered pursuant to this Warrant.
"Warrant" has the meaning set forth in the Preamble.
3.1 Closing. The purchase and sale of the Shares shall take place at the offices of counsel to the Company, or at such other location or by electronic exchange of documents as the parties may mutually agree, at 10:00 a.m. local time on [DATE], or at such other time and place as the Company and the Purchasers holding a majority of the Shares to be purchased collectively may mutually agree upon, orally or in writing (which date and time are designated as the "Closing" and the "Closing Date"). In the event there is more than one closing, the term "Closing" shall apply to each such closing unless otherwise specified herein.
3.2 Delivery by the Company. At the Closing, subject to the terms and conditions hereof, the Company will deliver to each Purchaser (a) a stock certificate or book-entry statement representing the number of Shares being purchased by such Purchaser as set forth on the Schedule of Purchasers, registered in the name of such Purchaser (or in such nominee name as designated by such Purchaser), (b) a copy of the Restated Certificate as filed with the Secretary of State of the State of [STATE], certified by such Secretary of State, (c) a copy of the resolutions of the Board and, if required, the stockholders of the Company, authorizing the transactions contemplated by this Agreement, certified by the Secretary of the Company, and (d) such other documents and instruments as may be reasonably requested by the Purchasers or their counsel.
3.3 Delivery by the Purchasers. At the Closing, subject to the terms and conditions hereof, each Purchaser will deliver to the Company (a) the aggregate purchase price for the Shares being purchased by such Purchaser, as set forth on the Schedule of Purchasers, by wire transfer of immediately available funds to an account designated in writing by the Company or by such other method of payment as may be mutually agreed upon by such Purchaser and the Company, and (b) a fully executed counterpart signature page to this Agreement and to each of the Related Agreements (as defined below).
3.4 Subsequent Closings. The Company may sell and issue additional shares of Series Seed Preferred Stock to additional purchasers on or before the date that is ninety (90) days following the initial Closing Date (each, a "Subsequent Closing"), provided that (a) such additional purchasers execute counterpart signature pages to this Agreement and each of the Related Agreements, (b) the aggregate number of shares of Series Seed Preferred Stock sold and issued pursuant to this Agreement, including at all Subsequent Closings, does not exceed the Maximum Authorized Shares, and (c) the Purchase Price Per Share for such additional shares shall be equal to the Purchase Price Per Share set forth in Section 1.1. Each such additional purchaser shall, upon the applicable Subsequent Closing, become a "Purchaser" for all purposes of this Agreement. The Schedule of Purchasers shall be updated to reflect the additional Purchasers and the Shares purchased by them.
The recitals set forth in the Preamble are hereby incorporated into and made a part of this Warrant. Each Party acknowledges and agrees that the recitals are true, correct, and complete in all material respects as of the Issuance Date.
The Holder acknowledges that the Company’s plans with respect to the Protocol, the Tokens, and the timing and occurrence of a Token Generation Event are subject to change, and that no assurance can be given that a Token Generation Event will occur or that the Tokens will be created, distributed, or listed on any digital asset exchange. The Holder further acknowledges that the Company is under no obligation to pursue, complete, or maintain the Protocol or to conduct a Token Generation Event, and the Company reserves the right, in its sole and absolute discretion, to modify, suspend, or abandon the development of the Protocol or the creation and distribution of Tokens at any time.
The Company acknowledges that the Holder is entering into the SAFE and accepting this Warrant in reliance upon, among other things, the Company’s stated intention to develop the Protocol and to conduct a Token Generation Event, and the Company agrees to provide the Holder with the notices and information set forth in this Warrant in connection therewith.
3.1 Statements of Work as Operative Mechanism. Service Provider shall perform Services for Client solely pursuant to Statements of Work executed by both Parties in accordance with this Section 3. No obligation on the part of Service Provider to perform Services shall arise under this Agreement unless and until a Statement of Work referencing this Agreement has been duly executed by authorized representatives of both Parties. Each Statement of Work, upon execution, shall be deemed incorporated into and made a part of this Agreement and shall be governed by the terms and conditions of this Agreement except to the extent expressly modified or supplemented by such Statement of Work in accordance with Section 3.4.
3.2 Required SOW Contents. Each Statement of Work shall include, at a minimum, the following: (a) a detailed description of the scope of Services to be performed and Deliverables to be provided; (b) the timeline and schedule for performance, including milestones, deadlines, and any phased delivery requirements; (c) the Fees payable for the Services and Deliverables, including the fee structure (whether fixed-fee, time-and-materials, milestone-based, or otherwise), applicable rates, rate cards, and any not-to-exceed amounts or cost ceilings; (d) the acceptance criteria and acceptance procedures applicable to each Deliverable, consistent with Section 5 of this Agreement; (e) the identification of Key Personnel and any restrictions on substitution thereof; (f) any Client obligations, including the provision of Client Materials, access, cooperation, or resources required for Service Provider’s performance; (g) any assumptions, dependencies, or prerequisites upon which Service Provider’s performance is conditioned; (h) the identification of project managers or primary contacts for each Party; and (i) any terms that supplement, modify, or deviate from the terms of this Agreement, which deviations shall be effective only if expressly stated in the Statement of Work.
3.3 Execution of Statements of Work. Either Party may propose a Statement of Work by delivering a draft to the other Party for review and negotiation. The Parties shall negotiate in good faith to finalize the terms of each proposed Statement of Work. No Statement of Work shall be binding on either Party unless and until it has been executed by an authorized representative of each Party. The execution of this Agreement by the Parties does not obligate either Party to execute any Statement of Work, and Client is under no obligation to engage Service Provider for any minimum volume, number, or value of Statements of Work.
3.4 Conflicts Between Agreement and SOW. In the event of any conflict or inconsistency between the terms of this Agreement and the terms of any Statement of Work, the terms of this Agreement shall control and govern, except to the extent that a Statement of Work expressly states that a specific provision of the Statement of Work is intended to supersede or modify a specifically identified provision of this Agreement, in which case the terms of the Statement of Work shall control solely with respect to the Services and Deliverables covered by such Statement of Work. No Statement of Work shall be construed to amend, modify, or waive any provision of this Agreement as applied to any other Statement of Work, whether existing or future.
3.5 Key Personnel. Service Provider shall assign Key Personnel identified in the applicable Statement of Work to perform the Services described therein. Service Provider shall not remove, reassign, or replace any Key Personnel without the prior written consent of Client, which consent shall not be unreasonably withheld, conditioned, or delayed; provided that Service Provider may temporarily replace Key Personnel in the event of illness, disability, resignation, or termination of employment, provided that Service Provider promptly notifies Client, proposes a qualified replacement of comparable skill and experience, and obtains Client’s written approval of such replacement. If Client does not approve a proposed replacement within ten (10) Business Days, either Party may terminate the applicable Statement of Work upon written notice.
3.6 Subcontractors. Service Provider shall not engage any Subcontractor to perform any portion of the Services or deliver any Deliverables without the prior written consent of Client, which consent shall not be unreasonably withheld, conditioned, or delayed. Service Provider shall be fully responsible for all acts, omissions, errors, and performance of its Subcontractors as if such acts, omissions, errors, and performance were those of Service Provider. Service Provider shall ensure that each Subcontractor is bound by written obligations no less restrictive than those applicable to Service Provider under this Agreement, including without limitation obligations relating to confidentiality, data protection, intellectual property assignment, and compliance with Applicable Law.
3.7 Standard of Performance. Service Provider shall perform all Services in a professional, competent, and workmanlike manner, consistent with generally accepted industry standards and practices for services of a similar nature and complexity, using qualified Personnel possessing the requisite skill, training, and experience. Service Provider shall comply with all Applicable Law in the performance of Services and delivery of Deliverables. Service Provider shall devote sufficient time, attention, resources, and Personnel to ensure the timely and satisfactory completion of all Services in accordance with the applicable Statement of Work.
Except as set forth on the Disclosure Schedule attached hereto as Exhibit C (the "Disclosure Schedule"), the Company hereby represents and warrants to each Purchaser as of the date of this Agreement and as of the Closing Date as follows. For purposes of these representations and warranties, the term "Company’s knowledge" or "to the knowledge of the Company" means the actual knowledge, after reasonable inquiry, of the Company’s officers and directors.
4.1 Organization and Good Standing. The Company is a corporation duly organized, validly existing, and in good standing under the laws of the State of [STATE]. The Company has all requisite corporate power and authority to own and operate its properties and assets, to carry on its business as presently conducted and as proposed to be conducted, to execute and deliver this Agreement, the Related Agreements, and each other agreement, document, or instrument contemplated hereby or thereby, and to perform its obligations hereunder and thereunder. The Company is duly qualified to transact business and is in good standing in each jurisdiction in which the failure to so qualify would have a Material Adverse Effect (as defined in Section 12).
4.2 Authorization. All corporate action on the part of the Company, its officers, directors, and stockholders necessary for the authorization, execution, and delivery of this Agreement and the Related Agreements, the performance of all obligations of the Company hereunder and thereunder, and the authorization, issuance, sale, and delivery of the Shares and the Conversion Shares has been taken or will be taken prior to the Closing. This Agreement and each of the Related Agreements, when executed and delivered by the Company, shall constitute the valid and legally binding obligation of the Company, enforceable against the Company in accordance with their respective terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and other laws of general application relating to or affecting the enforcement of creditors’ rights generally, and (b) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.
4.3 Capitalization. The authorized capital stock of the Company, immediately prior to the Closing, consists of (a) [NUMBER] shares of Common Stock, par value $0.0001 per share, of which [NUMBER] shares are issued and outstanding, and (b) [NUMBER] shares of Preferred Stock, par value $0.0001 per share, of which [NUMBER] shares have been designated as Series Seed Preferred Stock, none of which are issued and outstanding. All issued and outstanding shares of Common Stock have been duly authorized, validly issued, are fully paid and nonassessable, and were issued in compliance with all applicable federal and state securities laws. The Company has reserved (i) [NUMBER] shares of Common Stock for issuance upon conversion of the Shares, and (ii) [NUMBER] shares of Common Stock for issuance to employees, consultants, officers, and directors of the Company pursuant to the Company’s [YEAR] Equity Incentive Plan (the "Option Plan"), of which [NUMBER] shares are subject to outstanding options or other equity awards and [NUMBER] shares remain available for future grant. There are no outstanding convertible notes, SAFEs (Simple Agreements for Future Equity), warrants, options, or other rights to acquire any equity securities of the Company other than as described herein and on the Disclosure Schedule. The Company is not a party to or bound by any agreements or arrangements providing for anti-dilution protection, preemptive rights, rights of first refusal, co-sale rights, or registration rights, other than pursuant to the Related Agreements.
3.1 Grant. Subject to the terms and conditions of this Warrant, the Company hereby grants to the Holder the right (but not the obligation) to receive, upon exercise of this Warrant following a Token Generation Event, such number of Tokens as equals the Token Allocation, in exchange for payment of the aggregate Exercise Price therefor, or through the net exercise mechanism set forth in Section 4.4.
3.2 Token Allocation Calculation. The Token Allocation shall be determined as follows: the Purchase Amount shall be divided by the Token Price to yield the number of Tokens to which the Holder is entitled (the "Base Allocation"). In the event that the Company offers Tokens to third-party purchasers at a price per Token that is lower than the Token Price applicable to the Holder under this Warrant (a "Discount Event"), the Token Allocation shall be recalculated using such lower price, provided that such Discount Event occurs within twelve (12) months following the Token Generation Event. The Company shall set forth the Token Allocation calculation methodology, including the applicable Token Price and any discount or bonus applicable to the Holder, in Schedule A attached hereto, which Schedule A may be completed or amended by mutual written agreement of the Parties prior to the Token Generation Event.
3.3 Anti-Dilution Protection. (a) If, at any time after the Token Generation Event and prior to the delivery of all Tokens to the Holder pursuant to this Warrant, the Company (or any entity acting on its behalf) issues, sells, or grants additional Tokens or rights to acquire Tokens at a price per Token that is less than the Token Price applicable to the Holder under this Warrant (a "Dilutive Issuance"), then the Token Allocation shall be proportionately adjusted such that the Holder receives additional Tokens sufficient to maintain the Holder’s pro rata percentage of the total Token supply as of the date of the Dilutive Issuance, calculated on a fully diluted basis. (b) The anti-dilution adjustment described in this Section 3.3 shall not apply to Tokens issued or issuable (i) as compensation to employees, consultants, advisors, or service providers of the Company pursuant to a plan or arrangement approved by the Board, (ii) in connection with strategic partnerships, grants, or ecosystem development initiatives approved by the Board, (iii) to validators, miners, stakers, or other network participants in connection with the operation of the Protocol, or (iv) in connection with any token swap, migration, or similar reorganization of the Token supply that does not result in a net increase in the aggregate Token supply.
3.4 No Equity Interest. This Warrant represents only the right to receive Tokens upon the occurrence of a Token Generation Event and the exercise of this Warrant in accordance with its terms. This Warrant does not confer upon the Holder any equity ownership interest in the Company, any right to vote or consent on any matter submitted to the Company’s equity holders, any right to receive dividends or other distributions from the Company, or any other rights or privileges of an equity holder of the Company. The rights of the Holder under this Warrant are separate from and in addition to any rights the Holder may have under the SAFE or any other agreement with the Company.
3A.1 Applicability. This Section 3A shall apply to any Services that are ongoing or recurring in nature, including managed services, hosting, support, and maintenance services, as specified in the applicable SOW.
3A.2 Uptime Commitment. Provider shall use commercially reasonable efforts to make the applicable Services available with a monthly uptime percentage of at least ninety-nine and nine-tenths percent (99.9%). "Uptime" is calculated as total minutes in calendar month minus minutes of Downtime, divided by total minutes in calendar month. "Downtime" means material unavailability excluding Scheduled Maintenance, emergency maintenance, force majeure, and Customer-caused issues.
3A.3 Service Credits. If Provider fails to meet the Uptime Commitment: (a) uptime between 99.0% and 99.9%: service credit of 5% of monthly fees; (b) uptime between 95.0% and 99.0%: service credit of 10% of monthly fees; (c) uptime below 95.0%: service credit of 25% of monthly fees. Aggregate credits shall not exceed 25% of monthly fees in any month. Credits are Customer’s sole remedy for failure to meet Uptime Commitment absent material breach.
3A.4 Scheduled Maintenance. Provider shall perform scheduled maintenance during off-peak hours and provide 48 hours advance notice.
3A.5 Reporting. Provider shall deliver monthly performance reports including uptime statistics, incident summaries, and service credit calculations.
4.1 Change Order Process. Either Party may at any time request a change to the scope, timeline, Deliverables, Fees, or other terms of an existing Statement of Work by delivering a written change request to the other Party’s designated project manager. Each change request shall describe in reasonable detail the proposed change, the reasons therefor, and the requesting Party’s assessment of the impact of such change on the scope, schedule, Fees, and other terms of the applicable Statement of Work. Upon receipt of a change request, the receiving Party shall respond within ten (10) Business Days (or such other period as the Parties may agree) with its evaluation of the proposed change, including any proposed adjustments to Fees, timelines, or Deliverables resulting from the change.
4.2 Written Change Order Requirement. No change to the scope, timeline, Deliverables, Fees, or other material terms of any Statement of Work shall be effective or binding on either Party unless memorialized in a written Change Order executed by authorized representatives of both Parties. No oral agreements, informal communications, emails, course of dealing, or course of performance shall constitute a valid Change Order or otherwise modify the terms of any Statement of Work. Service Provider shall not be obligated to commence work on any proposed change, and Client shall not be obligated to pay for any such work, until a Change Order reflecting such change has been fully executed by both Parties.
4.3 Pricing and Timeline Adjustments. Each Change Order shall set forth any adjustments to the Fees, rates, and payment schedule necessitated by the change in scope, as well as any revisions to the project timeline, milestones, and delivery dates. If a proposed change will result in an increase in Fees, Service Provider shall provide Client with a detailed cost estimate prior to execution of the Change Order. If a proposed change will result in a delay to the project timeline, Service Provider shall provide Client with a revised schedule and shall identify any measures reasonably available to mitigate or minimize such delay. The Parties shall negotiate in good faith to reach agreement on the terms of each Change Order, but neither Party shall be obligated to agree to any proposed change.
4.4 Continuing Obligations. Pending the execution of a Change Order, Service Provider shall continue to perform the Services under the existing Statement of Work in accordance with its then-current terms unless otherwise directed in writing by Client. If the Parties are unable to agree on the terms of a proposed Change Order within thirty (30) days of the initial change request, the change request shall be deemed withdrawn and the existing Statement of Work shall remain in full force and effect without modification, unless either Party elects to terminate the applicable Statement of Work in accordance with Section 7 of this Agreement.
4.1 Exercise Period. This Warrant may be exercised by the Holder, in whole or in part, at any time and from time to time during the Exercise Period, subject to the terms and conditions set forth in this Article IV. This Warrant shall expire and be of no further force or effect upon the expiration of the Exercise Period, and any portion of the Token Allocation that has not been exercised as of the expiration of the Exercise Period shall be forfeited by the Holder without any further action by either Party.
4.2 Voluntary Exercise. The Holder may exercise this Warrant, in whole or in part, by delivering to the Company a duly completed and executed Exercise Notice, together with payment in full of the aggregate Exercise Price for the number of Tokens specified in such Exercise Notice. Payment of the aggregate Exercise Price may be made (a) by wire transfer of immediately available funds to an account designated by the Company, (b) by delivery of such cryptocurrency or digital assets as the Company may specify, to a wallet address designated by the Company, or (c) by any other method of payment approved by the Company in writing. The date on which the Company receives both the Exercise Notice and payment in full of the aggregate Exercise Price shall be the "Exercise Date."
4.3 Automatic Exercise. In the event that the Holder has not exercised this Warrant in full prior to the date that is thirty (30) days before the expiration of the Exercise Period, and provided that a Token Generation Event has occurred, this Warrant shall be automatically exercised through the net exercise mechanism set forth in Section 4.4 with respect to the entire unexercised portion of the Token Allocation, without any further action required on the part of the Holder (the "Automatic Exercise"). The Company shall provide the Holder with written notice of the Automatic Exercise no later than fifteen (15) days prior to the date of such Automatic Exercise.
4.4 Net Exercise. In lieu of paying the aggregate Exercise Price in cash or other consideration as provided in Section 4.2, the Holder may elect (or, in the case of an Automatic Exercise, shall be deemed to have elected) to receive a net number of Tokens equal to (a) the Token Allocation (or the portion thereof being exercised) minus (b) such number of Tokens as have a value, at the then-current fair market value per Token as determined in good faith by the Board, equal to the aggregate Exercise Price for the Tokens being acquired. For the avoidance of doubt, if the fair market value per Token on the Exercise Date is less than or equal to the Exercise Price, the net exercise shall result in no Tokens being delivered to the Holder, and the Holder shall have no claim against the Company in respect thereof.
4.5 Partial Exercise. The Holder may exercise this Warrant in part by specifying in the Exercise Notice the number of Tokens with respect to which this Warrant is being exercised. In the event of a partial exercise, this Warrant shall remain in full force and effect with respect to the unexercised portion of the Token Allocation, and all references herein to the Token Allocation shall be deemed to refer to the remaining unexercised Token Allocation following any partial exercise.
4.6 Fractional Tokens. No fractional Tokens shall be issued or delivered upon the exercise of this Warrant. In lieu of any fractional Token to which the Holder would otherwise be entitled, the Company shall, at its election, either (a) round the number of Tokens deliverable to the nearest whole Token or (b) pay to the Holder an amount in cash or cryptocurrency equal to the fair market value of such fractional Token as determined in good faith by the Board.
4.3.1 Fully-Diluted Capitalization. For purposes of this Agreement, the "Fully-Diluted Share Count" means, as of any date of determination, the sum of (a) all shares of Common Stock then issued and outstanding, plus (b) all shares of Common Stock issuable upon conversion of all shares of Preferred Stock then outstanding (assuming conversion at the then-applicable conversion price), plus (c) all shares of Common Stock issuable upon exercise or conversion of all options, warrants, convertible notes, SAFEs, and other convertible or exercisable securities then outstanding (whether or not then vested or exercisable), plus (d) all shares of Common Stock reserved and available for future issuance under the Option Plan and any other equity incentive plan of the Company (the "Option Pool Reserve"). The Fully-Diluted Share Count as of immediately following the Closing (giving effect to the issuance of the Shares and the Option Pool Reserve) is set forth on the capitalization table attached to the Disclosure Schedule as Schedule 4.3.1. The Option Pool Reserve, immediately following the Closing, shall represent not less than [NUMBER] percent ([NUMBER]%) of the Fully-Diluted Share Count, and the Company represents that the Option Pool Reserve is unallocated and available for future grants to employees, consultants, officers, and directors as determined by the Board (the "Option Pool Waterfall"). The Option Pool Waterfall shall be calculated as follows: total shares reserved under the Option Plan, minus shares subject to outstanding and unexercised options, minus shares subject to outstanding and unvested restricted stock awards, minus shares previously exercised or settled, equals the Option Pool Reserve available for future grant.
4.4 Intellectual Property. The Company owns or possesses sufficient legal rights to all Intellectual Property (as defined in Section 12) that is necessary to conduct its business as presently conducted and as proposed to be conducted, without any known infringement or violation of, or conflict with, the rights of others. To the Company’s knowledge, no product or service marketed, sold, or provided by the Company violates, infringes, or misappropriates any intellectual property right of any third party. No claims are pending or, to the Company’s knowledge, threatened by any person or entity challenging the Company’s right to use any Intellectual Property owned by or licensed to the Company. Each current and former employee, officer, consultant, and independent contractor of the Company who has contributed to the development of any Intellectual Property on behalf of the Company has executed a written agreement assigning to the Company all rights in and to such Intellectual Property. The Company has taken commercially reasonable steps to protect and maintain the confidentiality of its trade secrets and other proprietary information.
4.5 Litigation. There is no action, suit, claim, proceeding, or investigation pending or, to the Company’s knowledge, currently threatened in writing against the Company that questions the validity of this Agreement or the Related Agreements, or the right of the Company to enter into such agreements, or that might result, either individually or in the aggregate, in a Material Adverse Effect or in any material change in the current equity ownership of the Company. The Company is not a party to or, to the Company’s knowledge, subject to the provisions of any order, writ, injunction, judgment, or decree of any court or government agency or instrumentality. There is no action, suit, proceeding, or investigation by the Company pending or that the Company currently intends to initiate.
4.6 Compliance with Laws. The Company is not in violation of any applicable statute, rule, regulation, order, or restriction of any domestic or foreign government or any instrumentality or agency thereof having jurisdiction over the Company or its properties or assets, the violation of which would have a Material Adverse Effect. The Company has all franchises, permits, licenses, and similar authority necessary for the conduct of its business as presently conducted, the lack of which would have a Material Adverse Effect, and the Company is not in default under any of such franchises, permits, licenses, or similar authority.
5.1 No Obligation to Conduct TGE. The Holder acknowledges and agrees that the Company is under no obligation to conduct a Token Generation Event, and the Company makes no representation or warranty that a Token Generation Event will occur. The decision to conduct a Token Generation Event, including the timing, structure, pricing, and terms thereof, shall be in the sole and absolute discretion of the Board. The failure or decision of the Company not to conduct a Token Generation Event shall not constitute a breach of this Warrant or give rise to any liability of the Company to the Holder.
5.2 Notice of Token Generation Event. Promptly following the Company’s determination to conduct a Token Generation Event, and in any event no later than thirty (30) days prior to the anticipated date of the Token Generation Event, the Company shall provide the Holder with written notice (the "TGE Notice") setting forth (a) the anticipated date of the Token Generation Event, (b) the total Token supply to be created, (c) the Token Price, (d) the Token Allocation applicable to the Holder, (e) the terms and conditions of any lockup or vesting schedule applicable to the Holder’s Tokens, (f) the procedures for designating a Wallet Address and exercising this Warrant, and (g) such other information as the Company deems appropriate or as may be reasonably requested by the Holder.
5.3 Company Obligations Upon TGE. Upon the occurrence of a Token Generation Event, the Company shall (a) reserve and set aside a number of Tokens equal to the Token Allocation for delivery to the Holder upon exercise of this Warrant, (b) ensure that the Tokens to be delivered to the Holder are free and clear of all liens, claims, and encumbrances (other than restrictions on transfer imposed by this Warrant, Applicable Law, or the terms of any lockup arrangement), and (c) take all actions reasonably necessary to effect the delivery of Tokens to the Holder in accordance with the terms of this Warrant, including, without limitation, deploying or causing to be deployed any Smart Contract necessary to implement the lockup schedule set forth in Section 6.2.
5.4 Successor Tokens. In the event that the Company creates or causes to be created successor tokens, replacement tokens, or tokens on a different blockchain or protocol in substitution for or in replacement of the original Tokens (a "Token Migration"), the Holder’s rights under this Warrant shall apply to such successor or replacement tokens on substantially equivalent terms, and the Company shall provide the Holder with no less than thirty (30) days’ prior written notice of any Token Migration, together with such information as is reasonably necessary for the Holder to understand the nature and impact of the Token Migration on the Holder’s rights under this Warrant.
4.7 Financial Statements. The Company has made available to each Purchaser its unaudited financial statements, including a balance sheet and statement of operations and cash flows (collectively, the "Financial Statements"), for the fiscal periods ending on [DATE]. The Financial Statements are complete and correct in all material respects and have been prepared in accordance with generally accepted accounting principles in the United States ("GAAP") applied on a consistent basis throughout the periods indicated, except that the Financial Statements may not contain all footnotes required by GAAP and are subject to normal year-end audit adjustments, which are not expected to be material. The Financial Statements fairly present in all material respects the financial condition and operating results of the Company as of the dates, and for the periods, indicated therein.
4.8 Material Contracts. The Company has made available to each Purchaser true, correct, and complete copies of all material contracts, agreements, and instruments to which the Company is a party or by which it is bound (the "Material Contracts"). Each Material Contract is valid, binding, and in full force and effect and enforceable in accordance with its terms. Neither the Company nor, to the Company’s knowledge, any other party to any Material Contract is in breach of or default under any Material Contract, and no event has occurred that with notice or lapse of time, or both, would constitute a breach or default thereunder.
4.9 Tax Matters. The Company has timely filed all federal, state, local, and foreign tax returns required to be filed by it (all such returns being accurate and complete in all material respects), and the Company has paid all taxes, assessments, and other governmental charges due and payable in respect of the periods covered by such returns. No deficiency or adjustment for any taxes has been proposed, asserted, or assessed in writing against the Company that has not been resolved and paid in full. There are no liens for taxes upon any assets of the Company, other than statutory liens for taxes not yet due and payable. The Company has not been notified in writing that any taxing authority intends to audit or examine any tax return of the Company. The Company has withheld and paid all taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, or other third party. The Company is not a party to any tax sharing, tax indemnity, or tax allocation agreement.
4.10 Employee Matters. The Company is not bound by or subject to any collective bargaining agreement or other contract or arrangement with any labor union or organization. To the Company’s knowledge, there are no pending or threatened labor disputes, work stoppages, or strikes against the Company. The Company is in compliance in all material respects with all applicable laws relating to employment and employment practices, including terms and conditions of employment, wages, hours, equal opportunity, collective bargaining, the payment of social security and similar taxes, occupational safety and health, and immigration. The Company has complied in all material respects with the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and the rules and regulations thereunder, and no liability has been or is expected to be incurred under Title IV of ERISA by the Company. To the Company’s knowledge, no officer, director, or key employee of the Company has any present intention of terminating his or her employment or engagement with the Company.
5.1 Delivery and Acceptance Period. Upon completion of each Deliverable (or phase or milestone thereof, as applicable), Service Provider shall deliver such Deliverable to Client in accordance with the specifications and acceptance criteria set forth in the applicable Statement of Work. Client shall have fifteen (15) Business Days following receipt of each Deliverable (or such other period as may be specified in the applicable Statement of Work) to review and evaluate the Deliverable against the acceptance criteria specified in such Statement of Work (the "Acceptance Period"). During the Acceptance Period, Client shall test, review, and evaluate the Deliverable in good faith and with reasonable diligence.
5.2 Acceptance. Client shall notify Service Provider in writing of its acceptance of a Deliverable within the Acceptance Period. Upon such notification, the Deliverable shall be deemed accepted ("Acceptance"). If Client does not deliver a written notice of acceptance or rejection to Service Provider within the Acceptance Period, the Deliverable shall be deemed accepted as of the last day of the Acceptance Period, provided that Service Provider has delivered the Deliverable in accordance with the applicable Statement of Work and has notified Client in writing that the Acceptance Period has commenced and that failure to respond will result in deemed acceptance.
5.3 Rejection. If Client determines in good faith during the Acceptance Period that a Deliverable does not materially conform to the acceptance criteria specified in the applicable Statement of Work, Client shall deliver to Service Provider a written notice of rejection (a "Rejection Notice") specifying in reasonable detail the nature, extent, and basis of each deficiency, nonconformity, or failure to meet the acceptance criteria. Client shall provide sufficient detail in the Rejection Notice to enable Service Provider to identify, reproduce, and remedy the identified deficiencies.
5.4 Cure and Re-submission. Following receipt of a Rejection Notice, Service Provider shall use commercially reasonable efforts to correct the deficiencies identified in the Rejection Notice and re-deliver a corrected version of the Deliverable to Client within fifteen (15) Business Days (or such other period as may be specified in the applicable Statement of Work or as the Parties may otherwise agree) (the "Cure Period"). Upon re-delivery of the corrected Deliverable, a new Acceptance Period shall commence and the acceptance and rejection procedures set forth in this Section 5 shall apply to the corrected Deliverable. If, after two (2) rounds of rejection and re-submission with respect to any single Deliverable, the Deliverable still does not materially conform to the acceptance criteria, Client may, at its sole option: (a) grant Service Provider one or more additional Cure Periods on such terms as Client may specify; (b) accept the Deliverable in its then-current condition, with an equitable reduction in the Fees attributable to such Deliverable as the Parties may agree; or (c) terminate the applicable Statement of Work (or the relevant portion thereof) for cause upon written notice to Service Provider, in which case Client shall have no obligation to pay Fees attributable to the nonconforming Deliverable and Service Provider shall promptly refund any Fees previously paid by Client for such Deliverable.
5.5 No Waiver. Acceptance of any Deliverable shall not constitute a waiver of Client’s rights or remedies with respect to latent defects, nonconformities not reasonably discoverable during the Acceptance Period, or any breach of Service Provider’s representations, warranties, or other obligations under this Agreement or the applicable Statement of Work. Service Provider’s obligations with respect to warranty, indemnification, and other remedial provisions of this Agreement shall survive Acceptance of all Deliverables.
4.11 Environmental Compliance. The Company is in compliance in all material respects with all applicable Environmental Laws (as defined in Section 12). The Company has not received any written notice of any pending or threatened claim, action, or proceeding relating to any Environmental Law. No hazardous substances have been released, discharged, or disposed of by the Company on, at, under, or from any property currently or formerly owned, operated, or leased by the Company in violation of any Environmental Law.
4.12 Subsidiaries. The Company does not currently own or control, directly or indirectly, any interest in any other corporation, partnership, limited liability company, association, joint venture, or other business entity, except as set forth on the Disclosure Schedule.
4.13 No Brokers. The Company has not incurred, and will not incur, directly or indirectly, any liability for brokerage or finders’ fees or agents’ commissions or investment bankers’ fees or any similar charges in connection with this Agreement or any transaction contemplated hereby.
4.14 Qualified Small Business Stock. The Company represents and warrants that, as of immediately following the Closing, the Company shall qualify as a "qualified small business" within the meaning of Section 1202(d) of the Internal Revenue Code of 1986, as amended (the "Code"), and the Shares shall constitute "qualified small business stock" ("QSBS") within the meaning of Section 1202(c) of the Code. Without limiting the generality of the foregoing, the Company represents that (a) as of the Closing Date, the aggregate gross assets of the Company (as defined in Section 1202(d)(2) of the Code), including the proceeds received pursuant to this Agreement, have not exceeded Seventy-Five Million Dollars ($75,000,000), (b) the Company is a domestic C corporation that is not an ineligible corporation within the meaning of Section 1202(e)(4) of the Code, (c) at least eighty percent (80%) of the value of the assets of the Company is used in the active conduct of one or more qualified trades or businesses within the meaning of Section 1202(e)(3) of the Code, and (d) the Company has not made any redemptions described in Section 1202(c)(3) of the Code during the two-year period preceding the Closing Date. The Company shall use commercially reasonable efforts to ensure that the Shares continue to constitute QSBS, including by providing to each Purchaser, upon reasonable request, such information as may be necessary to confirm the QSBS status of the Shares. The Company shall notify each Purchaser promptly in writing if the Company becomes aware of any event or circumstance that would cause the Shares to fail to qualify as QSBS.
6.1 Wallet Address Designation. Prior to the delivery of any Tokens pursuant to this Warrant, the Holder shall designate a valid Wallet Address by providing written notice to the Company in the form specified by the Company. The Holder acknowledges and agrees that (a) the Holder is solely responsible for providing a correct and valid Wallet Address, (b) the Company shall have no liability for any loss of Tokens resulting from the Holder’s failure to provide a correct and valid Wallet Address, (c) the Company may require the Holder to demonstrate control of the designated Wallet Address prior to delivery, and (d) the Company may refuse to deliver Tokens to any Wallet Address that the Company reasonably determines is associated with a Restricted Jurisdiction, a sanctioned Person, or any illegal or unauthorized activity.
6.2 Lockup Schedule. Tokens delivered to the Holder upon exercise of this Warrant shall be subject to the following lockup and release schedule (the "Lockup Schedule"): (a) one hundred percent (100%) of the Tokens delivered to the Holder shall be locked and non-transferable for a period of twelve (12) months following the date of delivery of such Tokens (the "Cliff Period"); (b) following the expiration of the Cliff Period, the Tokens shall be released and become transferable in equal monthly installments over a period of twenty-four (24) months, such that one twenty-fourth (1/24th) of the total Token Allocation shall become transferable on each monthly anniversary of the expiration of the Cliff Period (each such date, a "Release Date"); and (c) upon the final Release Date, all remaining locked Tokens shall become fully transferable. The specific Lockup Schedule applicable to the Holder may be modified by mutual written agreement of the Parties and set forth in Schedule B attached hereto.
6.3 Smart Contract Lockup. The Company may, in its sole discretion, implement the Lockup Schedule through a Smart Contract deployed on the applicable blockchain. In such event, the Holder acknowledges and agrees that (a) the terms of the Smart Contract shall govern the release and transferability of the Tokens to the extent consistent with the terms of this Warrant, (b) the Company shall not be liable for any delay, error, or malfunction of the Smart Contract to the extent such delay, error, or malfunction is caused by factors outside the Company’s reasonable control, including, without limitation, network congestion, protocol changes, or third-party actions, and (c) in the event of any conflict between the terms of this Warrant and the terms of the Smart Contract, the terms of this Warrant shall control, and the Company shall use commercially reasonable efforts to modify or replace the Smart Contract to conform with the terms of this Warrant.
6.4 Acceleration of Lockup. Notwithstanding the Lockup Schedule, all locked Tokens shall immediately become fully transferable ("Accelerated Release") upon the occurrence of any of the following events: (a) a Change of Control of the Company (as defined in the SAFE or, if not defined therein, as defined below), (b) the dissolution, liquidation, or winding up of the Company’s affairs, or (c) a material breach by the Company of its obligations under this Warrant that remains uncured for a period of thirty (30) days following written notice thereof from the Holder. For purposes of this Section 6.4, a "Change of Control" means (i) the acquisition by any Person or group of Persons of more than fifty percent (50%) of the voting power of the Company, (ii) a merger, consolidation, or similar transaction in which the Company’s equity holders immediately prior to such transaction hold less than fifty percent (50%) of the voting power of the surviving entity, or (iii) a sale of all or substantially all of the Company’s assets.
6.5 Delivery Mechanics. Within thirty (30) days following the Exercise Date (or, in the case of an Automatic Exercise, within thirty (30) days following the date of Automatic Exercise), the Company shall deliver or cause to be delivered to the Holder’s designated Wallet Address the Tokens to which the Holder is entitled, subject to the Lockup Schedule. Delivery of Tokens shall be deemed complete upon confirmation of the transaction on the applicable blockchain. The Company shall bear all gas fees, transaction costs, or other network fees associated with the initial delivery of Tokens to the Holder’s Wallet Address; provided, however, that the Holder shall be responsible for any fees associated with subsequent transfers or transactions involving such Tokens.
6.1 Fee Structure. Client shall pay Service Provider the Fees specified in each Statement of Work for the Services performed and Deliverables delivered thereunder. Fees may be structured on a fixed-fee basis, a time-and-materials basis, a milestone-based basis, or such other fee structure as the Parties may agree upon in the applicable Statement of Work. For time-and-materials engagements, Service Provider shall maintain accurate and detailed time records of all hours expended by Personnel in the performance of Services and shall make such records available to Client upon reasonable request. For fixed-fee and milestone-based engagements, payment shall be due upon completion and Acceptance of the applicable milestones or Deliverables as specified in the Statement of Work.
6.2 Invoicing. Service Provider shall submit invoices to Client in accordance with the invoicing schedule and requirements set forth in the applicable Statement of Work, or if no specific schedule is set forth therein, on a monthly basis in arrears. Each invoice shall include, at a minimum: (a) the applicable Statement of Work number or reference; (b) a description of the Services performed and Deliverables delivered during the invoicing period; (c) for time-and-materials engagements, a detailed breakdown of hours worked by each Personnel member, the applicable billing rate, and the total amount due; (d) for milestone-based engagements, identification of the milestone achieved and the corresponding payment amount; (e) an itemization of any pre-approved reimbursable expenses with supporting documentation; and (f) applicable taxes, if any. Invoices shall be submitted to the address or email specified in the applicable Statement of Work or as otherwise directed by Client.
6.3 Payment Terms. Client shall pay all undisputed amounts set forth in each invoice within thirty (30) days following Client’s receipt of a valid and complete invoice (the "Payment Period"). All payments shall be made in United States Dollars by wire transfer, ACH, or check to the account or address designated by Service Provider. Payment of an invoice shall not constitute Acceptance of any Deliverable or a waiver of any right or remedy available to Client under this Agreement.
6.4 Late Payment. Any undisputed amount not paid within the Payment Period shall accrue interest at the lesser of (a) one and one-half percent (1.5%) per month (or the maximum rate permitted by Applicable Law, if less) or (b) the rate specified in the applicable Statement of Work, calculated from the date such payment was due until the date such payment is received in full. Service Provider shall provide Client with written notice of any overdue payment and a reasonable opportunity (not less than ten (10) Business Days) to cure such delinquency before exercising any other right or remedy, including without limitation the right to suspend performance of Services under the applicable Statement of Work.
4.15 Outbound Investment Security Program Compliance. The Company represents and warrants that (a) the Company is not a "covered foreign person" as defined under the Outbound Investment Security Program regulations promulgated pursuant to Executive Order 14105 (as amended, the "OISP Regulations"), (b) the Company does not engage in, and the proceeds from the sale of the Shares will not be used directly or indirectly to engage in, any "prohibited transaction" or "notifiable transaction" (each as defined in the OISP Regulations), (c) the Company is not a "person of a country of concern" (as defined in the OISP Regulations), and (d) to the extent the Company is engaged in the development or production of (i) artificial intelligence systems, (ii) semiconductors or microelectronics, or (iii) quantum information science or technology (collectively, "Covered Technology Sectors"), the Company’s activities in such Covered Technology Sectors do not constitute activities that would be subject to the prohibitions or notification requirements of the OISP Regulations. The Company shall promptly notify each Purchaser in writing if the Company becomes aware that any of the foregoing representations has become inaccurate or if the Company’s activities become subject to the OISP Regulations.
4.16 Data Security Program Compliance. The Company represents and warrants that (a) the Company is in compliance in all material respects with all applicable data privacy and data security laws, regulations, and orders, including, to the extent applicable, the regulations promulgated pursuant to Executive Order 14117 regarding access to Americans’ bulk sensitive personal data and United States Government-related data by countries of concern (the "DSP Regulations"), (b) the Company does not engage in any "covered data transaction" (as defined in the DSP Regulations) that would be prohibited or restricted under the DSP Regulations, (c) to the extent the Company collects, processes, stores, or transfers (i) bulk personal data (including, without limitation, human genomic data, biometric identifiers, precise geolocation data, personal health data, or personal financial data) or (ii) human genomic data of any quantity, in each case as such terms are defined in the DSP Regulations, the Company has implemented and maintains commercially reasonable administrative, technical, and physical safeguards to protect such data in compliance with all applicable laws and regulations, and (d) the Company has not received any written notice from any governmental authority alleging any violation of applicable data privacy or data security laws, regulations, or orders. For the avoidance of doubt, the Company’s compliance obligations under this Section 4.16 are in addition to, and not in limitation of, the Company’s obligations under Section 4.6 (Compliance with Laws).
6.5 Disputed Invoices. If Client disputes any portion of an invoice in good faith, Client shall: (a) pay all undisputed amounts in accordance with Section 6.3; and (b) deliver to Service Provider a written notice of dispute within the Payment Period, specifying in reasonable detail the amount in dispute, the basis for the dispute, and any supporting documentation. The Parties shall negotiate in good faith to resolve any invoice dispute within thirty (30) days following Service Provider’s receipt of the dispute notice. If the Parties are unable to resolve the dispute within such period, either Party may pursue resolution in accordance with Section 18 of this Agreement. No interest shall accrue on amounts that are the subject of a good-faith dispute during the pendency of such dispute resolution procedures, provided that Client has complied with the requirements of this Section 6.5.
6.6 Expenses. Service Provider shall not incur any expenses for reimbursement by Client without Client’s prior written approval. Pre-approved reimbursable expenses shall be reimbursed by Client at cost, without markup, upon submission of invoices accompanied by reasonable supporting documentation (including receipts for individual expenses exceeding Two Hundred Fifty Dollars ($250.00)). Unless otherwise agreed in the applicable Statement of Work, all travel, lodging, and incidental expenses shall be incurred in accordance with Client’s then-current travel and expense policy, a copy of which shall be provided to Service Provider upon request.
6.7 Taxes. All Fees and other amounts payable under this Agreement are exclusive of all sales, use, excise, value-added, withholding, and other taxes, duties, and governmental charges (collectively, "Taxes"). Client shall be responsible for and shall pay all Taxes arising from or related to the transactions contemplated by this Agreement, other than taxes based on Service Provider’s net income, franchise taxes, or taxes arising from Service Provider’s failure to properly report or remit taxes. If Client is required by Applicable Law to withhold any Taxes from payments to Service Provider, Client shall deduct such Taxes from the payment, remit such Taxes to the appropriate governmental authority, and promptly provide Service Provider with an official tax receipt or other documentation evidencing such payment.
The Company hereby represents and warrants to the Holder, as of the Issuance Date and as of each Exercise Date, as follows:
7.1 Organization and Good Standing. The Company is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of [STATE], and has the requisite power and authority to own, lease, and operate its properties and to carry on its business as presently conducted and as proposed to be conducted.
7.2 Authorization and Enforceability. The execution, delivery, and performance of this Warrant by the Company have been duly authorized by all necessary action on the part of the Company, including, without limitation, approval by the Board and, to the extent required, the Company’s equity holders. This Warrant constitutes a legal, valid, and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting creditors’ rights generally and by general principles of equity.
7.3 No Conflicts. The execution, delivery, and performance of this Warrant by the Company do not and will not (a) violate or conflict with the Company’s certificate of formation, operating agreement, or other organizational documents, (b) violate or conflict with any Applicable Law, (c) result in a breach of, constitute a default under, or give rise to any right of termination, acceleration, or cancellation under any material agreement, contract, or instrument to which the Company is a party or by which the Company or any of its properties or assets are bound, or (d) result in the creation or imposition of any lien, charge, or encumbrance upon any of the Company’s properties or assets.
7.4 Token Economics Disclosure. To the extent that the Company has developed or adopted a tokenomics model, whitepaper, or similar document describing the proposed Token supply, distribution, allocation, and economics (collectively, "Token Economics"), the Company has made such Token Economics available to the Holder or will make such Token Economics available to the Holder promptly following the development thereof. The Company acknowledges that the Holder is relying, in part, on the Token Economics in entering into this Warrant, and agrees to provide the Holder with written notice of any material changes to the Token Economics within thirty (30) days of such changes.
7.5 Regulatory Compliance Efforts. The Company has taken, and will continue to take, commercially reasonable steps to comply with all Applicable Law in connection with the development of the Protocol, the creation and distribution of the Tokens, and the conduct of a Token Generation Event, including, without limitation, engaging qualified legal counsel to advise the Company on securities law, tax, and regulatory matters applicable to the Tokens. The Company does not represent or warrant that the Tokens will not be deemed "securities" under Applicable Law, and the Company reserves the right to structure the Token Generation Event and the distribution of Tokens in such manner as it determines, in consultation with its legal counsel, to be in compliance with Applicable Law.
7.6 Capitalization. The Company has provided or will provide to the Holder a true, correct, and complete capitalization table of the Company as of the Issuance Date, including all outstanding equity interests, options, warrants, convertible instruments (including the SAFE), and token warrants. The Company shall notify the Holder of any material changes to the Company’s capitalization within thirty (30) days of such changes.
Each Purchaser, severally and not jointly, hereby represents and warrants to the Company as of the date of this Agreement and as of the Closing Date as follows.
5.1 Authorization. Such Purchaser has all requisite power and authority to execute and deliver this Agreement and the Related Agreements to which it is a party and to carry out the provisions of this Agreement and such Related Agreements. All action on the part of such Purchaser and, if applicable, its officers, directors, partners, managers, and members, as applicable, necessary for the authorization, execution, and delivery of this Agreement and such Related Agreements, and the performance of all obligations of such Purchaser hereunder and thereunder, has been taken. This Agreement and each Related Agreement to which such Purchaser is a party, when executed and delivered by such Purchaser, shall constitute valid and legally binding obligations of such Purchaser, enforceable in accordance with their respective terms, except as limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and other laws of general application relating to or affecting the enforcement of creditors’ rights generally, and (b) laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.
5.2 Investment Intent. Such Purchaser is acquiring the Shares for investment for its own account, not as a nominee or agent, and not with a view to, or for resale in connection with, any distribution or public offering thereof within the meaning of the Securities Act of 1933, as amended (the "Securities Act"). Such Purchaser has no present intention of selling, granting any participation in, or otherwise distributing the Shares. Such Purchaser does not presently have any contract, undertaking, agreement, or arrangement with any person to sell, transfer, or grant any participation in the Shares to such person or to any third person. Such Purchaser understands that the Shares have not been, and will not be, registered under the Securities Act, by reason of a specific exemption from the registration provisions of the Securities Act, the availability of which depends upon, among other things, the bona fide nature of the investment intent and the accuracy of such Purchaser’s representations as expressed herein.
5.3 Accredited Investor Status. Such Purchaser is an "accredited investor" as defined in Rule 501(a) of Regulation D promulgated under the Securities Act, as presently in effect. Such Purchaser is able to bear the economic risk of holding the Shares for an indefinite period, and has the ability to absorb a complete loss of its investment in the Shares. Such Purchaser has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the Shares.
5.4 No Public Market. Such Purchaser understands that no public market now exists for the Shares, and that the Company has made no assurances that a public market will ever exist for the Shares. Such Purchaser acknowledges that the Shares must be held indefinitely unless subsequently registered under the Securities Act or an exemption from such registration is available.
5.5 Access to Information. Such Purchaser has had the opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering of the Shares and the business, properties, prospects, and financial condition of the Company. Such Purchaser has received and reviewed all information that it considers necessary or appropriate for deciding whether to purchase the Shares. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 4 of this Agreement or the right of the Purchasers to rely thereon.
5.6 No General Solicitation. Such Purchaser is not purchasing the Shares as a result of any advertisement, article, notice, or other communication regarding the Shares published in any newspaper, magazine, or similar media, broadcast over television, radio, or the internet (including any website or social media post), or presented at any seminar or any other general solicitation or general advertising. Such Purchaser’s investment decision is based solely on its own independent evaluation and analysis.
5.7 OISP Compliance. Such Purchaser represents and warrants that (a) such Purchaser is not a "person of a country of concern" or a "controlled foreign entity" (each as defined in the OISP Regulations), (b) the funds used by such Purchaser to acquire the Shares do not originate from, and are not controlled by, any person of a country of concern, (c) such Purchaser’s acquisition of the Shares does not constitute a "prohibited transaction" or a "notifiable transaction" (each as defined in the OISP Regulations), and (d) if such Purchaser is an entity, no person of a country of concern holds, directly or indirectly, a controlling interest in such Purchaser. If, following the Closing, such Purchaser becomes aware that any of the foregoing representations has become inaccurate, such Purchaser shall promptly notify the Company in writing.
5.8 DSP Compliance. Such Purchaser represents and warrants that (a) such Purchaser is not a "covered person" (as defined in the DSP Regulations) and is not owned or controlled by, or acting as an agent of, any country of concern or covered person, and (b) such Purchaser’s acquisition of the Shares, and the exercise of any governance, information, or other rights attendant thereto, will not result in a "covered data transaction" that is prohibited or restricted under the DSP Regulations.
7.1 Term. This Agreement shall commence on the Effective Date and shall continue in effect for a period of two (2) years (the "Initial Term"), unless earlier terminated in accordance with this Section 7. Upon expiration of the Initial Term, this Agreement shall automatically renew for successive one (1) year renewal periods (each, a "Renewal Term" and, together with the Initial Term, the "Term"), unless either Party provides written notice of non-renewal to the other Party at least ninety (90) days prior to the expiration of the then-current Initial Term or Renewal Term.
7.2 Termination for Convenience. Either Party may terminate this Agreement or any individual Statement of Work, in whole or in part, at any time and for any reason or no reason, by providing the other Party with at least thirty (30) days’ prior written notice of termination (or such longer notice period as may be specified in the applicable Statement of Work). In the event of termination for convenience by Client, Client shall pay Service Provider for all Services satisfactorily performed and Deliverables delivered through the effective date of termination, as well as any reasonable, documented, non-cancelable costs and commitments incurred by Service Provider prior to receipt of the termination notice in reliance on the applicable Statement of Work, subject to Service Provider’s obligation to mitigate such costs.
7.3 Termination for Cause. Either Party may terminate this Agreement or any individual Statement of Work, in whole or in part, immediately upon written notice to the other Party if: (a) the other Party commits a material breach of this Agreement or any Statement of Work and fails to cure such breach within thirty (30) days after receiving written notice thereof from the non-breaching Party specifying the nature of the breach in reasonable detail (or such shorter cure period as may be appropriate in the circumstances, provided that no cure period shall be less than fifteen (15) days); (b) the other Party becomes insolvent, makes an assignment for the benefit of creditors, files or has filed against it a petition in bankruptcy or seeking reorganization or similar relief, or has a receiver or trustee appointed for a substantial part of its assets; or (c) the other Party ceases to do business in the ordinary course. Termination for cause shall be without prejudice to any other right or remedy available to the terminating Party under this Agreement, at law, or in equity.
7.4 Effect of Termination. Upon the effective date of any termination or expiration of this Agreement or any Statement of Work: (a) Service Provider shall immediately cease all work under the terminated or expired Statement(s) of Work (or, if this Agreement is terminated in its entirety, under all outstanding Statements of Work), except as may be reasonably necessary for an orderly wind-down and transition; (b) Service Provider shall promptly deliver to Client all completed and partially completed Deliverables, Work Product, Client Materials, and all copies thereof; (c) Client shall pay Service Provider for all Services satisfactorily performed and Deliverables accepted through the effective date of termination, subject to Client’s right to offset any amounts owed by Service Provider to Client; (d) each Party shall return or destroy (at the disclosing Party’s option) all Confidential Information of the other Party in its possession or control, in accordance with Section 9.7; and (e) each Party shall cooperate in good faith to ensure an orderly transition and wind-down of activities under the affected Statements of Work, including reasonable knowledge transfer and transition assistance for a period not to exceed thirty (30) days following the effective date of termination.
7.5 Survival. The following provisions shall survive the termination or expiration of this Agreement for any reason: Sections 2 (Definitions), 5.5 (No Waiver), 6 (Fees and Payment, to the extent of obligations accrued prior to termination), 7.4 (Effect of Termination), 7.5 (Survival), 8 (Intellectual Property Rights), 9 (Confidentiality), 10 (Representations and Warranties, to the extent applicable), 11 (Indemnification), 12 (Limitation of Liability), 16 (Non-Solicitation), 18 (Governing Law and Dispute Resolution), 19 (Notices), and 20 (General Provisions), together with any other provisions that by their nature are intended to survive termination or expiration.
The Holder hereby represents and warrants to the Company, as of the Issuance Date and as of each Exercise Date, as follows:
8.1 Accredited Investor Status. The Holder is an "accredited investor" as defined in Rule 501 of Regulation D promulgated under the Securities Act. The Holder has such knowledge, sophistication, and experience in financial, tax, and business matters, and in particular with respect to digital assets, blockchain technology, and cryptographic tokens, as to be capable of evaluating the merits and risks of an investment in this Warrant and the Tokens, and of protecting the Holder’s own interests in connection with such investment.
8.2 Investment Intent. The Holder is acquiring this Warrant and will acquire the Tokens for the Holder’s own account, for investment purposes only, and not with a view to, or in connection with, any distribution, resale, or other disposition thereof in violation of the Securities Act or any other Applicable Law. The Holder acknowledges that this Warrant and the Tokens have not been registered under the Securities Act or the securities laws of any state, and that this Warrant and the Tokens may not be sold, transferred, or otherwise disposed of except in compliance with the registration requirements of the Securities Act and applicable state securities laws, or pursuant to an applicable exemption therefrom.
8.3 Risk Acknowledgment. The Holder acknowledges and understands the following risks associated with this Warrant and the Tokens, and agrees that the Company shall have no liability in respect thereof: (a) the value of Tokens is inherently volatile and speculative, and the Tokens may have no value whatsoever; (b) the regulatory environment for digital assets, blockchain technology, and cryptographic tokens is uncertain and evolving, and future regulatory actions or requirements may adversely affect the value, transferability, or utility of the Tokens; (c) there is no guarantee that a Token Generation Event will occur, that the Protocol will be successfully developed or launched, or that the Tokens will have any utility, functionality, or value; (d) the Holder may lose the entire value of the Holder’s investment in this Warrant and the Tokens; (e) digital assets are subject to risks of theft, loss, hacking, and technological failure, and the Company shall not be liable for any loss of Tokens resulting from any such event; and (f) the tax treatment of Tokens and token warrants is uncertain and may be subject to adverse tax consequences.
8.4 No Guarantee of Value. The Holder acknowledges that the Company has not made any representation or warranty regarding the future value, price, utility, or market for the Tokens. The Holder understands that the Tokens may never be listed on any digital asset exchange, that there may never be a liquid market for the Tokens, and that the Holder may be unable to sell or transfer the Tokens at any price. The Holder has not relied on any statement, representation, or warranty by the Company, its officers, directors, employees, agents, or advisors regarding the potential value or appreciation of the Tokens.
8.5 Independent Investigation. The Holder has conducted the Holder’s own independent investigation and analysis of the Company, the Protocol, the Tokens, and the transactions contemplated by this Warrant. The Holder has had the opportunity to ask questions of and receive answers from the Company regarding the Company’s business, the Protocol, the Tokens, and the terms and conditions of this Warrant, and has obtained such additional information as the Holder has deemed necessary or advisable in connection with the Holder’s decision to enter into this Warrant. The Holder is not relying on any advice or recommendation of the Company in making the Holder’s investment decision.
8.6 Compliance with Laws. The Holder is not (a) a Person or entity named on any sanctions list administered by OFAC, the United Nations Security Council, the European Union, or any other applicable sanctions authority, (b) a Person or entity organized, domiciled, or resident in a Restricted Jurisdiction, (c) a Person or entity owned or controlled by, or acting on behalf of, any Person or entity described in clauses (a) or (b), or (d) otherwise prohibited from receiving Tokens under Applicable Law. The Holder will comply with all Applicable Law in connection with the Holder’s acquisition, holding, and disposition of this Warrant and the Tokens.
The obligations of each Purchaser to purchase the Shares at the Closing are subject to the fulfillment, on or before the Closing Date, of each of the following conditions, unless otherwise waived in writing by the Purchasers holding a majority of the Shares to be purchased at such Closing (the "Majority Purchasers").
6.1 Representations and Warranties. The representations and warranties of the Company set forth in Section 4 shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the Closing Date, with the same effect as though such representations and warranties had been made on and as of the Closing Date.
6.2 Performance. The Company shall have performed and complied with all covenants, agreements, obligations, and conditions contained in this Agreement that are required to be performed or complied with by the Company on or before the Closing Date.
6.3 Restated Certificate. The Restated Certificate shall have been filed with and accepted by the Secretary of State of the State of [STATE], and the Company shall deliver to each Purchaser a certified copy thereof.
6.4 Related Agreements. Each Purchaser shall have received an executed counterpart of each of the Related Agreements, including without limitation (a) the Investors’ Rights Agreement, (b) the Right of First Refusal and Co-Sale Agreement, and (c) the Voting Agreement, each in the form attached hereto (collectively, the "Related Agreements").
6.5 Qualifications. All authorizations, approvals, or permits, if any, of any governmental authority or regulatory body of the United States or of any state that are required in connection with the lawful issuance and sale of the Shares pursuant to this Agreement shall be obtained and effective as of the Closing.
6.6 Board of Directors. The Board shall be composed as set forth in the Voting Agreement, and the Company shall have delivered evidence satisfactory to the Majority Purchasers that such Board composition has been effected.
9.1 Securities Law Compliance. The Parties acknowledge that the treatment of this Warrant and the Tokens under federal and state securities laws is uncertain and subject to evolving legal and regulatory interpretation. The Company intends to structure the Token Generation Event and the distribution of Tokens in a manner that complies with Applicable Law, including, without limitation, applicable exemptions from registration under the Securities Act. The Holder agrees to cooperate with the Company’s compliance efforts and to provide such information and documentation as the Company may reasonably request in connection therewith.
9.2 KYC/AML Obligations. The Holder acknowledges and agrees that the Company may require the Holder to complete KYC/AML procedures as a condition to the issuance of this Warrant, the exercise of this Warrant, or the delivery of Tokens. The Holder shall promptly provide to the Company such information and documentation as the Company may reasonably request to verify the Holder’s identity, source of funds, and compliance with Applicable Law, including, without limitation, government-issued identification, proof of address, and source of funds documentation. The Company shall have the right to delay or withhold the delivery of Tokens pending the satisfactory completion of KYC/AML procedures, and the Company shall not be liable to the Holder for any damages or losses arising from such delay.
9.3 Restricted Jurisdictions. The Holder represents and warrants that the Holder is not located in, organized under the laws of, or a resident or citizen of any Restricted Jurisdiction. The Holder agrees that the Holder shall not transfer this Warrant or any Tokens to any Person that is located in, organized under the laws of, or a resident or citizen of any Restricted Jurisdiction, or to any Person that is named on any sanctions list administered by OFAC or any other applicable sanctions authority. The Company shall have the right to freeze, recall, or otherwise restrict the Holder’s access to Tokens if the Company determines, in its reasonable discretion, that the Holder or any transferee of Tokens is located in a Restricted Jurisdiction or is otherwise subject to sanctions or restrictions under Applicable Law.
9.4 No Registration of Tokens. The Holder acknowledges and agrees that the Tokens have not been and may not be registered under the Securities Act or the securities laws of any state or foreign jurisdiction, and that the Company has no obligation to register the Tokens. The Holder acknowledges that the Tokens may be subject to restrictions on transfer under Applicable Law, in addition to the transfer restrictions set forth in this Warrant, and agrees to comply with all such restrictions.
9.5 Regulatory Uncertainty. The Holder acknowledges that the regulatory landscape for digital assets, blockchain technology, and cryptographic tokens is rapidly evolving and uncertain, and that future laws, regulations, or governmental actions could materially and adversely affect the legality, value, transferability, utility, or tax treatment of the Tokens. The Company shall not be liable to the Holder for any losses, damages, or adverse consequences resulting from changes in Applicable Law or regulatory enforcement actions affecting the Tokens, the Protocol, or the Company’s business.
9.6 Cooperation. Each Party agrees to cooperate with the other Party in connection with any regulatory inquiry, investigation, or proceeding relating to this Warrant, the Tokens, or the Token Generation Event. The Holder agrees to provide such information and documentation as the Company may reasonably request in connection with any regulatory filing, report, or submission required by Applicable Law. The Company agrees to provide the Holder with prompt written notice of any regulatory inquiry, investigation, or proceeding that the Company reasonably believes could materially affect the Holder’s rights under this Warrant.
7A.1 Transition Plan. Commencing no later than thirty (30) days prior to the expiration or termination of this Agreement (or promptly following a termination for cause), Provider shall cooperate with Customer and any successor service provider to develop and execute a mutually agreed transition plan.
7A.2 Transition Services. During the transition period (not to exceed [ninety (90) / one hundred eighty (180)] days), Provider shall: (a) continue to perform Services at current service levels; (b) provide reasonable knowledge transfer and training to Customer or its designee; (c) deliver all Customer Data, work product, and documentation in industry-standard formats; (d) assist in the migration of Customer’s data and systems; and (e) provide access to Provider’s knowledgeable personnel for reasonable consultation.
7A.3 Fees. Transition services shall be provided at Provider’s then-current hourly rates unless otherwise specified in the applicable SOW. If termination is due to Provider’s material breach, transition services for the first [thirty (30) / sixty (60)] days shall be provided at no additional charge.
7A.4 Cooperation. Provider shall not take any action to obstruct or delay the transition and shall use commercially reasonable efforts to minimize disruption to Customer’s business.
8.1 Pre-Existing IP. Each Party shall retain all right, title, and interest in and to its Pre-Existing IP. Nothing in this Agreement shall be construed as transferring or assigning any ownership interest in a Party’s Pre-Existing IP to the other Party, except as expressly provided herein. To the extent that any Pre-Existing IP of Service Provider is incorporated into or is reasonably necessary for the use or enjoyment of any Deliverable or Work Product, Service Provider hereby grants to Client a non-exclusive, perpetual, irrevocable, worldwide, fully paid-up, royalty-free license to use, reproduce, modify, create derivative works of, display, distribute, and otherwise exploit such Pre-Existing IP solely in connection with Client’s use of the applicable Deliverable or Work Product for Client’s internal business purposes.
8.2 Work Product Ownership. Subject to Section 8.1, Client shall own all right, title, and interest in and to all Work Product and Deliverables, including all Intellectual Property Rights therein. Service Provider hereby irrevocably assigns, transfers, and conveys to Client, and shall cause its Personnel to irrevocably assign, transfer, and convey to Client, all right, title, and interest in and to all Work Product and Deliverables, including all Intellectual Property Rights therein, effective upon their creation. To the extent that any Work Product or Deliverable constitutes a "work made for hire" as defined under the United States Copyright Act (17 U.S.C. Section 101 et seq.), it shall be deemed a work made for hire, with Client being deemed the author thereof. To the extent that any Work Product or Deliverable does not constitute a work made for hire, Service Provider hereby assigns and shall cause its Personnel to assign to Client all right, title, and interest in and to such Work Product or Deliverable, including all Intellectual Property Rights therein. Service Provider shall execute and deliver, and shall cause its Personnel to execute and deliver, all documents, instruments, and agreements, and shall take all further actions, reasonably requested by Client to evidence, perfect, register, or record Client’s ownership of the Work Product and Deliverables.
8.3 License to Client Materials. Client hereby grants to Service Provider a non-exclusive, non-transferable, revocable license to use, reproduce, and create derivative works of the Client Materials solely to the extent necessary for Service Provider to perform the Services and deliver the Deliverables under this Agreement and the applicable Statements of Work. Service Provider shall not use the Client Materials for any other purpose without Client’s prior written consent. Upon termination or expiration of this Agreement or the applicable Statement of Work, Service Provider’s license to the Client Materials shall immediately terminate, and Service Provider shall return or destroy all Client Materials in its possession or control.
6.7 Legal Opinion. The Purchasers shall have received from counsel to the Company an opinion letter, dated as of the Closing Date, in form and substance reasonably satisfactory to the Majority Purchasers and their counsel, covering such matters as are customarily covered in opinions delivered in connection with transactions of the type contemplated by this Agreement.
6.8 Compliance Certificate. The Company shall have delivered to the Purchasers a certificate signed by the President or Chief Executive Officer of the Company, dated as of the Closing Date, certifying that the conditions specified in Sections 6.1 and 6.2 have been fulfilled.
6.9 Proceedings and Documents. All corporate and other proceedings in connection with the transactions contemplated by this Agreement and the Related Agreements and all documents incident thereto shall be reasonably satisfactory in form and substance to the Majority Purchasers and their counsel, and the Majority Purchasers and their counsel shall have received all such counterpart original and certified or other copies of such documents as they may reasonably request.
6.10 No Material Adverse Effect. No Material Adverse Effect shall have occurred since the date of this Agreement.
6.11 Management Rights Letter. If any Purchaser is a venture capital operating company or other entity subject to the requirements of ERISA, or otherwise requires a management rights letter for purposes of qualifying as a "venture capital operating company" within the meaning of the U.S. Department of Labor regulations at 29 C.F.R. Section 2510.3-101(d), the Company shall have executed and delivered to such Purchaser a Management Rights Letter in the form attached hereto as Exhibit G (the "Management Rights Letter"), granting such Purchaser contractual management rights with respect to the Company, including without limitation (a) the right to consult with and advise the management of the Company regarding the business, finances, and operations of the Company, (b) the right to inspect the books and records of the Company, and (c) such other rights as are necessary to ensure that such Purchaser’s investment in the Company qualifies as a "venture capital investment" for purposes of ERISA. The Management Rights Letter shall not confer upon any Purchaser any right to vote or consent on any matter submitted to the stockholders of the Company.
The obligations of the Company to sell and issue the Shares at the Closing are subject to the fulfillment, on or before the Closing Date, of each of the following conditions, unless otherwise waived in writing by the Company.
7.1 Representations and Warranties. The representations and warranties of each Purchaser set forth in Section 5 shall be true and correct in all material respects as of the Closing Date, with the same effect as though such representations and warranties had been made on and as of the Closing Date.
7.2 Performance. Each Purchaser shall have performed and complied with all covenants, agreements, obligations, and conditions contained in this Agreement that are required to be performed or complied with by such Purchaser on or before the Closing Date.
7.3 Payment of Purchase Price. Each Purchaser shall have delivered to the Company the aggregate purchase price for the Shares being purchased by such Purchaser as set forth on the Schedule of Purchasers, by wire transfer of immediately available funds to an account designated by the Company.
7.4 Related Agreements. Each Purchaser shall have executed and delivered to the Company counterpart signature pages to each of the Related Agreements.
7.5 Qualifications. All authorizations, approvals, or permits, if any, of any governmental authority or regulatory body of the United States or of any state that are required in connection with the lawful issuance and sale of the Shares pursuant to this Agreement shall be obtained and effective as of the Closing.
7.6 Restated Certificate. The Restated Certificate shall have been filed with and accepted by the Secretary of State of the State of [STATE].
8.4 Third-Party Materials. If Service Provider proposes to incorporate any third-party materials, software, code, libraries, or components (including open-source software) into any Deliverable or Work Product, Service Provider shall identify such third-party materials in the applicable Statement of Work or Change Order and shall obtain Client’s prior written approval before incorporating such materials. Service Provider shall ensure that the license terms applicable to any third-party materials are compatible with Client’s intended use of the Deliverables, shall provide Client with copies of all applicable license agreements, and shall not incorporate any third-party materials subject to any "copyleft" or reciprocal licensing obligation (including without limitation the GNU General Public License, GNU Lesser General Public License, or GNU Affero General Public License) without Client’s express prior written consent, which Client may withhold in its sole discretion.
8.5 Moral Rights Waiver. To the fullest extent permitted by Applicable Law, Service Provider hereby irrevocably waives, and shall cause its Personnel to irrevocably waive, any and all moral rights (including rights of attribution and integrity) in and to the Work Product and Deliverables, including without limitation any rights under the Visual Artists Rights Act of 1990 (17 U.S.C. Section 106A), any rights of droit moral, and any similar rights under the laws of any jurisdiction worldwide. To the extent that such moral rights cannot be waived under Applicable Law, Service Provider agrees, and shall cause its Personnel to agree, not to assert such rights against Client or its successors, assigns, or licensees.
8.6 Residual Knowledge. Notwithstanding anything to the contrary herein, either Party shall be free to use for any purpose the general knowledge, skills, experience, techniques, concepts, and ideas (including methodologies, processes, and know-how) that are retained in the unaided memories of its Personnel who have had access to the Confidential Information or Work Product of the other Party, provided that this Section 8.6 shall not be construed as a license to use, reproduce, or disclose any Confidential Information of the other Party, or as a license to use, reproduce, or exploit any specific Deliverable, Work Product, or Intellectual Property of the other Party.
10.1 Restrictions on Transfer of Warrant. The Holder may not sell, assign, transfer, pledge, hypothecate, or otherwise dispose of this Warrant or any interest herein, in whole or in part, without the prior written consent of the Company, except to a Permitted Transferee in accordance with Section 10.2. Any attempted transfer in violation of this Section 10.1 shall be null and void and of no force or effect, and the Company shall not be required to recognize or give effect to any such transfer.
10.2 Permitted Transfers. The Holder may transfer this Warrant, in whole (but not in part), to a Permitted Transferee, provided that (a) the Holder provides the Company with at least fifteen (15) Business Days’ prior written notice of the proposed transfer, including the identity and contact information of the proposed Permitted Transferee, (b) the proposed Permitted Transferee executes a written instrument, in form and substance satisfactory to the Company, agreeing to be bound by all of the terms and conditions of this Warrant, including, without limitation, the representations, warranties, and covenants of the Holder set forth herein, (c) the proposed Permitted Transferee completes all KYC/AML procedures required by the Company, and (d) the transfer complies with all Applicable Law, including, without limitation, applicable securities laws.
10.3 Right of First Refusal. In the event that the Holder desires to transfer this Warrant to any Person other than a Permitted Transferee (a "Proposed Transfer"), the Holder shall first offer the Company the right to acquire this Warrant on the same terms and conditions as the Proposed Transfer, by delivering to the Company a written notice (the "Transfer Notice") specifying the identity of the proposed transferee, the proposed transfer price, and all other material terms and conditions of the Proposed Transfer. The Company shall have thirty (30) days following receipt of the Transfer Notice (the "ROFR Period") to elect to acquire this Warrant on the terms set forth in the Transfer Notice, by delivering written notice of such election to the Holder. If the Company does not elect to acquire this Warrant within the ROFR Period, the Holder may consummate the Proposed Transfer on terms no more favorable to the proposed transferee than those set forth in the Transfer Notice, subject to compliance with all Applicable Law and the proposed transferee’s execution of a written instrument agreeing to be bound by the terms of this Warrant.
10.4 Legend Requirements. This Warrant and any certificate or instrument evidencing the Tokens shall bear a legend substantially in the following form: "THIS WARRANT [THESE TOKENS] [HAS/HAVE] NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE \"SECURITIES ACT\"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THIS WARRANT [THESE TOKENS] MAY NOT BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, OR PURSUANT TO AN APPLICABLE EXEMPTION THEREFROM, AND SUBJECT TO THE TRANSFER RESTRICTIONS SET FORTH IN THE TOKEN WARRANT PURSUANT TO WHICH THIS WARRANT [THESE TOKENS] [WAS/WERE] ISSUED."
10.5 Transfer of Tokens. Tokens delivered to the Holder pursuant to this Warrant shall be subject to the transfer restrictions set forth in this Article X, in addition to the Lockup Schedule set forth in Section 6.2 and any restrictions imposed by Applicable Law. The Holder acknowledges that the Company may implement transfer restrictions through a Smart Contract or other technological means, and agrees to cooperate with the Company’s implementation thereof.
8A.1 Regulatory Filings. The Company covenants and agrees that, within fifteen (15) days following the initial Closing Date, the Company shall (a) file a Notice of Exempt Offering of Securities on Form D with the U.S. Securities and Exchange Commission (the "SEC") pursuant to Regulation D under the Securities Act with respect to the offer and sale of the Shares, and (b) file or cause to be filed such notices, applications, or other documents as may be required under the applicable securities or "blue sky" laws of each state in which the Shares have been offered or sold (or in which any Purchaser has its principal place of business), including without limitation any required notices of sale under the laws of the State of [STATE] and such other states as counsel to the Company shall determine are required. The Company shall provide each Purchaser with a copy of the Form D as filed with the SEC promptly following such filing. In the event of any Subsequent Closing, the Company shall file an amendment to Form D within fifteen (15) days following such Subsequent Closing to reflect the additional sales of Shares therein. The Company shall use commercially reasonable efforts to maintain the availability of the exemption from registration provided by Rule 506 of Regulation D with respect to the offer and sale of the Shares.
8A.2 Directors and Officers Insurance. The Company covenants and agrees that, within ninety (90) days following the initial Closing Date (or such longer period as the Majority Purchasers may approve in writing), the Company shall obtain and thereafter maintain a policy or policies of directors’ and officers’ liability insurance ("D&O Insurance") with a carrier and in an amount reasonably acceptable to the Board (including the affirmative vote of at least one director elected by the holders of Series Seed Preferred Stock, if any), but in no event less than $[NUMBER] in aggregate coverage. Such D&O Insurance shall provide coverage to all directors and officers of the Company for claims arising out of their service as directors or officers of the Company. The Company shall use commercially reasonable efforts to maintain such D&O Insurance in full force and effect for so long as any shares of Series Seed Preferred Stock remain outstanding. The Company shall promptly notify the Purchasers in writing of (a) any material reduction in coverage or increase in deductibles under the D&O Insurance, (b) any cancellation or non-renewal of the D&O Insurance, or (c) any claim made under the D&O Insurance.
8A.3 QSBS Covenant. The Company shall use commercially reasonable efforts to (a) ensure that the Shares continue to qualify as QSBS within the meaning of Section 1202 of the Code, (b) comply with any applicable reporting requirements under Section 1202 of the Code and the regulations promulgated thereunder, and (c) not take any action that would cause the Shares to fail to qualify as QSBS, in each case without the prior written consent of the Majority Purchasers. The Company shall deliver to each Purchaser, upon reasonable request and at the Company’s expense, a statement confirming compliance with the requirements of Section 1202 of the Code.
9.1 Definition of Confidential Information. "Confidential Information" means all non-public, proprietary, or confidential information, in whatever form or medium (whether written, oral, electronic, visual, or otherwise), disclosed by or on behalf of one Party (the "Disclosing Party") to the other Party (the "Receiving Party") in connection with this Agreement or any Statement of Work, including without limitation: (a) trade secrets, inventions, discoveries, patent applications, know-how, algorithms, software, source code, object code, designs, formulas, processes, techniques, and technical data; (b) business plans, strategies, projections, forecasts, financial information, pricing, customer and supplier lists, marketing plans, and operational data; (c) the terms and conditions of this Agreement and each Statement of Work (including Fees); (d) Client Materials; (e) Work Product and Deliverables (prior to delivery and Acceptance); (f) personnel information, compensation data, and organizational charts; and (g) any information that is identified or marked as "confidential," "proprietary," or with a similar designation at the time of disclosure, or that, given the nature of the information or the circumstances of disclosure, a reasonable person would understand to be confidential or proprietary.
9.2 Obligations of Confidentiality. The Receiving Party shall: (a) hold the Confidential Information of the Disclosing Party in strict confidence and protect it from unauthorized disclosure and use using at least the same degree of care that the Receiving Party uses to protect its own confidential information of a similar nature, but in no event less than a reasonable degree of care; (b) not disclose any Confidential Information of the Disclosing Party to any third party, except as expressly permitted by this Agreement; (c) not use any Confidential Information of the Disclosing Party for any purpose other than the performance of its obligations or the exercise of its rights under this Agreement and the applicable Statements of Work; and (d) limit access to the Confidential Information of the Disclosing Party to those of its employees, agents, contractors, and professional advisors who have a bona fide need to know such information for the purposes of this Agreement, and who are bound by written confidentiality obligations no less restrictive than those set forth in this Section 9.
9.3 Exclusions. The obligations set forth in Section 9.2 shall not apply to any information that the Receiving Party can demonstrate by competent evidence: (a) was publicly available at the time of disclosure or becomes publicly available after disclosure other than through a breach of this Agreement by the Receiving Party; (b) was already known to the Receiving Party at the time of disclosure, as evidenced by the Receiving Party’s contemporaneous written records; (c) was independently developed by the Receiving Party without reference to or use of the Confidential Information of the Disclosing Party, as evidenced by the Receiving Party’s contemporaneous written records; or (d) was received by the Receiving Party from a third party who was not, to the Receiving Party’s knowledge, under any obligation of confidentiality with respect to such information.
9.4 Compelled Disclosure. If the Receiving Party becomes legally compelled by judicial or administrative process, by applicable securities regulations, or by any other requirement of Applicable Law to disclose any Confidential Information of the Disclosing Party, the Receiving Party shall: (a) provide the Disclosing Party with prompt written notice of such requirement (to the extent legally permissible) so that the Disclosing Party may seek a protective order, injunction, or other appropriate remedy; (b) cooperate with the Disclosing Party, at the Disclosing Party’s expense, in seeking to obtain such protective order, injunction, or other remedy; and (c) in the event that such protective order or other remedy is not obtained, disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose, and use commercially reasonable efforts to obtain assurances that confidential treatment will be accorded to the disclosed information.
11.1 Expiration. This Warrant shall expire and be of no further force or effect on the fifth (5th) anniversary of the Issuance Date (the "Expiration Date"), unless earlier terminated in accordance with this Article XI. Any portion of the Token Allocation that has not been exercised as of the Expiration Date shall be automatically forfeited by the Holder without any further action by either Party and without any obligation of the Company to pay any consideration to the Holder in respect thereof.
11.2 Termination Events. This Warrant may be terminated prior to the Expiration Date upon the occurrence of any of the following events (each, a "Termination Event"): (a) a material breach by either Party of its representations, warranties, or obligations under this Warrant, which breach remains uncured for a period of sixty (60) days following written notice thereof from the non-breaching Party; (b) the filing of a voluntary or involuntary petition for bankruptcy, insolvency, or reorganization by or against the Company, or the appointment of a receiver, trustee, or liquidator for the Company or a substantial part of its assets, which petition is not dismissed within ninety (90) days; (c) a final, non-appealable determination by a court of competent jurisdiction or regulatory authority that this Warrant, the Tokens, or the Token Generation Event violates Applicable Law in a manner that cannot be cured or remediated; (d) mutual written agreement of the Parties; or (e) if no Token Generation Event has occurred within forty-eight (48) months following the Issuance Date, either Party may terminate this Warrant upon sixty (60) days’ prior written notice to the other Party.
11.3 Effect of Termination. Upon the termination of this Warrant pursuant to Section 11.2, the rights and obligations of the Parties under this Warrant shall cease and terminate, except that (a) the rights and obligations of the Parties under Articles VIII (Representations and Warranties of the Holder), IX (Regulatory Matters), XII (Tax Matters), XIII (Governing Law and Dispute Resolution), and XV (General Provisions) shall survive the termination of this Warrant, (b) any rights or obligations that have accrued prior to the date of termination shall survive, (c) the Holder shall retain any Tokens that have been delivered to the Holder prior to the date of termination, subject to the Lockup Schedule and transfer restrictions set forth herein, and (d) neither Party shall be released from any liability for any breach of this Warrant occurring prior to the date of termination.
11.4 Return of Confidential Information. Upon the termination of this Warrant, each Party shall promptly return or destroy all confidential or proprietary information of the other Party that was provided in connection with this Warrant, except as required to be retained by Applicable Law or as necessary for the exercise of any surviving rights or obligations hereunder.
11.5 Project Pivot Termination. If the Company undergoes a Material Protocol Change (as defined below), the Holder shall have the right to terminate this Warrant and receive, at the Holder’s election, either (a) conversion into equity securities in accordance with Article XIX (Equity Conversion Fallback) as if the Outside TGE Date had occurred, or (b) a cash payment equal to the Original Investment Amount multiplied by [NUMBER]% (the "Pivot Premium"), payable within thirty (30) days of the Holder’s election. "Material Protocol Change" means any of the following: (i) the Company publicly announces that it will not pursue a Token Generation Event; (ii) the Company materially changes the Protocol such that the fundamental purpose, technology, or use case described in Schedule A is no longer the Company’s primary focus; (iii) the Company sells, transfers, or exclusively licenses all or substantially all of the Protocol intellectual property to a third party; or (iv) the Company’s Board of Directors adopts a resolution determining that the Company will not pursue the development, launch, or maintenance of the Protocol. The Holder shall have ninety (90) days from the date it receives written notice of a Material Protocol Change (or, if no notice is given, from the date the Holder first becomes aware of such change) to deliver written notice to the Company of the Holder’s election under this Section 11.5.
9.5 Remedies. Each Party acknowledges and agrees that a breach of the obligations under this Section 9 may cause irreparable harm to the Disclosing Party for which monetary damages would be inadequate, and that the Disclosing Party shall be entitled to seek equitable relief, including injunction and specific performance, in addition to all other remedies available at law or in equity, without the necessity of proving actual damages or posting any bond or other security.
9.6 Duration of Confidentiality Obligations. The obligations of confidentiality set forth in this Section 9 shall remain in effect during the Term and for a period of five (5) years following the termination or expiration of this Agreement; provided, however, that with respect to any Confidential Information that constitutes a trade secret under Applicable Law, the obligations of confidentiality shall continue for so long as such information remains a trade secret.
9.7 Return or Destruction. Upon the termination or expiration of this Agreement or any Statement of Work, or upon the written request of the Disclosing Party at any time, the Receiving Party shall promptly (and in any event within thirty (30) days) return to the Disclosing Party, or at the Disclosing Party’s option and written direction, destroy, all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control, including all copies, extracts, summaries, and analyses thereof, in whatever form or medium. The Receiving Party shall, upon request, certify in writing its compliance with this Section 9.7. Notwithstanding the foregoing, the Receiving Party may retain one (1) archival copy of the Confidential Information solely for purposes of compliance with its document retention policies or Applicable Law, provided that such retained copy remains subject to the confidentiality obligations of this Section 9.
8.1 Restrictive Legend. Each certificate or book-entry statement representing the Shares, the Conversion Shares, and any other securities issued in respect of the Shares or the Conversion Shares upon any stock split, stock dividend, recapitalization, merger, consolidation, or similar event, shall be endorsed with one or all of the following legends:
8.2 Securities Act Legend. "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE \"ACT\"), OR UNDER THE SECURITIES LAWS OF ANY STATE. THESE SHARES MAY NOT BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED, PLEDGED, OR HYPOTHECATED EXCEPT AS PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS IN ACCORDANCE WITH APPLICABLE REGISTRATION REQUIREMENTS OR AN EXEMPTION THEREFROM. THE ISSUER OF THESE SHARES MAY REQUIRE AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH OFFER, SALE, TRANSFER, PLEDGE, OR HYPOTHECATION OTHERWISE COMPLIES WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS."
8.3 Stockholder Agreement Legend. "THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AND RIGHTS OF FIRST REFUSAL AND CO-SALE AS SET FORTH IN A RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT BETWEEN THE ISSUER AND CERTAIN OF ITS STOCKHOLDERS, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. SUCH TRANSFER RESTRICTIONS AND RIGHTS OF FIRST REFUSAL AND CO-SALE ARE BINDING ON TRANSFEREES OF THESE SHARES."
8.4 Additional Legends. The Company shall be entitled to place any additional legend required by applicable federal or state securities laws on any certificate or book-entry statement representing the Shares.
8.5 Removal of Legends. The legend set forth in Section 8.2 shall be removed from the certificates or book-entry statements evidencing any Shares (or Conversion Shares, as applicable) upon delivery to the Company of an opinion of counsel, reasonably satisfactory in form and substance to the Company, that such legend is no longer required under the Securities Act, or when such Shares have been effectively registered under the Securities Act and sold in accordance with such registration.
12.1 Tax Treatment Uncertainty. The Parties acknowledge that the U.S. federal, state, and local income tax treatment of this Warrant, the Tokens, and the transactions contemplated hereby is uncertain and evolving. Neither Party makes any representation or warranty to the other Party regarding the tax treatment of this Warrant or the Tokens, and each Party acknowledges that the other Party has not provided and is not providing any tax advice in connection with this Warrant.
12.2 No Tax Advice. The Holder acknowledges that neither the Company nor any of its officers, directors, employees, agents, or advisors has provided the Holder with any tax advice in connection with this Warrant, the Tokens, or the transactions contemplated hereby. The Holder is solely responsible for determining the tax consequences of the Holder’s acquisition, holding, exercise, and disposition of this Warrant and the Tokens, and the Holder has been advised to consult with the Holder’s own tax advisor regarding such matters.
12.3 Withholding Rights. The Company shall be entitled to deduct and withhold from any Tokens or other consideration deliverable to the Holder pursuant to this Warrant such amounts as may be required to be deducted or withheld under Applicable Law, including, without limitation, any applicable income, withholding, or employment taxes. To the extent that any amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Warrant as having been delivered to the Holder. The Company may satisfy any withholding obligation by withholding a number of Tokens having a fair market value equal to the amount required to be withheld, as determined in good faith by the Board. The Company shall provide the Holder with written notice of any withholding at least ten (10) Business Days prior to effecting such withholding, to the extent practicable.
12.4 Holder Tax Responsibility. The Holder shall be solely responsible for and shall timely pay all taxes (including, without limitation, income taxes, capital gains taxes, self-employment taxes, and any other taxes) arising from or in connection with the Holder’s acquisition, holding, exercise, or disposition of this Warrant and the Tokens. The Holder agrees to indemnify and hold harmless the Company and its officers, directors, employees, and agents from and against any and all taxes, penalties, interest, and related costs that the Company may be required to pay as a result of the Holder’s failure to timely pay any such taxes.
12.5 Tax Reporting. Each Party shall be responsible for its own tax reporting obligations in connection with this Warrant and the Tokens. The Company may issue such tax forms, statements, or reports as it determines, in consultation with its tax advisors, to be required by Applicable Law, including, without limitation, IRS Forms 1099, W-2, or such other forms as may be applicable. The Holder agrees to provide the Company with such information as the Company may reasonably request in connection with the Company’s tax reporting obligations, including, without limitation, the Holder’s taxpayer identification number and any required certifications or withholding forms.
12.6 Token-Specific Tax Issues. The Holder acknowledges that the receipt, holding, and disposition of Tokens may give rise to unique and uncertain tax consequences, including, without limitation, the potential characterization of Tokens as property, currency, or a security for tax purposes; the potential application of constructive receipt, mark-to-market, or other tax doctrines; the potential imposition of taxes upon the receipt of Tokens subject to a lockup or vesting schedule (including the potential applicability of Section 83 of the Internal Revenue Code of 1986, as amended); and the potential tax consequences of hard forks, airdrops, staking rewards, or other blockchain-related events. The Holder assumes all risk associated with such uncertain tax treatment.
9.1 Market Standoff. Each Purchaser hereby agrees that, in connection with the initial public offering of the Company’s securities, and upon the request of the Company or the underwriters managing such offering, such Purchaser shall not, without the prior written consent of the Company or such underwriters, during the period commencing on the date of the final prospectus relating to the Company’s registration statement on Form S-1 (or successor form) filed under the Securities Act and ending on the date specified by the Company or the managing underwriter (such period not to exceed one hundred eighty (180) days, or such other period as may be requested by the Company or an underwriter to accommodate regulatory restrictions on (a) the publication or other distribution of research reports, and (b) analyst recommendations and opinions, including, but not limited to, the restrictions contained in applicable FINRA rules, or any successor provisions or amendments thereto), (i) lend, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right, or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable (directly or indirectly) for Common Stock held immediately before the effective date of the registration statement for such offering, or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of such securities, whether any such transaction described in clauses (i) or (ii) above is to be settled by delivery of Common Stock or other securities, in cash, or otherwise.
9.2 Applicability. The foregoing provisions of this Section 9 shall apply only to the Company’s initial public offering, shall not apply to the sale of any Shares to an underwriter pursuant to an underwriting agreement, and shall be applicable to the Purchasers only if all officers, directors, and holders of more than one percent (1%) of the outstanding Common Stock (after giving effect to the conversion of all outstanding Preferred Stock) are subject to the same restrictions. The underwriters in connection with such registration are intended third-party beneficiaries of this Section 9 and shall have the right, power, and authority to enforce the provisions hereof as though they were a party hereto.
9.3 Stop Transfer Instructions. In order to enforce the foregoing covenants, the Company may impose stop-transfer instructions with respect to the Shares (and the Conversion Shares) of each Purchaser until the end of the lock-up period described above.
10.1 Mutual Representations and Warranties. Each Party represents and warrants to the other Party that, as of the Effective Date and as of the date of each Statement of Work executed hereunder: (a) it is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its organization, and has full corporate or other organizational power and authority to enter into and perform its obligations under this Agreement and each Statement of Work; (b) the execution, delivery, and performance of this Agreement and each Statement of Work have been duly authorized by all necessary corporate or other organizational action, and this Agreement and each Statement of Work constitute the legal, valid, and binding obligations of such Party, enforceable against it in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors’ rights generally and to general principles of equity; (c) the execution, delivery, and performance of this Agreement and each Statement of Work do not and will not conflict with, violate, or result in a breach of any provision of its organizational documents, any agreement to which it is a party or by which it is bound, or any Applicable Law; and (d) no consent, approval, authorization, or order of, or filing or registration with, any governmental authority or other third party is required for the execution, delivery, or performance of this Agreement or any Statement of Work, except for such consents, approvals, authorizations, orders, filings, or registrations as have been obtained or made prior to the date hereof.
10.2 Service Provider Warranties. Service Provider represents and warrants to Client that: (a) all Services shall be performed in a professional, competent, and workmanlike manner, consistent with generally accepted industry standards and practices for services of a similar nature, scope, and complexity, using Personnel possessing the requisite skill, training, and experience; (b) all Deliverables and Work Product shall conform to the specifications, requirements, and acceptance criteria set forth in the applicable Statement of Work; (c) all Personnel assigned to perform Services shall be qualified and competent for their assigned tasks and shall comply with all Applicable Law, including without limitation all applicable immigration and employment laws; (d) the Services, Deliverables, and Work Product shall not infringe, misappropriate, or otherwise violate any Intellectual Property Rights or other proprietary rights of any third party; (e) any software or technology included in the Deliverables or Work Product shall be free from viruses, malware, backdoors, undisclosed access mechanisms, time bombs, or other harmful or malicious code; (f) Service Provider shall comply with all Applicable Law in the performance of its obligations under this Agreement and each Statement of Work; and (g) Service Provider shall maintain all licenses, permits, certifications, and authorizations required for the lawful performance of the Services.
10.3 Client Warranties. Client represents and warrants to Service Provider that: (a) Client shall cooperate with Service Provider as reasonably necessary to facilitate Service Provider’s performance of the Services, including providing timely access to Client’s facilities, systems, personnel, and information as contemplated by the applicable Statement of Work; (b) all Client Materials provided by Client to Service Provider shall be accurate and complete in all material respects; and (c) Client has the right to provide the Client Materials to Service Provider for use in connection with the Services, and such provision does not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights or other proprietary rights of any third party.
10.4 WARRANTY DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 10 AND ELSEWHERE IN THIS AGREEMENT, NEITHER PARTY MAKES, AND EACH PARTY HEREBY EXPRESSLY DISCLAIMS, ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUALITY, ACCURACY, COMPLETENESS, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES OR DELIVERABLES WILL MEET CLIENT’S EXPECTATIONS BEYOND THE EXPRESS REQUIREMENTS SET FORTH IN THE APPLICABLE STATEMENT OF WORK, OR THAT THE SERVICES OR DELIVERABLES WILL BE ERROR-FREE OR UNINTERRUPTED. THE DISCLAIMERS IN THIS SECTION 10.4 SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
13.1 Governing Law. This Warrant and any dispute arising out of or relating to this Warrant, including, without limitation, any dispute regarding the formation, interpretation, breach, or termination of this Warrant, shall be governed by, and construed and enforced in accordance with, the laws of the State of [STATE], without regard to the conflict of laws principles thereof that would cause the application of the laws of any other jurisdiction.
13.2 Mandatory Arbitration. Any dispute, controversy, or claim arising out of or relating to this Warrant, or the breach, termination, or invalidity thereof (each, a "Dispute"), shall be finally settled by binding arbitration administered by the American Arbitration Association (the "AAA") in accordance with its Commercial Arbitration Rules and Mediation Procedures then in effect (the "AAA Rules"), as modified by this Section 13.2. The arbitration shall be conducted by a single arbitrator selected in accordance with the AAA Rules, who shall have experience in commercial transactions and, to the extent practicable, familiarity with digital assets and blockchain technology. The seat of the arbitration shall be in [STATE]. The language of the arbitration shall be English.
13.3 Arbitration Procedures. The arbitrator shall have the authority to grant any remedy or relief that would be available in a court of competent jurisdiction, including, without limitation, specific performance, injunctive relief, and monetary damages. The arbitrator’s award shall be final and binding on the Parties and may be entered as a judgment in any court of competent jurisdiction. The arbitrator shall issue a reasoned written decision setting forth the findings of fact and conclusions of law upon which the award is based. The arbitration proceedings and the arbitrator’s award shall be kept confidential by the Parties, except to the extent disclosure is required by Applicable Law or necessary to confirm, vacate, or enforce the award.
13.4 Prevailing Party Attorneys’ Fees. In any arbitration or judicial proceeding arising out of or relating to this Warrant, the prevailing Party (as determined by the arbitrator or the court, as applicable) shall be entitled to recover from the non-prevailing Party its reasonable attorneys’ fees, costs, and expenses (including expert witness fees and costs of arbitration) incurred in connection with such proceeding.
13.5 Injunctive Relief. Notwithstanding Section 13.2, each Party acknowledges that a breach of certain provisions of this Warrant (including, without limitation, the transfer restrictions set forth in Article X and any confidentiality obligations) may cause irreparable harm to the other Party that cannot be adequately compensated by monetary damages alone. Accordingly, each Party agrees that the other Party shall be entitled to seek temporary, preliminary, and permanent injunctive relief, specific performance, and other equitable remedies from any court of competent jurisdiction, without the necessity of proving actual damages or posting any bond or security, in addition to any other remedies available at law or in equity. The seeking of such equitable relief shall not constitute a waiver of the right to arbitrate any Dispute under Section 13.2.
13.6 Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS WARRANT.
11.1 Indemnification by Service Provider. Service Provider shall defend, indemnify, and hold harmless Client and its Affiliates, and their respective directors, officers, employees, agents, successors, and assigns (collectively, the "Client Indemnitees"), from and against any and all claims, demands, actions, suits, proceedings, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees, court costs, and expert witness fees) (collectively, "Losses") arising out of or related to: (a) any actual or alleged infringement, misappropriation, or other violation of any third party’s Intellectual Property Rights by the Services, Deliverables, or Work Product (or any use thereof by Client in accordance with this Agreement); (b) any negligent or wrongful act or omission of Service Provider or its Personnel in connection with the performance of Services or delivery of Deliverables under this Agreement; (c) any material breach by Service Provider of any representation, warranty, covenant, or obligation under this Agreement or any Statement of Work; (d) any violation of Applicable Law by Service Provider or its Personnel in connection with the performance of this Agreement; (e) any claim by a third party (including any Personnel of Service Provider) arising from Service Provider’s employment or engagement of its Personnel, including claims related to wages, benefits, employment status, discrimination, harassment, or wrongful termination; or (f) any personal injury, death, or property damage caused by the negligence or willful misconduct of Service Provider or its Personnel in connection with this Agreement.
11.2 Indemnification by Client. Client shall defend, indemnify, and hold harmless Service Provider and its Affiliates, and their respective directors, officers, employees, agents, successors, and assigns (collectively, the "Service Provider Indemnitees"), from and against any and all Losses arising out of or related to: (a) any actual or alleged infringement, misappropriation, or other violation of any third party’s Intellectual Property Rights by the Client Materials (or any use thereof by Service Provider in accordance with this Agreement); (b) any use of the Deliverables or Work Product by Client in a manner that is inconsistent with this Agreement or the applicable Statement of Work, to the extent that such use gives rise to a third-party claim; (c) any material breach by Client of any representation, warranty, covenant, or obligation under this Agreement or any Statement of Work; or (d) any violation of Applicable Law by Client in connection with the performance of this Agreement.
9A.1 Confidential Information. Each Purchaser agrees that it will keep confidential and will not disclose, divulge, or use for any purpose (other than to monitor and evaluate its investment in the Company or to enforce its rights under this Agreement or the Related Agreements) any confidential information obtained from the Company pursuant to the terms of this Agreement or any Related Agreement (including without limitation information contained in the Disclosure Schedule, the Financial Statements, and any other information provided to such Purchaser in connection with the transactions contemplated hereby), unless such confidential information (a) is known or becomes known to the public in general (other than as a result of a breach of this Section 9A by such Purchaser), (b) is or has been independently developed or conceived by such Purchaser without use of the Company’s confidential information, or (c) is or has been made known or disclosed to such Purchaser by a third party without breach of any obligation of confidentiality to the Company. Notwithstanding the foregoing, a Purchaser may disclose confidential information (i) to its attorneys, accountants, consultants, and other professionals to the extent necessary to obtain their services in connection with monitoring its investment in the Company, (ii) to any prospective transferee of any Shares from such Purchaser, provided that such prospective transferee agrees in writing to be bound by the provisions of this Section 9A, (iii) to any Affiliate, partner, member, stockholder, or wholly owned subsidiary of such Purchaser in the ordinary course of business, provided that such person agrees in writing to be bound by the provisions of this Section 9A, or (iv) as may otherwise be required by law, regulation, or judicial or administrative process, provided that such Purchaser takes reasonable steps to minimize the extent of any such required disclosure and, to the extent permitted by law, provides the Company with prompt written notice thereof.
9A.2 Whistleblower Safe Harbor. Notwithstanding any provision of this Agreement, any Related Agreement, or any other agreement between the Company and any Purchaser (or any of its representatives) to the contrary, pursuant to 18 U.S.C. Section 1833(b), no Purchaser (or representative thereof) shall be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made (a) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law, or (b) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Additionally, an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose a trade secret to the individual’s attorney and may use the trade secret information in the court proceeding, provided the individual files any document containing the trade secret under seal and does not disclose the trade secret except pursuant to court order. Nothing in this Agreement or any Related Agreement is intended to conflict with 18 U.S.C. Section 1833(b) or create liability for disclosures of trade secrets that are expressly allowed by such section.
14.1 Notice Requirements. All notices, requests, demands, consents, and other communications required or permitted to be given under this Warrant (each, a "Notice") shall be in writing and shall be delivered to the applicable Party at the address set forth on the signature page hereto, or at such other address as the applicable Party may designate by Notice to the other Party in accordance with this Section 14.1.
14.2 Methods of Delivery. Notices shall be delivered by one or more of the following methods: (a) personal delivery, (b) nationally recognized overnight courier service (with tracking capability), (c) electronic mail (with confirmation of receipt requested), or (d) certified or registered mail, postage prepaid, return receipt requested. The Company may also deliver Notices through any secure electronic communication platform or portal designated by the Company and communicated to the Holder in writing.
14.3 Effectiveness of Notice. Notices shall be deemed to have been duly given and received (a) if delivered by personal delivery, on the date of delivery, (b) if delivered by nationally recognized overnight courier service, on the next Business Day following the date of deposit with such courier, (c) if delivered by electronic mail, on the date of transmission if transmitted before 5:00 p.m. local time of the recipient on a Business Day, and otherwise on the next Business Day following the date of transmission, provided that no automated "bounce back" or error message is received by the sender, or (d) if delivered by certified or registered mail, on the third (3rd) Business Day following the date of mailing. In the event of any conflict between methods of delivery, the earliest effective Notice shall control.
14.4 Change of Address. Each Party shall promptly notify the other Party in writing of any change in the Party’s address or contact information for purposes of this Section 14. Until such notice is received, Notices delivered to the address set forth on the signature page hereto (or the most recent address provided in accordance with this Section 14.4) shall be deemed effective.
10.1 Survival of Representations and Warranties. The representations and warranties of the Company and the Purchasers contained in or made pursuant to this Agreement shall survive the execution and delivery of this Agreement and the Closing for a period of eighteen (18) months following the Closing Date (the "Survival Period"), except that (a) the representations and warranties set forth in Sections 4.1 (Organization and Good Standing), 4.2 (Authorization), 4.3 (Capitalization), and 4.13 (No Brokers) (collectively, the "Fundamental Representations") shall survive indefinitely, and (b) the representations and warranties set forth in Section 4.9 (Tax Matters) shall survive until sixty (60) days following the expiration of the applicable statute of limitations with respect to the tax liabilities in question (including any extensions or waivers thereof).
10.2 Indemnification by the Company. Subject to the limitations set forth in this Section 10, the Company shall indemnify, defend, and hold harmless each Purchaser and its affiliates, partners, members, stockholders, directors, officers, employees, agents, and representatives (each, a "Purchaser Indemnified Party") from and against any and all losses, damages, liabilities, claims, demands, actions, causes of action, costs, and expenses, including reasonable attorneys’ fees and expenses of investigation (collectively, "Losses"), arising out of, resulting from, or relating to (a) any breach of or inaccuracy in any representation or warranty made by the Company in this Agreement, or (b) any breach of or failure by the Company to perform any covenant, agreement, or obligation of the Company contained in this Agreement.
10.3 Indemnification by the Purchasers. Subject to the limitations set forth in this Section 10, each Purchaser shall, severally and not jointly, indemnify, defend, and hold harmless the Company, its affiliates, and their respective directors, officers, employees, agents, and representatives (each, a "Company Indemnified Party") from and against any and all Losses arising out of, resulting from, or relating to (a) any breach of or inaccuracy in any representation or warranty made by such Purchaser in this Agreement, or (b) any breach of or failure by such Purchaser to perform any covenant, agreement, or obligation of such Purchaser contained in this Agreement. The aggregate liability of any Purchaser under this Section 10.3 shall not exceed the aggregate purchase price paid by such Purchaser for its Shares.
11.3 Indemnification Procedures. The Party seeking indemnification (the "Indemnified Party") shall: (a) promptly notify the indemnifying Party (the "Indemnifying Party") in writing of any claim, demand, action, or proceeding for which indemnification is sought under this Section 11, provided that the failure to provide prompt notice shall not relieve the Indemnifying Party of its indemnification obligations except to the extent that the Indemnifying Party is materially prejudiced by such failure; (b) grant the Indemnifying Party sole control of the defense and settlement of any such claim, provided that the Indemnifying Party shall not settle or compromise any claim in a manner that imposes any liability, obligation, restriction, or admission of fault on the Indemnified Party without the Indemnified Party’s prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed; and (c) provide the Indemnifying Party with all reasonable cooperation and assistance in the defense of such claim, at the Indemnifying Party’s expense. The Indemnified Party shall have the right to participate in the defense of any claim at its own expense and with counsel of its own choosing.
11.4 IP Infringement Remediation. In the event that any Deliverable or Work Product is, or in Service Provider’s reasonable opinion is likely to become, the subject of an infringement or misappropriation claim, Service Provider shall, at its sole expense, promptly: (a) procure for Client the right to continue using the Deliverable or Work Product; (b) modify or replace the infringing portion of the Deliverable or Work Product with a non-infringing alternative of substantially equivalent functionality and performance; or (c) if neither (a) nor (b) is commercially practicable, refund to Client all Fees paid by Client for the infringing Deliverable or Work Product, and Client may terminate the applicable Statement of Work without liability.
15.1 No Intellectual Property Rights. Nothing in this Warrant shall be construed as granting the Holder any license, right, title, or interest in or to any intellectual property of the Company, including, without limitation, any patents, trademarks, copyrights, trade secrets, or other proprietary rights relating to the Protocol, the Tokens, or the Company’s business. The Holder’s rights under this Warrant are limited to the right to receive Tokens upon the exercise of this Warrant in accordance with its terms.
15.2 Protocol Governance. The Holder acknowledges that the Company may, in its sole discretion, establish a foundation, decentralized autonomous organization, or other governance structure for the Protocol (a "Governance Entity"), and may transfer the development, management, or operation of the Protocol or the Tokens to such Governance Entity. In such event, the Company’s obligations under this Warrant with respect to the creation and delivery of Tokens may be performed by the Governance Entity, and the Company shall cause the Governance Entity to assume and perform such obligations. The Company shall provide the Holder with written notice of any such transfer within thirty (30) days thereof.
15.3 Forks and Airdrops. In the event of a hard fork, airdrop, or similar event affecting the blockchain on which the Tokens are issued, the Holder shall be entitled to receive any forked tokens, airdropped tokens, or other digital assets distributed to holders of the Tokens, subject to the Lockup Schedule and transfer restrictions set forth in this Warrant, to the extent that the Company has control over the distribution of such tokens or digital assets. The Company shall use commercially reasonable efforts to facilitate the Holder’s receipt of such tokens or digital assets, but shall have no liability for any failure to deliver such tokens or digital assets that results from circumstances beyond the Company’s reasonable control.
10.4 Notice and Defense Procedures. Promptly after receipt by a party entitled to indemnification under this Section 10 (an "Indemnified Party") of notice of the commencement of any action, suit, claim, or proceeding by a third party (a "Third-Party Claim") against it, such Indemnified Party shall, if a claim for indemnification in respect thereof is to be made against a party obligated to provide indemnification under this Section 10 (an "Indemnifying Party"), give written notice to the Indemnifying Party of the commencement thereof. The failure to give such notice shall not relieve the Indemnifying Party of its indemnification obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have the right to assume the defense of any Third-Party Claim with counsel of its choosing and reasonably satisfactory to the Indemnified Party, at the sole cost and expense of the Indemnifying Party, provided that (a) the Indemnifying Party gives written notice to the Indemnified Party within thirty (30) days of receipt of such notice that it will assume such defense, and (b) the Indemnifying Party conducts the defense of the Third-Party Claim actively and diligently. The Indemnified Party shall have the right to participate in the defense of any Third-Party Claim with counsel of its own choosing, at its own expense, provided that, if the Indemnified Party reasonably determines that there exists a conflict of interest between the Indemnified Party and the Indemnifying Party with respect to such Third-Party Claim, the Indemnifying Party shall bear the reasonable fees and expenses of one separate counsel for the Indemnified Party.
10.5 Limitations on Liability. No claim for indemnification under Section 10.2(a) (other than claims relating to breaches of Fundamental Representations) shall be made unless and until the aggregate amount of all Losses incurred by all Purchaser Indemnified Parties exceeds [THRESHOLD AMOUNT] (the "Basket"), at which point the Company shall be liable for all Losses from the first dollar, subject to a maximum aggregate liability of [CAP AMOUNT] (the "Cap"). The foregoing Basket and Cap shall not apply to Losses arising out of fraud, willful misconduct, or breaches of Fundamental Representations. In no event shall any party be liable for any punitive, consequential, special, or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity, or diminution of value, except to the extent awarded to a third party in a Third-Party Claim.
10.6 Exclusive Remedy. Subject to claims for fraud or willful misconduct and the right to seek equitable relief (including specific performance and injunctive relief), the indemnification provisions of this Section 10 shall constitute the sole and exclusive remedy of the parties with respect to any breach of or inaccuracy in any representation or warranty, or any breach of any covenant, agreement, or obligation contained in this Agreement.
16.1 Confidential Information. Each Party acknowledges that, in connection with this Warrant, such Party may receive or have access to confidential or proprietary information of the other Party, including, without limitation, information relating to the Company’s business plans, financial condition, Token Economics, technical specifications, and strategic plans (collectively, "Confidential Information"). Each Party agrees to hold all Confidential Information of the other Party in strict confidence and not to disclose, publish, or otherwise disseminate any Confidential Information to any third party, except (a) to such Party’s officers, directors, employees, agents, advisors, and representatives who have a need to know and who are bound by confidentiality obligations at least as protective as those set forth in this Section 16.1, (b) as required by Applicable Law, judicial process, or regulatory requirement (provided that the disclosing Party provides the other Party with prompt written notice of such requirement, to the extent permitted by Applicable Law), or (c) with the prior written consent of the other Party.
16.2 Exceptions. The obligations of confidentiality set forth in Section 16.1 shall not apply to information that (a) is or becomes generally available to the public other than as a result of a breach of this Warrant, (b) was known to the receiving Party prior to its disclosure by the disclosing Party, as demonstrated by written records, (c) becomes available to the receiving Party from a third party that is not, to the receiving Party’s knowledge, bound by any confidentiality obligation with respect to such information, or (d) is independently developed by the receiving Party without reference to the Confidential Information of the disclosing Party.
12.1 Aggregate Cap. EXCEPT AS SET FORTH IN SECTION 12.3 BELOW, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT AND ALL STATEMENTS OF WORK, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID OR PAYABLE BY CLIENT TO SERVICE PROVIDER UNDER THIS AGREEMENT AND ALL STATEMENTS OF WORK DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
12.2 Exclusion of Consequential Damages. EXCEPT AS SET FORTH IN SECTION 12.3 BELOW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF BUSINESS, LOSS OF DATA, LOSS OF GOODWILL, LOSS OF ANTICIPATED SAVINGS, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY STATEMENT OF WORK, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.3 Exceptions to Limitations. The limitations and exclusions set forth in Sections 12.1 and 12.2 shall not apply to, and shall not limit, either Party’s liability for: (a) indemnification obligations under Section 11 of this Agreement; (b) a breach of the confidentiality obligations set forth in Section 9 of this Agreement; (c) liability arising from a Party’s willful misconduct, gross negligence, or fraud; (d) infringement, misappropriation, or other violation of the other Party’s Intellectual Property Rights; (e) Service Provider’s breach of its obligations under Section 14 (Data Protection and Security); (f) a Party’s obligations to pay Fees or other amounts due under this Agreement; or (g) liability for personal injury or death caused by a Party’s negligence or willful misconduct.
12.4 Super Cap. Notwithstanding Section 12.1, each party’s aggregate liability for claims arising from (a) breach of confidentiality obligations under Section 9, (b) infringement or misappropriation of the other party’s Intellectual Property Rights, (c) breach of data protection obligations under Section 14, and (d) indemnification obligations under Section 11 shall not exceed [two (2) / three (3)] times the aggregate fees paid or payable by Customer to Provider during the twelve (12) month period preceding the event giving rise to such liability (the "Super Cap").
12.5 Uncapped Carve-Outs. The limitations in Sections 12.1 through 12.4 shall not apply to (a) fraud or willful misconduct, (b) Provider’s misappropriation of Customer’s Confidential Information, (c) either party’s obligations for death or bodily injury caused by negligence, or (d) Customer’s payment obligations under Section 6.
12.6 Essential Purpose. THE PARTIES ACKNOWLEDGE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT, INCLUDING THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 12, AND THAT NEITHER PARTY WOULD ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 12 SHALL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 12 ARE A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES AND ARE REASONABLE IN LIGHT OF THE RISKS ASSOCIATED WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
11.1 Termination Rights. This Agreement may be terminated at any time prior to the Closing (a) by mutual written consent of the Company and the Majority Purchasers, (b) by either the Company or the Majority Purchasers if the Closing has not occurred on or before [OUTSIDE DATE] (the "Outside Date"), provided that the right to terminate this Agreement under this clause (b) shall not be available to any party whose action or failure to act has been a principal cause of or resulted in the failure of the Closing to occur on or before such date, (c) by the Majority Purchasers if any of the conditions set forth in Section 6 shall have become incapable of fulfillment prior to the Outside Date and shall not have been waived by the Majority Purchasers, or (d) by the Company if any of the conditions set forth in Section 7 shall have become incapable of fulfillment prior to the Outside Date and shall not have been waived by the Company.
11.2 Effect of Termination. In the event of any termination of this Agreement pursuant to Section 11.1, this Agreement shall forthwith become void and there shall be no liability on the part of any party hereto to any other party hereto, except that (a) Sections 12 (Definitions), 13 (Governing Law and Dispute Resolution), 14 (Entire Agreement), 15 (Amendments and Waivers), 16 (Severability), 17 (Notices), and 18 (Expenses) shall survive any termination of this Agreement, and (b) nothing in this Section 11.2 shall relieve any party from liability for any willful or intentional breach of any representation, warranty, covenant, or agreement contained in this Agreement prior to such termination.
17.1 Indemnification by the Company. The Company shall indemnify, defend, and hold harmless the Holder and the Holder’s officers, directors, employees, agents, successors, and assigns (each, a "Holder Indemnified Party") from and against any and all losses, damages, liabilities, claims, demands, actions, causes of action, costs, and expenses (including reasonable attorneys’ fees and expenses) (collectively, "Losses") arising out of or resulting from (a) any breach by the Company of any representation, warranty, covenant, or obligation of the Company under this Warrant, (b) any fraud, willful misconduct, or gross negligence of the Company in connection with this Warrant, or (c) any third-party claim arising directly from the Company’s creation, distribution, or management of the Tokens, to the extent such claim is not caused by or attributable to the acts or omissions of any Holder Indemnified Party.
17.2 Indemnification by the Holder. The Holder shall indemnify, defend, and hold harmless the Company and its officers, directors, employees, agents, successors, and assigns (each, a "Company Indemnified Party") from and against any and all Losses arising out of or resulting from (a) any breach by the Holder of any representation, warranty, covenant, or obligation of the Holder under this Warrant, (b) any fraud, willful misconduct, or gross negligence of the Holder in connection with this Warrant, (c) any transfer of this Warrant or the Tokens by the Holder in violation of this Warrant or Applicable Law, or (d) any taxes, penalties, interest, or related costs imposed on the Company as a result of the Holder’s failure to timely pay any taxes arising from the Holder’s acquisition, holding, or disposition of this Warrant or the Tokens.
17.3 Indemnification Procedures. A Party seeking indemnification under this Article XVII (the "Indemnified Party") shall promptly notify the indemnifying Party (the "Indemnifying Party") in writing of any claim or action giving rise to a right of indemnification hereunder. The failure to provide timely notice shall not relieve the Indemnifying Party of its indemnification obligations, except to the extent that the Indemnifying Party is materially prejudiced by such failure. The Indemnifying Party shall have the right to assume the defense of any such claim or action at its own expense, with counsel reasonably satisfactory to the Indemnified Party. The Indemnified Party shall cooperate with the Indemnifying Party in the defense of any such claim or action and shall have the right to participate in the defense at its own expense.
17.4 Limitation of Liability. EXCEPT FOR CLAIMS ARISING FROM FRAUD, WILLFUL MISCONDUCT, OR BREACH OF THE CONFIDENTIALITY OR TRANSFER RESTRICTION PROVISIONS OF THIS WARRANT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUE, LOSS OF DATA, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THIS WARRANT, REGARDLESS OF THE THEORY OF LIABILITY (WHETHER CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE) AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
As used in this Agreement, the following terms shall have the following meanings:
"Affiliate" means, with respect to any specified person or entity, any other person or entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such specified person or entity, where "control" (including the terms "controlled by" and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person or entity, whether through the ownership of voting securities, by contract, or otherwise.
"Common Stock" means the Common Stock, par value $0.0001 per share, of the Company.
"Conversion Shares" means the shares of Common Stock issuable upon conversion of the Shares.
"Environmental Laws" means all applicable federal, state, local, and foreign laws (including common law), statutes, regulations, rules, codes, ordinances, orders, decrees, judgments, injunctions, or binding agreements issued, promulgated, or entered into by or with any governmental authority, relating in any way to the environment, preservation or reclamation of natural resources, the management, release, or threatened release of any hazardous substance, or to health and safety matters.
"Intellectual Property" means all (a) patents, patent applications, patent disclosures, and all related continuations, continuations-in-part, divisionals, reissues, re-examinations, substitutions, and extensions thereof, (b) trademarks, service marks, trade dress, logos, trade names, domain names, and corporate names, together with all translations, adaptations, derivations, and combinations thereof, including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith, (c) copyrightable works, copyrights, and all applications, registrations, and renewals in connection therewith, (d) mask works and all applications, registrations, and renewals in connection therewith, (e) trade secrets, know-how, inventions (whether patentable or unpatentable and whether or not reduced to practice), algorithms, software (including source code and object code), data, databases, and compilations of data, technology, processes, techniques, protocols, methods, formulae, designs, layouts, specifications, and confidential business information, and (f) all other proprietary rights.
13.1 Required Coverage. Service Provider shall, at its own expense, obtain and maintain throughout the Term and for a period of two (2) years following the termination or expiration of this Agreement, the following insurance coverage from carriers with a minimum A.M. Best rating of "A-" (Excellent) and a Financial Size Category of at least VII: (a) Commercial General Liability insurance, including products and completed operations, personal injury, and contractual liability coverage, with combined single limits of not less than Two Million Dollars ($2,000,000) per occurrence and Four Million Dollars ($4,000,000) in the aggregate; (b) Professional Liability (Errors and Omissions) insurance, with limits of not less than Two Million Dollars ($2,000,000) per claim and Four Million Dollars ($4,000,000) in the aggregate, covering wrongful acts, errors, and omissions in the performance of Services; (c) Workers’ Compensation insurance as required by the laws of each jurisdiction in which Service Provider’s Personnel perform Services, with statutory limits, and Employer’s Liability insurance with limits of not less than One Million Dollars ($1,000,000) per accident, per employee for disease, and in the aggregate for disease; and (d) Cyber Liability and Technology Errors and Omissions insurance, with limits of not less than Two Million Dollars ($2,000,000) per claim and in the aggregate, covering data breaches, unauthorized access, network security failures, and technology professional services.
13.2 Additional Requirements. All insurance policies required under this Section 13 shall: (a) be primary and non-contributory with respect to any insurance or self-insurance maintained by Client; (b) include Client and its Affiliates as additional insureds on the Commercial General Liability policy (except for Workers’ Compensation and Professional Liability policies); (c) include a waiver of subrogation in favor of Client and its Affiliates on all policies; and (d) provide that coverage shall not be cancelled, materially modified, or non-renewed without at least thirty (30) days’ prior written notice to Client (ten (10) days for non-payment of premiums). The minimum coverage amounts specified herein shall not be construed to limit Service Provider’s liability under this Agreement.
13.3 Certificates of Insurance. Service Provider shall deliver to Client certificates of insurance evidencing the coverage required under this Section 13 within ten (10) Business Days of the Effective Date and upon each renewal of such policies. Client shall have the right to request and review copies of the actual insurance policies upon reasonable notice. If Service Provider fails to obtain or maintain the required insurance coverage, Client may, upon written notice and a reasonable opportunity to cure (not less than fifteen (15) Business Days), terminate this Agreement or any affected Statement of Work for cause.
14.1 Data Handling Obligations. To the extent that Service Provider receives, accesses, processes, stores, or transmits any data or information of Client (including personal data, personally identifiable information, protected health information, or other regulated data) (collectively, "Client Data") in connection with the performance of Services, Service Provider shall: (a) process Client Data only in accordance with Client’s documented instructions and solely for the purpose of performing the Services; (b) not sell, rent, lease, or otherwise make Client Data available to any third party for such third party’s own purposes; (c) implement and maintain reasonable administrative, technical, and physical safeguards designed to protect Client Data against unauthorized access, acquisition, use, disclosure, destruction, alteration, or loss, consistent with industry best practices and no less protective than the safeguards Service Provider applies to its own confidential information of a similar nature; and (d) limit access to Client Data to those Personnel who have a need to know such data to perform the Services and who are bound by written obligations of confidentiality no less restrictive than those set forth in this Agreement.
14.2 Compliance with Data Protection Laws. Service Provider shall comply with all Applicable Law relating to the privacy, security, collection, use, processing, storage, transfer, and protection of Client Data, including without limitation the General Data Protection Regulation (EU) 2016/679 ("GDPR"), the California Consumer Privacy Act (as amended by the California Privacy Rights Act) ("CCPA"), and any other applicable federal, state, local, or foreign data protection, privacy, or security law or regulation, in each case to the extent applicable to Service Provider’s processing of Client Data. If the nature of the Services requires the execution of a separate data processing agreement, the Parties shall negotiate and execute such agreement in good faith as an addendum to the applicable Statement of Work.
18.1 Entire Agreement. This Warrant, together with the SAFE, the Schedules and Exhibits attached hereto, and any other agreements or instruments expressly referenced herein, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written, between the Parties with respect to the subject matter hereof. No Party shall be bound by or charged with any oral or written agreements, representations, warranties, statements, promises, information, arrangements, or understandings not specifically set forth or referred to in this Warrant.
18.2 Amendments. This Warrant may not be amended, modified, or supplemented except by a written instrument duly executed by both Parties. No oral amendment, modification, or waiver of any provision of this Warrant shall be effective. Any amendment to the Lockup Schedule, Token Allocation, Exercise Price, or other material economic term of this Warrant shall require the express written consent of both Parties.
18.3 Severability. If any provision of this Warrant is held to be illegal, invalid, or unenforceable under present or future Applicable Law, (a) such provision shall be fully severable, (b) this Warrant shall be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised a part hereof, (c) the remaining provisions of this Warrant shall remain in full force and effect and shall not be affected by the illegal, invalid, or unenforceable provision or by its severance from this Warrant, and (d) in lieu of such illegal, invalid, or unenforceable provision, there shall be added automatically as a part of this Warrant a legal, valid, and enforceable provision as similar in terms and economic effect to such illegal, invalid, or unenforceable provision as may be possible.
18.4 Waiver. No waiver of any provision of this Warrant shall be effective unless set forth in a written instrument signed by the Party waiving such provision. No waiver by either Party of any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence. No failure or delay by either Party in exercising any right, power, or remedy under this Warrant shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or remedy.
18.5 Counterparts and Electronic Signatures. This Warrant may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via electronic mail (including portable document format (.pdf) or any electronic signature complying with the U.S. federal ESIGN Act of 2000 or the Uniform Electronic Transactions Act) or other electronic transmission method, and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
18.6 No Third-Party Beneficiaries. Except as expressly provided in Article XVII with respect to indemnified parties, this Warrant is for the sole benefit of the Parties and their respective successors and permitted assigns, and nothing in this Warrant, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Warrant.
"Material Adverse Effect" means any event, occurrence, fact, condition, or change that is, individually or in the aggregate, materially adverse to (a) the business, results of operations, financial condition, assets, liabilities, or prospects of the Company, or (b) the ability of the Company to consummate the transactions contemplated hereby on a timely basis; provided, however, that none of the following shall be deemed to constitute, or shall be taken into account in determining whether there has been, a Material Adverse Effect: (i) changes in general economic, business, or financial market conditions, (ii) changes in the industry in which the Company operates, (iii) changes in applicable law or GAAP, (iv) the announcement or pendency of the transactions contemplated by this Agreement, or (v) any natural disaster, pandemic, act of terrorism, or armed hostilities, in each case of clauses (i) through (v), except to the extent such changes have a disproportionate effect on the Company relative to other similarly situated companies in the same industry.
"Related Agreements" means, collectively, this Agreement, the Restated Certificate, the Investors’ Rights Agreement, the Right of First Refusal and Co-Sale Agreement, the Voting Agreement, and any other agreements entered into in connection with the transactions contemplated by this Agreement.
"Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
"Shares" means the shares of Series Seed Preferred Stock issued or issuable to the Purchasers pursuant to this Agreement.
14.3 Data Breach Notification. In the event that Service Provider becomes aware of any actual or reasonably suspected unauthorized access, acquisition, use, disclosure, destruction, alteration, or loss of Client Data (a "Data Breach"), Service Provider shall: (a) notify Client in writing without undue delay, and in any event within forty-eight (48) hours of becoming aware of the Data Breach; (b) provide Client with such information as is then reasonably available regarding the nature, scope, and cause of the Data Breach, including a description of the types of data affected and the approximate number of data subjects and records involved; (c) take immediate and reasonable steps to contain, investigate, and remediate the Data Breach and to prevent any recurrence thereof; (d) cooperate fully with Client and its representatives in investigating, remediating, and responding to the Data Breach, including providing timely updates and access to relevant logs, records, and systems; (e) not issue any public statement, press release, or notification to affected individuals, regulators, or other third parties regarding the Data Breach without Client’s prior written consent, except to the extent required by Applicable Law; and (f) be solely responsible for all costs and expenses associated with the investigation, remediation, and notification related to any Data Breach caused by Service Provider’s breach of its obligations under this Agreement, including notification costs, credit monitoring services, regulatory fines, and forensic investigation expenses.
14.4 Subprocessors. Service Provider shall not engage any Subcontractor or subprocessor to process Client Data without Client’s prior written consent. If Client consents to the engagement of a subprocessor, Service Provider shall ensure that such subprocessor is bound by written data processing obligations no less restrictive than those applicable to Service Provider under this Section 14. Service Provider shall remain fully responsible for the acts, omissions, and compliance of its subprocessors.
14.5 Data Return and Deletion. Upon the termination or expiration of this Agreement or any Statement of Work, or upon Client’s written request at any time, Service Provider shall, at Client’s direction, either: (a) return to Client all Client Data in Service Provider’s possession or control, in a format reasonably requested by Client; or (b) securely delete and destroy all Client Data in Service Provider’s possession or control, using industry-standard methods for secure destruction, and certify in writing to Client that such deletion and destruction has been completed. This obligation shall be performed within thirty (30) days of the applicable event, unless a longer period is required by Applicable Law.
18.7 Further Assurances. Each Party shall, from time to time, execute and deliver, or cause to be executed and delivered, such additional instruments, documents, conveyances, or assurances, and take such further actions, as may be reasonably required to carry out the provisions of this Warrant and give effect to the transactions contemplated hereby.
18.8 Relationship of Parties. The relationship between the Company and the Holder is that of issuer and warrant holder. Nothing in this Warrant shall be construed to create a partnership, joint venture, agency, employment, fiduciary, or other relationship between the Parties. Neither Party shall have the authority to bind the other Party or to incur any obligation on behalf of the other Party.
18.9 Assignment. The Company may assign its rights and obligations under this Warrant, in whole or in part, to any successor entity in connection with a merger, consolidation, reorganization, or sale of all or substantially all of the Company’s assets, provided that the successor entity assumes all of the Company’s obligations under this Warrant in writing. The Holder may not assign this Warrant except in accordance with Article X.
18.10 Headings. The headings and subheadings of the articles and sections of this Warrant are inserted for convenience of reference only and shall not affect the meaning, interpretation, or construction of this Warrant.
18.11 Construction. The Parties have participated jointly in the negotiation and drafting of this Warrant. In the event an ambiguity or question of intent or interpretation arises, this Warrant shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provisions of this Warrant. The terms "herein," "hereof," "hereunder," and words of similar import refer to this Warrant as a whole and not to any particular provision. The term "including" means "including, without limitation." References to articles, sections, schedules, and exhibits are to the articles, sections, schedules, and exhibits of this Warrant unless otherwise specified.
13.1 Governing Law. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed by, construed under, and interpreted in accordance with the laws of the State of [STATE], without giving effect to principles of conflicts of law that would cause the application of the laws of any other jurisdiction.
13.2 Jurisdiction and Venue. Each party hereto irrevocably submits to the exclusive jurisdiction of the state and federal courts located in [STATE] for purposes of any suit, action, or other proceeding arising out of this Agreement or any transaction contemplated hereby. Each party agrees to commence any such action, suit, or proceeding either in the United States District Court for the [DISTRICT] or, if such suit, action, or other proceeding may not be brought in such court for jurisdictional reasons, in any state court of [STATE] sitting in [COUNTY]. Each party hereto further agrees that service of any process, summons, notice, or document by United States registered mail to such party’s respective address set forth in Section 17 shall be effective service of process for any action, suit, or proceeding with respect to any matters to which it has submitted to jurisdiction in this Section 13.2. Each party hereto irrevocably and unconditionally waives any objection to the laying of venue of any action, suit, or proceeding arising out of this Agreement or the transactions contemplated hereby in any such court, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit, or proceeding brought in any such court has been brought in an inconvenient forum.
13.3 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
14.1 Integration. This Agreement, together with the Related Agreements and the exhibits and schedules hereto and thereto, constitutes the full and entire understanding and agreement among the parties with respect to the subject matter hereof, and supersedes all prior negotiations, correspondence, understandings, term sheets, letters of intent, agreements, and memoranda of understanding, whether written or oral, between or among the parties with respect to the subject matter hereof.
14.2 No Reliance. No party has relied on any statement, representation, warranty, or agreement of any other party except for those expressly contained in this Agreement and the Related Agreements. Each party acknowledges and agrees that, except as expressly set forth in this Agreement and the Related Agreements, no party makes or has made any representation or warranty, whether express, implied, statutory, or otherwise, regarding the subject matter of this Agreement.
If no Token Generation Event occurs on or before the date that is [NUMBER] months after the Issuance Date (the "Outside TGE Date"), the Holder shall have the right, exercisable by written notice to the Company delivered within sixty (60) days following the Outside TGE Date (the "Conversion Election Period"), to convert this Warrant into shares of the Company’s equity securities as follows:
19.1 Conversion into Preferred Stock. If the Company has completed one or more equity financing rounds on or after the Issuance Date, the Holder may elect to convert this Warrant into shares of the same class and series of Preferred Stock issued in the Company’s most recent Qualified Equity Financing, at a conversion price equal to the lesser of (i) the price per share paid by investors in such Qualified Equity Financing multiplied by [NUMBER]% (the "Discount Rate") and (ii) the price per share implied by dividing the Valuation Cap by the Company’s fully-diluted capitalization immediately prior to such conversion (the "Cap Price").
19.2 Conversion into Common Stock. If the Company has not completed a Qualified Equity Financing on or after the Issuance Date, the Holder may elect to convert this Warrant into shares of Common Stock at a conversion price equal to the price per share implied by dividing the Valuation Cap by the Company’s fully-diluted capitalization immediately prior to such conversion.
19.3 Number of Shares. The number of shares issuable upon conversion shall equal the quotient obtained by dividing the Original Investment Amount by the applicable conversion price.
19.4 Automatic Conversion. If the Holder does not deliver a Conversion Election Notice within the Conversion Election Period, this Warrant shall automatically convert into shares of Common Stock in accordance with Section 19.2 above on the last day of the Conversion Election Period.
19.5 Definitions. "Qualified Equity Financing" means a bona fide equity financing of the Company with aggregate gross proceeds of not less than $[NUMBER]. "Valuation Cap" means $[NUMBER]. "Original Investment Amount" means the aggregate purchase price paid by the Holder for the SAFE or equity instrument in connection with which this Warrant was issued.
19.6 Mechanics. Upon conversion, the Company shall issue the applicable shares within ten (10) Business Days, and the Holder shall execute all documents reasonably requested by the Company, including any investor rights, voting, or ROFR agreements then in effect.
14A.1 Compliance. Each party represents, warrants, and covenants that it shall comply with all applicable anti-corruption and anti-bribery laws, including the U.S. Foreign Corrupt Practices Act of 1977, the U.K. Bribery Act 2010, and all other applicable local anti-corruption laws.
14A.2 Prohibited Conduct. Neither party nor its officers, directors, employees, agents, or subcontractors shall, directly or indirectly, offer, pay, promise, authorize, solicit, or accept any bribe, kickback, or other improper payment to or from any government official, political party, or any private person for the purpose of obtaining or retaining business or securing any improper advantage.
14A.3 Books and Records. Each party shall maintain accurate books and records sufficient to demonstrate compliance with this Section 14A and shall make such records available for inspection upon reasonable request.
14A.4 Notification. Each party shall promptly notify the other in writing if it becomes aware of any actual or suspected violation of this Section 14A. A material violation of this Section shall constitute a material breach entitling the non-breaching party to immediate termination.
14B.1 Each party shall comply with all applicable export control laws and regulations, including the U.S. Export Administration Regulations, International Traffic in Arms Regulations, and sanctions programs administered by the Office of Foreign Assets Control.
14B.2 Customer shall not export, re-export, or transfer any Deliverables or technical data to any country, entity, or person to which such export is restricted under applicable law without obtaining required governmental authorizations.
14B.3 Provider represents that no Services or Deliverables are subject to export restrictions that would prevent their use by Customer as contemplated by this Agreement, or if so subject, Provider shall identify such restrictions in the applicable SOW.
14C.1 Financial Audit. Customer shall have the right, upon at least thirty (30) days prior written notice and no more than once per twelve (12) month period (unless a prior audit revealed a material discrepancy), to audit Provider’s records related to fees and charges under this Agreement. Such audit shall be conducted during normal business hours by Customer or an independent third-party auditor bound by confidentiality obligations.
14C.2 Compliance Audit. Customer shall have the right to audit Provider’s compliance with its obligations under this Agreement, including data protection, security, and regulatory compliance obligations. Provider shall cooperate with such audits and provide reasonable access to facilities, personnel, and records.
14C.3 Audit Costs. Customer shall bear the costs of any audit unless such audit reveals (a) overbilling by Provider in excess of five percent (5%) of the amounts billed during the audit period, or (b) a material non-compliance with Provider’s obligations, in which case Provider shall bear the reasonable costs of such audit and promptly remedy the deficiency.
14C.4 Remediation. If an audit reveals any non-compliance, Provider shall prepare and implement a remediation plan within thirty (30) days and shall provide Customer with evidence of successful remediation.
15.1 Amendments. Any term of this Agreement may be amended, and the observance of any term of this Agreement may be waived (either generally or in a particular instance, and either retroactively or prospectively), only with the written consent of the Company and the holders of a majority of the Shares then outstanding (or issuable upon conversion of the Shares then outstanding); provided, however, that any amendment or waiver that adversely and disproportionately affects the rights or obligations of any Purchaser relative to the other Purchasers shall also require the written consent of such adversely and disproportionately affected Purchaser.
15.2 Waivers. No waiver of any breach or default hereunder shall be considered valid unless in writing and signed by the party giving such waiver, and no such waiver shall be deemed a waiver of any subsequent breach or default of the same or similar nature. The failure of any party to insist on strict performance of any provision of this Agreement or to exercise any right or remedy to which such party is entitled hereunder shall not constitute a waiver thereof, and shall not cause a diminution of the obligations under this Agreement. No waiver of any of the provisions of this Agreement shall be effective unless it is in the form of a writing signed by the party granting the waiver.
15.3 Binding Effect. Any amendment or waiver effected in accordance with this Section 15 shall be binding upon each Purchaser and each transferee of the Shares (or the Conversion Shares), each future holder of all such Shares (or the Conversion Shares), and the Company.
20.1 SAFE Cross-Reference. This Warrant is issued in connection with that certain Simple Agreement for Future Equity (the "SAFE") dated [DATE] between the Company and the Holder, pursuant to which the Holder invested the Original Investment Amount. This Warrant is a separate and independent instrument from the SAFE and shall not be deemed to modify, amend, or supersede any provision of the SAFE. The rights of the Holder under this Warrant are in addition to, and not in lieu of, the Holder’s rights under the SAFE.
20.2 No Double Counting. In no event shall the Original Investment Amount be counted more than once for purposes of calculating (i) conversion or exercise amounts under this Warrant and (ii) conversion amounts under the SAFE. The token allocation under this Warrant is independent of and in addition to any equity conversion under the SAFE.
20.3 Coordination of Conversion Events. If a Qualified Equity Financing (as defined in the SAFE) occurs and the SAFE converts into equity securities of the Company, this Warrant shall remain outstanding and exercisable in accordance with its terms, and the Holder shall be entitled to both (i) the equity securities received upon conversion of the SAFE and (ii) the Token Allocation (or equity conversion) under this Warrant.
20.4 Termination Coordination. Termination of the SAFE (other than by conversion into equity) shall not affect the validity or enforceability of this Warrant, and termination of this Warrant shall not affect the validity or enforceability of the SAFE.
16.1 Severability. If any provision of this Agreement is held to be unenforceable or invalid under any applicable law or is so held by reason of any applicable rule of law, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and the remaining provisions of this Agreement shall continue in full force and effect. Upon such determination that any term or provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the greatest extent possible.
16.2 Reformation. If any provision of this Agreement is held to be excessively broad in scope, duration, geographic area, or otherwise, the parties hereto agree that such provision shall be reformed and construed by limiting and reducing it so as to be enforceable to the maximum extent permitted by applicable law.
IN WITNESS WHEREOF, the Parties have executed this Token Warrant as of the date first written above.
COMPANY: [COMPANY NAME], a [STATE] limited liability company. By: ___________________________ Name: ___________________________ Title: ___________________________ Address: ___________________________ Email: ___________________________
HOLDER: [HOLDER NAME]. By: ___________________________ Name: ___________________________ Title (if applicable): ___________________________ Address: ___________________________ Email: ___________________________
17.1 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt), (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested), (c) on the date sent by electronic mail (with confirmation of transmission and no bounce-back or error notification) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient, or (d) on the third (3rd) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 17.1):
If to the Company: [COMPANY NAME], [ADDRESS], [CITY, STATE ZIP], Attention: Chief Executive Officer, Email: [EMAIL], with a copy (which shall not constitute notice) to: [LAW FIRM NAME], [ADDRESS], [CITY, STATE ZIP], Attention: [ATTORNEY NAME], Email: [EMAIL].
If to a Purchaser: To the address set forth opposite such Purchaser’s name on the Schedule of Purchasers.
17.2 Change of Address. Any party may change its address for purposes of this Section 17 by giving the other parties written notice of the new address in the manner set forth above.
This Schedule A sets forth the Token Allocation, Purchase Amount, Token Price, and Exercise Price applicable to the Holder’s Warrant. This Schedule A may be completed or amended by mutual written agreement of the Parties prior to the Token Generation Event.
Purchase Amount: $[AMOUNT]. Token Price: $[PRICE PER TOKEN] (to be determined in connection with the Token Generation Event). Token Allocation: [NUMBER] Tokens (calculated as the Purchase Amount divided by the Token Price, subject to adjustment as provided in Section 3.3 of the Warrant). Exercise Price: $[EXERCISE PRICE] per Token (if applicable; $0.00 for net-exercise-only warrants). Discount (if applicable): [PERCENTAGE]% discount to the Token Price applicable to the Holder.
15.1 Independent Contractor Status. The relationship between Service Provider and Client is that of independent contracting parties. Nothing in this Agreement or any Statement of Work shall be construed to create any relationship of employment, agency, partnership, joint venture, franchise, or fiduciary duty between the Parties. Service Provider shall have sole and exclusive control over the manner, method, and means by which the Services are performed, subject to Client’s right to specify the desired results and deliverables. Service Provider shall not be subject to Client’s direction or control with respect to the details of how the Services are performed, including the time, place, sequence, or manner of performance.
15.2 No Authority to Bind. Neither Party shall have any right, power, or authority to create any obligation or responsibility, express or implied, on behalf of or in the name of the other Party, or to bind the other Party in any manner whatsoever, without such other Party’s prior written consent. Neither Party shall represent to any third party that it has any such authority. Service Provider shall not hold itself out as an employee, agent, or representative of Client, and shall not make any commitments, incur any liabilities, or take any actions on behalf of Client.
15.3 No Employee Benefits. Service Provider and its Personnel shall not be entitled to any benefits provided by Client to its employees, including without limitation health insurance, retirement benefits, paid time off, disability benefits, workers’ compensation, or any other employee benefits. Service Provider shall be solely responsible for the compensation, benefits, taxes, and insurance of its Personnel. Service Provider shall be solely responsible for the withholding and payment of all federal, state, and local income taxes, self-employment taxes, social security taxes, unemployment insurance taxes, and all other taxes and contributions arising from the compensation paid to Service Provider and its Personnel.
15.4 Tax Compliance and Reporting. Service Provider acknowledges and agrees that it is responsible for all tax reporting and payment obligations related to the Fees received under this Agreement. Service Provider shall, upon Client’s request, provide Client with a completed IRS Form W-9 (or the applicable IRS form for foreign entities) and any other tax-related documentation reasonably requested by Client. Client may issue an IRS Form 1099-NEC (or the applicable IRS form) to Service Provider for Fees paid in a given tax year, to the extent required by Applicable Law.
16.1 Restriction on Solicitation. During the Term and for a period of twelve (12) months following the termination or expiration of this Agreement (the "Restricted Period"), neither Party shall, directly or indirectly, solicit, recruit, hire, engage, or attempt to solicit, recruit, hire, or engage any employee, independent contractor, or other personnel of the other Party who was involved in the performance or receipt of Services under this Agreement or any Statement of Work, or who was introduced to the soliciting Party through or in connection with this Agreement, without the prior written consent of the other Party.
16.2 Exceptions. The restrictions set forth in Section 16.1 shall not apply to: (a) general advertisements, job postings, or recruitment efforts not specifically targeted at the employees or contractors of the other Party, provided that the soliciting Party does not knowingly hire any such individual in response to such general solicitation during the Restricted Period without the other Party’s consent; (b) individuals who initiate contact with the soliciting Party on an unsolicited basis without any direct or indirect encouragement from the soliciting Party; or (c) individuals whose employment or engagement with the other Party has been terminated for at least six (6) months prior to the solicitation.
16.3 Remedies for Breach. The Parties acknowledge and agree that a breach of this Section 16 would cause irreparable harm to the non-breaching Party for which monetary damages would be inadequate. Accordingly, in addition to any other remedies available at law or in equity, the non-breaching Party shall be entitled to seek injunctive or other equitable relief to prevent or restrain any breach or threatened breach of this Section 16, without the necessity of proving actual damages or posting any bond or other security. In addition, or in the alternative, the breaching Party shall pay to the non-breaching Party, as liquidated damages and not as a penalty, an amount equal to fifty percent (50%) of the annual compensation (including base salary, bonuses, and benefits) that such solicited individual was receiving from the non-breaching Party at the time of the solicitation, which amount the Parties agree is a reasonable pre-estimate of the damages that would be suffered by the non-breaching Party as a result of such breach.
This Schedule B sets forth the Lockup Schedule applicable to Tokens delivered to the Holder upon exercise of the Warrant, as referenced in Section 6.2 of the Warrant. This Schedule B may be modified by mutual written agreement of the Parties.
Cliff Period: Twelve (12) months from the date of Token delivery, during which one hundred percent (100%) of the delivered Tokens shall be locked and non-transferable. Vesting Period: Twenty-four (24) months following the expiration of the Cliff Period, during which the Tokens shall vest and become transferable in equal monthly installments of one twenty-fourth (1/24th) of the total Token Allocation on each monthly anniversary of the end of the Cliff Period. Full Vesting Date: Thirty-six (36) months from the date of Token delivery. Acceleration Events: As set forth in Section 6.4 of the Warrant (Change of Control, dissolution/liquidation, or uncured material breach by the Company).
18.1 Expenses. Each party shall pay all costs and expenses that it incurs with respect to the negotiation, execution, delivery, and performance of this Agreement and the transactions contemplated hereby, including the fees and expenses of its own counsel, accountants, and other advisors.
18.2 Company Expenses. Notwithstanding Section 18.1, the Company shall, at the Closing, reimburse the Purchasers (or, at the direction of the Majority Purchasers, a single designee of the Majority Purchasers) for the reasonable and documented out-of-pocket legal fees and expenses incurred by the Purchasers in connection with the negotiation, preparation, execution, and delivery of this Agreement and the Related Agreements and the consummation of the transactions contemplated hereby and thereby, in an aggregate amount not to exceed $[EXPENSE CAP]. Such reimbursement shall be made by wire transfer of immediately available funds at the Closing, or by offset against the purchase price payable by the applicable Purchaser at the Closing, as directed by the Majority Purchasers.
18.3 Stamp and Transfer Taxes. All stamp, transfer, documentary, and other similar taxes, if any, arising out of or in connection with the transactions contemplated by this Agreement shall be borne and paid by the Company.
EXERCISE NOTICE. To: [COMPANY NAME]. Date: ___________________________
Reference is made to that certain Token Warrant, dated [DATE] (the "Warrant"), by and between [COMPANY NAME] (the "Company") and the undersigned (the "Holder"). Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Warrant.
The Holder hereby irrevocably elects to exercise the Warrant with respect to [ALL / ___________] of the Token Allocation, representing [NUMBER] Tokens, pursuant to Article IV of the Warrant.
Method of Exercise (check one): [ ] Cash Exercise: The Holder hereby tenders payment in the amount of $[AMOUNT], representing the aggregate Exercise Price for the Tokens being acquired. [ ] Net Exercise: The Holder hereby elects a net exercise pursuant to Section 4.4 of the Warrant.
The Holder designates the following Wallet Address for the delivery of Tokens: Wallet Address: ___________________________ Blockchain/Network: ___________________________
The Holder hereby confirms that all representations and warranties of the Holder set forth in the Warrant are true and correct as of the date hereof. The Holder acknowledges that the Tokens are subject to the Lockup Schedule and transfer restrictions set forth in the Warrant.
HOLDER: [HOLDER NAME]. By: ___________________________ Name: ___________________________ Title (if applicable): ___________________________
19.1 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Counterparts may be delivered via electronic mail (including PDF or any electronic signature complying with the United States federal ESIGN Act of 2000, the Uniform Electronic Transactions Act, or any other applicable state or federal law regarding electronic signatures) or other transmission method, and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
19.2 Electronic Signatures. The words "execution," "signed," "signature," and words of like import in or related to any document to be signed in connection with this Agreement and the transactions contemplated hereby shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity, or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the Uniform Electronic Transactions Act, and any applicable state law based thereon.
19.3 Facsimile and PDF Signatures. This Agreement and any amendments hereto, to the extent signed and delivered by means of a facsimile machine or by email delivery of a portable document format (.pdf) file, shall be treated in all manner and respects as an original agreement and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.
17.1 Definition. "Force Majeure Event" means any event or circumstance beyond the reasonable control of the affected Party that prevents or materially delays the performance of such Party’s obligations under this Agreement, including without limitation: acts of God; natural disasters (including earthquakes, floods, hurricanes, tornadoes, and volcanic eruptions); fire, explosion, or severe weather; epidemics, pandemics, or quarantine restrictions; war, armed conflict, terrorism, insurrection, riot, or civil unrest; government sanctions, embargoes, blockades, or trade restrictions; strikes, lockouts, or other labor disputes (other than those involving the affected Party’s own employees); power outages or failures of telecommunications or information technology infrastructure not caused by the affected Party; cyberattacks or cybersecurity incidents (provided the affected Party has maintained reasonable security measures); and governmental actions, orders, regulations, or restrictions that prevent or materially delay performance.
17.2 Excuse of Performance. If a Force Majeure Event occurs, the affected Party’s obligations under this Agreement (other than obligations to make payments for Services already performed) shall be suspended to the extent that performance is prevented or materially delayed by the Force Majeure Event, and the time for performance shall be extended for a period equal to the duration of the Force Majeure Event, provided that the affected Party complies with the requirements of this Section 17. A Force Majeure Event shall not excuse or delay any obligation to make payment for Services that have been satisfactorily performed and Deliverables that have been accepted prior to the occurrence of the Force Majeure Event.
17.3 Notice and Mitigation. The Party affected by a Force Majeure Event shall: (a) notify the other Party in writing as promptly as practicable (and in any event within five (5) Business Days) after becoming aware of the Force Majeure Event, including a description of the event, the obligations affected, and the estimated duration of the delay; (b) use commercially reasonable efforts to mitigate the effects of the Force Majeure Event, overcome or work around the event, and resume performance of its obligations as soon as reasonably practicable; and (c) provide periodic updates to the other Party regarding the status of the Force Majeure Event and the affected Party’s efforts to resume performance.
17.4 Termination for Extended Force Majeure. If a Force Majeure Event continues for a period of ninety (90) consecutive days (or such other period as the Parties may agree in the applicable Statement of Work), either Party may terminate the affected Statement of Work (or, if the Force Majeure Event materially affects all outstanding Statements of Work, this Agreement) upon thirty (30) days’ prior written notice to the other Party. In the event of such termination, Service Provider shall be entitled to payment for Services satisfactorily performed and Deliverables accepted through the effective date of termination, and neither Party shall have any further liability to the other Party under the affected Statement(s) of Work, except for obligations that survive termination under Section 7.5.
20.1 Binding Effect. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors, assigns, heirs, executors, and administrators of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors, assigns, heirs, executors, and administrators any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
20.2 Assignment Restrictions. No party may assign its rights or delegate its obligations under this Agreement without the prior written consent of the other parties, except that (a) the Company may assign its rights and obligations hereunder to any successor entity in connection with a merger, consolidation, sale of all or substantially all of the Company’s assets, or other reorganization in which the holders of the Company’s outstanding voting securities immediately prior to such transaction hold, directly or indirectly, securities representing more than fifty percent (50%) of the voting power of the surviving entity immediately after such transaction, and (b) each Purchaser may assign its rights (but not its obligations) hereunder to any Affiliate of such Purchaser or to any other person or entity that acquires Shares from such Purchaser, provided that such transferee agrees in writing to be bound by the terms and conditions of this Agreement. Any purported assignment in violation of this Section 20.2 shall be null and void.
18.1 Governing Law. This Agreement and all Statements of Work shall be governed by and construed in accordance with the laws of the State of [STATE], without giving effect to any choice of law or conflict of law rules or provisions that would cause the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
18.2 Dispute Resolution; Escalation. In the event of any dispute, controversy, or claim arising out of or relating to this Agreement or any Statement of Work, or the breach, termination, validity, or interpretation thereof (a "Dispute"), the Parties shall first attempt to resolve the Dispute through good-faith negotiation between the project managers or primary contacts designated under the applicable Statement of Work. If the Dispute is not resolved within fifteen (15) Business Days after written notice of the Dispute from one Party to the other, the Dispute shall be escalated to the senior executives of each Party with authority to resolve the Dispute (or their respective designees), who shall meet (in person or by teleconference) at least once and attempt in good faith to resolve the Dispute within thirty (30) Business Days after such escalation.
18.3 Mediation. If the Dispute is not resolved through executive escalation within the period specified in Section 18.2, either Party may submit the Dispute to mediation administered by the American Arbitration Association ("AAA") or JAMS (at the election of the Party initiating mediation) in accordance with such organization’s then-current mediation rules. The mediation shall be conducted in [STATE] and shall be completed within sixty (60) days of the submission to mediation, unless the Parties agree in writing to extend such period. The costs of the mediator shall be shared equally by the Parties, and each Party shall bear its own costs and expenses of the mediation.
18.4 Litigation. If the Dispute is not resolved through mediation within the period specified in Section 18.3, either Party may initiate litigation in the state or federal courts located in [STATE]. Each Party hereby irrevocably and unconditionally submits to the exclusive jurisdiction and venue of such courts for purposes of any Dispute arising out of or relating to this Agreement, and waives any objection to the laying of venue in such courts, including any objection based on inconvenient forum.
21.1 Further Assurances. Each party hereto agrees to execute and deliver, from time to time, such additional documents, instruments, conveyances, and assurances, and to take such further actions as may be reasonably required to carry out the provisions hereof and to give effect to the transactions contemplated by this Agreement and the Related Agreements.
21.2 Cooperation. The parties hereto shall cooperate with each other and their respective counsel and advisors in connection with any actions required to be taken as part of their respective obligations under this Agreement, and shall use commercially reasonable efforts to provide such information and assistance as may be reasonably requested by another party in connection therewith.
21.3 Post-Closing Covenants. Following the Closing, the Company shall (a) promptly provide each Purchaser with such information and documents regarding the Company as any Purchaser may reasonably request, subject to the Company’s reasonable confidentiality restrictions, and (b) use commercially reasonable efforts to timely file all required reports and notices with the applicable state and federal securities regulatory authorities in connection with the issuance and sale of the Shares.
22.1 Side Letter Framework. The Company may, at any time prior to, at, or following the Closing, enter into one or more side letter agreements (each, a "Side Letter") with any individual Purchaser to provide such Purchaser with rights, benefits, or accommodations that are supplemental to, or that modify, the rights and obligations of such Purchaser set forth in this Agreement or the Related Agreements, including without limitation (a) information rights beyond those provided in the Related Agreements, (b) board observer rights, (c) pro rata participation rights in future financing rounds, (d) additional protective provisions or consent rights, (e) co-investment rights for affiliated funds or co-investors of such Purchaser, (f) specific reporting requirements or frequency, and (g) any other investor-specific accommodations that do not adversely and materially affect the rights of the other Purchasers without such other Purchasers’ consent.
22.2 Effect of Side Letters. Each Side Letter shall be binding only upon the Company and the Purchaser that is a party thereto. To the extent that any provision of a Side Letter conflicts with any provision of this Agreement, the Side Letter shall control as between the Company and the applicable Purchaser, but shall not modify the rights or obligations of any other Purchaser under this Agreement or the Related Agreements. The Company shall not enter into any Side Letter that would (a) increase the obligations or reduce the rights of any non-party Purchaser under this Agreement or the Related Agreements without the written consent of such Purchaser, or (b) provide any Purchaser with economic terms (including purchase price, liquidation preference, or conversion terms) that are more favorable than those set forth in this Agreement, unless such more favorable terms are offered to all Purchasers on a pro rata basis.
22.3 Disclosure of Side Letters. The Company shall, upon the reasonable written request of any Purchaser, disclose the existence (but not the specific terms, unless required by applicable law or agreed by the applicable counterparty) of any Side Letters entered into in connection with the transactions contemplated by this Agreement. Each Purchaser receiving such disclosure shall treat such information as confidential in accordance with Section 9A of this Agreement.
22.4 Most Favored Nation. If the Company enters into any Side Letter with any Purchaser that provides such Purchaser with rights or benefits that are more favorable, in the aggregate, than the rights and benefits provided to any other Purchaser holding at least [NUMBER] shares of Series Seed Preferred Stock (a "Major Purchaser"), the Company shall promptly notify each such Major Purchaser of the availability of such more favorable rights or benefits, and each such Major Purchaser shall have the right, exercisable by written notice to the Company within thirty (30) days of receipt of such notification, to receive the benefit of such more favorable terms.
18.5 Jury Trial Waiver. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY STATEMENT OF WORK, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT: (A) NO REPRESENTATIVE OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF LITIGATION; (B) IT HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER; (C) IT MAKES THIS WAIVER VOLUNTARILY; AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS SET FORTH IN THIS SECTION 18.5.
18.6 Prevailing Party Attorneys’ Fees. In any action, proceeding, or arbitration arising out of or relating to this Agreement or any Statement of Work, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees, costs, and expenses (including expert witness fees and costs of appeal) from the non-prevailing Party, in addition to any other relief to which the prevailing Party may be entitled.
18.7 Injunctive Relief. Notwithstanding the foregoing dispute resolution procedures, either Party may seek temporary, preliminary, or permanent injunctive relief or other equitable remedies from any court of competent jurisdiction at any time to prevent irreparable harm, enforce its rights under Section 9 (Confidentiality), Section 8 (Intellectual Property Rights), or Section 16 (Non-Solicitation), or to preserve the status quo pending completion of the dispute resolution procedures set forth in this Section 18.
19.1 Notice Requirements. All notices, demands, requests, consents, approvals, and other communications required or permitted to be given under this Agreement (each, a "Notice") shall be in writing and shall be deemed to have been duly given and effective: (a) upon delivery, if delivered by personal delivery to the Party to be notified; (b) upon delivery, if sent by nationally recognized overnight courier service (such as FedEx, UPS, or DHL), with delivery charges prepaid, to the address set forth in the preamble of this Agreement or as otherwise specified in the applicable Statement of Work; (c) upon delivery and confirmation of receipt (including by read receipt, delivery confirmation, or reply acknowledging receipt), if sent by email to the email address specified in the applicable Statement of Work or as otherwise designated by the receiving Party in accordance with this Section 19; or (d) three (3) Business Days after deposit in the United States mail, certified or registered, postage prepaid, return receipt requested, to the address set forth in the preamble of this Agreement or as otherwise specified by the receiving Party in accordance with this Section 19.
19.2 Addresses for Notices. Unless otherwise specified in the applicable Statement of Work, all Notices shall be addressed to the Parties at the addresses set forth in the preamble of this Agreement, or to such other address or email address as a Party may designate by Notice to the other Party in accordance with this Section 19. A change of address or email address for Notices shall be effective only upon receipt of Notice thereof by the other Party.
19.3 Notices to Counsel. A copy of any Notice relating to a claim, dispute, breach, default, or termination under this Agreement shall also be sent to such Party’s legal counsel at the address or email address designated by such Party, provided that the failure to send such copy to counsel shall not affect the validity or effectiveness of the Notice.
This template is provided by Montague Law for informational purposes only and does not constitute legal advice. Consult a qualified attorney before using this document.
23.1 Acknowledgment of Purchaser Activities. The Company acknowledges and agrees that certain Purchasers may be strategic investors, corporate venture capital arms, or affiliates of entities that are engaged in businesses that are competitive with, or potentially competitive with, the business of the Company (each, a "Strategic Purchaser"). Nothing in this Agreement, the Related Agreements, or any other agreement between the Company and any Strategic Purchaser shall be construed to (a) limit or restrict any Strategic Purchaser or any of its Affiliates from engaging in, investing in, or providing services to any business that competes with the Company, whether directly or indirectly, (b) create any fiduciary duty or duty of loyalty on the part of any Strategic Purchaser to the Company other than the express contractual obligations set forth herein, or (c) require any Strategic Purchaser to present any investment opportunity or potential transaction to the Company before pursuing such opportunity for its own account or for the account of any of its Affiliates or portfolio companies.
23.2 No Restriction on Competition. Each Strategic Purchaser and its Affiliates shall be free to (a) engage in any business or investment activity, regardless of whether such activity competes with the Company, (b) invest in, provide financing to, or otherwise support any enterprise, including any enterprise that directly or indirectly competes with the Company, and (c) develop or acquire products, services, or technology that are competitive with the products, services, or technology of the Company. The Company hereby waives, to the fullest extent permitted by applicable law, any claim or cause of action (whether at law or in equity) against any Strategic Purchaser or its Affiliates arising out of or relating to such competitive activities.
23.3 Confidentiality Limitations for Strategic Purchasers. Notwithstanding the acknowledgments in Sections 23.1 and 23.2, each Strategic Purchaser acknowledges and agrees that the confidentiality obligations set forth in Section 9A of this Agreement remain in full force and effect, and that no confidential information received from the Company may be used by such Strategic Purchaser or its Affiliates in connection with any competitive activities. The Company may, in its reasonable discretion, limit the scope of confidential information provided to a Strategic Purchaser if the Company reasonably determines that disclosure of specific information to such Strategic Purchaser would be competitively harmful to the Company, provided that such limitation shall not affect such Strategic Purchaser’s rights to information required by law or the Related Agreements.
20.1 Entire Agreement. This Agreement, together with all Statements of Work, Change Orders, and Exhibits executed hereunder, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, discussions, representations, and warranties, whether written or oral, between the Parties with respect to such subject matter, including without limitation any term sheets, letters of intent, proposals, or other preliminary documents. Each Party acknowledges that it has not relied on any representation, warranty, or undertaking not set forth in this Agreement in entering into this Agreement.
20.2 Amendments. This Agreement may not be amended, modified, supplemented, or waived except by a written instrument duly executed by authorized representatives of both Parties. No amendment to this Agreement shall be effective unless it specifically references this Agreement and states that it is an amendment hereto. For the avoidance of doubt, Statements of Work and Change Orders are not amendments to this Agreement, but are separate documents governed by and incorporated into this Agreement.
20.3 Assignment. Neither Party may assign, transfer, delegate, or otherwise dispose of this Agreement, any Statement of Work, or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed; provided, however, that either Party may, without the other Party’s consent, assign this Agreement to: (a) an Affiliate of such Party; or (b) a successor entity in connection with a merger, acquisition, reorganization, or sale of all or substantially all of the assets of such Party’s business to which this Agreement relates, provided that the assignee assumes all of the assigning Party’s obligations under this Agreement. Any purported assignment in violation of this Section 20.3 shall be null, void, and of no force or effect. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective permitted successors and assigns.
20.4 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. The Parties shall negotiate in good faith to replace any invalid, illegal, or unenforceable provision with a valid, legal, and enforceable provision that achieves, to the greatest extent possible, the economic, business, and other purposes of the invalid, illegal, or unenforceable provision.
20.5 Waiver. No failure or delay by either Party in exercising any right, power, or remedy under this Agreement shall operate as a waiver of such right, power, or remedy, nor shall any single or partial exercise of any right, power, or remedy preclude any other or further exercise thereof or the exercise of any other right, power, or remedy. No waiver of any provision of this Agreement shall be effective unless made in writing and signed by an authorized representative of the waiving Party. A waiver of any right, power, or remedy on one occasion shall not be deemed a waiver of such right, power, or remedy on any subsequent occasion.
20.6 Counterparts and Electronic Signatures. This Agreement and each Statement of Work may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. The Parties agree that this Agreement and each Statement of Work may be executed and delivered by electronic signature (including by means of DocuSign, Adobe Sign, or similar electronic signature platforms), and that such electronic signatures shall be deemed original signatures for all purposes and shall have the same legal effect as original ink signatures. Delivery of an executed counterpart by email (in PDF or other electronic format) shall be effective as delivery of an original executed counterpart.
EXHIBIT A: SCHEDULE OF PURCHASERS
The following sets forth the name, address, and other relevant information for each Purchaser, together with the number of Shares to be purchased by such Purchaser and the aggregate purchase price therefor.
Name of Purchaser: [INVESTOR NAME]. Address: [ADDRESS]. Number of Shares of Series Seed Preferred Stock: [NUMBER OF SHARES]. Purchase Price Per Share: $[PRICE PER SHARE]. Aggregate Purchase Price: $[AGGREGATE PURCHASE PRICE].
[Additional Purchasers to be listed in the same format as above.]
Each Purchaser listed above acknowledges that the foregoing information is true, correct, and complete as of the Closing Date and agrees to promptly notify the Company of any changes thereto. The Schedule of Purchasers may be amended from time to time in connection with any Subsequent Closing to reflect additional Purchasers who execute counterpart signature pages to this Agreement.
20.7 No Third-Party Beneficiaries. This Agreement is entered into solely for the benefit of the Parties and their respective permitted successors and assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any third party any legal or equitable right, benefit, claim, or remedy of any nature whatsoever under or by reason of this Agreement, except that the Client Indemnitees and Service Provider Indemnitees are intended third-party beneficiaries of the indemnification provisions of Section 11 to the extent set forth therein.
20.8 Further Assurances. Each Party shall, at the reasonable request and expense of the other Party, execute, deliver, and file, or cause to be executed, delivered, and filed, all documents, instruments, and agreements, and shall take or cause to be taken all further actions, as may be reasonably necessary or desirable to give full effect to the terms and intent of this Agreement and each Statement of Work, including without limitation to perfect or record the assignment of Intellectual Property Rights contemplated by Section 8.
20.9 Order of Precedence. In the event of any conflict or inconsistency among the documents forming part of this Agreement, the following order of precedence shall apply (from highest to lowest priority): (a) this Agreement (the Master Services Agreement); (b) any data processing agreement or addendum executed pursuant to Section 14.2; (c) each Change Order (with later Change Orders taking precedence over earlier Change Orders relating to the same Statement of Work); (d) each Statement of Work (with later Statements of Work taking precedence over earlier Statements of Work to the extent of any conflict); and (e) any Exhibits or Schedules to this Agreement or any Statement of Work.
20.10 Headings; Interpretation. The headings and captions in this Agreement are inserted for convenience of reference only and shall not be used in the interpretation or construction of this Agreement. Unless the context otherwise requires: (a) "including" and similar terms shall be construed as "including without limitation"; (b) references to "Sections," "Exhibits," and "Schedules" are to the sections, exhibits, and schedules of this Agreement; (c) references to any statute or regulation include all amendments thereto and any successor legislation or regulations; (d) words in the singular include the plural and vice versa; (e) references to "days" mean calendar days unless otherwise specified; and (f) the terms "herein," "hereof," "hereunder," and similar terms refer to this Agreement as a whole and not to any particular section or provision.
20.11 Publicity. Neither Party shall issue any press release, public announcement, or marketing material referencing the other Party or the existence or terms of this Agreement without the prior written consent of the other Party, except as required by Applicable Law or the rules of any securities exchange on which a Party’s securities are listed, in which case the disclosing Party shall provide the other Party with reasonable prior notice and an opportunity to review and comment on the proposed disclosure.
IN WITNESS WHEREOF, the Parties have caused this Master Services Agreement to be executed by their duly authorized representatives as of the Effective Date.
[COMPANY NAME]
By: ___________________________
Name: ___________________________
Title: ___________________________
Date: ___________________________
[CLIENT NAME]
By: ___________________________
Name: ___________________________
Title: ___________________________
Date: ___________________________
This template is provided by Montague Law for informational purposes only and does not constitute legal advice. Consult a qualified attorney before using this document.
This template is provided by Montague Law for informational purposes only and does not constitute legal advice. Consult a qualified attorney before using this document.
EXHIBIT C: DISCLOSURE SCHEDULE
The following Disclosure Schedule is delivered by [COMPANY NAME] in connection with the Series Seed Preferred Stock Purchase Agreement dated as of [DATE] (the "Agreement"). Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Agreement. The inclusion of any item on this Disclosure Schedule shall not be deemed an admission that such item is material or that it would be required to be disclosed under the Agreement. The disclosure of any matter in any section of this Disclosure Schedule shall be deemed to qualify and modify the representations and warranties of the Company set forth in the corresponding section of the Agreement, and any other section of the Agreement to the extent it is reasonably apparent on the face of such disclosure that it relates to such other section.
CROSS-REFERENCING GUIDANCE: Each section of this Disclosure Schedule corresponds to the identically numbered section of the Agreement. Notwithstanding the organization of this Disclosure Schedule into sections corresponding to specific representations and warranties, any matter disclosed in any section of this Disclosure Schedule shall be deemed disclosed for purposes of all other sections of this Disclosure Schedule and the corresponding representations and warranties in the Agreement to the extent the relevance of such disclosure to such other sections or representations and warranties is reasonably apparent on the face of such disclosure. The mere listing of a document or item in this Disclosure Schedule shall not be deemed adequate to disclose an exception to a representation or warranty made in the Agreement unless this Disclosure Schedule identifies the exception with reasonable particularity and describes the relevant facts in sufficient detail to enable the Purchasers to assess the applicability and materiality of such exception. Without limiting the generality of the foregoing, the party reading this Disclosure Schedule is advised that (a) disclosures made in one section should be reviewed in the context of all other sections, (b) the headings contained in this Disclosure Schedule are for convenience of reference only and shall not affect the meaning or interpretation of any disclosure, (c) any contract, agreement, or document referenced in this Disclosure Schedule but not attached hereto shall be made available for inspection upon the reasonable request of any Purchaser, and (d) dollar amounts or thresholds referenced herein are included for disclosure purposes only and shall not be construed as establishing any standard of materiality.
Section 4.3 Disclosure (Capitalization): [Insert details regarding the Company’s capitalization, including outstanding options, warrants, convertible instruments, SAFEs, and any other rights to acquire equity securities not otherwise described in Section 4.3 of the Agreement. Include the complete capitalization table showing the Fully-Diluted Share Count calculation and Option Pool Waterfall as described in Section 4.3.1.]
Section 4.4 Disclosure (Intellectual Property): [Insert details regarding any exceptions to the Company’s intellectual property representations, including any known third-party claims, outstanding license agreements with material terms, and any intellectual property that is owned by a third party and licensed to the Company on a material basis.]
Section 4.5 Disclosure (Litigation): [Insert details regarding any pending or threatened actions, suits, claims, proceedings, or investigations against the Company, if any.]
Section 4.8 Disclosure (Material Contracts): [Insert list of all Material Contracts to which the Company is a party or by which it is bound, including a brief description of the material terms of each.]
Section 4.9 Disclosure (Tax Matters): [Insert details regarding any tax-related exceptions, including any pending or threatened audits, assessments, or proposed deficiencies.]
Section 4.12 Disclosure (Subsidiaries): [Insert details regarding any subsidiaries, affiliated entities, or equity interests owned or controlled by the Company, directly or indirectly.]
Section 4.15 Disclosure (OISP Compliance): [If applicable, insert details regarding the Company’s activities in Covered Technology Sectors and the basis for the Company’s determination that such activities do not constitute prohibited or notifiable transactions under the OISP Regulations.]
Section 4.16 Disclosure (Data Security Program Compliance): [If applicable, insert details regarding the Company’s collection, processing, storage, or transfer of bulk personal data, human genomic data, biometric identifiers, precise geolocation data, personal health data, or personal financial data, and the safeguards implemented with respect thereto.]
Each Purchaser acknowledges and agrees that the Disclosure Schedule may be supplemented or amended by the Company from time to time prior to the Closing with the prior written consent of the Majority Purchasers, which consent shall not be unreasonably withheld, conditioned, or delayed.