Monaker Group, Inc. 10-Q


 


Exhibit 10.30


 


Founding
Investment and Subscription Agreement


 


dated
January 15, 2021 (“Signing Date”)


 


by
and among


 


		1.	Investor



 


		1.1	Monaker
Group, Inc. 2893 Executive Park 

Drive, Suite 201, Weston, Florida 33331; USA






 



                                         (“Investor”)


 


		2.	Founder



 


		2.1	Jan C. Reinhart, Underrietstrasse 3, CH-8700 Küsnacht
(Zurich); 	 (“Founder”)



Switzerland


 


and


 


		3.	Company	 («Company»)



 


Reinhart
Interactive TV AG, Underrietstrasse 3


 


CH-8700
Küsnacht (Zurich); Switzerland


 


(Company,
Investor, collectively “Parties” and individually a “Party”)


 


1







     


    2 


    

Table
of Contents


 




	1.   	INJECTION
    OF FOUNDING SHARE CAPITAL	3
	1.1   	General
    undertaking	3
	1.2   	Self
    Constituting Board	4
	1.3   	Subscription	4
	1.4   	Cash
    Contribution	4
	1.5   	In-Kind
    Contribution (MKGI Shares)	5
	1.6   	Ownership
    Structure after the Founding Capital Injection	5
	2.   	Closing	5
	2.1   	Place
    and Date of Closing	5
	2.2   	Conditions
    Precedent to Closing	5
	2.3   	Closing
    Actions	5
	2.3.1   	At
    Closing, the relevant Party shall deliver the following documents concurrently (Zug um Zug), duly executed and in form and
    substance satisfactory to the Company and the Investor:	5
	2.3.2   	The
    Company shall file the Application together with all supporting documents with the competent commercial register immediately
    after receipt of the above documents.	6
	2.3.3   	Upon
    registration of the Application with the competent commercial register, the Company shall deliver to each Party a copy of
    the share register evidencing Investor as the owner of the appropriate number of Common Shares, substantially in the form
    of Appendix 2.3.4.	6
	3.   	Subsequent
    Closing	6
	3.1   	Principle	6
	3.2   	Place
    and Date of Subsequent Closings	6
	3.3   	Closing
    Actions	7
	3.3.1   	Upon
    the delivery of the documents listed in Section 2.3.1 (e) and (f), the following actions shall be performed:	7
	4.   	Representations
    and Warranties	7
	5.   	Miscellaneous	8
	6.   	Governing
    Law and Jurisdiction	11



 



     


    3 


    

Preamble


 


		A)	The
                                         Company is in founding and intends to be organized in the form of a Swiss stock corporation
                                         (Aktiengesellschaft) registered with the commercial register of the Canton of
                                         Zurich having its office at Underrietstrasse 3, CH-8700 Küsnacht (Zurich); Switzerland.



 


		B)	The
                                         Zappware N.V. with its principal address at Ilgatlaan 21, B-3500 Hasselt; Belgium represents
                                         the core business, hereafter indicated as (“Business”), and consists
                                         of the following main activities:



 


		(a)	the
                                         providing of a software-based TV and video distribution platform to telecom operators
                                         and digital content owners; and



 


		(b)	the
                                         providing of services to telecom operators and digital content owners for user interaction
                                         design as well as software development, deployment and support.



 


		C)	Firstly,
                                         upon Closing the Founder will acquire the majority of shares in “Business”
                                         on behalf of the Company, with a target to taking over 100%, provided the key people
                                         stay on board: Messrs. Ives Decraene and Patrick Vos (hereafter indicated as “Other
                                         Shareholders”). At this point, the Founder together with the Other Shareholders
                                         will hold 49% of the Company and the Investor 51%. Secondly, the Founder intends to acquire
                                         another company active in the sector of Business on behalf of the Company with the remainder
                                         of the assets of the Company. Further into the future, the Founder and the Investor agree
                                         that a continuation of this sector roll-up would be beneficial for the Company.



 


		D)	The
                                         Parties and the Other Shareholders enter into a Shareholders’ Agreement substantially
                                         in the form attached hereto as Appendix E) (“Shareholders’ Agreement”)
                                         as of the date hereof.



 


		E)	The
                                         Parties wish to determine in this Agreement their respective rights and obligations in
                                         relation to the Investor’ investment in the Company and the subscription and issuance
                                         of new Common Shares in the Company.



 


		F)	The
                                         Parties are aware that the detailed structuring of the incorporation of the company and
                                         the acquisition of the Business is still being reviewed from a tax and legal perspective
                                         and the finally determined structure might deviate from the one envisioned herein. Hence,
                                         the Parties agree that this Agreement shall be considered at least a framework agreement
                                         and that they will support any structuring that results in the same economic intentions
                                         as set forth herein.



 


		G)	For
                                         purposes of this Agreement (including the introductory paragraphs and the Appendices),
                                         capitalized terms shall have the meanings set forth in Appendix G).



 


Based
on the foregoing, the Parties agree as follows:


 


		1.	INJECTION
                                         OF FOUNDING SHARE CAPITAL



 


		1.1	General
                                         undertaking



 


Subject
to the terms and conditions of this Agreement:


 


		(a)	the
                                         Investor will provide for “Cash Contribution” equity funding to the
                                         Company in the amount of CHF 10’000’000.00 to acquire newly issued shares
                                         of the Company;



 



     


    4 


    

 





		(b)	at
                                         its own discretion, the Investor will provide either 100% of its commitment in cash or
                                         50% in cash and 50% as an “In-Kind Contribution” of its own NASDAQ-listed
                                         shares. Initially, Investor’s shares will be restricted; and



 


		(c)	upon
                                         the planned acquisition of the shares in the Business held by other minority shareholders
                                         by the Company, the Founder and the Other Shareholders will exchange their shares in
                                         the Business for 49% of the Company’s shares and the Investor will hold 51% of
                                         the shares.



 


		1.2	Self
                                         Constituting Board



 


Founder
initially shall be the sole Director of the Company. Once the acquisition of the Business by the Company has taken place, Founder,
Other Shareholders and Investor undertake to procure that each Director nominated by it will convene for the constitutional meeting
and will approve its constitution.


 


		1.3	Subscription



 


Subject
to the terms and conditions of this Agreement, Investor herewith subscribes for the such number of common shares in the Company
(“Common Shares”) at such subscription amount, that, after the acquisition of the Business including the share
swap of the Founder and the Other Shareholders, results in a 51% shareholding in the Company’s share capital.


 


The
final distribution of Common Shares in Company will be according to Preamble C and determined after the acquisition of the Business
by the Company. Appendix 2.3.4 shall be updated accordingly.


 


		1.4	Cash
                                         Contribution



 


Not
later than five “Business Days” prior to the “Closing Date” Investor shall pay its “Subscription
Amount” to the following blocked capital account of the Company (Kapitaleinzahlungssperrkonto):


 





	 	Swiss Bank:	Crédit Suisse, Zurich
	 	In favour of:	Crédit Suisse, Zurich







 


	Kontoinhaber 	############################
	 	 
	Konto-Nr.	############################
	 	 
	IBAN	############################
	 	 
	SWIFT	############################
	 	 
	Clearing-Nr 	############################
	 	 


Reference:
             Founding Capital of Reinhart Interactive
TV AG, Küsnacht (Zurich); Switzerland


 



     


    5 


    

 





		1.5	In-Kind
                                         Contribution (MKGI Shares)



 


Prior
to Closing, Investor and Company agree in a separate Contribution In-Kind Agreement (Sacheinlagevertrag) substantially
in the form attached hereto as Appendix K that Investor will transfer shares in the Investor listed on NASDAQ (ticker symbol
MKGI) in the equivalent value of CHF 5’000’000 to the Company. In order to get this investment accepted as paid-in
capital in exchange for Common Shares, an auditor will need to have certified the value of this in-kind contribution in a report
(Prüfungsbestätigung) prior to “Closing” as described in Section 2 below.


 


		1.6	Ownership
                                         Structure after the Founding Capital Injection



 


At
“Closing Date” (as described in Section 2 below), the ownership structure of the Company shall be specified
in the cap table set forth in Appendix 1.6 and updated as the various transactions unfold according to Preamble C.


 


		2.	Closing



 


		2.1	Place
                                         and Date of Closing



 


The
“Closing” shall take place on April 1, 2021 at the offices of Eversheds Sutherland Ltd., Gotthardsstrasse 26,
CH-6300 Zug, Switzerland or such other date or place as the Parties mutually agree (“Closing Date”). If Conditions
Precedent to Closing are fulfilled earlier, the Parties are free to agree on an earlier date.


 


		2.2	Conditions
                                         Precedent to Closing



 


The
Closing shall be subject to the prior fulfilment of the following condition precedent:


 


		(a)	Following
                                         the subscription of the Investor (as attached hitherto as Appendix 3.4) at Signing
                                         Date, the Company has received funding commitments in cash with regard to the Founding
                                         Share Capital of a minimum amount of CHF 5,000,000.00.



 


		2.3	Closing
                                         Actions



 


		2.3.1	At
                                         Closing, the relevant Party shall deliver the following documents concurrently (Zug
                                         um Zug), duly executed and in form and substance satisfactory to the Company and
                                         the Investor:



 


		(a)	acceptance
                                         declarations of the Directors (Wahlannahmeerklärungen);



 


		(b)	a
                                         duly signed application to the commercial register (“Application”);



 


		(c)	employment
                                         agreements with Founder, substantially in the form attached hereto as Appendix 2.3.1(d);



 



     


    6 


    

 





		(d)	bank
                                         confirmation evidencing that all cash Subscription Amounts have been paid in cash and
                                         fully credited to the Company’s blocked account specified in Section 1.5. Or, in
                                         case Investor has chosen to pay for half of his Subscription Amount with the In-Kind
                                         Contribution according to the separate Contribution In-Kind Agreement (Sacheinlagevertrag)
                                         as set forth in Appendix K, Investor will document evidence of complying with
                                         the terms agreed in the Contribution In-Kind Agreement;



 


		(e)	auditors’
                                         report (Prüfungsbestätigung) confirming the completeness and accuracy
                                         of the Founder’s founding report according to articles 635 CO and 635a CO, particularly
                                         with respect to the value of the In-Kind Contribution of the Investor’s transfer
                                         of its own NASDAQ-listed shares with the ticker symbol MKGI in case the Investor has
                                         chosen to invest half of his total Subscription Amount in the form of his own shares;



 


		(f)	notification
                                         of beneficial ownership in accordance with art. 697j CO; and



 


		(g)	minutes
                                         evidencing the Board resolutions of the constitutional board meeting.



 


		2.3.2	The
                                         Company shall file the Application together with all supporting documents with the competent
                                         commercial register immediately after receipt of the above documents.



 


		2.3.3	Upon
                                         registration of the Application with the competent commercial register, the Company shall
                                         deliver to each Party a copy of the share register evidencing Investor as the owner of
                                         the appropriate number of Common Shares, substantially in the form of Appendix 2.3.4.



 


		3.	Subsequent
                                         Closing



 


A
subsequent closing might be necessary in case the Investor decides to pay in half of his agreed Subscription Amount with his own,
NASDAQ-listed shares and the initial closing has taken place before the auditors could finalize their report (Prüfungsbestätigung)
confirming the completeness and accuracy of the Founder’s founding report, particularly with respect to the value of the
in-kind contribution of the Investor’s transfer of its own NASDAQ-listed shares with the ticker symbol MKGI.


 


		3.1	Principle



 


The
Company may issue, in a subsequent closing (“Subsequent Closing”), additional Common Shares with a value of
CHF 5’000’000.00 based on the same pre-money valuation and at an aggregate maximum subscription amount of CHF 10’000’000.00
by no later than June 1, 2021 to Investor.


 


		3.2	Place
                                         and Date of Subsequent Closings



 


The
Subsequent Closing shall take place on June 1, 2021, or at a date agreed between the Company and the Investor, however by no later
than the applicable deadline as per Section 3.1 (each a “Subsequent Closing Date”) at the offices of Eversheds
Sutherland Ltd., Zug, or such other place as the Parties mutually agree.


 



     


    7 


    

 





		3.3	Closing
                                         Actions



 


At
the Subsequent Closing, the Investor shall deliver all documents required for such Subsequent Closing, in particular a confirmation
evidence of a fully concluded Share Transfer of its own NASDAQ-listed Shares with the ticker symbol MKGI to a relevant bank depot
at Crédit Suisse, Zurich as well as a duly signed subscription from with regard to the Common Shares subscribed for by
each Founder substantially in the form attached hereto as Appendix 3.4.


 


Prior
to the Subsequent Closing, Investor and Company agree in a separate Contribution In-Kind Agreement (Sacheinlagevertrag)
substantially in the form attached hereto as Appendix K that Investor will transfer the equivalent value of CHF 5’000’000
on behalf of Company. In order to get this investment accepted as paid-in capital in exchange for Shares, an auditor will need
to have certified the value of this in-kind contribution in a report (Prüfungsbestätigung) prior to Closing.Sections
2.3.1 (c), (e) and (g), 2.3.2(b), (e) and (f), 2.3.3 and 2.3.4 shall apply mutatis mutandis.


 


		3.3.1	Upon
                                         the delivery of the documents listed in Section 2.3.1 (e) and (f), the following actions
                                         shall be performed:



 


		(a)	The
                                         Extraordinary General Meeting shall be held in the presence of a public notary, approving
                                         the necessary capital increase to execute the Subsequent Closing (“Capital Increase”);
                                         and



 


		(b)	The
                                         Board shall take the resolutions on the ascertainment and the execution of the Capital
                                         Increase (Feststellungsbeschluss) in the presence of a public notary.



 


		4.	Representations
                                         and Warranties



 


		4.1	Representations
                                         and Warranties of the Founder



 


The
Founder hereby represents and warrants to the Investor that the representations and warranties set forth in Sections 2 of Appendix
4.1 are true and accurate as of the date of this Agreement, except for those representations and warranties which are explicitly
made as of a specific date.


 


		4.2	Representations
                                         and Warranties of Investor



 


Investor
hereby represents and warrants to the Founder that the representations and warranties set forth in Appendix 4.2 are true
and accurate both as of the date of this Agreement and through to the Closing Date, except for those representations and warranties
which are explicitly made as of a specific date.


 



     


    8 


    

 





		5.	Miscellaneous



 


		5.1	Nature
                                         of Parties’ Rights and Obligations



 


Except
as specifically provided otherwise in this Agreement, the rights and obligations of the Parties hereunder shall be several (and
not joint). The Founder and the Investor may exercise and enforce its rights hereunder individually in accordance with this Agreement.


 


The
obligations of the Parties hereunder are contractual in nature and the Parties agree that they do not form, and this Agreement
shall not be deemed to constitute, a simple partnership (einfache Gesellschaft) pursuant to Art. 530 et seq. CO.


 


		5.2	Mutual
                                         Exclusivity



 


From
the date of this Agreement until the Closing or
the Termination of this Agreement in accordance with Sections 2 and 5.10, both Parties, Founder and Investor, will not (and will
not permit its respective Affiliates or any of its Affiliates’ representatives to) directly or indirectly: (a) solicit,
initiate, or encourage the submission of any proposal or offer from any Person relating to, or enter into or consummate any transaction
relating to, the founding of the Company or the acquisition of the Business or any similar transaction or alternative to the contemplated
transactions hereunder or (b) participate in any discussions or negotiations regarding, furnish any information with respect to,
assist or participate in, or facilitate in any other manner any effort or attempt by any Person to do or seek any of the foregoing,
except as may be required under the laws of Switzerland.


 


		5.3	Confidentiality



 


Except
for disclosures to regulators like the SEC, employees, advisors or the banks of each Party who are subject to a corresponding
duty of confidentiality, the terms and conditions of individual acquisitions as laid out in Preamble C, and any information exchanged
among the Parties (including their respective representatives or advisors) during the negotiation of the definitive agreements
for acquisitions of the individual companies of the sector roll-up (all such information collectively “Confidential Information”),
shall be kept strictly confidential by each Party until Investor is legally required to publish them by the SEC. The Parties shall
ensure that their employees, directors and any other representatives as well as the advisors of each Party to whom any such Confidential
Information is entrusted comply with these restrictions.


 


The
term Confidential Information shall not include any information: (1) which as of the time of its disclosure by a Party was already
lawfully in the possession of the receiving Party as evidenced by written records, or (2) which at the time of the disclosure
was in the public domain, or (3) the disclosure of which was previously explicitly authorized by the respective Party.


 



     


    9 


    

 





The
non-disclosure obligation shall not apply to any disclosure of Confidential Information required by law or regulations (in particular,
but without limitation, tax authorities or the SEC filings).


 


Finally,
it is acknowledged and agreed that the Investor will report regularly to its investors and/or any of its affiliates on all information
pertaining to the Company and the equity investment made or to be made in the Company in accordance with its legal and regulatory
reporting obligations to the authorities as a public company or to the extent required for tax or audit purposes.


 


Immediately
upon entry into this Agreement and at Closing, the Investor may issue a public announcement according to its legal and regulatory
reporting obligations to the authorities including the SEC as a public company, however, such announcement shall essentially
cover both cash and In-Kind Contributions to Company rather than individual acquisitions as set forth in Preamble C..


 


Future
announcement or press releases regarding the matters contemplated by this Agreement shall be made by the Company only in agreement
with the Investor’s Public Relations department.


 


Nothing
herein shall restrict the Company from disclosing this Agreement to a third party being interested in good faith in an acquisition
of or subscription for shares in or a financing of the Company, all based on appropriate non-disclosure and non-use agreements,
as well as disclosing Confidential Information in order to make use of the rights and to comply with the obligations under this
Agreement.


 


		5.4	Successors
                                         and Assigns; Adherence



 


This
Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective permitted successors and assigns;
provided, however, that no Party shall be entitled to assign or transfer any of the rights or obligations hereunder to
any other party except with the prior written consent of each Party.


 


Subject
to the terms and conditions set forth in this Agreement, Other Shareholders may adhere to this Agreement with the rights and obligations
of Investor and Founder by providing a written declaration of adherence. Such adherence by Other Shareholders shall be subject
to such Other Shareholders providing a duly signed copy of the Shareholders’ Agreement concurrently.


 


		5.5	Costs
                                         and Expenses, Taxes



 


Subject
to the following paragraph, it is agreed that each Party shall bear its own costs and expenses arising out of or incurred, and
any taxes imposed on it, in connection with this Agreement.


 


The
Company shall bear all Swiss issuance and stamp taxes arising out of the Financing Round and shall reimburse the Investor for
all reasonable legal fees and expenses incurred by the Investor and his advisors in connection with the transactions contemplated
by this Agreement up to a total amount not exceeding CHF 30’000.00 (excl. VAT). Equally, the Company shall reimburse the
Founder for all reasonable legal fees and expenses incurred by the Founder and his advisors in connection with the transactions
contemplated by this Agreement up to a total amount not exceeding CHF 30’000.00 (excl. VAT). Based on evidence sent to the
company within ten Business Days after Closing, such reimbursement shall be paid to the Investor and the Founder within ten Business
Days after the Subscription Amounts have been released from the blocked account and transferred to the Company’s current
account.


 



     


    10 


    

 





The
Company is obliged to declare and pay the Swiss issuance and stamp taxes within 30 days after its initial registration in the
commercial register.


 


		5.6	Notices



 


All
notices and other communications made or to be made under this Agreement shall be given in writing by email, fax or courier to
the following addresses:


 





	If to Investor:	to the address stated on
    the first page of this Agreement, attn. to Mr. William Kerby; bkerby@monakergroup.com
	 	 
	If to Founder:	to the address stated on the first page of this
    Agreement; jan@reinhart.vc
	 	 
	If to the Company:	to the address stated on the second page of
    this Agreement, attn. to the Chairman of the Board; jan@reinhart.vc
	 	 
	In each case with a copy to:	Eversheds Sutherland AG, RA Michael Mosimann;
    CH-6300 Zug; Michael.Mosimann@eversheds-sutherland.ch



 






Each
Party may change or amend the addresses given above or designate additional addresses for the purposes of this Section 7.5 by
giving the other Parties written notice of the new address in the manner set forth in this Section 7.5.


 


		5.7	Entire
                                         Agreement



 


This
Agreement constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes any agreement
or understanding that may have been concluded with respect to the subject matter hereof between any of the Parties prior to the
date of this Agreement.


 


The
Parties confirm that in addition to this Agreement, there are no side agreements relating to the subject matter hereof between
any of them.


 



     


    11 


    

 





		5.8	Severability



 


If
at any time any provision of this Agreement or any part thereof is or becomes invalid or unenforceable, then neither the validity
nor the enforceability of the remaining provisions or the remaining part of the provision shall in any way be affected or impaired
thereby. The Parties agree to replace the invalid or unenforceable provision or part thereof by a valid or enforceable provision
which shall best reflect the Parties’ original intention and shall to the extent possible achieve the same economic result.
The same applies mutatis mutandis in case of any gaps.


 


		5.9	Amendments



 


This
Agreement may be amended only in writing by an instrument signed by all Parties.


 


		5.10	Termination



 


Should
no Closing as described in Section 2 have taken place by Closing Date, the Founder has the right to Terminate this Agreement.


 


		5.11	Reverse
                                         Termination Fee



 


If
Investor fails to Close the transaction laid out in this Agreement in Sections 1 and 2 by Closing Date, particularly the binding
payment of Subscription Amount to cover Founding Share Capital, Investor agrees to pay a Reverse Termination Fee of CHF 500’000
to Founder within 30 business days.


 


		5.12	Waiver
                                         of Rights



 


No
waiver by a Party of a failure of any other Party to perform any provision of this Agreement shall operate or be construed as
a waiver in respect of any other or further failure whether of a similar or different character.


 


		6.	Governing
                                         Law and Jurisdiction



 


		6.1	Governing
                                         Law



 


This
Agreement shall in all respects be governed by and construed in accordance with substantive Swiss law.


 


		6.2	Jurisdiction



 


The
courts of Zurich (Canton of Zurich, Switzerland) shall have exclusive jurisdiction for any and all disputes arising out of or
in connection with this Agreement, the venue being Zurich 1.


 


*
* * * *


 


[Signature
page to follow]


 




     


    12 


    

IN
WITNESS WHEREOF, the Parties have signed this Agreement on the date first written above


 





	Investor	 
	 	 
	William Kerby	 
	CEO – Monaker Group, Inc.	 




  





	Founder	 
	 	 
	/s/ Jan C. Reinhart	 
	Jan C. Reinhart	 







 



     


    13 


    

 





List
of Appendices


 





	Appendix E):	Shareholders’ Agreement
	 	 
	Appendix G):	Defined Terms
	 	 
	Appendix K):	Contribution In-Kind Agreement (Sacheinlagevertrag)
	 	 
	Appendix 1.6:	Ownership Structure after Completion of Capital
    Increase (Cap Table)
	 	 
	Appendix 2.3.1(d):	Form of Employment Agreements
	 	 
	Appendix 2.3.4:	Form of Share Register
	 	 
	Appendix 3.4:	Subscription Form for Investor
	 	 
	Appendix 4.1:	Representations and Warranties of Founder
	 	 
	Appendix 4.3:	Representations and Warranties of Investor







 




     


    14 


    

 


Appendix
G)


 


Defined
Terms


 


“Agreement”
shall mean this investment and subscription agreement including all Appendixes. 


“Application”
shall have the meaning set forth in Section 2.3.1(c). 


“Articles
of Incorporation” shall mean the articles of incorporation (sometimes also referred to as “Articles of Associations”
or “Bylaws”) (Statuten) of the Company as in effect and in force as per the date of this Agreement. 


“Authorizations”
shall mean all official authorizations, orders, permissions, product registrations, certifications, certificates, approvals, notices
or consents (including all written amendments, supplements or replacements). 


“Board”
shall mean the board of directors of the Company, as appointed from time to time in accordance with the terms of this Agreement. 


“Board
Regulations” shall mean the organisational regulations (Organisationsreglement) of the Board substantially in
the form attached to the Shareholders’ Agreement and as amended from time to time. 


“Business”
shall have the meaning set forth in Preamble B). 


“Business
Day” shall mean any day other than Saturday or Sunday on which banks are open for business in Zurich. 


“Chairman”
or “Executive Chairman” shall mean the chairman of the Board (Verwaltungsratspräsident). 


“Cash
Contribution” shall have the meaning set forth in Section 1.1. 


“Claim”
shall mean any claim, legal action, proceeding, suit, litigation, prosecution, investigation, enquiry or arbitration, whether
actual or threatened, whether as claimant or as defendant, whether domestic or foreign, whether civil, criminal or administrative. 


“Closing”
shall mean the closing of the legal creation of the Company and the Founding Capital as set forth in Section 2. 


“Closing
Date” shall have the meaning set forth in Section 2.1. 


“CO”
shall mean the Swiss Code of Obligations as of March 30, 1911, as amended from time to time. 


“Common
Shares” shall mean shares (Aktien) with a nominal value of CHF 1.- each, to be fully paid-in in cash pursuant
to the terms of this Agreement. 


“Company”
shall have the meaning set forth on page 1. 


“Confidential
Information” shall have the meaning set forth in Section 5.3. 


“Contribution
In-Kind Agreement” (Sacheinlagevertrag) shall have the meaning set forth in Section 1.5. 


“Director”
shall mean a member of the Board appointed from time to time in accordance with the terms of this Agreement. 


“Founder”
shall have the meaning set forth on page 1. 


“Founding
Capital” and “Founding Share Capital” shall mean the paid in capital called Subscription Amount as
set forth in Section 1. 


“In-Kind
Contribution” shall have the meaning set forth in Section 1.1. 


“Investor”
shall have the meaning set forth on page 1. 


“Material
Adverse Change” shall mean any adverse change relating to the structure, business, financial condition, prospects, assets
and liabilities, or results of operations of or other material adverse effect on the Company that would cause, or is likely to
cause, a reasonable investor to abstain from entering into and/or consummating the transactions contemplated under this Agreement. 


“Mutual
Exclusivity” shall mean as defined in Section 5.2.


 



     


    15 


    

 





“Other
Shareholder” and “Other Shareholders” shall mean either a future employee of the company, an Executive
or a Shareholder of another company acquired by the Company in the future as set forth in Preamble C. 


“Party”
and “Parties” shall have the meaning set forth on page 1. 


“Premises”
shall mean any premises required by the Company to conduct its Business. 


“Restriction
Filing Schedule” shall have the meaning set forth in Section 2.3.1 and again in 3.3 and outlined in Appendix F. 


“Reverse
Termination Fee” shall have the meaning set forth in Section 5.11. 


“Shareholders’
Agreement” shall have the meaning set forth in Preamble E). 


“Signing
Date” shall have the meaning set forth on page 1. 


“Subscription
Amount” shall mean the total of the subscription amounts payable by the Investor for all of its Common Shares in accordance
with Section 1.4 or in connection with the Founding Authorized Capital. 


“Subsequent
Closing” shall have the meaning set forth in Section 3.1. 


“Subsequent
Closing Date” shall have the meaning set forth in Section 3.3. 


“Taxes”
shall mean all forms of taxation and statutory, governmental, state, federal, provincial, local, government or municipal charges,
duties, imposts, contributions, levies, withholdings or liabilities wherever chargeable and whether of Switzerland or any other
jurisdiction, and any penalty, fine, surcharge, interest, charges or costs relating thereto or to any account, record, form, return
or computation required to be kept, preserved, maintained or submitted to any Tax Authority, and Taxation shall have the same
meaning. 


“Termination”
shall have the meaning set forth in Section 5.10. 


“U.S.
Securities and Exchange Commission” and “SEC” is an independent agency of the United States federal
government holding the primary responsibility for enforcing federal securities laws at publicly-traded companies in the United
States.


 




     


    16 


    

Appendix
4.1


 


Representations
and Warranties of Founder


 


		1.	Insurance



 


The
Company intends to obtain adequate insurance coverage relating to the Business and for which it is customary in the Company’s
line of Business, including without limitation Directors and Officers (“D&O”), product liability, general liability,
property and workers’ compensation insurance.


 


		2.	No
                                         Brokerage or Commissions



 


No
person is entitled to receive from the Company any options, a finder’s fee, brokerage, commission or other form of remuneration
in connection with this Agreement or anything in it.


 




     


    17 


    

 


Appendix
4.3


 


Representations
and Warranties of Investor


 


		1.	Authority



 


Investor
has the unrestricted right and authority to enter into this Agreement and to perform all undertakings under or in connection with
this Agreement. This Agreement constitutes a valid, legal and binding obligation of the Investor, enforceable against the Investor
in accordance with its terms.


 


		2.	Execution
                                         and Performance



 


As
of Closing, the execution and the performance of this Agreement by the Investor have been authorized by all necessary corporate
action of the Investor and it will not:


 


		(a)	result
                                         in a breach of any provision of the constitutional documents, such as the articles of
                                         incorporation or board regulations, of the Investor; or



 


		(b)	result
                                         in a breach, or default under, any term or provision of any agreement, license or other
                                         instrument or of any order, judgment or decree of any court, governmental agency or regulatory
                                         body to which the Investor is a party or by which the Investor is bound.



 


		3.	No
                                         Consents Required



 


The
Investor does not require any notice, consent, waiver, approval or clearance by any governmental agency or regulatory body of
any nature other than mentioned in this Agreement to enter into this Agreement. There are no proceedings or investigations whatsoever
pending or threatened against the Investor that could compromise the consummation of the transactions contemplated by this Agreement.