AND ANY APPELLATE COURT FROM ANY THEREOF, FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR WITH ANY
TRANSACTION CONTEMPLATED HEREBY OR DISCUSSED HEREIN, AND HEREBY IRREVOCABLY
WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM
THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT
SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE
VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER.
SECTION 4.3.
ENTIRE AGREEMENT.
THIS AGREEMENT CONSTITUTES THE ENTIRE
AGREEMENT OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND
SUPERSEDES ALL PRIOR AND CONTEMPORANEOUS AGREEMENTS, REPRESENTATIONS,
UNDERSTANDINGS, NEGOTIATIONS AND DISCUSSIONS BETWEEN THE PARTIES, WHETHER ORAL
OR WRITTEN.
SECTION 4.4.
MODIFICATIONS AND AMENDMENTS.
NO AMENDMENT, MODIFICATION OR
TERMINATION OF THIS AGREEMENT SHALL BE BINDING UPON THE PARTIES HERETO UNLESS
EXECUTED IN WRITING BY THE PARTIES HERETO.
SECTION 4.5.
WAIVERS AND EXTENSIONS.
ANY PARTY TO THIS AGREEMENT MAY
WAIVE ANY RIGHT, BREACH OR DEFAULT WHICH SUCH PARTY HAS THE RIGHT TO WAIVE,
PROVIDED THAT SUCH WAIVER WILL NOT BE EFFECTIVE AGAINST THE WAIVING PARTY UNLESS
IT IS IN WRITING, IS SIGNED BY SUCH PARTY, AND SPECIFICALLY REFERS TO THIS
AGREEMENT.
WAIVERS MAY BE MADE IN ADVANCE OR AFTER THE RIGHT WAIVED HAS ARISEN
OR THE BREACH OR DEFAULT WAIVED HAS OCCURRED.
ANY WAIVER MAY BE CONDITIONAL.
NO WAIVER OF ANY BREACH OF ANY AGREEMENT OR PROVISION HEREIN CONTAINED SHALL BE
DEEMED A WAIVER OF ANY PRECEDING OR SUCCEEDING BREACH THEREOF NOR OF ANY OTHER
AGREEMENT OR PROVISION HEREIN CONTAINED.
NO WAIVER OR EXTENSION OF TIME FOR
PERFORMANCE OF ANY OBLIGATIONS OR ACTS SHALL BE DEEMED A WAIVER OR EXTENSION OF
THE TIME FOR PERFORMANCE OF ANY OTHER OBLIGATIONS OR ACTS.
SECTION 4.6.
TITLES AND HEADINGS.
TITLES AND HEADINGS OF SECTIONS OF
THIS AGREEMENT ARE FOR CONVENIENCE ONLY AND SHALL NOT AFFECT THE CONSTRUCTION OF
ANY PROVISION OF THIS AGREEMENT.
SECTION 4.7.
ASSIGNMENT.
THIS AGREEMENT IS NOT TRANSFERABLE OR
ASSIGNABLE BY THE COMPANY OR BY ANY PURCHASER.
6
SECTION 4.8.
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN MULTIPLE
COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL, AND ALL OF WHICH TAKEN
TOGETHER SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT.
SECTION 4.9.
FURTHER ASSURANCES.
EACH PARTY HERETO, UPON THE REQUEST OF
ANY OTHER PARTY HERETO, SHALL DO ALL SUCH FURTHER ACTS AND EXECUTE, ACKNOWLEDGE
AND DELIVER ALL SUCH FURTHER INSTRUMENTS AND DOCUMENTS AS MAY BE NECESSARY OR
DESIRABLE TO CARRY OUT THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT,
INCLUDING, IN THE CASE OF THE COMPANY, SUCH ACTS, INSTRUMENTS AND DOCUMENTS AS
MAY BE NECESSARY OR DESIRABLE TO CONVEY AND TRANSFER TO THE PURCHASERS THE
SHARES TO BE PURCHASED BY THEM HEREUNDER.
[SIGNATURE PAGE FOLLOWS]
7
IN WITNESS WHEREOF, the parties have caused this Exchange Agreement to be
executed and delivered by their duly authorized representatives as of the date
first written above.
LOUD TECHNOLOGIES INC.,
a Washington corporation
By:
/s/ Tim O'Neil
Name: Tim O'Neil
Title: Chief Financial Officer