obligations and liabilities whatsoever, in such amounts; and that the waivers set forth herein, include a waiver of any claims of Target and Counterparty to such amounts.
3.In consideration of the terms of this Agreement and other valuable consideration, each of (a) Counterparty and Target, jointly and severally, and (b) Seller, individually, on behalf of itself and its respective present and former agents (including attorneys), representatives, family members, predecessors, successors, assigns, heirs, distributees, executors, administrators, estates, trusts, beneficiaries (as applicable) and all other persons or entities acting by, through, or in concert with it, or acting at its direction or on its behalf, hereby knowingly, voluntarily, and expressly releases, remits, acquits, waives, holds harmless, and forever discharges Seller (in the case of Target and Counterparty) and Target and Counterparty (in the case of Seller) and all of the respective current and former representatives, entities, affiliates, agents (including attorneys), heirs, administrators, executors, trustees, beneficiaries, successors and assigns (as applicable), from any and all causes of action, suits, liens, orders, debts, accounts, covenants, agreements, contracts, promises, controversies, damages, liabilities, obligations, payments, judgments, costs, charges, penalties, forfeitures, expenses, attorneys’ fees, claims, demands, disputes, objections, and challenges of whatever kind or nature, at law or in equity, in tort or in contract, by statute, pursuant to case law or otherwise, whether now known or unknown, foreseen or unforeseen, vested or contingent, suspected or unsuspected, and which have existed or may have existed, which do exist or may in the future exist, including, but not limited to, those claims arising out of or relating to the Forward Purchase Agreement, from the beginning of the world to the date of this Agreement.
4.Reference is made to the Subscription Agreement (the “Subscription Agreement”) dated June 29, 2023 by and among Counterparty and Seller. The parties hereto hereby agree that Seller’s securities shall be deemed to be “Subscribed Shares” pursuant to the terms of the Subscription Agreement and that Counterparty shall use reasonable best efforts to file a Registration Statement (as defined in the Subscription Agreement), or shall amend an existing Registration Statement, to register the resale of all unregistered Subscribed Shares within forty-five (45) days of the date hereof. Counterparty agrees that it shall ensure that no registration statement other than the Registration Statement containing Seller’s securities may go effective prior to such Registration Statement, other than registration statements on Form S-8, and that it shall use its reasonable best effort efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof, but in any event no later than ninety (90) calendar days after the date of this Agreement (the “Effectiveness Deadline”); provided, that the Effectiveness Deadline shall be extended to one hundred twenty (120) calendar days after the date of this Agreement if the Registration Statement is reviewed by, and comments thereto are provided from, the Securities and Exchange Commission. Notwithstanding the foregoing, in the event the Registration Statement is not declared effective by May 1, 2024 (the “Damages Deadline”), the Seller shall be entitled to liquidated damages in the amount of (i) $25,000.00 for each day after the Damages Deadline that the Registration Statement has not been declared effective through (and including) May 15, 2024 and (ii) $75,000.00 for each day after May 15, 2024 that the Registration Statement has not been declared effective (collectively, the “Liquidated Damages”). The Liquidated Damages shall not exceed $1,500,000.00.
5.Each party hereto hereby represents and warrants that the execution of this Agreement has been duly authorized by all necessary corporate action on its part and that the officer or other agent executing this Agreement on its behalf has the authority to execute the same and to bind it to the terms and conditions of this Agreement.
6.Counterparty and its subsidiaries have not taken any steps to seek protection pursuant to any bankruptcy law nor does Counterparty have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. Counterparty and its subsidiaries will not be Insolvent (as defined below) after giving effect to the transactions contemplated hereby. For purposes of this Section 6, “Insolvent” means that as of the date hereof (i) the present fair saleable value of Counterparty’s assets is less than the amount required to pay Counterparty’s total indebtedness or (ii) Counterparty is unable to pay its debts and 