This ESCROW AGREEMENT (the “Agreement”) is made and entered into in relation to the SWISSREALCOIN Token commitment (the "Commitment"), subject to a possible refund, through WWW.SWISSREALCOIN.IO webpage and validation of this Agreement by the respective Token investor making the Commitment by ticking off the relevant box after having downloaded/opened, read and understood this Agreement (the “Effective Date”) by and among:
1. CRYPTO REAL ESTATE LTD, a public limited company registered and existing under the laws of Switzerland, with registered address listed at c/o DD Immo Service Plus GmbH, Baarerstrasse 75, 6300 Zug, (the “Company”);
2. NIEVERGELT & PARTNER ADVOKATUR UND NOTARIAT AG, a public limited company registered and existing under the laws of Switzerland, with registered address listed at Crappun 8, 7500 St. Moritz (the “Escrow Agent”); and,
3. The respective above mentioned individual participating investor making the Commitment (the “Participant”)
(which Company, Participant and Escrow Agent shall be referred to, individually, as a “Party” and, collectively, as the “Parties”)
Capitalized terms used but not defined herein shall have the meanings set forth in the SWISSREALCOIN Token Offering – Indicative Notes Term Sheet (hereinafter, the “Terms Sheet”).
WHEREAS, through its access of the website listed at www.swissrealcoin.io (the “Website”), the Participant seeks to participate in the a Registration Phase (“Registration Phase”) for the SWISSREALCOIN (“SRC”) Initial Coin Offering (“ICO”) by transferring the Commitment, which is subject to a possible refund, for SWISSREALCOIN in order to benefit from a discounted issue price for SRC, via means of direct Fiat Currency payment and | or Bitcoin (BTC), Bitcoin Cash (BCH), Ethereum (ETH) to an account controlled and maintained by the Escrow Agent (the “Escrow Account”);
WHEREAS, the Company intends to offer and sell to the Participant SWISSREALCOIN s under the SRC ICO (the “Offering”), which will be further set forth in a subscription agreement and the Terms & Conditions of the SWISSREALCOIN s to be entered into between the Company and the Participant (collectively, the “Subscription Agreements”) at a later stage;
WHEREAS, the Registration Phase at a discounted issue price per SWISSREALCOIN is intended to commence on 20 February 2018 and will end on 20 April 2018 (UTC 23:59), (the “Registration Phase Period”) unless and until the Company will, in its sole discretion, shorten or extend the period for which the Registration Phase is open as set out in the Term Sheet, in which event the term “Expiration Date” with respect to the Registration Phase will mean the latest time and date on which the Registration Phase Period, as so shortened or extended by the Company, with prior notice to the Escrow Agent, will expire;
WHEREAS, the Company and the Participant desire to use the Escrow Agent to provide certain escrow services in connection with the moneys to be transferred to the Escrow Account in relation to the Commitment under the terms of this Agreement; and,
WHEREAS, the Company and the Participant wish to engage the Escrow Agent to act, and the Escrow Agent is willing to act, as escrow agent hereunder and, in that capacity, to hold, administer and distribute the amounts deposited with the Escrow Account hereunder relating to the Commitment in accordance with, and subject to, the terms of this Agreement.
NOW THEREFORE, in consideration of the foregoing and of the mutual covenants hereinafter set forth, the parties hereto agree as follows:
Each of the Company and the Participant does hereby appoint the Escrow Agents as its escrow agents, and the Escrow Agents do hereby accept such appointment, under the terms and conditions of this Agreement. The Escrow Agent confirms that he holds, or will hold, any necessary licenses and approvals required for such tasks prior to the acceptance of any funds to be placed in the Escrow Account, in particular that he is a member of a self-regulation organization for anti-money laundering purposes.
2. Escrow Account.
(a) Pursuant to the Commitment, the Participant shall wire Fiat (CHF or EUR) funds, or send Fiat (CHF or EUR), money orders (an “Instrument of Payment”) or BTC, BCH and ETH, to the Escrow Agent. The Company hereby authorizes the Escrow Agent to accept the funds set forth in the Instrument of Payment from the Participant (collectively, the “Escrow Deposit”). Upon receipt, the Escrow Agent shall confirm that it has an Escrow Deposit submitted to the Escrow Account relating to the Commitment. The Escrow Agent shall hold the Escrow Deposit and, subject to the terms and conditions hereof, shall forward to the Company or return to the Participant the Escrow Deposit as directed in Section 3 and 4 hereof.
(b) The Participant will be instructed by the Company to make the Participant’s Instrument of Payment payable to the order of “Nievergelt & Partner, Escrow Agent for SRC ICO,” or a recognizable variation thereof.
(c) The Escrow Agent agrees to promptly process for collection the Instrument of Payment upon deposit into the Escrow Account. The Escrow Deposit shall be held in the Escrow Account until such funds are disbursed in accordance with Section 4 hereof. Prior to disbursement of the Escrow Deposit, such funds shall not be subject to claims by creditors of the Company or the Participant itself.
(d) If the Company rejects, for whatever reason, any Escrow Deposit, the Escrow Agent shall, upon the written request of the Company, promptly issue a refund to the rejected Participant. The Company may instruct the Escrow Agent to deduct certain amounts for administrative expenses incurred by the Company and the Escrow Agent.
3. Investment of the Escrow Account.
(a) During the term of this Agreement, the Escrow Deposits shall be held in one or more non-interest-bearing Escrow Accounts with the Graubündner Kantonalbank or an Escrow Agent related cryptocurrency wallet. The acceptance of any funds by the Escrow Agent is subject to the completion of any Approved Bank Know-Your-Customer (“KYC”) and Anti-Money-Laundering (“AML”) procedures, as well as any other due diligence verification that is required by the applicable Approved Bank, the Escrow Agent, the Company and/or applicable law with respect to any of the transactions contemplated hereunder, which is conducted by the Escrow Agent or its third-party representatives. The Escrow Agent shall be entitled to retain for its own benefit, however, only at the expense of the Company, as additional compensation for its services hereunder, any other benefits which do not constitute interest to be delivered hereunder, earned in connection with the Escrow Account (e.g. reduced account charges) and that is not otherwise payable pursuant to this Agreement. However, additional charges, penalties and fees may be taken from the Participant’s Instrument of Payment if his/her Escrow Deposit is rejected and/or returned for any reason.
(b) The amounts held by the Escrow Agent pursuant to this Agreement are at the sole risk of the Company and Participant and, without limiting the generality of the foregoing, the Escrow Agent shall have no responsibility or liability, other than such arising from the Escrow Agent's gross negligence (grobe Fahrlässigkeit) or wilful misconduct (Vorsatz), for any diminution of the Escrow Amount which may result from any deposits made pursuant to this Agreement, including any losses resulting from, without limitation, bank fees or other third-party charges, a default of the Graubündner Kantonalbank or any other credit losses (whether or not resulting from such default) or other losses on any deposit required to be liquidated in order to make a payment required hereunder. The Company and the Participant acknowledge and agree that the Escrow Agent is acting reasonably and under the instructions of the Company when depositing the Escrow Amount at any bank or in any cryptocurrency wallet as advised by the Company, and the Escrow Agent is not required to make any independent inquiries as to the reasonableness or validity of the instructions contained therein.
(c) The Escrow Agent shall not invest any of the Escrow Deposit funds set forth in an Escrow Account or any earnings or interest derived therefrom in any investment other than as instructed by the Company.
4. Release from Escrow.
(a) Repayment of Escrow Deposit. A Participant may request a repayment of its Commitment at any time for any reason until 23:59 on the fifth business day following the publication of the prospectus for the offering of the SRC on the website of the Issuer (the “Cut-Off Time”). If a Participant does not request a refund of its Commitment by the Cut-Off Time, it will be deemed to have read and agreed to the final terms and conditions and other sections of the Prospectus (in particular the section on risk factors). If a Participant requests a repayment of the Commitment or should no prospectus be published within 55 days upon credit of the funds to the Escrow Account, the Escrow Agent will repay the Commitment to an account designated by the Participant.
(b) Release of the Escrow Account. Upon the lapse of the Cut-Off Time, the Escrow Agent will provide the Company and the Participant with a final electronic statement showing the remaining amount of the Escrow Deposit received and posted. Upon receipt of such statement, the Company will direct the Escrow Agent by written instructions to transfer (the “Transfer Instructions”), substantially in the form of Schedule 1, the Escrow Deposit to a third-party bank or cryptocurrency wallet or cryptocurrency exchange. With respect to any Transfer Instruction, the Escrow Agent will endeavor to transfer such amount specified in the notice as soon as reasonably practicable, and the Company and the Participant acknowledge and agree that such specified amount remains at the sole risk of the Company and the Participant prior to and after such transfer. While the Company is covering all Escrow Agent expenses, hence, there will be no deductions from the Escrow Deposit as received on the escrow account, Participant will need to account for bank fees and charges arising out of the transfer between his/her bank and the Escrow Agent’s accounts. Except as otherwise provided in this Agreement, the Escrow Agent shall rely conclusively on any Transfer Instructions issued by the Company and shall have no responsibility to determine whether the information set forth therein is valid, accurate or complete.
(c) Rejection. Participants are requested to execute the wire transfer relating to the Commitment within 7 days from the day of registration. Should this deadline be exceeded, please be aware that there is only a limited offer relating to the Commitment in order to benefit from a discounted issue price for SRC Coins and, thus, a respective risk of a rejection due to the delay, no matter whether caused by the Participant itself or any banks or credit facilities involved. If the Escrow Agent receives an Instrument of Payment from the Participant which is at this very moment, in the aggregate, greater than the maximum amount permitted (as such maximum amount is communicated by the Company to the Escrow Agent in writing), the Escrow Agent shall immediately notify the Company and the Participant of the receipt of such non-conforming Instrument of Payment by facsimile or e-mail transmission. If, at any time prior to the release of a Participant’s Escrow Deposit the Company shall deliver to the Escrow Agent a written notice to the effect that any or all of the Commitment of such Participant has been rejected (the “Rejected Commitment Amount”) by the Company, the Escrow Agent shall, promptly after receipt of such written notice, which notice shall include wire or mailing information for such Participant, return to such Participant the amount of such Rejected Commitment Amount, with due deductions for certain expenses of the Company and the Escrow Agent in accordance with the terms of this Agreement.
(d) Reporting. The Participant will maintain and deliver to the Escrow Agent, or cause to be maintained and delivered to the Escrow Agent, a written account of each transfer sent to the Escrow Account, which account shall set forth, among other things, the following information: (A) the Participant’s name, email address and wallet address (ID), and (B) the amount paid by the Participant for the Commitment. Neither the Company nor the Participant will be entitled to any funds received into the Escrow Account until such Funds are released in accordance with this Section 4. After receiving an Escrow Deposit into the Escrow Account, the Escrow Agent shall use its best efforts to notify the Company and the Participant by facsimile or email transmission of its receipt of each Escrow Deposit. The Company and the Participant shall be entitled to inquire by telephone as to the balance of the Escrow Account from time to time.
(e) Notwithstanding anything to the contrary in this Agreement, if any amount to be released at any time or under any circumstances exceeds the balance in the Escrow Account, the Escrow Agent shall release the balance in the Escrow Account and shall have no liability or responsibility to the Company for any deficiency.
(f) Any Escrow Deposits received by the Escrow Agent are subject to clearance time, and the funds represented cannot be drawn until such time as the same constitutes good and collected funds.
(g) Upon delivery of any and all remaining balance in the Escrow Account by the Escrow Agent, this Agreement shall terminate, subject to the provisions of Section 8.
5. Escrow Agent.
(a) The duties of the Escrow Agent shall be limited to those specifically and expressly provided for herein, which shall be deemed purely ministerial in nature. No other duties shall be implied. The Escrow Agent shall not be liable for knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument or document between the Company and the Participant, in connection herewith, if any, nor shall the Escrow Agent be required to determine if any person or entity has complied with any such agreements. In the event of any conflict between the terms and provisions of this Agreement and those of any other agreement between the Company and the Participant, the terms and conditions of this Agreement shall prevail. The Escrow Agent may rely upon any written notice, document, instruction or request furnished to it under the terms and conditions of this Agreement, and shall have no obligation to conduct any independent investigation as to the validity, accuracy or completeness of such written items. The Escrow Agent shall not be liable to the Company or the Participant or any beneficiary or other person for refraining from acting upon any instruction setting forth, claiming, containing, objecting to, or related to the transfer or distribution of the Escrow Account, or any portion thereof, unless such instruction shall have been delivered to the Escrow Agent in strict conformity with the terms of Section 11, below, and the Escrow Agent has been able to satisfy any applicable security procedures as may be required hereunder. The Escrow Agent shall have no duty to solicit any payments which may be due to it or to the Escrow Account, nor shall the Escrow Agent have any duty or obligation to confirm or verify compliance of any amounts deposited with the Escrow Account.
(b) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct resulted in any loss to the Company or the Participant. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents or external service providers (for illustrative purposes only, such third parties may be utilized to verify the identity of the Participant or facilitate the KYC/AML procedures). The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons. In the event that the Escrow Agent shall be uncertain or believe there is some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from the Company or the Participant hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be, subject to the repayment to the Participant if no prospectus has been published within  days upon credit of the funds to the Escrow Account, to keep safely all funds held in escrow until it: (i) shall be given a direction in writing by the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Escrow Agent, or (ii) has been serviced with an order or judgment of a court of competent jurisdiction. The Company and the Participant each agree to pursue any redress or recourse in connection with any dispute without making the Escrow Agent a party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(a) The Escrow Agent may resign and be discharged from its duties or obligations hereunder by giving thirty (30) days advance notice in writing of such resignation to the Company and the Participant specifying a date when such resignation shall take effect. If the Company has failed to appoint a successor escrow agent prior to the expiration of such thirty (30) days, the Escrow Agent may petition any court of competent jurisdiction for the appointment of a successor escrow agent or for other appropriate relief, and any such resulting appointment shall be binding upon all of the Parties. The Escrow Agent’s sole responsibility after such thirty- (30) day notice period expires shall be to hold the Escrow Deposit in the Escrow Account (without any obligation to reinvest the same) and to deliver the same to a designated substitute escrow agent, if any, in accordance with the directions of an order or judgment of a court of competent jurisdiction. Following such delivery, the obligations of the Escrow Agent hereunder shall cease and terminate, subject to the provisions of Section 8, below. In accordance with Section 8, but subject to the last sentence of Section 7, below, the Escrow Agent shall have the right to withhold an amount equal to any amount due and owing to the Escrow Agent, plus any costs and expenses the Escrow Agent shall reasonably believe may have already been incurred by the Escrow Agent in connection with the termination of the Agreement.
(b) The Escrow Agent may assign any of its rights and obligations under this Agreement to a successor-in-interest without the consent of the other Parties.
7. Compensation and Reimbursement.
Subject to the provisions of Section 8, the Company agrees to: (a) pay the Escrow Agent all reasonable compensation for the services to be rendered hereunder as described in Schedule 3, attached hereto; and (b) pay or reimburse the Escrow Agent upon request for all expenses, disbursements and advances incurred by the Escrow Agent in performing its services as well as any other actions taken in conformity with this Agreement (including, without limitation, reasonable attorney’s fees and expenses incurred or made by it in connection with the performance, modification and termination of this Agreement). The Escrow Agent shall have no lien on, nor right to deduct or withhold from, the Escrow Account, or proceeds thereof, for any sums owed to it under this Agreement, other than as set forth in Section 8 below.
(a) Subject to Section 8(c) below, each of the Escrow Agent or the Participant agree to be held separately liable for any losses, damages, claims, liabilities, penalties, judgments, settlements, actions, suits, proceedings, litigations, investigations, costs or expenses actually incurred by one or more of the other Parties (including without limitation, the fees and expenses of outside counsel and experts and their staffs and all expenses of document location, duplication and shipment)(collectively “Losses”), but only to the extent such Losses are determined by a court of competent jurisdiction to be a result of either of the Escrow Agent’s or Participant’s gross negligence or willful misconduct.
(b) The Company shall indemnify and hold the Escrow Agent harmless from and against, and the Escrow Agent shall not be responsible for, any and all Losses arising out of or attributable to the Escrow Agent’s duties under this Agreement or the Escrow Agent’s appointment, including the reasonable costs and expenses of defending itself against any Losses or enforcing this Agreement, except to the extent of liability set forth in Section 8(a) above.
(c) Without limiting the Company’s indemnification obligations in Section 8(b), above, neither the Company, the Participant, nor the Escrow Agent shall be liable for any incidental, indirect, special or consequential damages of any nature whatsoever, including, but not limited to, loss of anticipated profits, occasioned by a breach of any provision of this Agreement even if apprised of the possibility of such damages.
(d) This Section 8 shall survive termination of this Agreement or the resignation, replacement or removal of the Escrow Agent for any reason.
9. Tax Reporting.
If applicable, the Company agrees to instruct the Escrow Agent in writing with respect to the Escrow Agent’s responsibility for withholding and other taxes, assessments or other governmental charges, and to instruct the Escrow Agent with respect to any certifications and governmental reporting that may be required under any laws or regulations that may be applicable in connection with its acting as the Escrow Agent under this Agreement.
All communications hereunder shall be in writing and, except for communications from the Company setting forth, claiming, containing, objecting to, or in any way related to the transfer or distribution of funds into the Escrow Account, including but not limited to funds transfer instructions (all of which shall be specifically governed by Section 11, below), shall be deemed to be duly given after it has been received and the receiving party has had a reasonable time to act upon such communication if it is sent or served:
(a) by e-mail, received receipt requested; or
(b) by internationally-recognized courier,
to the appropriate notice address set forth below or at such other address as any party hereto may have furnished to the other parties in writing.
If to the Company: Crypto Real Estate AG, Baarerstrasse 75, 6300 Zug
If to the Participant: As per the indicated e-mail address
If to the Escrow Agent: Nievergelt & Partner, Advokatur und Notariat AG, Crappun 8, 7503 Samedan,
Notwithstanding the above, in the case of communications delivered to the Escrow Agent, such communications shall be deemed to have been given on the date received by an officer of the Escrow Agent or any employee of the Escrow Agent who reports directly to any such officer at the above-referenced office. In the event that the Escrow Agent, in its sole discretion, shall determine that an emergency exists, the Escrow Agent may use such other means of communication as the Escrow Agent deems appropriate.
11. Security Procedures.
(a) Notwithstanding anything to the contrary as set forth in Section 10, any instructions setting forth, claiming, containing, objecting to, or in any way related to the transfer or distribution of funds, including but not limited to, the Transfer Instructions set forth in Section 4, above, may be given to the Escrow Agent only by confirmed email. No instruction for or related to the transfer or distribution of the Escrow Deposit, or any portion thereof, shall be deemed delivered and effective unless the Escrow Agent actually shall have received such instruction by email as provided to the Company by the Escrow Agent in accordance with Section 10 and as further evidenced by a confirmed transmittal to above stated address.
(b) In the event Transfer Instructions are received by the Escrow Agent by email, the Escrow Agent is authorized to seek confirmation of such instructions by telephone call-back to the person or persons designated on Schedule 2, hereto, and the Escrow Agent may rely upon the confirmation of anyone purporting to be the person or persons so designated. The persons and telephone numbers for call-backs may be changed only in a writing actually received and acknowledged by the Escrow Agent. If the Escrow Agent is unable to contact any of the authorized representatives identified in Schedule 2, the Escrow Agent is hereby authorized both to receive written instructions from and seek confirmation of such instructions by telephone call-back to any one or more of the Company’s executive officers (the “Executive Officers”), as the case may be. Such Executive Officer shall deliver to the Escrow Agent a fully executed incumbency certificate, and the Escrow Agent may rely upon the confirmation of anyone purporting to be any such officer.
(c) The Company acknowledges that the security procedures set forth in this Section 11 are commercially reasonable.
12. Compliance with Court Orders.
In the event that any Escrow Deposit shall be attached, garnished or levied upon by any court order, or the delivery thereof shall be stayed or enjoined by an order of a court, or any order, judgment or decree shall be made or entered by any court order affecting the property deposited under this Agreement, the Escrow Agent is hereby expressly authorized, in its sole discretion, to obey and comply with all writs, orders or decrees so entered or issued, which it is advised by legal counsel of its own choosing is binding upon it, whether with or without jurisdiction, and in the event that the Escrow Agent obeys or complies with any such writ, order or decree, the Escrow Agent shall not be liable to any of the other Parties hereto or to any other person, entity, firm or corporation, by reason of such compliance notwithstanding that such writ, order or decree be subsequently reversed, modified, annulled, set aside or vacated.
This Agreement sets forth the entire agreement and understanding of the Parties related to the subject matter hereof.
The provisions of this Agreement may be waived, altered, amended or supplemented, in whole or in part, only by a writing signed by the Escrow Agent, the Participant and the Company. Except as specifically set forth in Section 6(b), above, neither this Agreement nor any right or interest hereunder may be assigned in whole or in part by a Party without the consent of the other Parties.
This Agreement shall be solely governed by and construed under the laws of Switzerland
Words used in the singular number may include the plural and the plural may include the singular.
Any dispute, controversy or claim arising out of, or in relation to, this agreement, including the validity, invalidity, breach, or termination thereof, shall be resolved by arbitration in accordance with the Swiss Rules of International Arbitration of the Swiss Chambers' Arbitration Institution in force on the date on which the Notice of Arbitration is submitted in accordance with these Rules.
The number of arbitrators shall be three.
The seat of the arbitration shall be Zug.
The arbitral proceedings shall be conducted in English.
The Company, the Participant and the Escrow Agent further hereby waive any right to a trial by jury with respect to any lawsuit or judicial proceeding arising or relating to this Agreement. No party to this Agreement is liable to any other party for losses due to, or if it is unable to perform its obligations under the terms of this Agreement because of, acts of God, fire, war, terrorism, floods, strikes, electrical outages, equipment or transmission failure, or other causes reasonably beyond its control. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
While there are duly signed originals of this Agreement in place (a copy of the same may be obtained by the Participant on request), the respective Parties to this Agreement waiving further written signature requirements, unless explicitly requested so by either Party. While the Company and Escrow Agent agree to feel bound by their initial signatures, which shall be deemed valid throughout each single case as long as a copy of the Agreement has been uploaded to the Website of the Company and this Agreement has not been terminated, they accept confirmation of reading and acceptance of the Agreement by the respective Participant by ticking the relevant box on the Website after the Participant had been provided with the opportunity to download, open and read the Agreement, and such ticking by the Participant of the respective box shall be deemed to be the valid equivalent of the original signature of such Participant whose signature it reproduces, and shall be binding upon such Participant the same way it is binding towards the other Parties.
If any provision of this Agreement is determined to be prohibited or unenforceable by reason of any applicable law of a jurisdiction, then such provision shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions thereof, and any such prohibition or unenforceability in such jurisdiction shall not invalidate or render unenforceable such provisions in any other jurisdiction.
A person who is not a party to this Agreement shall have no right to enforce any rights, privileges or other items of this Agreement.
The Company represents warrants and covenants that each document, notice, instruction or request provided by the Company to the Escrow Agent shall comply with applicable laws and regulations, and shall be true, accurate and complete in all respects.
Except as expressly provided in Section 8 above, nothing in this Agreement, whether express or implied, shall be construed to give to any person or entity other than the Parties hereto any legal or equitable right, remedy, interest or claim under or in respect of this Agreement. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original.
IN WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement as of the date set forth above and/or the date this Agreement has been read and agreed by each of the Parties hereto, including the Participant.