Common Stock Purchase Agreement dated May 28, 2021
EXHIBIT 10.1
Common Stock Purchase Agreement dated May 28, 2021
This
Common Stock Purchase Agreement is entered into effective as of
this 28th
day of May, 2021 (this “Agreement”), by and
between TPT Global Tech, Inc., a Florida corporation (the
“Company”), and AN
INSITUTIONAL INVESTOR, a Nevada limited liability company (the
“Investor”).
WHEREAS, the parties desire that, upon
the terms and subject to the conditions contained herein, the
Investor shall purchase, from time to time, as provided herein, and
the Company shall issue and sell up to Five Million Dollars
($5,000,000) of the Company’s Common Stock (as defined
below).
NOW, THEREFORE, the parties hereto agree
as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section
1.1. DEFINED TERMS.
As used in this Agreement, the following terms shall have the
following meanings specified or indicated (such meanings to be
equally applicable to both the singular and plural forms of the
terms defined):
“Agreement” shall have the
meaning specified in the preamble hereof.
“Average Daily Trading
Volume” shall mean the median daily trading volume of
the Company’s Common Stock over the most recent five (5)
Business Days prior to the respective Purchase Date, as reported by
Bloomberg.
“Bankruptcy Law” means
Title 11, U.S. Code, or any similar federal or state law for the
relief of debtors.
“Beneficial Ownership
Limitation” shall have the meaning specified in
Section
7.2(h).
“Business Day” shall mean
a day on which the Principal Market shall be open for
business.
“Claim Notice” shall have
the meaning specified in Section 9.3(a).
1
“Clearing Costs” shall
mean $3,000 to cover the Investor’s broker and Transfer Agent
costs with respect to each deposit of the Purchase Notice
Shares.
“Closing” shall mean the
closing of a purchase and sale of shares of Common Stock pursuant
to Section 2.2.
“Closing
Date” shall have the
meaning specified in Section
2.2(b).
“Commitment Amount” shall
mean Five Million Dollars ($5,000,000).
“Commitment Period” shall
mean the period commencing on the Execution Date and ending on the
earlier of (i) the date on which the Investor shall have purchased
a number of Purchase Notice Shares pursuant to this Agreement equal
to the Commitment Amount or (ii) December 31, 2021.
“Common Stock” shall mean
the Company’s common stock, $0.001 par value per share, and
any shares of any other class of common stock whether now or
hereafter authorized, having the right to participate in the
distribution of dividends (as and when declared) and assets (upon
liquidation of the Company).
“Common Stock Equivalents”
means any securities of the Company entitling the holder thereof to
acquire at any time Common Stock, including, without limitation,
any debt, preferred stock, right, option, warrant or other
instrument that is at any time convertible into or exercisable or
exchangeable for, or otherwise entitles the holder thereof to
receive, Common Stock.
“Company” shall have the
meaning specified in the preamble to this Agreement.
“Custodian” means any
receiver, trustee, assignee, liquidator or similar official under
any Bankruptcy Law.
“Current Report” has the
meaning set forth in Section 6.2.
“Damages” shall mean any
loss, claim, damage, liability, cost and expense (including,
without limitation, reasonable attorneys’ fees and
disbursements and costs and expenses of expert witnesses and
investigation).
“Disclosure Schedules”
means the Disclosure Schedules of the Company delivered
concurrently herewith.
“DTC” shall mean The
Depository Trust Company, or any successor performing substantially
the same function for the Company.
“DTC/FAST Program” shall
mean the DTC’s Fast Automated Securities Transfer
Program.
“DWAC” shall mean Deposit
Withdrawal at Custodian as defined by the DTC.
2
“DWAC Eligible” shall mean
that (a) the Common Stock is eligible at DTC for full services
pursuant to DTC’s Operational Arrangements, including,
without limitation, transfer through DTC’s DWAC system, (b)
the Company has been approved (without revocation) by the
DTC’s underwriting department, (c) the Transfer Agent is
approved as an agent in the DTC/FAST Program, (d) the Purchase
Notice Shares are otherwise eligible for delivery via DWAC, and (e)
the Transfer Agent does not have a policy prohibiting or limiting
delivery of the Purchase Notice Shares, as applicable, via
DWAC.
“DWAC Shares” means shares
of Common Stock that are (i) issued in electronic form, (ii) freely
tradable and transferable and without restriction on resale and
(iii) timely credited by the Company to the Investor’s or its
designee’s specified DWAC account with DTC under the DTC/FAST
Program, or any similar program hereafter adopted by DTC performing
substantially the same function.
“Exchange Act” shall mean
the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
“Execution Date” shall
mean the date of this Agreement.
“Fixed Purchase” shall
mean a purchase and sale of Common Stock whereby the Company and
Investor agree in writing to a negotiated purchase of Common Stock
as outlined in Exhibit B; provided that Company has submitted at
least one Purchase Notice.
“Indemnified Party” shall
have the meaning specified in Section 9.2.
“Indemnifying Party” shall
have the meaning specified in Section 9.2.
“Indemnity Notice” shall
have the meaning specified in Section 9.3(b).
“Investment Amount” shall
mean the Purchase Notice Amount less Clearing Costs.
“Investment Limit” shall
mean $1,000,000 initially, subject to increase at the sole
discretion of the Investor.
“Investor” shall have the
meaning specified in the preamble to this Agreement.
“Lien” means a lien,
charge, pledge, security interest, encumbrance, right of first
refusal, preemptive right or other restriction.
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“Material Adverse Effect”
shall mean any effect on the business, operations, properties, or
financial condition of the Company that is material and adverse to
the Company and/or any condition, circumstance, or situation that
would prohibit or otherwise materially interfere with the ability
of the Company to enter into and perform its obligations under any
Transaction Document.
“Person” shall mean an
individual, a corporation, a partnership, an association, a trust
or other entity or organization, including a government or
political subdivision or an agency or instrumentality
thereof.
“Principal Market” shall
mean any of the national exchanges (i.e. NYSE, AMEX, Nasdaq), or
principal quotation systems (i.e. OTCQX, OTCQB, OTC Pink, the OTC
Bulletin Board), or other principal exchange or recognized
quotation system which is at the time the principal trading
platform or market for the Common Stock.
“Purchase Amount” means a
dollar amount equal to the closing price of the Common Stock on the
Purchase Date multiplied by the number of shares listed in the
respective Purchase Notice, not to exceed the Investment
Limit.
“Purchase Date”
shall have the meaning specified
in Section
2.2(a).
“Purchase Notice” shall
mean a written notice from Company, substantially in the form of
Exhibit A hereto,
to the Investor setting forth the Purchase Notice Shares which the
Company requires the Investor to purchase pursuant to the terms of
this Agreement.
“Purchase Notice Amount”
shall mean the Purchase Notice Shares referenced in the Purchase
Notice multiplied by the Purchase Price.
“Purchase Notice Date”
shall mean the Business Day on which the Investor receives the DWAC
Shares set forth in the Purchase Notice in its brokerage
account.
“Purchase Notice Limit”
shall mean the maximum amount of Purchase Notice Shares the Company
may request the Investor to purchase per each Purchase Notice shall
be the lesser of: (i) 200% of the Average Daily Trading Volume or
(ii) the Investment Limit divided by the highest closing price of
the Common Stock over the most recent five (5) Business Days
including the respective Purchase Date. Notwithstanding the
forgoing, the Investor may waive the Purchase Notice Limit at any
time to allow the Investor to purchase additional shares under a
Purchase Notice.
“Purchase Notice Shares”
shall mean all shares of Common Stock that the Company shall be
entitled to issue as set forth in all Purchase Notices in
accordance with the terms and conditions of this
Agreement.
“Purchase Price” shall
mean 85% of the lowest daily VWAP of the Common Stock during the
Valuation Period.
4
“Registration Rights
Agreement” means the registration rights agreement to
be entered into by and among the Company and the Investor, in the
form set forth in Exhibit
C.
“Registration Statement”
shall have the meaning specified in Section 6.2.
“Regulation D” shall mean
Regulation D promulgated under the Securities Act.
“Restricted Shares”
shall have the meaning set forth in Section 2.3.
“Rule 144” shall mean Rule
144 under the Securities Act or any similar provision then in force
under the Securities Act.
“SEC” shall mean the
United States Securities and Exchange Commission.
“SEC Documents” shall have
the meaning specified in Section 4.5.
“Securities” mean the
Purchase Notice Shares to be issued to the Investor pursuant to the
terms of this Agreement.
“Securities Act” shall
mean the Securities Act of 1933, as amended.
“Subsidiary” means any
Person the Company wholly-owns or controls, or in which the
Company, directly or indirectly, owns a majority of the voting
stock or similar voting interest, in each case that would be
disclosable pursuant to Item 601(b)(21) of Regulation S-K
promulgated under the Securities Act.
“Transaction Documents”
shall mean this Agreement, the Registration Rights Agreement and
all schedules and exhibits hereto and thereto.
“Transfer Agent” shall
mean the current transfer agent of the Company, and any successor
transfer agent of the Company.
“Valuation Period” shall
mean the five (5) Business days prior to the Closing
Date.
5
“VWAP” means, for any
security as of any date, the dollar volume-weighted average price
for such security on the Principal Market (or, if the Principal
Market is not the principal trading market for such security, then
on the principal securities exchange or securities market on which
such security is then traded), during the period beginning at 9:30
a.m., New York time, and ending at 4:00 p.m., New York time, as
reported by Bloomberg through its “VAP” function (set
to 09:30 start time and 16:00 end time) or, if the foregoing does
not apply, the dollar volume-weighted average price of such
security in the over-the-counter market on the electronic bulletin
board for such security during the period beginning at 9:30 a.m.,
New York time, and ending at 4:00 p.m., New York time, as reported
by Bloomberg, or, if no dollar volume-weighted average price is
reported for such security by Bloomberg for such hours, the average
of the highest closing bid price and the lowest closing ask price
of any of the market makers for such security as reported in the
“pink sheets” by OTC Markets Group Inc. (formerly Pink
Sheets LLC). If the VWAP cannot be calculated for such security on
such date on any of the foregoing bases, the VWAP of such security
on such date shall be the fair market value as mutually determined
by the Company and the Investor. If the Company and the Investor
are unable to agree upon the fair market value of such security,
then such dispute shall be resolved in accordance with the
procedures in Section 10.16. All such determinations shall be
appropriately adjusted for any share dividend, share split, share
combination, recapitalization or other similar transaction during
such period.
ARTICLE II
PURCHASE AND SALE OF COMMON STOCK
Section
2.1 PURCHASE NOTICES. Upon the
terms and conditions set forth herein (including, without
limitation, the provisions of Article VII), the Company shall have
the right, but not the obligation, to direct the Investor, by its
delivery to the Investor of a Purchase Notice from time to time, to
purchase Purchase Notice Shares provided that the amount of
Purchase Notice Shares shall not exceed the Purchase Notice Limit
or the Beneficial Ownership Limitation set forth in Section 7.2(h).
The Company may not deliver a subsequent Purchase Notice until the
Closing of an active Purchase Notice, unless waived by Investor in
writing. Notwithstanding the forgoing, the Company may not submit a
Purchase Notice to the Investor if the Purchase Amount is less than
$30,000. In addition, the Company and the Investor may negotiate a
Fixed Purchase and in such case, the Company shall deliver the
Fixed Purchase Notice to the Investor, to direct the Investor to
purchase certain number of Purchase Notice Shares at a price as
agreed to by the parties.
Section
2.2
MECHANICS.
(a) PURCHASE NOTICE. At any time
and from time to time during the Commitment Period, except as
provided in this Agreement, the Company may deliver a Purchase
Notice to Investor, subject to satisfaction of the conditions set
forth in Section 7.2 and otherwise provided herein. The Company
shall deliver the Purchase Notice Shares as DWAC Shares to the
Investor alongside delivery of the Purchase Notice. A Purchase
Notice shall be deemed delivered on (i) the Business Day it is
received by email by the Investor if such notice is received on or
prior to 4:00 p.m. New York time or (ii) the next Business Day if
it is received by email after 4:00 p.m. New York time on a Business
Day or at any time on a day which is not a Business Day (the
“Purchase Date”).
(b) CLOSING. The Closing of a
Purchase Notice shall occur five (5) Business Day after the
Purchase Notice Date (the “Closing Date”); whereby the
Investor shall deliver to the Company, by 5:00 p.m. New York time
the applicable Investment Amount by
wire transfer of immediately available funds to an account
designated by the Company.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF INVESTOR
The
Investor represents and warrants to the Company that:
Section
3.1 INTENT. The Investor is
entering into this Agreement for its own account and the Investor
has no present arrangement (whether or not legally binding) at any
time to sell the Securities to or through any Person in violation
of the Securities Act or any applicable state securities laws;
provided,
however, that the
Investor reserves the right to dispose of the Securities at any
time in accordance with federal and state securities laws
applicable to such disposition.
Section
3.2 NO LEGAL ADVICE FROM THE
COMPANY. The Investor acknowledges that it has had the
opportunity to review this Agreement and the transactions
contemplated by this Agreement with its own legal counsel and
investment and tax advisors. The Investor is relying solely on such
counsel and advisors and not on any statements or representations
of the Company or any of its representatives or agents for legal,
tax or investment advice with respect to this investment, the
transactions contemplated by this Agreement or the securities laws
of any jurisdiction.
Section
3.3 ACCREDITED INVESTOR. The
Investor is an accredited investor as defined in Rule 501(a)(3) of
Regulation D, and the Investor has such experience in business and
financial matters that it is capable of evaluating the merits and
risks of an investment in the Securities. The Investor acknowledges
that an investment in the Securities is speculative and involves a
high degree of risk.
Section
3.4 AUTHORITY. The Investor has the
requisite power and authority to enter into and perform its
obligations under the Transaction Documents and to consummate the
transactions contemplated hereby and thereby. The execution and
delivery of the Transaction Documents and the consummation by it of
the transactions contemplated hereby and thereby have been duly
authorized by all necessary action and no further consent or
authorization of the Investor is required. The Transaction
Documents to which it is a party has been duly executed by the
Investor, and when delivered by the Investor in accordance with the
terms hereof, will constitute the valid and binding obligation of
the Investor enforceable against it in accordance with its terms,
subject to applicable bankruptcy, insolvency, or similar laws
relating to, or affecting generally the enforcement of,
creditors’ rights and remedies or by other equitable
principles of general application.
Section
3.5 NOT AN AFFILIATE. The Investor
is not an officer, director or “affiliate” (as that
term is defined in Rule 405 of the Securities Act) of the
Company.
Section
3.6 ORGANIZATION AND STANDING. The
Investor is an entity duly incorporated or formed, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation or formation with full right, corporate, partnership,
limited liability company or similar power and authority to enter
into and to consummate the transactions contemplated by the
Transaction Documents.
7
Section
3.7 ABSENCE OF CONFLICTS. The
execution and delivery of the Transaction Documents and the
consummation of the transactions contemplated hereby and thereby
and compliance with the requirements hereof and thereof, will not
(a) violate any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on the Investor, (b) violate
any provision of any indenture, instrument or agreement to which
the Investor is a party or is subject, or by which the Investor or
any of its assets is bound, or conflict with or constitute a
material default thereunder, (c) result in the creation or
imposition of any lien pursuant to the terms of any such indenture,
instrument or agreement, or constitute a breach of any fiduciary
duty owed by the Investor to any third party, or (d) require the
approval of any third-party (that has not been obtained) pursuant
to any material contract, instrument, agreement, relationship or
legal obligation to which the Investor is subject or to which any
of its assets, operations or management may be
subject.
Section
3.8 DISCLOSURE; ACCESS TO
INFORMATION. The Investor had an opportunity to review
copies of the SEC Documents filed on behalf of the Company and has
had access to all publicly available information with respect to
the Company.
Section
3.9 MANNER OF SALE. At no time was
the Investor presented with or solicited by or through any leaflet,
public promotional meeting, television advertisement or any other
form of general solicitation or advertising.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the SEC Documents and the Disclosure
Schedules, which Disclosure Schedules shall be deemed a part hereof
and shall qualify any representation or otherwise made herein to
the extent of the disclosure contained in the corresponding section
of the Disclosure Schedules, the Company represents and
warrants to the Investor, as of the date hereof, that:
Section
4.1 ORGANIZATION OF THE COMPANY.
The Company is an entity duly incorporated or otherwise organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization, with the
requisite power and authority to own and use its properties and
assets and to carry on its business as currently conducted. The
Company is not in violation or default of any of the provisions of
its certificate of incorporation, bylaws or other organizational or
charter documents. The Company is duly qualified to conduct
business and is in good standing as a foreign corporation in each
jurisdiction in which the nature of the business conducted or
property owned by it makes such qualification necessary, except
where the failure to be so qualified or in good standing, as the
case may be, could not have or reasonably be expected to result in
a Material Adverse Effect and no proceeding has been instituted in
any such jurisdiction revoking, limiting or curtailing or seeking
to revoke, limit or curtail such power and authority or
qualification. The Company has no Subsidiaries.
Section
4.2 AUTHORITY. The Company has the
requisite corporate power and authority to enter into and perform
its obligations under the Transaction Documents. The execution and
delivery of the Transaction Documents by the Company and the
consummation by it of the transactions contemplated hereby and
thereby have been duly authorized by all necessary corporate action
and no further consent or authorization of the Company or its Board
of Directors or stockholders is required. The Transaction Documents
have been duly executed and delivered by the Company and
constitutes a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms,
except as such enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws relating to, or affecting
generally the enforcement of, creditors’ rights and remedies
or by other equitable principles of general
application.
8
Section
4.3 CAPITALIZATION. As of the date
hereof, the authorized capital stock of the Company consists of
1,000,000,000 shares of Common Stock, Common Stock, of which
approximately 873,064,371 shares of Common Stock are issued and
outstanding as of the Execution Date. The Company has not issued
any capital stock since its most recently filed periodic report
under the Exchange Act, other than pursuant to the exercise of
employee stock options under the Company’s stock option
plans, the issuance of shares of Common Stock to employees pursuant
to the Company’s employee stock purchase plans and pursuant
to the conversion and/or exercise of Common Stock Equivalents
outstanding as of the date of the most recently filed periodic
report under the Exchange Act. No Person has any right of first
refusal, preemptive right, right of participation, or any similar
right to participate in the transactions contemplated by the
Transaction Documents. Except as set forth in the SEC Documents,
there are no outstanding options, warrants, scrip rights to
subscribe to, calls or commitments of any character whatsoever
relating to, or securities, rights or obligations convertible into
or exercisable or exchangeable for, or giving any Person any right
to subscribe for or acquire any shares of Common Stock, or
contracts, commitments, understandings or arrangements by which the
Company is or may become bound to issue additional shares of Common
Stock or Common Stock Equivalents. The issuance and sale of the
Securities will not obligate the Company to issue shares of Common
Stock or other securities to any Person (other than the Investor)
and will not result in a right of any holder of Company securities
to adjust the exercise, conversion, exchange or reset price under
any of such securities. There are no stockholders agreements,
voting agreements or other similar agreements with respect to the
Company’s capital stock to which the Company is a party or,
to the knowledge of the Company, between or among any of the
Company’s stockholders.
Section
4.4 LISTING AND MAINTENANCE
REQUIREMENTS. The Common Stock is registered pursuant to
Section 12(g) of the Exchange Act, and the Company has taken no
action designed to, or which to its knowledge is likely to have the
effect of, terminating the registration of the Common Stock under
the Exchange Act nor has the Company received any notification that
the SEC is contemplating terminating such registration. The Company
has not, in the twelve (12) months preceding the date hereof,
received notice from the Principal Market on which the Common Stock
is or has been listed or quoted to the effect that the Company is
not in compliance with the listing or maintenance requirements of
such Principal Market. The Company is and has no reason to believe
that it will not in the foreseeable future continue to be, in
compliance with all such listing and maintenance
requirements.
9
Section
4.5 SEC DOCUMENTS; DISCLOSURE. The
Company has filed all reports, schedules, forms, statements and
other documents required to be filed by the Company under the
Securities Act and the Exchange Act, including pursuant to Section
13(a) thereof, for the one (1) year preceding the date hereof (or
such shorter period as the Company was required by law or
regulation to file such material) (the foregoing materials,
including the exhibits thereto and documents incorporated by
reference therein, being collectively referred to herein as the
“SEC
Documents”) on a timely basis or has received a valid
extension of such time of filing and has filed any such SEC
Documents prior to the expiration of any such extension. As of
their respective dates, the SEC Documents complied in all material
respects with the requirements of the Securities Act and the
Exchange Act, as applicable, and other federal laws, rules and
regulations applicable to such SEC Documents, and none of the SEC
Documents when filed contained any untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading. The financial statements of the Company included in the
SEC Documents comply as to form and substance in all material
respects with applicable accounting requirements and the published
rules and regulations of the SEC or other applicable rules and
regulations with respect thereto. Such financial statements have
been prepared in accordance with generally accepted accounting
principles applied on a consistent basis during the periods
involved (except (a) as may be otherwise indicated in such
financial statements or the notes thereto or (b) in the case of
unaudited interim statements, to the extent they may not include
footnotes or may be condensed or summary statements) and fairly
present in all material respects the financial position of the
Company as of the dates thereof and the results of operations and
cash flows for the periods then ended (subject, in the case of
unaudited statements, to normal, immaterial, year-end audit
adjustments). Except with respect to the material terms and
conditions of the transactions contemplated by the Transaction
Documents, the Company confirms that neither it nor any other
Person acting on its behalf has provided the Investor or its agents
or counsel with any information that it believes constitutes or
might constitute material, non-public information. The Company
understands and confirms that the Investor will rely on the
foregoing representation in effecting transactions in securities of
the Company.
Section
4.6 VALID ISSUANCES. The Securities
are duly authorized and, when issued and paid for in accordance
with the applicable Transaction Documents, will be duly and validly
issued, fully paid, and non-assessable, free and clear of all Liens
imposed by the Company other than restrictions on transfer provided
for in the Transaction Documents.
Section
4.7 NO CONFLICTS. The execution,
delivery and performance of the Transaction Documents by the
Company and the consummation by the Company of the transactions
contemplated hereby and thereby, including, without limitation, the
issuance of the Purchase Notice Shares, do not and will not: (a)
result in a violation of the Company’s certificate or
articles of incorporation, by-laws or other organizational or
charter documents, (b) conflict with, or constitute a material
default (or an event that with notice or lapse of time or both
would become a material default) under, result in the creation of
any Lien upon any of the properties or assets of the Company, or
give to others any rights of termination, amendment, acceleration
or cancellation of, any agreement, indenture, instrument or any
“lock-up” or similar
provision of any underwriting or similar agreement to which the
Company is a party, or (c) result in a violation of any federal,
state or local law, rule, regulation, order, judgment or decree
(including federal and state securities laws and regulations)
applicable to the Company or by which any property or asset of the
Company is bound or affected (except for such conflicts, defaults,
terminations, amendments, accelerations, cancellations and
violations as would not, individually or in the aggregate, have a
Material Adverse Effect) nor is the Company otherwise in violation
of, conflict with or in default under any of the foregoing. The
business of the Company is not being conducted in violation of any
law, ordinance or regulation of any governmental entity, except for
possible violations that either singly or in the aggregate do not
and will not have a Material Adverse Effect. The Company is not
required under federal, state or local law, rule or regulation to
obtain any consent, authorization or order of, or make any filing
or registration with, any court or governmental agency in order for
it to execute, deliver or perform any of its obligations under the
Transaction Documents (other than any SEC or state securities
filings that may be required to be made by the Company in
connection with the issuance of Purchase Notice Shares or
subsequent to any Closing or any registration statement that may be
filed pursuant hereto); provided that, for purposes of the
representation made in this sentence, the Company is assuming and
relying upon the accuracy of the relevant representations and
agreements of Investor herein.
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Section
4.8 NO MATERIAL ADVERSE EFFECT. No
event has occurred that would have a Material Adverse Effect on the
Company that has not been disclosed in subsequent SEC
Documents.
Section
4.9 LITIGATION AND OTHER
PROCEEDINGS. Except as disclosed in the SEC Documents and
the Disclosure Schedule, there are no material actions, suits,
investigations, inquiries or similar proceedings (however any
governmental agency may name them) pending or, to the knowledge of
the Company, threatened against or affecting the Company or its
properties, nor has the Company received any written or oral notice
of any such action, suit, proceeding, inquiry or investigation,
which would have a Material Adverse Effect. No judgment, order,
writ, injunction or decree or award has been issued by or, to the
knowledge of the Company, requested of any court, arbitrator or
governmental agency which would have a Material Adverse Effect.
There has not been, and to the knowledge of the Company, there is
not pending or contemplated, any investigation by the SEC involving
the Company or any current or former director or officer of the
Company.
Section
4.10 REGISTRATION RIGHTS. Except as
set forth in Schedule 4.10, no Person (other than the Investor) has
any right to cause the Company to effect the registration under the
Securities Act of any securities of the Company.
Section
4.11 ACKNOWLEDGMENT REGARDING
INVESTOR’S PURCHASE OF SECURITIES. The Company
acknowledges and agrees that the Investor is acting solely in the
capacity of an arm’s length purchaser with respect to the
Transaction Documents and the transactions contemplated hereby and
thereby and that the Investor is not (i) an officer or director of
the Company, or (ii) an “affiliate” (as defined in Rule
144) of the Company. The Company further acknowledges that the
Investor is not acting as a financial advisor or fiduciary of the
Company (or in any similar capacity) with respect to the
Transaction Documents and the transactions contemplated hereby and
thereby, and any advice given by the Investor or any of its
representatives or agents in connection with the Transaction
Documents and the transactions contemplated hereby and thereby is
merely incidental to the Investor’s purchase of the Shares.
The Company further represents to the Investor that the
Company’s decision to enter into the Transaction Documents
has been based solely on the independent evaluation by the Company
and its representatives.
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Section
4.12 NO GENERAL SOLICITATION; PLACEMENT
AGENT. Neither the Company, nor any Person acting on its
behalf, has engaged in any form of general solicitation or general
advertising (within the meaning of Regulation D under the
Securities act) in connection with the offer or sale of the
Securities. The Company has not engaged a placement agent in
connection with the sale of the Securities
.
Section
4.13 NO INTEGRATED OFFERING. None of
the Company, its affiliates, and any Person acting on their behalf
has, directly or indirectly, made any offers or sales of any
security or solicited any offers to buy any security, under
circumstances that would cause this offering of the Securities to
be integrated with prior offerings for purposes of any applicable
stockholder approval provisions, including, without limitation,
under the rules and regulations of any exchange or automated
quotation system on which any of the securities of the Company are
listed or designated, but excluding stockholder consents required
to authorize and issue the Securities or waive any anti-dilution
provisions in connection therewith.
Section
4.14 OTHER COVERED PERSONS. The
Company is not aware of any Person (other than any Issuer Covered
Person) that has been or will be paid (directly or indirectly)
remuneration for solicitation of the Investor in connection with
the sale of any Regulation D Securities.
ARTICLE V
COVENANTS OF INVESTOR
Section
5.1 SHORT SALES AND
CONFIDENTIALITY. Neither the Investor, nor any affiliate of
the Investor acting on its behalf or pursuant to any understanding
with it, will execute any Short Sales during the period from the
date hereof to the end of the Commitment Period. For the purposes
hereof, and in accordance with Regulation SHO, the sale after
delivery of the Purchase Notice of such number of shares of Common
Stock reasonably expected to be purchased under the Purchase Notice
shall not be deemed a Short Sale. The Investor shall, until such
time as the transactions contemplated by the Transaction Documents
are publicly disclosed by the Company in accordance with the terms
of the Transaction Documents, maintain the confidentiality of the
existence and terms of this transaction and the information
included in the Transaction Documents.
Section
5.2 COMPLIANCE WITH LAW; TRADING IN
SECURITIES. The Investor’s trading activities with
respect to shares of Common Stock will be in compliance with all
applicable state and federal securities laws and regulations and
the rules and regulations of the Principal Market.
12
ARTICLE VI
COVENANTS OF THE COMPANY
Section
6.1 LISTING OF COMMON STOCK. The
Company shall promptly secure the listing, where applicable, of all
of the Common Stock to be issued to the Investor hereunder on the
Principal Market (subject to official notice of issuance, where
applicable) and shall use commercially reasonable best efforts to
maintain, so long as any shares of Common Stock shall be so listed,
the listing, if required, of all such Common Stock from time
to-time issuable hereunder. The Company shall use its commercially
reasonable best efforts to continue the listing or quotation and
trading of the Common Stock on the Principal Market (including,
without limitation, maintaining sufficient net tangible assets, if
required) and will comply in all respects with the Company’s
reporting, filing and other obligations under the bylaws or rules
of the Principal Market.
Section
6.2 FILING OF CURRENT REPORT AND
REGISTRATION STATEMENT. The Company agrees that it shall
file a Current Report on Form 8-K, including the Transaction
Documents as exhibits thereto, with the SEC within the time
required by and in compliance with the Exchange Act, relating to
the transactions contemplated by, and describing the material terms
and conditions of, the Transaction Documents (the
“Current
Report”). The Company shall permit the Investor to
review and comment upon the final pre-filing draft version of the
Current Report at least one (1) Business Day prior to its filing
with the SEC, and the Company shall give reasonable consideration
to all such comments. The Investor shall use its reasonable best
efforts to comment upon the final pre-filing draft version of the
Current Report within one (1) Business Day from the date the
Investor receives it from the Company. The Company shall also file
with the SEC, within thirty (30) Business Days from the Execution
Date, a new Registration Statement on Form S-1 or S-3 (the
“Registration
Statement”) in compliance with the terms of the
Registration Rights Agreement, covering the resale of the
Securities.
ARTICLE VII
CONDITIONS TO DELIVERY OF
PURCHASE NOTICE AND CONDITIONS TO CLOSING
Section
7.1 CONDITIONS PRECEDENT TO THE RIGHT OF
THE COMPANY TO ISSUE AND SELL PURCHASE NOTICE SHARES. The
right of the Company to issue and sell the Purchase Notice Shares
to the Investor is subject to the satisfaction of each of the
conditions set forth below:
(a) ACCURACY OF INVESTOR’S
REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Investor shall be true and correct in all
material respects as of the date of this Agreement and as of the
date of each Closing as though made at each such time.
(b) PERFORMANCE BY INVESTOR.
Investor shall have performed, satisfied and complied in all
respects with all covenants, agreements and conditions required by
this Agreement to be performed, satisfied or complied with by the
Investor at or prior to such Closing.
(c) PERFORMANCE BY INVESTOR.
Investor shall have performed, satisfied and complied in all
respects with all covenants, agreements and conditions required by
this Agreement to be performed, satisfied or complied with by the
Investor at or prior to such Closing.
(d) PRINCIPAL MARKET REGULATION.
The Company shall not issue any Purchase Notice Shares, and the
Investor shall not have the right to receive any Purchase Notice
Shares, if the issuance of such Purchase Notice Shares would exceed
the aggregate number of shares of Common Stock which the Company
may issue without breaching the Company’s obligations under
the rules or regulations of the Principal Market.
13
Section
7.2 CONDITIONS PRECEDENT TO THE OBLIGATION
OF INVESTOR TO PURCHASE THE PURCHASE NOTICE SHARES. The
obligation of the Investor hereunder to purchase the Purchase
Notice Shares is subject to the satisfaction of each of the
following conditions:
(a) *intentionally
omitted*
(b) EFFECTIVE REGISTRATION
STATEMENT. The Registration Statement, and any amendment or
supplement thereto, shall remain effective for the offering of the
Securities and (i) the Company shall not have received notice that
the SEC has issued or intends to issue a stop order with respect to
such Registration Statement or that the SEC otherwise has suspended
or withdrawn the effectiveness of such Registration Statement,
either temporarily or permanently, or intends or has threatened to
do so and (ii) no other suspension of the use of, or withdrawal of
the effectiveness of, such Registration Statement or related
prospectus shall exist. The Investor shall not have received any
notice from the Company that the prospectus and/or any prospectus
supplement fails to meet the requirements of Section 5(b) or
Section 10 of the Securities Act.
(c) ACCURACY OF THE COMPANY’S
REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Company shall be true and correct in all material
respects as of the date of this Agreement and as of the date of
each Closing (except for representations and warranties
specifically made as of a particular date).
(d) PERFORMANCE BY THE COMPANY. The
Company shall have performed, satisfied and complied in all
material respects with all covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied
with by the Company.
(e) NO INJUNCTION. No statute,
rule, regulation, executive order, decree, ruling or injunction
shall have been enacted, entered, promulgated or adopted by any
court or governmental authority of competent jurisdiction that
prohibits or directly and materially adversely affects any of the
transactions contemplated by the Transaction Documents, and no
proceeding shall have been commenced that may have the effect of
prohibiting or materially adversely affecting any of the
transactions contemplated by the Transaction
Documents.
(f) ADVERSE CHANGES. Since the date
of filing of the Company’s most recent annual report on Form
10-K, no event that had or is reasonably likely to have a Material
Adverse Effect has occurred.
(g) NO SUSPENSION OF TRADING IN OR
DELISTING OF COMMON STOCK. The trading of the Common Stock
shall not have been suspended by the SEC or the Principal Market,
or otherwise halted for any reason, and the Common Stock shall have
been approved for listing or quotation on and shall not have been
delisted from or no longer quoted on the Principal Market. In the
event of a suspension, delisting, or halting for any reason, of the
trading of the Common Stock, as contemplated by this Section
7.2(g), the Investor shall have the right to return to the Company
any amount of Purchase Notice Shares associated with such Purchase
Notice, and the Investment Amount with respect to such Purchase
Notice shall be refunded accordingly.
14
(h) BENEFICIAL OWNERSHIP
LIMITATION. The number of Purchase Notice Shares then to be
purchased by the Investor shall not exceed the number of such
shares that, when aggregated with all other shares of Common Stock
then owned by the Investor beneficially or deemed beneficially
owned by the Investor, would result in the Investor owning more
than the Beneficial Ownership Limitation (as defined below), as
determined in accordance with Section 13 of the Exchange Act. For
purposes of this Section 7.2(h), in the event that the amount of
Common Stock outstanding is greater or lesser on a Closing Date
than on the date upon which the Purchase Notice associated with
such Closing Date is given, the amount of Common Stock outstanding
on such issuance of a Purchase Notice shall govern for purposes of
determining whether the Investor, when aggregating all purchases of
Common Stock made pursuant to this Agreement, would own more than
the Beneficial Ownership Limitation following a purchase on any
such Closing Date. In the event the Investor claims that compliance
with a Purchase Notice would result in the Investor owning more
than the Beneficial Ownership Limitation, upon request of the
Company the Investor will provide the Company with evidence of the
Investor’s then existing shares beneficially or deemed
beneficially owned. The “Beneficial Ownership
Limitation” shall be 4.99% of the number of shares of the
Common Stock outstanding immediately prior to the issuance of
shares of Common Stock issuable pursuant to a Purchase Notice.
Notwithstanding the foregoing, the Investor may increase the
Beneficial Ownership Limitation up to 9.99% at its sole discretion.
To the extent that the Beneficial Ownership Limitation is exceeded,
the number of shares of Common Stock issuable to the Investor shall
be reduced so it does not exceed the Beneficial Ownership
Limitation.
(i) [INTENTIONALLY
OMITTED]
(j) NO KNOWLEDGE. The Company shall
have no knowledge of any event more likely than not to have the
effect of causing the effectiveness of the Registration Statement
to be suspended or any prospectus or prospectus supplement failing
to meet the requirement of Sections 5(b) or 10 of the Securities
Act (which event is more likely than not to occur within the
fifteen (15) Business Days following the Business Day on which such
Purchase Notice is deemed delivered).
(k) NO VIOLATION OF SHAREHOLDER APPROVAL
REQUIREMENT. The issuance of the Purchase Notice Shares
shall not violate the shareholder approval requirements of the
Principal Market.
(l) DWAC ELIGIBLE. The Common Stock
must be DWAC Eligible and not subject to a “DTC
chill”.
(m) SEC DOCUMENTS. All reports,
schedules, registrations, forms, statements, information and other
documents required to have been filed by the Company with the SEC
pursuant to the reporting requirements of the Exchange Act shall
have been filed with the SEC within the applicable time periods
prescribed for such filings under the Exchange Act.
ARTICLE VIII
LEGENDS
Section
8.1 NO RESTRICTIVE STOCK LEGEND. No
restrictive stock legend shall be placed on the share certificates
representing the Purchase Notice Shares.
Section
8.2 INVESTOR’S COMPLIANCE.
Nothing in this Article VIII shall affect in any way the
Investor’s obligations hereunder to comply with all
applicable securities laws upon the sale of the Common
Stock.
15
ARTICLE IX
INDEMNIFICATION
Section
9.1 INDEMNIFICATION. Each party (an
“Indemnifying
Party”) agrees to indemnify and hold harmless the
other party along with its officers, directors, employees, and
authorized agents, and each Person or entity, if any, who controls
such party within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act (an “Indemnified Party”) from
and against any Damages, and any action in respect thereof to which
the Indemnified Party becomes subject to, resulting from, arising
out of this Agreement or relating to (i) any misrepresentation,
breach of warranty or nonfulfillment of or failure to perform any
covenant or agreement on the part of the Indemnifying Party
contained in this Agreement, (ii) any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement or any post-effective amendment thereof or prospectus or
prospectus supplement, or the omission or alleged omission
therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading, (iii) any
untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus or contained in the final
prospectus (as amended or supplemented, if the Company files any
amendment thereof or supplement thereto with the SEC) or the
omission or alleged omission to state therein any material fact
necessary to make the statements made therein, in the light of the
circumstances under which the statements therein were made, not
misleading, or (iv) any violation or alleged violation by the
Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation under the Securities Act,
the Exchange Act or any state securities law, as such Damages are
incurred, except to the extent such Damages result primarily from
the Indemnified Party’s failure to perform any covenant or
agreement contained in this Agreement or the Indemnified
Party’s, recklessness or willful misconduct in performing its
obligations under this Agreement; provided, however, that the foregoing
indemnity agreement shall not apply to any Damages of an
Indemnified Party to the extent, but only to the extent, arising
out of or based upon any untrue statement or alleged untrue
statement or omission or alleged omission made by an Indemnifying
Party in reliance upon and in conformity with written information
furnished to the Indemnifying Party by the Indemnified Party
expressly for use in the Registration Statement, any post-effective
amendment thereof, prospectus, prospectus supplement thereto, or
any preliminary prospectus or final prospectus (as amended or
supplemented).
Section
9.2 INDEMNIFICATION
PROCEDURE.
(a) A party that seeks
indemnification under must promptly give the other party notice of
any legal action. But a delay in notice does not relieve an
Indemnifying Party of any liability to any Indemnified Party,
except to the extent the Indemnifying Party shows that the delay
prejudiced the defense of the action.
16
(b) The Indemnifying
Party may participate in the defense at any time or it may assume
the defense by giving notice to the Indemnified Parties. After
assuming the defense, the Indemnifying Party:
(i) must select counsel
(including local counsel if appropriate) that is reasonably
satisfactory to the Indemnified Parties;
(ii) is
not liable to the other party for any later attorney’s fees
or for any other later expenses that the Indemnified Parties incur,
except for reasonable investigation costs;
(iii) must
not compromise or settle the action without the Indemnified Parties
consent (which may not be unreasonably withheld); and
(iv) is
not liable for any compromise or settlement made without its
consent.
(c) If the Indemnifying
Party fails to assume the defense within 10 days after receiving
notice of the action, the Indemnifying Party shall be bound by any
determination made in the action or by any compromise or settlement
made by the Indemnified Parties, and also remains liable to pay the
Indemnified Parties’ legal fees and expenses.
Section
9.3 METHOD OF ASSERTING INDEMNIFICATION
CLAIMS. All claims for indemnification by any Indemnified
Party under Section 9.2 shall be asserted and resolved as
follows:
(a) In the event any
claim or demand in respect of which an Indemnified Party might seek
indemnity under Section 9.2 is asserted against or sought to be
collected from such Indemnified Party by a Person other than a
party hereto or an affiliate thereof (a “Third Party
Claim”), the Indemnified Party shall deliver a written
notification, enclosing a copy of all papers served, if any, and
specifying the nature of and basis for such Third Party Claim and
for the Indemnified Party’s claim for indemnification that is
being asserted under any provision of Section 9.2 against an
Indemnifying Party, together with the amount or, if not then
reasonably ascertainable, the estimated amount, determined in good
faith, of such Third Party Claim (a “Claim Notice”)
with reasonable promptness to the Indemnifying Party. If the
Indemnified Party fails to provide the Claim Notice with reasonable
promptness after the Indemnified Party receives notice of such
Third Party Claim, the Indemnifying Party shall not be obligated to
indemnify the Indemnified Party with respect to such Third Party
Claim to the extent that the Indemnifying Party’s ability to
defend has been prejudiced by such failure of the Indemnified
Party. The Indemnifying Party shall notify the Indemnified Party as
soon as practicable within the period ending thirty (30) calendar
days following receipt by the Indemnifying Party of either a Claim
Notice or an Indemnity Notice (as defined below) (the
“Dispute Period”) whether the Indemnifying Party
disputes its liability or the amount of its liability to the
Indemnified Party under Section 9.2 and whether the Indemnifying
Party desires, at its sole cost and expense, to defend the
Indemnified Party against such Third Party Claim.
17
(i) If the Indemnifying
Party notifies the Indemnified Party within the Dispute Period that
the Indemnifying Party desires to defend the Indemnified Party with
respect to the Third Party Claim pursuant to this Section 9.3(a),
then the Indemnifying Party shall have the right to defend, with
counsel reasonably satisfactory to the Indemnified Party, at the
sole cost and expense of the Indemnifying Party, such Third Party
Claim by all appropriate proceedings, which proceedings shall be
vigorously and diligently prosecuted by the Indemnifying Party to a
final conclusion or will be settled at the discretion of the
Indemnifying Party (but only with the consent of the Indemnified
Party in the case of any settlement that provides for any relief
other than the payment of monetary damages or that provides for the
payment of monetary damages as to which the Indemnified Party shall
not be indemnified in full pursuant to Section 9.2). The
Indemnifying Party shall have full control of such defense and
proceedings, including any compromise or settlement thereof; provided, however, that the
Indemnified Party may, at the sole cost and expense of the
Indemnified Party, at any time prior to the Indemnifying
Party’s delivery of the notice referred to in the first
sentence of this clause (i), file any motion, answer or other
pleadings or take any other action that the Indemnified Party
reasonably believes to be necessary or appropriate to protect its
interests; and provided, further, that if requested by
the Indemnifying Party, the Indemnified Party will, at the sole
cost and expense of the Indemnifying Party, provide reasonable
cooperation to the Indemnifying Party in contesting any Third Party
Claim that the Indemnifying Party elects to contest. The
Indemnified Party may participate in, but not control, any defense
or settlement of any Third Party Claim controlled by the
Indemnifying Party pursuant to this clause (i), and except as
provided in the preceding sentence, the Indemnified Party shall
bear its own costs and expenses with respect to such participation.
Notwithstanding the foregoing, the Indemnified Party may take over
the control of the defense or settlement of a Third Party Claim at
any time if it irrevocably waives its right to indemnity under
Section 9.2 with respect to such Third Party Claim.
(ii) If
the Indemnifying Party fails to notify the Indemnified Party within
the Dispute Period that the Indemnifying Party desires to defend
the Third Party Claim pursuant to Section 9.3(a), or if the
Indemnifying Party gives such notice but fails to prosecute
vigorously and diligently or settle the Third Party Claim, or if
the Indemnifying Party fails to give any notice whatsoever within
the Dispute Period, then the Indemnified Party shall have the right
to defend, at the sole cost and expense of the Indemnifying Party,
the Third Party Claim by all appropriate proceedings, which
proceedings shall be prosecuted by the Indemnified Party in a
reasonable manner and in good faith or will be settled at the
discretion of the Indemnified Party(with the consent of the
Indemnifying Party, which consent will not be unreasonably
withheld). The Indemnified Party will have full control of such
defense and proceedings, including any compromise or settlement
thereof; provided, however, that if requested by the Indemnified
Party, the Indemnifying Party will, at the sole cost and expense of
the Indemnifying Party, provide reasonable cooperation to the
Indemnified Party and its counsel in contesting any Third Party
Claim which the Indemnified Party is contesting. Notwithstanding
the foregoing provisions of this clause (ii), if the Indemnifying
Party has notified the Indemnified Party within the Dispute Period
that the Indemnifying Party disputes its liability or the amount of
its liability hereunder to the Indemnified Party with respect to
such Third Party Claim and if such dispute is resolved in favor of
the Indemnifying Party in the manner provided in clause (iii)
below, the Indemnifying Party will not be required to bear the
costs and expenses of the Indemnified Party’s defense
pursuant to this clause (ii) or of the Indemnifying Party’s
participation therein at the Indemnified Party’s request, and
the Indemnified Party shall reimburse the Indemnifying Party in
full for all reasonable costs and expenses incurred by the
Indemnifying Party in connection with such litigation. The
Indemnifying Party may participate in, but not control, any defense
or settlement controlled by the Indemnified Party pursuant to this
clause (ii), and the Indemnifying Party shall bear its own costs
and expenses with respect to such participation.
18
(iii) If
the Indemnifying Party notifies the Indemnified Party that it does
not dispute its liability or the amount of its liability to the
Indemnified Party with respect to the Third Party Claim under
Section 9.2 or fails to notify the Indemnified Party within the
Dispute Period whether the Indemnifying Party disputes its
liability or the amount of its liability to the Indemnified Party
with respect to such Third Party Claim, the amount of Damages
specified in the Claim Notice shall be conclusively deemed a
liability of the Indemnifying Party under Section 9.2 and the
Indemnifying Party shall pay the amount of such Damages to the
Indemnified Party on demand. If the Indemnifying Party has timely
disputed its liability or the amount of its liability with respect
to such claim, the Indemnifying Party and the Indemnified Party
shall proceed in good faith to negotiate a resolution of such
dispute; provided,
however, that if
the dispute is not resolved within thirty (30) days after the Claim
Notice, the Indemnifying Party shall be entitled to institute such
legal action as it deems appropriate.
(b) In the event any
Indemnified Party should have a claim under Section 9.2 against the
Indemnifying Party that does not involve a Third Party Claim, the
Indemnified Party shall deliver a written notification of a claim
for indemnity under Section 9.2 specifying the nature of and basis
for such claim, together with the amount or, if not then reasonably
ascertainable, the estimated amount, determined in good faith, of
such claim (an “Indemnity Notice”) with reasonable
promptness to the Indemnifying Party. The failure by any
Indemnified Party to give the Indemnity Notice shall not impair
such party’s rights hereunder except to the extent that the
Indemnifying Party demonstrates that it has been irreparably
prejudiced thereby. If the Indemnifying Party notifies the
Indemnified Party that it does not dispute the claim or the amount
of the claim described in such Indemnity Notice or fails to notify
the Indemnified Party within the Dispute Period whether the
Indemnifying Party disputes the claim or the amount of the claim
described in such Indemnity Notice, the amount of Damages specified
in the Indemnity Notice will be conclusively deemed a liability of
the Indemnifying Party under Section 9.2 and the Indemnifying Party
shall pay the amount of such Damages to the Indemnified Party on
demand. If the Indemnifying Party has timely disputed its liability
or the amount of its liability with respect to such claim, the
Indemnifying Party and the Indemnified Party shall proceed in good
faith to negotiate a resolution of such dispute; provided, however,
that if the dispute is not resolved within thirty (30) days after
the Claim Notice, the Indemnifying Party shall be entitled to
institute such legal action as it deems appropriate.
(c) The Indemnifying
Party agrees to pay the Indemnified Party, promptly as such
expenses are incurred and are due and payable, for any reasonable
legal fees or other reasonable expenses incurred by them in
connection with investigating or defending any such
Claim.
(d) The indemnity
provisions contained herein shall be in addition to (i) any cause
of action or similar rights of the Indemnified Party against the
Indemnifying Party or others, and (ii) any liabilities the
Indemnifying Party may be subject to.
19
ARTICLE X
MISCELLANEOUS
Section
10.1 GOVERNING LAW; JURISDICTION.
This Agreement shall be governed by and interpreted in accordance
with the laws of the State of California without regard to the
principles of conflicts of law. Each of the Company and the
Investor hereby submits to the exclusive jurisdiction of the United
States federal and state courts located in Los Angeles, California,
with respect to any dispute arising under the Transaction Documents
or the transactions contemplated thereby.
Section
10.2 JURY TRIAL WAIVER. The Company
and the Investor hereby waive a trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto
against the other in respect of any matter arising out of or in
connection with the Transaction Documents.
Section
10.3 ASSIGNMENT. The Transaction
Documents shall be binding upon and inure to the benefit of the
Company and the Investor and their respective successors. Neither
this Agreement nor any rights of the Investor or the Company
hereunder may be assigned by either party to any other
Person.
Section
10.4 NO THIRD-PARTY BENEFICIARIES.
This Agreement is intended for the benefit of the Company and the
Investor and their respective successors, and is not for the
benefit of, nor may any provision hereof be enforced by, any other
Person, except as contemplated by Article IX.
Section
10.5 TERMINATION. The Company or
Investor may terminate this Agreement at any time in the event of a
material breach of the Agreement by the Company or Investor, which
shall be effected by written notice being sent by the non-breaching
party to the breaching party. In addition, this Agreement shall
automatically terminate on the earlier of (i) the end of the
Commitment Period; (ii) the date in which the Registration
Statement is no longer effective, or (iii) the date that, pursuant
to or within the meaning of any Bankruptcy Law, the Company
commences a voluntary case or any Person commences a proceeding
against the Company, a Custodian is appointed for the Company or
for all or substantially all of its property or the Company makes a
general assignment for the benefit of its creditors (the
“Automatic Termantion Date”); provided, however, that
the provisions of Articles III, IV, V, VI, IX and the agreements
and covenants of the Company and the Investor set forth in this
Article X shall survive the termination of this Agreement. If the
Company terminates the Agreement prior to the Automatic Termination
Date, the Company shall wire $50,000 to the Investor irrespective
of any other event or condition, including, without limitation, the
Company’s submission of a Purchase Notice.
Section
10.6 ENTIRE AGREEMENT. The
Transaction Documents, together with the exhibits thereto, contain
the entire understanding of the Company and the Investor with
respect to the matters covered herein and therein and supersede all
prior agreements and understandings, oral or written, with respect
to such matters, which the parties acknowledge have been merged
into such documents and exhibits.
Section
10.7 FEES AND EXPENSES. Except as
expressly set forth in the Transaction Documents or any other
writing to the contrary, each party shall pay the fees and expenses
of its advisers, counsel, accountants and other experts, if any,
and all other expenses incurred by such party incident to the
negotiation, preparation, execution, delivery and performance of
this Agreement. The Company shall pay the Clearing Cost associated
with each Closing, and any Transfer Agent fees (including any fees
required for same-day processing of any instruction letter
delivered by the Company), stamp taxes and other taxes and duties
levied in connection with the delivery of any Securities to the
Investor.
20
Section
10.8 COUNTERPARTS. The Transaction
Documents may be executed in multiple counterparts, each of which
may be executed by less than all of the parties and shall be deemed
to be an original instrument which shall be enforceable against the
parties actually executing such counterparts and all of which
together shall constitute one and the same instrument. The
Transaction Documents may be delivered to the other parties hereto
by email of a copy of the Transaction Documents bearing the
signature of the parties so delivering this Agreement.
Section
10.9 SEVERABILITY. In the event that
any provision of this Agreement becomes or is declared by a court
of competent jurisdiction to be illegal, unenforceable or void,
this Agreement shall continue in full force and effect without said
provision; provided that such severability shall be ineffective if
it materially changes the economic benefit of this Agreement to any
party.
Section
10.10 FURTHER ASSURANCES. Each party
shall do and perform, or cause to be done and performed, all such
further acts and things, and shall execute and deliver all such
other agreements, certificates, instruments and documents, as the
other party may reasonably request in order to carry out the intent
and accomplish the purposes of this Agreement and the consummation
of the transactions contemplated hereby.
Section
10.11 NO STRICT CONSTRUCTION. The
language used in this Agreement will be deemed to be the language
chosen by the parties to express their mutual intent, and no rules
of strict construction will be applied against any
party.
Section
10.12 EQUITABLE RELIEF. The Company
recognizes that in the event that it fails to perform, observe, or
discharge any or all of its obligations under this Agreement, any
remedy at law may prove to be inadequate relief to the Investor.
The Company therefore agrees that the Investor shall be entitled to
temporary and permanent injunctive relief in any such case without
the necessity of proving actual damages. In addition to being
entitled to exercise all rights provided herein or granted by law,
both parties will be entitled to specific performance under the
Transaction Documents. The parties agree that monetary damages may
not be adequate compensation for any loss incurred by reason of any
breach of obligations contained in the Transaction Documents and
hereby agree to waive and not to assert in any action for specific
performance of any such obligation the defense that a remedy at law
would be adequate.
Section
10.13 TITLE AND SUBTITLES. The titles
and subtitles used in this Agreement are used for the convenience
of reference and are not to be considered in construing or
interpreting this Agreement.
Section
10.14 AMENDMENTS; WAIVERS. No
provision of this Agreement may be amended or waived by the parties
from and after the date that is one (1) Business Day immediately
preceding the initial filing of the prospectus to the Registration
Statement with the SEC. Subject to the immediately preceding
sentence, (i) no provision of this Agreement may be amended other
than by a written instrument signed by both parties hereto and (ii)
no provision of this Agreement may be waived other than in a
written instrument signed by the party against whom enforcement of
such waiver is sought. No failure or delay in the exercise of any
power, right or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such
power, right or privilege preclude other or further exercise
thereof or of any other right, power or privilege.
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Section
10.15 PUBLICITY. The Company and the
Investor shall consult with each other in issuing any press
releases or otherwise making public statements with respect to the
transactions contemplated hereby and no party shall issue any such
press release or otherwise make any such public statement, other
than as required by law, without the prior written consent of the
other parties, which consent shall not be unreasonably withheld or
delayed, except that no prior consent shall be required if such
disclosure is required by law, in which such case the disclosing
party shall provide the other party with prior notice of such
public statement. Notwithstanding the foregoing, the Company shall
not publicly disclose the name of the Investor without the prior
written consent of the Investor, except to the extent required by
law. The Investor acknowledges that the Transaction Documents may
be deemed to be “material contracts,” as
that term is defined by Item 601(b)(10) of Regulation S-K, and that
the Company may therefore be required to file such documents as
exhibits to reports or registration statements filed under the
Securities Act or the Exchange Act. The Investor further agrees
that the status of such documents and materials as material
contracts shall be determined solely by the Company, in
consultation with its counsel.
Section
10.16 DISPUTE
RESOLUTION.
(a) Submission to Dispute
Resolution.
(i) In the case of a
dispute relating to the Average Daily Trading Volume, Purchase
Notice Limit or VWAP (as the case may be) (including, without
limitation, a dispute relating to the determination of any of the
foregoing), the Company or the Investor (as the case may be) shall
submit the dispute to the other party via facsimile or electronic
mail (A) if by the Company, within two (2) Business Days after the
occurrence of the circumstances giving rise to such dispute or (B)
if by the Investor at any time after the Investor learned of the
circumstances giving rise to such dispute. If the Investor and the
Company are unable to promptly resolve such dispute relating to
such Average Daily Trading Volume, Purchase Notice Limit or VWAP
(as the case may be), at any time after the second (2nd) Business
Day following such initial notice by the Company or the Investor
(as the case may be) of such dispute to the Company or the Investor
(as the case may be), then the Company and the Investor may select
an independent, reputable investment bank as mutually agreed upon
to resolve such dispute.
(ii) The
Investor and the Company shall each deliver to such investment bank
(A) a copy of the initial dispute submission so delivered in
accordance with the first sentence of this Section 10.16 and (B)
written documentation supporting its position with respect to such
dispute, in each case, no later than 5:00 p.m. (New York time) by
the fifth (5th) Business Day immediately following the date on
which such investment bank was selected (the “Dispute
Submission Deadline”) (the documents referred to in the
immediately preceding clauses (A) and (B) are collectively referred
to herein as the “Required Dispute Documentation”) (it
being understood and agreed that if either the Investor or the
Company fails to so deliver all of the Required Dispute
Documentation by the Dispute Submission Deadline, then the party
who fails to so submit all of the Required Dispute Documentation
shall no longer be entitled to (and hereby waives its right to)
deliver or submit any written documentation or other support to
such investment bank with respect to such dispute and such
investment bank shall resolve such dispute based solely on the
Required Dispute Documentation that was delivered to such
investment bank prior to the Dispute Submission Deadline). Unless
otherwise agreed to in writing by both the Company and the Investor
or otherwise requested by such investment bank, neither the Company
nor the Investor shall be entitled to deliver or submit any written
documentation or other support to such investment bank in
connection with such dispute (other than the Required Dispute
Documentation).
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(iii) The
Company and the Investor shall cause such investment bank to
determine the resolution of such dispute and notify the Company and
the Investor of such resolution no later than ten (10) Business
Days immediately following the Dispute Submission Deadline. The
fees and expenses of such investment bank shall be borne solely by
the party submitting such dispute, and such investment bank’s
resolution of such dispute shall be final and binding upon all
parties absent manifest error.
(b) Miscellaneous. Both the Company
and the Investor expressly acknowledge and agree that (i) this
Section 10.16 constitutes an agreement to arbitrate between the
Company and the Investor (and constitutes an arbitration agreement)
only with respect to such dispute in connection with Section
10.16(a)(i) and that both the Company and the Investor are
authorized to apply for an order to compel arbitration in order to
compel compliance with this Section 10.16, (ii) the terms of this
Agreement and each other applicable Transaction Document shall
serve as the basis for the selected investment bank’s
resolution of the applicable dispute, such investment bank shall be
entitled (and is hereby expressly authorized) to make all findings,
determinations and the like that such investment bank determines
are required to be made by such investment bank in connection with
its resolution of such dispute and in resolving such dispute such
investment bank shall apply such findings, determinations and the
like to the terms of this Agreement and any other applicable
Transaction Documents, (iii) the Company and the Investor shall
have the right to submit any dispute other than described in this
Section 10.16 (a) to any state or federal court sitting in The City
of Los Angeles and (iv) nothing in this Section 10.16 shall limit
the Company or the Investor from obtaining any injunctive relief or
other equitable remedies (including, without limitation, with
respect to any matters described in this Section 10.16). The
Company and the Investor agree that all dispute resolutions may be
conducted in a virtual setting to be mutually agreed by both
parties.
Section
10.17 NOTICES. All notices, demands,
requests, consents, approvals, and other communications required or
permitted hereunder shall be in writing and, unless otherwise
specified herein, shall be (a) personally served, (b) delivered by
reputable air courier service with charges prepaid next Business
Day delivery, or (c) transmitted by hand delivery, or email as a
PDF, addressed as set forth below or to such other address as such
party shall have specified most recently by written notice given in
accordance herewith. Any notice or other communication required or
permitted to be given hereunder shall be deemed effective upon hand
delivery or delivery by email at the address designated below (if
delivered on a business day during normal business hours where such
notice is to be received), or the first business day following such
delivery (if delivered other than on a business day during normal
business hours where such notice is to be received).
The
addresses for such communications shall be:
If
to the Company:
Email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
with a
copy (not constituting notice) to:
Email:
If to
the Investor:
AN
INSITUTIONAL INVESTOR
Email:
Either
party hereto may from time to time change its address or email for
notices under this Section 10.17 by giving prior written notice of
such changed address to the other party hereto.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have caused this Agreement
to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
TPT
Global Tech, Inc
By:
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Title:
Chief Executive Officer
AN
INSITUTIONAL INVESTOR
By:
Name:
INSTITUTIONAL INVESTOR
Title:
Managing Director
DISCLOSURE SCHEDULES TO
Schedule 4.5 – SEC Documents
Schedule 4.9 – Litigation
Schedule 4.10 – Registration Rights
24
EXHIBIT A
FORM OF PURCHASE NOTICE
TO: AN
INSITUTIONAL INVESTOR
We
refer to the Common Stock Purchase Agreement, dated as of 28 May,
2021, (the “Agreement”), entered into
by and between TPT Global Tech, Inc. and AN INSITUTIONAL INVESTOR.
Capitalized terms defined in the Agreement shall, unless otherwise
defined herein, have the same meaning when used
herein.
We
hereby:
1) Give
you notice that we require you to purchase __________ Purchase
Notice Shares; and
2)
Certify that, as of the date hereof, the conditions set forth in
Section 7 of the Agreement are satisfied.
By:
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Chief Executive Officer
25
EXHIBIT B
FIXED PURCHASE NOTICE
TO: AN
INSITUTIONAL INVESTOR
We
refer to the Common Stock Purchase Agreement, dated as of May 28,
2021 (the “Agreement”), entered into
by and between TPT Global Tech, Inc., and AN INSITUTIONAL INVESTOR.
Capitalized terms defined in the Agreement shall, unless otherwise
defined herein, have the same meaning when used
herein.
We
hereby:
1)
Certify that, as of the date hereof, the conditions set forth in
Section 7 of the Agreement are satisfied.
The
Company and Investor agree to as follows:
Purchase Price:
Share Amount:
TPT
Global Tech, Inc
By:
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Chief Executive Officer
AN
INSITUTIONAL INVESTOR
By:
Name:
INSTITUTIONAL INVESTOR
Title:
Managing Director
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EXHIBIT C
REGISTRATION RIGHTS AGREEMENT
27