EXCHANGE AGREEMENT
Exhibit 10.53
This
EXCHANGE AGREEMENT (this "Agreement") is made and entered into
effective as of the 6th day of January, 2020, by and between GUIDED
THERAPEUTICS, INC., a Delaware corporation (the "Company") and the
undersigned creditor of the Company (the "Creditor").
WHEREAS, the
Company has entered into certain agreements with investors for a
recapitalization of the Company in which the Company will receive
at least $2,000,000 in cash (the "Financing") and, as part of the
Financing, the Company will file a registration statement on Form
S-l (the "S-l") to register the offering and sale of certain of its
securities with the U.S. Securities and Exchange Commission (the
"SEC");
WHEREAS, in
connection with the Financing, the Company desires to eliminate or
satisfy certain obligations to third parties;
WHEREAS, the
Creditor has performed legal services for the Company and the
Company currently owes the Creditor an aggregate of $1,744,767.62
for such services (collectively, the "Obligation");
WHEREAS, in
satisfaction in full of the Obligation, the Creditor is willing to
accept a cash payment and certain promissory notes of the Company
(such transaction, the "Exchange");
WHEREAS, the
Exchange is being made in reliance upon the exemption from
registration provided by Section 4(a)(2) of the Securities Act of
1933, as amended (the "Securities Act"); and
WHEREAS, the
Company and the Creditor desire to enter into this Agreement to
evidence and set forth the terms of the Exchange;
NOW,
THEREFORE, in consideration of the mutual covenants herein
contained, and intending to be legally bound hereby, the parties
hereto, being duly sworn, do covenant, agree and certify as
follows:
I.
Recitals. The parties hereto
acknowledge and agree that the foregoing recitals are true and
accurate and constitute part of this Agreement to the same extent
as if contained in the body hereof.
2.
Definitions. In addition to
the terms defined elsewhere in this Agreement, the following terms
have the meanings set forth in this Section 2:
"Affiliate" means
any Person that, directly or indirectly through one or more
intermediaries, controls or is controlled by or is under common
control with a Person, as such terms are used in and construed
under Rule 405 under the Securities Act.
"Closing Date"
means any date, chosen by the Company at its discretion, that is on
or prior to the date that the S-I is declared effective by the SEC,
and shall be evidenced by delivery in full by the Company to the
Creditor of the consideration described in Section 3.
"Liens"
means a lien, charge, pledge, security interest, encumbrance, right
of first refusal, preemptive right or other
restriction.
"Person" means an
individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or
subdivision thereof) or other entity of any kind.
3.
Exchange and Satisfaction. On the Closing Date, subject to delivery
in full of the following consideration, the Obligation shall be
surrendered by the Creditor in its entirety:
(I)
a cash payment, wired to the Creditor
(to an account specified in writing by the Creditor), of $175,000
(the "Cash Payment");
(2)
an unsecured promissory note, in substantially the form set forth
on Exhibit A hereto, in the principal amount of $550,000, due 13
months from the date of issuance, that may be called by the Company
at any time prior to maturity upon a payment of $150,000 to the
Creditor (such note, the "13-Month Note"); and
(3)
an unsecured promissory note, in substantially the form set forth
on Exhibit B hereto, in the principal amount of $444,767.62,
bearing an annualized interest rate of 6% and due in four equal
annual installments beginning on the second anniversary of date of
issuance (the "Five- Year Note" and, with the 13-Month Note, the
"Notes").
4.
Representations and Warranties of the Company. The Company hereby
makes the following representations and warranties to
Creditor:
(a)
Authorization: Enforcement. The Company has the requisite corporate
power and authority to enter into and to consummate the
transactions contemplated by this Agreement and the Notes and
otherwise to carry out its obligations hereunder and thereunder.
The execution and delivery of this Agreement and the Notes by the
Company and the consummation by it of the transactions contemplated
hereby and thereby have been duly authorized by all necessary
action on the part of the Company and no further action is required
by the Company, its board of directors or its stockholders in
connection herewith or therewith. This Agreement and the Notes have
been (or upon delivery will have been) duly executed by the Company
and, when delivered in accordance with the terms hereof and
thereof, will constitute the valid and binding obligations of the
Company enforceable against the Company in accordance with their
respective terms, except: (i) as limited by general equitable
principles and applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting
enforcement of creditors' rights generally, (ii) as limited by laws
relating to the availability of specific performance, injunctive
relief or other equitable remedies and (iii) insofar as
indemnification and contribution provisions may be limited by
applicable law.
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(b)
Issuance of the Notes. The Notes are duly authorized and, when
issued and paid for in accordance with this Agreement, will be duly
and validly issued, fully paid and nonassessable, free and clear of
all Liens.
5.
Representations and Warranties of the Creditor. The Creditor hereby
represents and warrants as of the date hereof and as of the
issuance of the Notes to the Company as follows (unless as of a
specific date therein):
(a)
Own Account. The Creditor understands that the Notes are
"restricted securities" and have not been registered under the
Securities Act or any applicable state securities law and is
acquiring the Notes for its own account and not with a view to or
for distributing or reselling such Notes or any part thereof in
violation of the Securities Act or any applicable state securities
law, has no present intention of distributing any of such Notes in
violation of the Securities Act or any applicable state securities
law and has no direct or indirect arrangement or understandings
with any other Persons to distribute or regarding the distribution
of such Notes in violation of the Securities Act or any applicable
state securities law (this representation and warranty not limiting
the Creditor's right to sell the Notes pursuant to a registration
statement under the Securities Act or otherwise in compliance with
applicable federal and state securities laws).
(b)
Experience of Creditor. The Creditor, either alone or together with
its representatives, has such knowledge, sophistication and
experience in business and financial matters so as to be capable of
evaluating the merits and risks of the prospective investment in
the Notes, and has so evaluated the merits and risks of such
investment. The Creditor is able to bear the economic risk of an
investment in the Notes and, at the present time, is able to afford
a complete loss of such investment.
Release.
Upon the Exchange and the delivery the Cash Payment and the Notes
to the Creditor, the Creditor shall have no further rights or
interest in, and shall not receive any further consideration,
payment or distribution of any kind with respect to, the
Obligation. In such regard, the Creditor hereby waives,
relinquishes, remises and releases all rights, claims, interests or
liabilities, known and unknown, of any nature whatsoever in law or
equity which the Creditor may previously have had or may now or
hereafter have as against or to receive from the Company arising
out of, resulting from or relating to the Obligation or any rights
or interest of the Creditor with respect thereto. The foregoing has
no effect on the Company's obligations under this Agreement or the
Notes, nor the Creditor's rights hereunder or thereunder. Transfer
Restrictions. The Notes may only be disposed of in compliance with
state and federal securities laws. In connection with any transfer
of the Notes other than pursuant to an effective registration
statement or Rule 144 under the Securities Act, to the Company or
to an Affiliate of the Creditor, the Company may require the
transferor thereof to provide to the Company an opinion of counsel
selected by the transferor and reasonably acceptable to the
Company, the form and substance of which opinion shall be
reasonably satisfactory to the Company, to the effect that such
transfer does not require registration of such transferred
Securities under the Securities Act. As a condition of transfer,
any such transferee shall agree in writing to be bound by the terms
of this Agreement. The Creditor agrees to the imprinting of a
legend on the Notes in the following form:
THIS
SECURITY HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMlSSION OR THE SECURITIES COMMlSSION OF ANY STATE IN RELIANCE
UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES
ACT'), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR PURSUANT TO AN AVAlLABLE EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES
LAWS. THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE
MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A
FINANCIAL INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED
IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY
SUCH SECURITY.
1.
Further
Assurances. The Creditor shall hereafter, without further
consideration, execute and deliver promptly to the Company such
further consents, waivers, assignments, endorsements and other
documents and instruments, and to take all such further actions, as
the Company may from time to time reasonably request with respect
to the exchange and satisfaction of the Obligation.
2.
No
Attorney-Client Relationship. The Company acknowledges that the
Creditor is not the Company's lawyer and is not providing, and has
not provided since the date last indicated on its invoices to the
Company, legal representation to the Company, and neither this
Agreement, the Notes, nor the negotiation hereof or thereof, is
intended to be legal representation in any manner by the Creditor
to the Company.
3.
No
Construction Against Drafter. Each party has participated in
negotiating and drafting this Agreement, so if an ambiguity or a
question of intent or interpretation arises, this Agreement is to
be construed as if the parties had drafted it jointly, as opposed
to being construed against a party because it was responsible for
drafting one or more provisions of this Agreement.
11 .
Successors and Assigns. This Agreement is binding upon, and shall
inure to the benefit of, the parties hereto and their respective
successors and assigns.
12.
Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of
which, when taken together, shall constitute one and the same
instrument.
IN
WITNESS WHEREOF, the parties hereto have affixed their hands and
seals by signing this Agreement as of the day and year first above
written.
[Signatures on
Following Page]
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Company:
GUIDED THERAPEUTICS, INC.
/s/ Xxxx X. Xxxxxxxxxx
Name:
Xxxx X. Xxxxxxxxxx
Title:
CEO
Creditor: XXXXX DAY
______________________
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Exhibit
A
Form
of 13-Month Note
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THIS SECURITY HAS NOT BEEN
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES
LAWS. THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE
MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A
FINANCIAL INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED
IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY
SUCH SECURITY.
PROMISSORY
NOTE
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