EXCHANGE AGREEMENT
Exhibit 10.14
This
Agreement (“Agreement”) is entered into as of
September __, 2014, by and between Endra, Inc., a Delaware
corporation (the “Company”), and ______________
(the “Investor”).
RECITALS
WHEREAS, the Investor holds a senior
promissory note (the “Note”) in the original principal
amount of $_________ and warrants (the “Warrants”) to purchase _________
shares of the Company’s common stock (the “Warrant Shares”) for $0.30 per
share; and
WHEREAS, the Company and the Investor
now desire to exchange the Note and all interest accrued thereunder
and the Warrants for _________ shares of the Company’s common
stock, par value $0.0001 per share (“Common Stock”).
NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby
agreed and acknowledged, the parties hereby agree as
follows:
AGREEMENT
1.
Exchange.
1.1 Terms.
In reliance upon the representations,
warranties, covenants, terms and conditions of this Agreement, both
the Note and the Warrants shall terminate and be of no further
force and effect for and in consideration for the issuance to the
Investor of _________
shares of Common Stock (the
“Exchange”, with such shares of Common Stock being
issued, the “Exchange
Shares”).
1.2 Closing.
The Exchange shall be effective on the
date first set forth above (the “Effective
Date”). On the Effective
Date, all rights of the Investor as a holder of the Note and
Warrants shall cease and terminate, including the accrual of all
interest with respect to the Note, without further notice,
excepting only the right to receive the Exchange Shares as set
forth in Section 1.4 below.
1.3 Surrender
of Note and Warrants. On the Effective Date, the Investor
shall deliver to the Company the Note and Warrants, marked
cancelled, or an indemnification undertaking with respect to the
Note and/or Warrants, as the case may be, in the event of the loss,
theft or destruction of the Note and/or Warrants.
1.4 Issuance
of Exchange Shares. Upon receipt of the surrendered Note and
Warrants, the Company shall deliver to its transfer agent
irrevocable instructions to issue to the Investor the Exchange
Shares.
2. Representations
and Warranties of the Investors. The Investor makes the
following representations and warranties to the
Company:
2.1 Execution;
Binding Agreement. This
Agreement has been duly authorized, validly executed and delivered
by the Investor and is a valid and binding agreement and obligation
of the Investor, enforceable against the Investor in accordance
with its terms, and the Investor has full power and authority to
execute and deliver the Agreement and the documents contemplated
hereby and to perform his obligations hereunder and
thereunder.
2.2 Securities
Laws. The Investor understands
the Exchange Shares are being offered and sold to in reliance on
specific provisions of federal and state securities laws and that
the Company is relying upon the truth and accuracy of the
representations, warranties, agreements, acknowledgments and
understandings of the Investor set forth herein for purposes of
qualifying for exemptions from registration under the Securities
Act of 1933, as amended (the “Securities
Act”) and applicable
state securities laws.
2.3 Accredited
Investor. The Investor is an
“accredited investor” as defined under Rule 501 of
Regulation D promulgated under the Securities
Act.
2.4 No
Bad Actors. Neither the Investor nor, to the extent it has
them, any of its shareholders, members, managers, general or
limited partners, directors, affiliates or executive officers
(collectively with the Investor, the “Covered Persons”), are subject to
any of the “Bad Actor” disqualifications described in
Rule 506(d)(1)(i) to (viii) under the Securities Act (a
“Disqualification
Event”), except for a Disqualification Event covered
by Rule 506(d)(2) or (d)(3). The Investor has exercised reasonable
care to determine whether any Covered Person is subject to a
Disqualification Event. The receipt of the Exchange Shares by the
Investor will not subject the Corporation to any Disqualification
Event.
2.5 Acquisition
for Own Account. The Investor
is and will be acquiring the Exchange Shares for his own account,
for investment purposes, and not with a view to any resale or
distribution in whole or in part, in violation of the Securities
Act or any applicable securities laws; provided, however, that notwithstanding the foregoing, the Investor
does not covenant to hold the Exchange Shares for any minimum
period of time other than as required by law.
2.6 Securities
Act Exemption. The offer and
sale of the Exchange Shares is intended to be exempt from
registration under the Securities Act, by virtue of Section 3(a)(9)
and/or Section 4(2) thereof and Regulation D promulgated
thereunder. The Investor understands that the Exchange Shares
received hereunder are “restricted securities,” as that
term is defined in the Securities Act and the rules thereunder,
have not been registered under the Securities Act, and that none of
the Exchange Shares can be sold or transferred unless they are
first registered under the Securities Act and such state and other
securities laws as may be applicable or the Company receives an
opinion of counsel reasonably acceptable to the Company that an
exemption from registration under the Securities Act is available
(and then the Exchange Shares may be sold or transferred only in
compliance with such exemption and all applicable state and other
securities laws).
2.7 Ownership
of Note and Warrants. The Investor has not assigned,
conveyed or otherwise transferred any interest in and to the Note
and Warrants beneficially owned by such Investor, as the case may
be, to any third party, and owns and holds, beneficially and of
record, the entire right, title, and interest in and to the Note
and Warrants free and clear of all rights and
encumbrances.
3. Representations,
Warranties and Covenants of the Company. The Company makes
the following representations and warranties to the Investor, and
covenants as follows for the benefit of the Investor:
3.1 Incorporation.
The Company has been duly incorporated and is validly existing and
in good standing under the laws of the state of Delaware, with full
corporate power and authority to own, lease and operate its
properties and to conduct its business as currently conducted, and
is duly registered and qualified to conduct its business and is in
good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such
registration or qualification, except where the failure to register
or qualify would not have a Material Adverse Effect. For purposes
of this Agreement, “Material Adverse
Effect” shall mean any
material adverse effect on the business, operations, properties,
prospects, or financial condition of the Company and its
subsidiaries and/or any condition, circumstance, or situation that
would prohibit or otherwise materially interfere with the ability
of the Company to perform any of its obligations under this
Agreement.
3.2 Authorization
of Exchange Shares. The
Exchange Shares have been duly authorized by all necessary
corporate action and, pending shareholder approval and
implementation of a reverse split of the Company’s Common
Stock, shall be validly issued, fully paid and non-assessable, free
and clear of all liens, encumbrances and rights of refusal of any
kind.
3.3 Execution;
Binding Agreement. This
Agreement has been duly authorized, validly executed and delivered
on behalf of the Company and is a valid and binding agreement and
obligation of the Company enforceable against the Company in
accordance with its terms, and the Company has full power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder and thereunder.
3.4 No
Conflicts. The execution and
delivery of the Agreement and the consummation of the transactions
contemplated by this Agreement will not: (i) conflict with or
result in a breach of or a default under any of the terms or
provisions of, (A) the Company's certificate of incorporation or
by-laws, or (B) of any material provision of any indenture,
mortgage, deed of trust or other material agreement or instrument
to which the Company is a party or by which it or any of its
material properties or assets is bound, (ii) result in a violation
of any provision of any law, statute, rule, regulation, or any
existing applicable decree, judgment or order by any court, federal
or state regulatory body, administrative agency, or other
governmental body having jurisdiction over the Company, or any of
its material properties or assets or (iii) result in the creation
or imposition of any material lien, charge or encumbrance upon any
material property or assets of the Company or any of its
subsidiaries pursuant to the terms of any agreement or instrument
to which any of them is a party or by which any of them may be
bound or to which any of their property or any of them is subject
except in the case of clauses (i)(B), (ii) or (iii) for any such
conflicts, breaches, or defaults or any liens, charges, or
encumbrances which would not have a Material Adverse
Effect.
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3.5 Securities
Act Exemption. The delivery and
issuance of the Exchange Shares in accordance with the terms of and
in reliance on the accuracy of the Investor’s representations
and warranties set forth in this Agreement will be exempt from the
registration requirements of the Securities
Act.
3.6 Governmental
Approvals. No consent, approval
or authorization of or designation, declaration or filing with any
governmental authority on the part of the Company is required in
connection with the valid execution and delivery of this Agreement
or the offer, sale or issuance of the Exchange Shares or the
consummation of any other transaction contemplated by this
Agreement.
3.7 Compliance
with Securities Laws. The
Company has complied and will comply with all applicable federal
and state securities laws in connection with the offer, issuance
and delivery of the Exchange Shares hereunder. Neither the Company
nor anyone acting on its behalf, directly or indirectly, has or
will sell, offer to sell or solicit offers to buy any of the
Exchange Shares, or similar securities to, or solicit offers with
respect thereto from, or enter into any preliminary conversations
or negotiations relating thereto with, any person, or has taken or
will take any action so as to bring the issuance and sale of any of
the Exchange Shares under the registration provisions of the
Securities Act and applicable state securities laws. Neither the
Company nor any of its affiliates, nor any person acting on its or
their 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 any of the
Exchange Shares.
3.8 No
Solicitation. The Company
represents that it has not paid, and shall not pay, any commissions
or other remuneration, directly or indirectly, to any third party
for the solicitation of the Exchange.
4.1 Governing
Law; Consent to Jurisdiction.
This Agreement shall be governed by
and interpreted in accordance with the laws of the State of
Delaware without giving effect conflicts of law principles that
would result in the application of the substantive laws of another
jurisdiction. The Investor and the Company consent to the exclusive
jurisdiction of the federal courts whose districts encompass any
part of the State of Delaware in connection with any dispute
arising under this Agreement and hereby waives, to the maximum
extent permitted by law, any objection, including any objection
based on forum non
conveniens, to the bringing of
any such proceeding in such jurisdictions. THE INVESTOR AND THE
COMPANY HEREBY WAIVE ITS RIGHT TO A TRIAL BY JURY. The Investor and
the Company irrevocably consent to the service of process in any
such proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to such Party at its address set
forth herein. Nothing herein shall affect the right of the Investor
or the Company to serve process in any other manner permitted by
law.
4.2 Notices.
All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand delivery, express overnight courier, registered first class
mail, initially to the address set forth below, and thereafter at
such other address, notice of which is given in accordance with the
provisions of this Section 4.2. All such notices and communications
shall be deemed to have been duly given: when delivered by hand, if
personally delivered; when receipt is acknowledged, if faxed; or
when actually received or refused if sent by other
means.
If to
the Company:
Endra,
Inc.
00
Xxxxxxxx Xxxxx, Xxx. 000
Xxx
Xxxxx, XX 00000
Attention: Xxxxxxx
Xxxxxxxx, President
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with a
copy to:
K&L
Gates LLP
000
Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx
Xxxxxxxx
Attention: Xxxx
Xxxxx
If to
the Investor:
________________________
________________________
________________________
4.4 Entire
Agreement. This Agreement constitute the entire
understanding and agreement of the Investor and the Company with
respect to the subject matter hereof and supersede all prior and/or
contemporaneous oral or written proposals or agreements relating
thereto all of which are merged herein.
4.5 Amendments.
This Agreement may not be amended or
any provision hereof waived in whole or in part, except by a
written amendment signed by the Investor and the
Company
4.6 Counterparts.
This Agreement may be executed by facsimile signature and in
counterparts, each of which shall be deemed an original, and all of
which together shall constitute one and the same
instrument.
4.7 Assignments;
Successors and Assigns. This
Agreement shall be binding on and inure to the benefit of the
successors and assigns of the Investor and the Company. The Company
may not assign its rights and obligations hereunder to any person
or entity. The Investor may assign its rights and obligations
hereunder to any affiliate of the Investor without the consent of
the Company, and the Investor may assign any Exchange Shares to any
person or entity without the consent of the
Company.
[signature page follows]
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IN
WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the date first set forth above.
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ENDRA,
INC.
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By:
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Name: |
Xxxxxxx
Xxxxxxxx
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Title:
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Chief
Executive Officer
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INVESTOR
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