SECURITIES PURCHASE AGREEMENT
EXHIBIT 10.7
THIS SECURITIES PURCHASE
AGREEMENT (this
“Agreement”), is made effective as of December 9, 2015
(the “Effective Date”), and is entered into by and
among Symbid Corp., a Nevada corporation (the
“Company”), and the Buyer set forth on the signature
page affixed hereto (the “Buyer”).
WITNESSETH:
WHEREAS, the Company and the Buyer are executing and
delivering this Agreement in reliance upon an exemption from
securities registration pursuant to Section 4(a)(2) of the
Securities Act of 1933, as amended (the “Securities
Act”); and
WHEREAS, the parties desire that, upon the terms and
subject to the conditions contained herein, the Company shall sell
to the Buyer, as provided herein, and the Buyer shall purchase
149,864,454 shares (the “Shares”) of the
Company’s common stock, $0.001 par value per share (the
“Common Stock”) such shares representing on issuance
80% of the Company’s issued and outstanding Common Stock
giving no effect to the Company’s 2,770,294 outstanding
warrants, all of which are substantially out of the
money.
NOW, THEREFORE,
in consideration of the mutual
consents and other agreements contained in this Agreement, the
Company and the Buyer hereby agree as follow:
1. PURCHASE
AND SALE OF SHARES.
Purchase of
Shares. Subject to the satisfaction of the terms
and conditions of this Agreement, Buyer agrees to purchase as of
the Effective Date, and the Company agrees to sell and issue to
Buyer as of the Effective Date, 149,863,484 Shares in consideration
of (i) the cancellation of an aggregate of $86,456.41 due from the
Company to Buyer as of the close of business on December 7, 2016
for services and expense reimbursements; (ii) the payment by Buyer
to the Company of $43,614 (the “Initial Cash Funding
Amount”) to be used primarily to pay an aggregate of $37,614
to service provider creditors of the Company, including payments to
enable the filing of the Company’s September 30, 2016
Quarterly Report on Form 10-Q; and (iii) the commitment of Buyer to
fund, to the extent future net revenues of the Company prove
insufficient, additional operating expenses of the Company
necessary to ensure its continuing operation and existence until
such time that the Company can fund operations independent of Buyer
or until the Company completes an acquisition, business
combination, or similar transaction with an operating entity in a
transaction which results in a change of control of the Company. On
the Effective Date, Buyer shall deliver in the manner requested by
the Company, the Initial Cash Funding Amount.
2. BUYER’S
REPRESENTATIONS AND WARRANTIES.
Buyer
represents and warrants that:
(a) Investment
Purpose. Buyer is
acquiring the Shares, for its own account for investment only and
not with a view towards, or for resale in connection with, the
public sale or distribution thereof, except pursuant to sales
registered or exempted under the Securities Act; provided, however,
that by making the representations herein, Buyer reserves the right
to dispose of the Shares at any time in accordance with or pursuant
to an effective registration statement covering such Shares, or an
available exemption under the Securities Act. The Buyer agrees not
to sell, hypothecate or otherwise transfer the Shares unless such
securities are registered under the federal and applicable state
securities laws or unless, in the opinion of counsel satisfactory
to the Company, an exemption from such law is
available.
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(b) Buyer’s
Qualifications.
Buyer (i) has full power and authority to execute and deliver this
Agreement and all other related agreements and to carry out the
provisions hereof and thereof and to purchase and hold the Shares.
The execution and delivery of this Agreement has been duly
authorized by all necessary action. This Agreement has been duly
executed and delivered on behalf of Buyer and is a legal, valid and
binding obligation of Buyer. The execution and delivery of this
Agreement will not violate or be in conflict with any order,
judgment, injunction, agreement or controlling document to which
the Buyer is a party or by which it is bound.
(c) Brokerage
Fees. Buyer has
taken no action that would give rise to any claim by any person for
brokerage commissions, finders’ fees or the like relating to
this Agreement or the transaction contemplated
hereby.
(d) Buyer’s
Knowledge of Investment Risks. Buyer has such knowledge and
experience in financial, tax, and business matters, and, in
particular, investments in securities, so as to enable it to
utilize the information made available to it in connection with the
Shares to evaluate the merits and risks of an investment in the
Shares and the Company and to make an informed investment decision
with respect thereto.
(e) Buyer
Liquidity. Buyer has
adequate means of providing for such Buyer’s current
financial needs and foreseeable contingencies and has no need for
liquidity of its investment in the Shares for an indefinite period
of time.
(f) High
Risk Investment; Review of Risk Factors. Buyer is aware that an investment in
the Shares involves a number of very significant risks, and has
carefully reviewed and understands the risks of, and other
considerations relating to, the purchase of the
Shares.
(g) Reliance
on Exemptions. Buyer
understands that the Shares are being offered and sold to it in
reliance on specific exemptions from the registration requirements
of United States federal and state securities laws and that the
Company is relying in part upon the truth and accuracy of, and
Buyer’s compliance with, the representations, warranties,
agreements, acknowledgments and understandings of Buyer set forth
herein in order to determine the availability of such exemptions
and the eligibility of Buyer to acquire such
securities.
(h) Information. Buyer
is familiar with the Company and its operations and has been
furnished with all documents and materials relating to the
business, finances and operations of the Company and information
that Buyer requested and deemed material to making an informed
investment decision regarding its purchase of the
Shares.
(i) Transfer
or Resale. (A) Buyer understands that: (i) the
Shares, have not been and are not being registered under the
Securities Act or any state securities laws, and may not be offered
for sale, sold, assigned or transferred unless (A) subsequently
registered thereunder, or (B) Buyer shall have delivered to the
Company an opinion of counsel, in a generally acceptable form, to
the effect that such securities to be sold, assigned or transferred
may be sold, assigned or transferred pursuant to an exemption from
such registration requirements; (ii) any sale of such securities
made in reliance on Rule 144 under the Securities Act (or a
successor rule thereto) (“Rule 144”) may be
made only in accordance with the terms of Rule 144 and further, if
Rule 144 is not applicable, any resale of such securities under
circumstances in which the seller (or the person through whom
the sale is made) may be deemed to be an underwriter (as that term
is defined in the Securities Act) may require compliance with some
other exemption under the Securities Act or the rules and
regulations of the SEC thereunder; and (iii) except as otherwise
set forth in this Agreement, neither the Company nor any other
person is under any obligation to register such securities under
the Securities Act or any state securities laws or to comply with
the terms and conditions of any exemption thereunder. The Company
reserves the right to place stop transfer instructions against the
shares and certificates for the Shares to the extent specifically
set forth under this Agreement. There can be no assurance that
there will be any market or resale for the Shares, nor can there be
any assurance that the Shares will be freely transferable at any
time in the foreseeable future.
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(B)
Buyer understands that the Company is a former “shell
company” as defined in Rule 12b-2 under the Securities
Exchange Act of 1934, as amended (the “Exchange
Act”). Pursuant to Rule 144(i), securities issued by a
current or former shell company (that is, the Shares that otherwise
meet the holding period and other requirements of Rule 144
nevertheless cannot be sold in reliance on Rule 144 until one year
after the Company (a) is no longer a shell company; and (b) has
filed current “Form 10 information” (as defined in Rule
144(i)) with the SEC reflecting that it is no longer a shell
company, and provided that at the time of a proposed sale pursuant
to Rule 144, the Company is subject to the reporting requirements
of section 13 or 15(d) of the Exchange Act and has filed all
reports and other materials required to be filed by section 13 or
15(d) of the Exchange Act, as applicable, during the preceding 12
months (or for such shorter period that the issuer was required to
file such reports and materials), other than Form 8-K
reports.
(j) Legends. Buyer
understands that the certificates or other instruments representing
the Shares shall bear a restrictive legend in substantially the
following form (and a stop transfer order may be placed against
transfer of such stock certificates):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”). THESE SECURITIES MAY BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) TO THE COMPANY, (B)
OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 OF REGULATION
S UNDER THE SECURITIES ACT, (C) IN COMPLIANCE WITH RULE 144 OR 144A
THEREUNDER, IF AVAILABLE, AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS, (D) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT, OR (E) IN A TRANSACTION THAT DOES NOT REQUIRE
REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE
SECURITIES LAWS, AND THE HOLDER HAS, PRIOR TO SUCH SALE, FURNISHED
TO THE COMPANY AN OPINION OF COUNSEL OR OTHER EVIDENCE OF
EXEMPTION, IN EITHER CASE REASONABLY SATISFACTORY TO THE COMPANY.
HEDGING TRANSACTIONS INVOLVING THESE SECURITIES MAY NOT BE
CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES
ACT.
(k) Authorization,
Enforcement. This
Agreement has been duly and validly authorized, executed and
delivered on behalf of Buyer and is a valid and binding agreement
of Buyer enforceable in accordance with its terms, except as such
enforceability may be limited by general principles of equity or
applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation and other similar laws relating to, or affecting
generally, the enforcement of applicable creditors’ rights
and remedies.
(l) Anti-Money
Laundering Acknowledgement. The
Buyer represents that the amounts invested by it for the Shares
were not and are not directly or indirectly derived from activities
that contravene federal, state or international laws and
regulations, including anti-money laundering laws and
regulations.
3. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.
The
Company represents and warrants to the Buyer that:
(a) Organization
and Qualification. The Company is a corporation duly
organized and validly existing in good standing under the laws of
the State of Nevada, and has the requisite corporate power to own
its properties and to carry on its business as now being conducted.
The Company is duly qualified as a foreign corporation to do
business and is in good standing in every jurisdiction in which the
nature of the business conducted by it makes such qualification
necessary, except to the extent that the failure to be so qualified
or be in good standing would not have a Material Adverse Effect, as
defined below.
(b) Authorization,
Enforcement, Compliance with Other
Instruments. (i) The Company has the
requisite corporate power and authority to enter into and perform
this Agreement and all other documents necessary or desirable to
effect the transactions contemplated hereby (collectively the
“Transaction Documents”) to which it is a party and to
issue the Shares, in accordance with the terms hereof and thereof,
(ii) the execution and delivery of the Transaction Documents by the
Company and the consummation by it of the transactions contemplated
hereby and thereby, including, without limitation, the issuance of
the Shares have been duly authorized by the Company’s Board
of Directors and no further consent or authorization is required by
the Company, its Board of Directors or its stockholders, (iii) the
Transaction Documents will be duly executed and delivered by the
Company, (iv) the Transaction Documents when executed will
constitute the valid and binding obligations of the Company
enforceable against the Company in accordance with their terms,
except as such enforceability may be limited by general principles
of equity or applicable bankruptcy, insolvency, reorganization,
moratorium, liquidation or similar laws relating to, or affecting
generally, the enforcement of creditors’ rights and
remedies.
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(c) Capitalization.
The authorized capital stock of the Company consists of 290,000,000
shares of Common Stock and 10,000,000 shares of preferred stock,
$0.001 par value per share (“Preferred Stock”). As of
the Effective Date, the Company has 37,465,871
shares of Common Stock issued and outstanding and no shares of
Preferred Stock outstanding. All of such outstanding shares have
been duly authorized, validly issued and are fully paid and
nonassessable. No shares of Common Stock are subject to preemptive
rights or any other similar rights or any liens or encumbrances
suffered or permitted by the Company. Except for 389,484 warrants
which expire on February 5, 2017, 15,500 of which are exercisable
for the purchase of one share of Common Stock at an exercise price
of $0.50 per share and 373,984 of which are exercisable for the
purchase of one share of Common Stock at an exercise price of $0.75
per share and 2,330,810 warrants which expire on May 20, 2017, all
of which are exercisable for the purchase of one share of Common
Stock at an exercise price of $0.75 per share (i) there are no
outstanding options, warrants, scrip, rights to subscribe to, calls
or commitments of any character whatsoever relating to, or
securities or rights convertible into, any shares of capital stock
of the Company, or contracts, commitments, understandings or
arrangements by which the Company is or may become bound to issue
additional shares of capital stock of the Company or options,
warrants, scrip, rights to subscribe to, calls or commitments of
any character whatsoever relating to, or securities or rights
convertible into, any shares of capital stock of the Company, (ii)
there are no outstanding debt securities, (iii) there are no
outstanding liabilities other than those set forth on Schedule 3(c)
hereto, and no fees that will be incurred (exclusive of fees due to
Buyer) in connection with the filing of the Company’s
September 30, 2016 Form 10-Q other than those set forth on Schedule
3(c) hereto, (iv) there are no agreements or arrangements under
which the Company is obligated to register the sale of any of their
securities under the Securities Act, and (v) there are no
outstanding registration statements and there are no outstanding
comment letters from the SEC or any other regulatory agency. There
are no securities or instruments containing anti-dilution or
similar provisions that will be triggered by the issuance of the
Shares as described in this Agreement. The Shares, when issued,
will be free and clear of all pledges, liens, encumbrances and
other restrictions (other than those arising under federal or state
securities laws as a result of the issuance of the Shares). No
co-sale right, right of first refusal or other similar right exists
with respect to the Shares or the issuance and sale thereof. The
issue and sale of the Shares will not result in a right of any
holder of Company securities to adjust the exercise, exchange or
reset price under such securities. The Company has made available
to the Buyer true and correct copies of the Company’s
Articles of Incorporation, and as in effect on the date hereof (the
“Articles of Incorporation”), and the Company’s
By-laws, as in effect on the date hereof (the
“By-laws”), and the terms of all securities exercisable
for Common Stock and the material rights of the holders thereof in
respect thereto.
(d) Issuance
of Securities. The Shares are duly authorized
and, upon issuance in accordance with the terms hereof, shall be
duly issued, fully paid and nonassessable, are free from all taxes,
liens and charges with respect to the issue thereof.
(e) 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 will not (i) result in a violation of the
Articles of Incorporation, any certificate of designations of any
outstanding series of preferred stock of the Company or the By-laws
or (ii) violate or conflict with, or result in a breach of any
provision of, or constitute a default (or an event which with
notice or lapse of time or both would become a default) under, or
give to others any rights of termination, amendment, acceleration
or cancellation of, any agreement, indenture or instrument to which
the Company is a party, or result in a violation of any law, rule,
regulation, order, judgment or decree (including federal and state
securities laws and regulations and the rules and regulations of
the OTC Markets (the “OTC Markets”) on which the Common
Stock is quoted) applicable to the Company or by which any property
or asset of the Company is bound or affected except for those which
could not reasonably be expected to have a material adverse effect
on the assets, business, condition (financial or otherwise),
results of operations or future prospects of the Company (a
“Material Adverse Effect”). Except those which could
not reasonably be expected to have a Material Adverse Effect, the
Company is not in violation of any term of or in default under its
Articles of Incorporation or By-laws. Except for those which could
not reasonably be expected to have a Material Adverse Effect, the
Company is not in violation of any term of or in default under any
material contract, agreement, mortgage, indebtedness, indenture,
instrument, judgment, decree or order or any statute, rule or
regulation applicable to the Company. The business of the Company
is not being conducted, and shall not be conducted in violation of
any material law, ordinance, or regulation of any governmental
entity. Except as specifically contemplated by this Agreement and
as required under the Securities Act and any applicable state
securities laws, the Company is not required 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 or contemplated by
this Agreement or the Escrow Agreement in accordance with the terms
hereof or thereof. All consents, authorizations, orders, filings
and registrations which the Company is required to obtain pursuant
to the preceding sentence have been obtained or effected on or
prior to the date hereof. The Company is unaware of any facts or
circumstance, which might give rise to any of the
foregoing.
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(f) SEC
Filings; Financial Statements. The Company has filed (and, except
for certain Current Reports on Form 8-K and the Company’s
Quarterly Report on Form 10-Q for the quarter ended September 30,
2016 which the Company agrees to file on or prior to December 14,
2016, has, within the past two years, timely filed (subject to
12b-25 filings with respect to certain periodic filings)) all
reports, schedules, forms, statements and other documents required
to be filed by it with the SEC pursuant to the reporting
requirements of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”) (all of the foregoing and all
other documents filed with the SEC prior to the date hereof and all
exhibits included therein and financial statements and schedules
thereto and documents incorporated by reference therein, being
hereinafter referred to herein as the “SEC Filings”).
As of their respective dates, the SEC Filings complied in all
material respects with the requirements of the Exchange Act and the
rules and regulations of the SEC promulgated thereunder, and none
of the SEC Filings, at the time they were filed with the SEC,
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. As of their respective
dates, the audited financial statements of the Company included in
the Company’s SEC Filings for the period from inception on
July 28, 2011 to December 31, 2015, and the subsequent unaudited
interim financial statements included in the Company’s SEC
Filings (collectively, the “Financial Statements”)
complied as to form in all material respects with applicable
accounting requirements and the published rules and regulations of
the SEC with respect thereto. Such financial statements were
prepared in accordance with generally accepted accounting
principles, consistently applied, during the periods involved
(except (i) as may be otherwise indicated in such Financial
Statements or the notes thereto, or (ii) in the case of unaudited
interim statements, to the extent they may exclude 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 its operations and cash flows for
the periods then ended (subject, in the case of unaudited
statements, to normal year-end audit adjustments). As of the date
hereof, there are no outstanding or unresolved comments in comment
letters received from the staff of the SEC with respect to any of
the SEC Filings. No other information provided by or on behalf of
the Company to the Buyer including, without limitation, information
referred to in this Agreement, contains any untrue statement of a
material fact or omits to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not
misleading.
(g) Absence
of Litigation. There
is no action, suit, proceeding, inquiry or investigation before or
by any court, public board, government agency, self-regulatory
organization or body pending against or affecting the Company or
the Common Stock, wherein an unfavorable decision, ruling or
finding would (i) adversely affect the validity or enforceability
of, or the authority or ability of the Company to perform its
obligations under, this Agreement or any of the documents
contemplated herein, or (ii) have a Material Adverse
Effect.
(h) No
General Solicitation. 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) in connection with the offer
or sale of the Units and the underlying
securities.
(i) Employee
Relations. The
Company is not involved in any labor dispute nor, to the knowledge
of the Company, is any such dispute threatened.
(j) Intellectual
Property Rights.
The Company has not received any notice of infringement of, or
conflict with, the asserted rights of others with respect to any
intellectual property that it utilizes.
(k) No
Material Adverse Breaches, etc. The Company is not subject to any
charter, corporate or other legal restriction, or any judgment,
decree, order, rule or regulation which in the judgment of the
Company’s officers has or is expected in the future to have a
Material Adverse Effect. The Company is not in breach of any
contract or agreement which breach, in the judgment of the
Company’s officers, has or is expected to have a Material
Adverse Effect.
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(l) Tax
Status. The Company
has made and filed all federal and state income and all other tax
returns, reports and declarations required by any jurisdiction to
which it is subject and (unless and only to the extent that the
Company has set aside on its books provisions reasonably adequate
for the payment of all unpaid and unreported taxes) has paid all
taxes and other governmental assessments and charges that are
material in amount, shown or determined to be due on such returns,
reports and declarations, except those being contested in good
faith and has set aside on its books provision reasonably adequate
for the payment of all taxes for periods subsequent to the periods
to which such returns, reports or declarations apply. There are no
unpaid taxes in any material amount claimed to be due by the taxing
authority of any jurisdiction, and the officers of the Company know
of no basis for any such claim.
(m) Certain
Transactions. Except
for arm’s length transactions pursuant to which the Company
makes payments in the ordinary course of business upon terms no
less favorable than the Company could obtain from third parties,
none of the officers, directors, or employees of the Company is
presently a party to any transaction with the Company (other than
for services as employees, officers and directors), including any
contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or
personal property to or from, or otherwise requiring payments to or
from any officer, director or such employee or, to the knowledge of
the Company, any corporation, partnership, trust or other entity in
which any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee or
partner.
(n) Rights
of First Refusal. The Company is not obligated to offer
the Shares offered hereunder on a right of first refusal basis or
otherwise to any third parties including, but not limited to,
current or former stockholders of the Company, underwriters,
brokers, agents or other third parties.
(o) Reliance. The
Company acknowledges that the Buyers are relying on the
representations and warranties made by the Company hereunder and
that such representations and warranties are a material inducement
to the Buyer purchasing the Shares. The Company further
acknowledges that without such representations and warranties of
the Company made hereunder, the Buyers would not enter into this
Agreement.
(p) Brokers’
Fees. The Company
does not have any liability or obligation to pay any fees or
commissions to any broker, finder or agent with respect to the
transactions contemplated by this Agreement.
4. COVENANTS.
(a) Best
Efforts. Each party
shall use its best efforts timely to satisfy each of the conditions
to be satisfied by it as provided in Sections 5 and 6 of this
Agreement.
(b) Reporting
Status. Until the date on which the Buyer shall
have sold all of the Shares,
the Company shall use its reasonable commercial efforts to file in
a timely manner all reports required to be filed with the SEC
pursuant to the Exchange Act, and the regulations of the SEC
thereunder, and the Company shall not terminate its status as an
issuer required to file reports under the Exchange Act even if the
Exchange Act or the rules and regulations thereunder would
otherwise permit such termination.
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(c) Use
of Proceeds. The
Company shall use $37,614 of the proceeds from the Initial Cash
Funding Amount to pay off all existing liabilities to creditors and
make all required payments (as set forth in Schedule 3(c)) needed
to make and pay for the filing of the Company’s September 30,
2016 Form 10-Q on or before December 14, 2016.
(d) Listings
or Quotation. The
Company shall use its best efforts to maintain the listing or
quotation of its Common Stock upon the OTC Bulletin Board and/or
OTC Markets.
(e) Resales
Absent Effective Registration Statement. Buyer
understands and acknowledges that (i) this Agreement and the
agreements contemplated hereby will require the Company to issue
and deliver the Shares to the Buyer with legends restricting their
transferability under the Securities Act, and (ii) it is aware that
resales of such Shares may not be made unless, at the time of
resale, there is an effective registration statement under the
Securities Act covering Buyer’s resale(s) or an applicable
exemption from registration.
(f) Continuance
of Business Operations. The Company shall take all steps
necessary to remain a viable operating business entity and not
become an entity described in Rule 144(i)(1)(i).
5. CONDITIONS
TO THE COMPANY’S OBLIGATION TO SELL.
The
obligation of the Company hereunder to issue and sell the Shares to
the Buyer is subject to the satisfaction of each of the following
conditions, provided that these conditions are for the
Company’s sole benefit and may be waived by the Company at
any time in its sole discretion:
(a) The
Buyer shall have delivered to the Company, the Initial Cash Funding
Amount.
(b) The
representations and warranties of the Buyer contained in this
Agreement shall be true and correct in all material respects as of
the Effective Date and the Buyer shall have performed, satisfied
and complied in all material respects with the covenants,
agreements and conditions required by this Agreement to be
performed, satisfied or complied with by the Buyer as of the
Effective Date.
6. CONDITIONS
TO THE BUYER’S OBLIGATION TO PURCHASE.
(a) The
obligation of the Buyer hereunder to purchase the Shares is subject
to the satisfaction, on or before the Effective Date, of each of
the following conditions:
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(i) The
representations and warranties of the Company contained in this
Agreement shall be true and correct in all material respects
(except to the extent that any of such representations and
warranties is already qualified as to materiality in Section 3
above, in which case, such representations and warranties shall be
true and correct without further qualification) as of the Effective
Date and the Company shall have performed, satisfied and complied
in all material respects with the covenants, agreements and
conditions required by this Agreement to be performed, satisfied or
complied with by the Company at or prior to the effective date. The
Company shall have obtained any and all consents, permits,
approvals, registrations and waivers necessary or appropriate for
consummation of the purchase and sale of the Shares, all of which
shall be in full force and effect.
(b) Indemnification
of Buyers. In
consideration of the Buyer’s execution and delivery of this
Agreement and acquiring the Shares hereunder, and in addition to
all of the Company’s other obligations under this Agreement,
the Company shall defend, protect, indemnify and hold harmless the
Buyer and each other holder of the Shares, and all of their
officers, directors, employees and agents (including, without
limitation, those retained in connection with the transactions
contemplated by this Agreement) (collectively, the “Buyer
Indemnitees”) from and against any and all actions, causes of
action, suits, claims, losses, costs, penalties, fees, liabilities
and damages, and expenses in connection therewith (irrespective of
whether any such Buyer Indemnitee is a party to the action for
which indemnification hereunder is sought), and including
reasonable attorneys’ fees and disbursements (the
“Indemnified Liabilities”), incurred by the Buyer
Indemnitees or any of them as a result of, or arising out of, or
relating to (a) any material breach of any covenant, agreement or
obligation of the Company contained in this Agreement, or (b) any
cause of action, suit or claim brought or made against such Buyer
Indemnitee and arising out of or resulting from the execution,
delivery, performance or enforcement of this Agreement by any of
the Buyer Indemnitees. To the extent that the foregoing undertaking
by the Company may be unenforceable for any reason, the Company
shall make the maximum contribution to the payment and satisfaction
of each of the Indemnified Conflict, which is permissible under
applicable law.
7.
CONFLICTS WAIVER. The Company
acknowledges that Buyer serves as US corporate and securities
counsel to the Company and will continue to serve in such capacity
following Buyer’s purchase of the Shares. The Company agrees
that in the event of any dispute arising in connection with this
Agreement, Buyer shall be permitted to continue to represent the
Company and the Company will not seek to disqualify Buyer as
counsel and waives any objection that the Company might have with
respect to Buyer’s dual role as counsel and a principal
shareholder.
8.
GOVERNING LAW:
MISCELLANEOUS.
(a) Governing
Law. This Agreement
shall be governed by and interpreted in accordance with the laws of
the State of New York without regard to the principles of conflict
of laws. The parties further agree that any action between them
shall be heard exclusively in federal or state court sitting in the
New York County, New York, and expressly consent to the
jurisdiction and venue of the Supreme Court of New York, sitting in
New York County and the United States District Court for the
Southern District of New York for the adjudication of any civil
action asserted pursuant to this paragraph.
(b) Counterparts. This
Agreement may be executed in counterparts, each of which shall be
considered one and the same agreement and shall become effective
when counterparts have been signed by each party and delivered to
the other party.
(c) Headings. The
headings of this Agreement are for convenience of reference and
shall not form part of, or affect the interpretation of, this
Agreement.
(d) Severability. If
any provision of this Agreement shall be invalid or unenforceable
in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this
Agreement in that jurisdiction or the validity or enforceability of
any provision of this Agreement in any other
jurisdiction.
8
(e) Entire
Agreement, Amendments. This Agreement supersedes all other
prior oral or written agreements between the Buyer, the Company,
their affiliates and persons acting on their behalf with respect to
the matters discussed herein (including any term sheet), and this
Agreement and the instruments referenced herein contain the entire
understanding of the parties with respect to the matters covered
herein and therein and, except as specifically set forth herein or
therein, neither the Company nor any Buyer makes any
representation, warranty, covenant or undertaking with respect to
such matters. No provision of this Agreement may be waived or
amended other than by an instrument in writing signed by the party
to be charged with enforcement.
(f) Notices. Any
notices, consents, waivers, or other communications required or
permitted to be given under the terms of this Agreement must be in
writing and will be deemed to have been delivered (i) upon receipt,
when delivered personally; (ii) upon confirmation of receipt, when
sent by facsimile; (iii) upon receipt when sent by U.S. certified
mail, return receipt requested, or (iv) one (1) day after deposit
with a nationally recognized overnight delivery service, in each
case properly addressed to the party to receive the same. The
addresses and facsimile numbers for such communications shall
be:
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If to the Company, to:
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Xxxxxxxxxxxxx 00
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0000 XX Rotterdam
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|
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The Netherlands
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|
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Attention: Korstiaan Zandvliet, CEO
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If to Buyer, to:
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CKR Law LLP
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1330 Avenue of the Xxxxxxxx, 00xx
Xxxxx
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Xxx Xxxx, Xxx Xxxx 00000
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Attention: Xxxxx Xxxxxxxx,
Esq.
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Telephone: (000)
000-0000
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Facsimile: (000)
000-0000
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(g) Successors
and Assigns. This
Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and assigns. No party shall
assign this Agreement or any rights or obligations hereunder
without the prior written consent of the other party
hereto.
(h) No
Third Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective permitted
successors and assigns, and is not for the benefit of, nor may any
provision hereof be enforced by, any other
person.
(i) Survival. The
representations and warranties of the Company and the Buyer
contained in Sections 2 and 3, the agreements and covenants set
forth in Sections 4, 5 and 8, and the indemnification provisions
set forth in Section 6, shall survive the effective date of this
Agreement for a period of two (2) years.
(j) 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.
(k) 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.
(l) Remedies. In
addition to being entitled to exercise all rights provided herein
or granted by law, including recovery of damages, the Buyer and the
Company will be entitled to specific performance under this
Agreement. The parties agree that monetary damages may not be
adequate compensation for any loss incurred by reason of any breach
of obligations described in the foregoing sentence and hereby agree
to waive in any action for specific performance of any such
obligation the defense that a remedy at law would be
adequate.
[REMAINDER PAGE INTENTIONALLY LEFT BLANK]
{00177968.1
/ 3006.002}
9
IN WITNESS
WHEREOF, the Buyers and the Company have caused this
Securities Purchase Agreement to be duly executed as of the date
first written above.
|
|
COMPANY:
|
|
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|
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|
|
|
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By: /s/
Korstiaan
Zandvliet
|
|
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Name: Korstiaan Zandvliet
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Title: Chief Exectuive Officer
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BUYER:
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CKR LAW LLP
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By: /s/ Xxxxxxx
Xxxxx
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Name: Xxxxxxx Xxxxx
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Title: Managing Partner
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{00177968.1
/ 3006.002}
10
Schedule 3(c)
Outstanding Company Liabilities
Accounts Payable (excluding payables to Buyer)
|
Xxxxxxxx
LLP (auditor)
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$7,338
|
|
KA
Consulting (accounting)
|
$6,712
|
|
Issuer
Direct (Xxxxx printer/filer)
|
$4,389
|
|
V
Stock (transfer agent)
|
$1,500
|
|
Xxxxxx
Xxxx (tax returns)
|
$1,675
|
|
|
$21,614
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Other Liabilities
|
2014 S-1 Late Filing Penalty
|
$14,630 (expected to be paid in shares)
|
September 30, 2016 10Q Fees and Expenses (excluding Buyer related
Fees and Expenses)
|
Xxxxxxxx
LLP
|
$7,500
|
|
KA
Consulting
|
$3,500
|
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BDO
(accounting)
|
$5,000
|
|
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$16,000
|
{00177968.1
/ 3006.002}
11
