EXCHANGE AGREEMENT
Exhibit 10.43
This EXCHANGE AGREEMENT (this "Agreement")
is made and entered into effective
as of the ___ day of
December, 2019,
by and between
GUIDED THERAPEUTICS,
INC., a Delaware corporation (the "Company")
and the undersigned creditor of the Company
(the "Creditor").
WITNESSETH:
WHEREAS, the
Creditor is the payee of certain obligations owed to the Creditor
by the Company as set
forth on Exhibit
A
hereto (the "Obligations");
WHEREAS, in
satisfaction in full
of the Obligations, the
Creditor is willing to accept certain securities of the Company
as set forth on
Exhibit B
hereto (the
"Securities" and 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; and
WHEREAS, the
Company and the Creditor desire to enter into
this Agreement to evidence and
set forth the terms of
the exchange of
the Securities for and in
satisfaction of the Obligations;
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:
1. 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: (a) capitalized
terms that are not otherwise defined herein have the meanings given
to
such terms in the
Obligations (as defined herein), and
(b) the following terms have the
meanings set
forth in this Section I .
I:
"Affiliate"
means any Creditor that,
directly or indirectly
through one or
more intermediaries, controls or
is controlled by or is under common control
with a
Creditor, as such
terms are used in and construed
under Rule 405 under the Securities Act.
"Board
of
Directors"
means the board of directors of the
Company.
"Common
Stock" means
the common stock of
the Company, par value
$0.001 per share, and
any other class of
securities into which
such securities may hereafter be reclassified
or changed.
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"Exchange
Act"
means the Securities
Exchange Act of
1934, as
amended, and
the rules and regulations promulgated thereunder.
“Liens" means
a lien, charge,
pledge, security interest,
encumbrance, right
of first
refusal, preemptive right or other
restriction.
"Creditor" 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.
"Securities" has
the meaning set forth in the
Preamble of this Agreement.
"Securities
Act" means
the Securities Act of
1933,
as amended, and
the rules and regulations promulgated
thereunder.
3. Exchange
and
Satisfaction. The
Obligations are
hereby surrendered by
the Creditor and exchanged
for the Securities and
other considerations according to the following
terms and
conditions.
a.
As of December
____, 2019, the Creditor
currently holds unsecured notes
with Company
in the amount of ________________, including
both principal and
interest, Both the Company and Creditor wish
to continue their relationship under mutually
agreeable
terms.
b.
In lieu of
agreeing to dismiss the
entire amount of what
the Creditor is currently
owed by the
Company, the Creditor
agrees to accept in exchange ___________ shares of the Company's Stock
and warrants to purchase
the Company's common
shares, pursuant
to a separate
warrant agreement to be
executed once the Company has successfully
completed a new
financing as
defined in Section 3c.
below. The schedule of warrants to purchase common shares of Guided Therapeutics is listed
below:
(i)
Warrants to purchase ___________ shares at $0.20 (twenty
cents) each.
(ii)
Warrants to purchase __________
shares at $0.25 (twenty-five cents)
each.
(iii)
Warrants to purchase __________
shares at $0.75
(seventy-five cents) each.
All warrants will be exercisable immediately upon
issuance and
will expire after three years. Warrants will
not have a cashless
exercise provision unless
they are not registered
within six (6) months of
issuance.
c.
Both parties agree
that the exchange of debt for equity
contemplated by
this Agreement shall occur once the Company has
successfully raised a minimum of
one million dollars ($1,000,000)
in a new
financing.
d.
A 10%
blocker shall
be effected such that the Creditor agrees to restrict its
holdings of the Company's Common
Shares to
less
than 10% of the total number of the
Company’s outstanding common shares at one
point in time.
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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 otherwise to carry out its obligations
hereunder The execution and delivery of this Agreement 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, the Board of
Directors or the Company's stockholders in connection he11 with or
therewith. This Agreement 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 again t
the Company in accordance with their terms,
except: {i) as limited by general equitable principles and
applicable bankruptcy, insolvency, reorganization, moratorium and
there 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 pro
may
be limited by applicable law.
(b)
Issuance of the
Securities. The
Securities are duly authorized and, hence issued and paid for in
accordance with this Agreement, will be duly and validly issued,
fully paid and non-assessable, free and clear of all Liens imposed
by the Company.
The shares of Common Stock underlying
the Securities (if any), when issued in accordance with
the.terms of the Securities, will be validly
issued, fully paid and non-assessable, free and clear of
all Liens imposed by the Company other than restrictions on
transfer required by law.
5. Representations and
Warranties of the Creditor. Creditor hereby represents and warrants
as of the date hereof and as of the Closing Date to the Company as
follows (unless as of a specific date therein):
(a) Own
Account. Creditor understands that the Securities are "restricted
securities":
and have not been registered under the
Securities Act or any applicable state securities law and is
acquiring the Securities as principal for its own account and not
with a view to or for distributing or reselling such Securities or
any part thereof in violation of the Securities Act or any
applicable state securities law, has no present intention of
distributing and such Securities in violation of the Securities Act
or any applicable state securities law and as no direct or indirect
arrangement or understandings with any other Creditors to
distribute or regarding the distribution of such Securities in
violation of the Securities Act or any applicable state securities
law (this representation and warranty not limiting such
Creditor's right to sell the
Securities pursuant to the Registration Statement or otherwise in
compliance with applicable federal and state securities laws). The
Creditor is acquiring the Securities hereunder in the ordinary
course of its business.
(b) Creditor's
Status. At the time the Creditor was offered the Securities, it was
and as of the date hereof it is, an "accredited investor'' as
defined in Rule 501 (a) under the Securities Act.
(c) Experience
of Creditor. Creditor, either alone or together representatives,
has such knowledge, sophistication and experience in business and
fin matters so as to be capable of evaluating the merits and risks
of the prospective invest in the Securities, and has so evaluated
the merits and risks of such investment. Creditor is
able to bear the economic risk of an investment in the Securities
and, present time,
is able to afford a complete loss of
such investment.
6. Release.
The Creditor acknowledges and agrees
that it shall have no her rights or interest in, and shall
not receive any further consideration, payment or distribution of
any kind with respect to, the Obligations. In such regard, the
Creditor hereby waives, relinquishes, remises and releases all
rights, claims, interests or liabilities, known and own, of any
nature whatsoever in law or equity which the Creditor may
previously have had o may now or hereafter have as against or to
receive from the Company arising out of, resulting from or relating
to the Obligations or any rights or interest of the Creditor with
respect thereto.
7. Transfer
Restrictions. The Securities
may only be disposed of in compliance with state and federal
securities laws.
In connection with any transfer of
Securities other than pursuant to an effective registration
statement or Rule 144 under the Securities Act, o the Company or to
an Affiliate of a 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 o such 1 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 Creditors agree to the imprinting of a
legend on any of the Securities in the following
form:
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[NEITHER] THIS SECURITY [NOR THE SECURITIES INTO
WHICH THIS SECURITY IS [EXERCISABLE] [CONVERTIBLE)] 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 [AND THE SECURITIES ISSUABLE UPON [EXERCISE]
[CONVERSION] OF 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 SECURITIES.
8. 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 Obligations Interest and the
consummation in full thereof.
9. Successors
and Assigns. This Agreement is
binding upon,
and shall inure t
the
benefit of, the parties hereto and their
respective successors and assigns.
10. 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 seal 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.
By:
__________________________
Name:
Xxxx Xxxxxxxxxx
Title:
CEO
Creditor:
By:
__________________________
Name:
________________________
For:
________________________
Address:
_____________________
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