STOCK PURCHASE AGREEMENT
Exhibit 10.3
THIS STOCK PURCHASE AGREEMENT (this “Agreement”) is made as of the 30th day of April 2018, by and among SHIFT8 TECHNOLOGIES, INC., a Nevada corporation (the “Company”) and ITN Partners, LLC (the “Purchaser”).
Background:
A. Purchaser desires to purchase from the Company, and the Company desires to sell to Purchaser, 199,900 (one hundred ninety-nine thousand and nine hundred) shares (the “Shares”) of the Company’s common stock (the “Common Stock”) or 19.99% of the issued and outstanding shares of the Company.
Agreement:
NOW, THEREFORE, in consideration of the covenants set forth herein, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Purchaser and the Company hereby agree as follows:
1. Purchase of and Sale of Shares. On the terms and subject to the conditions set forth in this Agreement, Purchaser agrees to purchase from the Company at the Closing (as defined below), and the Company agrees to issue and sell to Purchaser at the Closing, the Shares for $250,000 (the “Purchase Price”)
2. Closing. The closing of such purchase and sale of the Shares (the “Closing”) shall take place on April 30, 2018 at the offices of the Company, 0000 XX Xxxx 000, Xxxxx 000, Xxx Xxxxxxx, Xxxxx 00000, at 8:00 a.m. Central Standard Time, or at such other time and place as Purchaser and the Company mutually agree. The Closing may be completed by a personal meeting or by an exchange of signature pages, certificates and other documents through the mail or by similar means electronically. At the Closing:
(a) Company shall deliver to Purchaser a stock certificate evidencing the Shares (in such denominations as the Purchaser shall specify prior to the Closing) duly signed by the requisite officer of the Company;
(b) Purchaser shall deliver to Company via cashier’s check or wire transfer the sum of TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000) in lawful money of the United States of America which shall be legal tender for the payment of the Purchase Price for the Shares.
3. Disclosure of Information. Purchaser acknowledges and represents that all books, records and documents of the Company relating to the purchase and sale of the Shares and have been and remain available for inspection by Purchaser upon reasonable notice. By signature below, Purchaser confirms that all documents requested have been made available, and that Purchaser has been supplied with all of the additional information concerning the Company and the purchase and sale of the Shares that has been requested by Purchaser. Purchaser represents that it and its representatives have had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the purchase and sale of the Shares and the business, properties, prospects and financial condition of the Company. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 6 of this Agreement or the right of Purchaser to rely thereon.
4. Conversion and Conversion Price. At the option of the Company, and for a period of five years following the date of this Stock Purchase Agreement, the Shares may be converted into fully paid and non-assessable shares of Common Stock of the Company’s parent corporation, Digerati Technologies, Inc. (the “DTGI Common Stock”), at a ratio of 3.4 shares of DTGI Common stock for every one (1) share of the Company owned by Purchaser (the “Conversion Ratio”) any time after the DTGI Common Stock has a current market price of $1.50 or more per share for 20 consecutive trading days. For purposes of this conversion, the “current market price” of the DTGI Common Stock shall mean the closing price on such day reported on a national or regional securities exchange or OTCQX/ OTCQB by the OTC Markets Group.
5. Exercise of Conversion Privilege. In order to exercise the conversion privilege, the Company shall give the Purchaser written notice of conversion (the “Conversion Notice”), stating the number of Shares to be converted, the conversion date (the “Conversion Date”) and the number of shares that will be issued upon conversion of the Shares. If the Company elects to convert less than all of the outstanding Shares on any date, it shall select the number of Shares to be converted from the Shares then outstanding and shall notify the Purchaser so selected. If the Company exercises the conversion, Purchaser shall surrender the Shares, duly endorsed or assigned to the Company or in blank, at the Company’s principal executive offices. As promptly as practicable on or after the Purchaser surrenders the Shares, a certificate or certificates for the number of shares of DTGI Common Stock issuable upon conversion will be delivered to Purchaser.
6. Representations and Warranties of the Company. The Company hereby represents and warrants to Purchaser that:
(a) Organization, Good Standing and Corporate Power. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada and has all requisite corporate power and authority to carry on its business as presently conducted and as proposed to be conducted.
(b) Capitalization. The authorized capital of the Company consists, immediately prior to the Closing, of 75,000,000 (Seventy-Five Million) shares of common stock, of which 1,000,000 (One Million) shares are issued and outstanding, and 1,000,000 (One Million) shares of preferred stock, none of which are issued and outstanding.
(c) Authorization. All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution, delivery and performance of all obligations of the Company under this Agreement and for the authorization, issuance and delivery of the Shares has been or shall be taken prior to the Closing, and this Agreement, when executed and delivered, shall constitute a valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, or other laws of general application relating to or affecting the enforcement of creditors’ rights generally, and (ii) as limited by laws relating to the availability of specific enforcement, injunctive relief or other equitable remedies.
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(d) Validity of Securities. The Shares to be purchased and sold pursuant to this Agreement, when issued, sold and delivered in accordance with its terms for the consideration expressed herein, will be validly issued, fully paid and non-assessable.
(e) Compliance with Other Instruments. The execution, delivery and performance of this Agreement by the Company, and the consummation of the transactions contemplated hereby will not result in a violation of, or default under, any contract, agreement, instrument, judgment, order, writ, or decree applicable to the Company.
7. Representations and Warranties of Purchaser. Purchaser hereby makes the following representations and warranties to the Company and Purchaser agrees to hold harmless the Company from any liability or injury, including, but not limited to, that arising under Federal or state securities laws, incurred as a result of any misrepresentation herein or any warranties not performed by Purchaser.
(a) Organization, Good Standing and Corporate Power. Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the State of Florida. Purchaser is authorized and duly empowered to purchase and hold the Shares and has its principal place of business at the address set forth on the signature page and has not been formed for the specific purpose of purchasing the Shares.
(b) Authorization. All corporate action on the part of Purchaser, its officers, directors and stockholders necessary for the authorization, execution, delivery and performance of all obligations of Purchaser under this Agreement has been or shall be taken prior to the Closing, and this Agreement, when executed and delivered, shall constitute a valid and legally binding obligation of Purchaser, enforceable against Purchaser in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, or other laws of general application relating to or affecting the enforcement of creditors’ rights generally, and (ii) as limited by laws relating to the availability of specific enforcement, injunctive relief or other equitable remedies.
(c) Compliance with Other Instruments. The execution, delivery and performance of this Agreement by Purchaser, and the consummation of the transactions contemplated hereby will not result in a violation of, or default under, any contract, agreement, instrument, judgment, order, writ, or decree applicable to Purchaser.
(d) No Public Solicitation. The offer to sell the Shares was directly communicated to Purchaser and Purchaser was able to ask questions of and receive answers concerning the terms and conditions of this transaction. At no time was Purchaser presented with or solicited by or through any article, notice or other communication published in any newspaper or other leaflet, public promotional meeting, television, radio or other broadcast or transmittal advertisement or any other form of general advertising.
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(e) Investment Intent. The Shares are being purchased solely for Purchaser’s own account, for investment, and are not being purchased with a view to the resale, distribution, subdivision or fractionalization thereof.
(f) Restrictions on Transfer. Purchaser understands that the Shares have not been registered, and that the Company is under no obligation to register the Shares under the Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws in reliance upon exemptions from registration for non-public issuances of securities by issuers of such securities. Purchaser understands that the Shares or any interest therein, may not be, and agrees that the Shares or any interest therein, will not be, resold or otherwise disposed of by Purchaser unless they are subsequently registered under the Securities Act and under appropriate state securities laws or unless Purchaser provides the Company with an opinion of counsel satisfactory to the Company that an exemption from registration is available. Purchaser further understands that each certificate representing the Shares and any other securities issued in respect thereto upon any stock distribution, recapitalization, merger, consolidation or similar event, are expected (unless otherwise permitted by the provisions of this Section or by applicable law) to be stamped or otherwise imprinted with a legend in substantially the following form (in addition to any legend required under applicable state securities laws):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR TRANSFERRED UNLESS THEY ARE SUBSEQUENTLY REGISTERED UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO IT THAT AN EXEMPTION FROM REGISTRATION IS AVAILABLE.
(g) Purchaser Understandings. Purchaser affirms that he has been informed of and understands the following:
(i) There are substantial restrictions on the transferability of the Shares under the Securities Act; and
(ii) No federal or state agency has made any finding or determination as to the fairness of the Shares for public investment or any recommendation or endorsement of the Shares.
(i) None of the following information has ever been represented, guarantied, or warranted to Purchaser expressly or by implication, by the Company, or any agents or employee of the Company, or by any other person:
(i) The approximate or exact length of time that Purchaser will be required to hold the Shares;
(ii) The percentage of profit and/or amount of or type of consideration, profit or loss to be realized, if any, as a result of an investment in the Shares; or
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(iii) That the past performance or experience of the Company, or associates, agents, affiliates, or employees of the Company or any other person, will in any way indicate or predict economic results in connection with the purchase or ownership of the Shares.
(j) Purchaser hereby agrees to hold harmless, the Company, its directors, officers, employees, agents and representatives, and any person participating in the purchase and sale of the Shares from and against any and all liability, damage, cost and expenses incurred on account of or arising out of:
(i) Any inaccuracy in the declarations, representations, and warranties herein above set forth;
(ii) The disposition of any of the Shares by Purchaser contrary to the foregoing declarations, representations and warranties; or
(iii) Any action, suit or proceeding based in whole or in part upon (A) the claim that said declarations, representations, or warranties were inaccurate or misleading or otherwise cause for obtaining damages or redress from the Company; (B) the disposition of any of the Shares; or (C) the breach by Purchaser of any provision of this Agreement.
8. Indemnification. Purchaser hereby covenants and agrees to indemnify the Company (including its directors, officers, employees and agents) and any person participating in the distribution of the Shares and hold them harmless from and against any and all liability, damage, costs (including legal fees and court costs) and expenses incurred on account of or arising out of (i) any inaccuracy in the declarations, representations, and warranties of Purchaser herein above set forth; (ii) the disposition of any of the Shares contrary to the foregoing declarations, representations and warranties; and (iii) any action, suit or proceeding based upon (A) the claim that said declarations, representations, or warranties were inaccurate or misleading or otherwise cause for obtaining damages or redress from the Company; (B) the disposition of any of the Shares,; or (C) the breach by Purchaser of any provision of this Agreement.
9. Miscellaneous.
(a) Entire Agreement. This Agreement, together with its exhibits and any other documents referenced herein, constitute the entire contract between the Company and Purchaser relative to the purchase and sale of the Shares and supersede any and all prior or contemporaneous oral or written agreements, understandings and discussions with respect thereto.
(b) Expenses. The Company and Purchaser will each bear its own legal and other fees and expenses in connection with the transactions contemplated in this Agreement.
(c) Counterparts. This Agreement may be executed in two or more counterparts, (including by facsimile or electronic mail) each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
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(d) Headings. The headings of the sections of this Agreement are for convenience and shall not by themselves determine the interpretation of this Agreement.
(e) Survival of Representations and Warranties. The representations and warranties of the parties contained in or made pursuant to this Agreement shall survive the execution of this Agreement and the Closing.
(f) Amendments. Any term or provision of this Agreement may be amended and the observance of any term, condition, or provision of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) by a written instrument signed by the Company and Purchaser.
(g) Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provision(s) shall be excluded from this Agreement and the balance of this Agreement shall be interpreted as if such provision was excluded and shall be enforceable in accordance with its terms.
(h) Acknowledgement as to Counsel. The parties acknowledge and agree that counsel for the Company has prepared this Agreement and the other documents contemplated hereby as counsel to the Company and not as counsel to Purchaser and that Purchaser has been advised and given opportunity to retain his, her or its own counsel at his, her or its own expense.
(i) Governing Law. This Agreement shall be governed and construed for all purposes in accordance with the laws (without giving effect to the principles governing conflicts of laws) of the State of Florida. The parties hereby subject themselves to the jurisdiction of the Federal and state courts located within Xxx County, State of Florida.
[Balance of Page Intentionally Blank. Signature on Following Pages.]
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IN WITNESS WHEREOF, the parties hereto have executed (or caused this Agreement to be executed by their duly authorized representative) as of the date first written above.
| “PURCHASER”: | ||
| ITN Partners, LLC | ||
| By: | ||
| Name: | ||
| Title: | ||
| “COMPANY”: | ||
| Shift8 Technologies, Inc. a Nevada corporation |
||
| By: | /s/ Xxxxxx X. Xxxxx | |
| Name: | Xxxxxx X. Xxxxx | |
| Title: | CEO | |
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