Subscription Agreement [Investor] September 12, 2016
EXHIBIT 10.1
[Investor]
September 12, 2016
THE OFFER AND SALE OF THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE OR ANY OTHER JURISDICTION. THERE ARE FURTHER RESTRICTIONS ON THE TRANSFERABILITY OF THE SECURITIES DESCRIBED HEREIN. THE PURCHASE OF THE SECURITIES INVOLVES A HIGH DEGREE OF RISK AND SHOULD BE CONSIDERED ONLY BY PERSONS WHO CAN BEAR THE RISK OF THE LOSS OF THEIR ENTIRE INVESTMENT.
00000 Xxxx Xxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
The undersigned purchaser (the “Purchaser”) understands that IDdriven, Inc., a corporation organized under the laws of Nevada (the “Company”), is offering a $_______ Secured Convertible Promissory Note, the form of which is attached hereto as Exhibit “A” (the “Note”) together with a warrant to purchase __________ shares of common stock of the Company, the form of which is attached hereto as Exhibit “B” (the “Warrant,” and together with the Note, the “Securities”) in a private placement. The undersigned further understands that the offering is being made without registration under the Securities Act of 1933, as amended (the “Securities Act”), or any securities law of any state of the United States or of any other jurisdiction, and is being made only to “accredited investors” (as defined in Rule 501 of Regulation D under the Securities Act).
1. Subscription. Subject to the terms and conditions hereof and the provisions of the Note and the Warrant, the undersigned hereby irrevocably subscribes to purchase the Securities set forth opposite the undersigned’s name in Appendix “A”, which is payable as described in Section 3 hereof. The undersigned acknowledges that the Securities will be subject to restrictions on transfer as set forth in this subscription agreement (the “Subscription Agreement”).
2. Acceptance of Subscription and Issuance of Securities. It is understood and agreed that the Company shall have the sole right, at its complete discretion, to accept or reject this subscription, in whole or in part, for any reason and that the same shall be deemed to be accepted by the Company only when it is signed by a duly authorized officer of the Company and delivered to the undersigned. Subscriptions need not be accepted in the order received, and the Securities may be allocated among subscribers. Notwithstanding anything in this Subscription Agreement to the contrary, the Company shall have no obligation to issue any of the Securities to any person who is a resident of a jurisdiction in which the issuance of Securities to such person would constitute a violation of the securities, “blue sky” or other similar laws of such jurisdiction (collectively referred to as the “State Securities Laws”).
1 |
(a) $50,000 on the date hereof,
(b) $50,000 due in 30 days, but no later than 45 days from the date hereof, and
(c) $50,000 due in 60 days, but no later than 90 days from the date hereof.
Upon receipt of the Installment set forth in paragraph 3(a) above as provided for in the Note by the undersigned, the Escrow Agent shall deliver notes or certificates, as applicable, representing the Securities (which Securities were previously delivered to the Escrow Agent from the Company) to the undersigned bearing an appropriate legend referring to the fact that the Securities were sold in reliance upon an exemption from registration under the Securities Act. In addition, the Company shall deliver to the Escrow Agent an Irrevocable Transfer Agent Instruction Letter (the “Reservation Letter”) in the form attached hereto as Exhibit “C” (to be delivered to the transfer agent) and a resolution from its Board of Directors authorizing this Subscription Agreement, the issuance of the Note and the Warrant and the reservation of shares of Common Stock as provided for in the Reservation Letter.
(i) The undersigned has all requisite authority (and in the case of an individual, the capacity) to purchase the Securities, enter into this Subscription Agreement and to perform all the obligations required to be performed by the undersigned hereunder, and such purchase will not contravene any law, rule or regulation binding on the undersigned or any investment guideline or restriction applicable to the undersigned.
(ii) The undersigned is a resident of the state set forth on the signature page hereto and is not acquiring the Securities as a nominee or agent or otherwise for any other person.
2 |
(b) Information Concerning the Company.
(i) The undersigned understands and accepts that the purchase of the Securities involves various risks, including the risks outlined in the periodic and other reports filed by the Company with the U.S. Securities and Exchange Commission (the “Commission”) under the Securities Exchange Act of 1934, as amended (collectively, the “1934 Act Reports”) and in this Subscription Agreement. The undersigned represents that it is able to bear any loss associated with an investment in the Securities, including a loss of the undersigned’s entire investment in the Securities.
(ii) The undersigned confirms that it is not relying on any communication (written or oral) of the Company or any of its affiliates, as investment advice or as a recommendation to purchase the Securities. It is understood that information and explanations related to the terms and conditions of the Securities provided by the Company or any of its affiliates shall not be considered investment advice or a recommendation to purchase the Securities, and that neither the Company nor any of its affiliates is acting or has acted as an advisor to the undersigned in deciding to invest in the Securities. The undersigned acknowledges that neither the Company nor any of its affiliates has made any representation regarding the proper characterization of the Securities for purposes of determining the undersigned’s authority to invest in the Securities.
(iii) The undersigned is familiar with the business and financial condition and operations of the Company, all as generally described in the Company’s 1934 Act Reports. The undersigned has had access to such information concerning the Company and the Securities as it deems necessary to enable it to make an informed investment decision concerning the purchase of the Securities.
(iv) The undersigned understands that no federal or state agency has passed upon the merits or risks of an investment in the Securities or made any finding or determination concerning the fairness or advisability of this investment.
(i) The undersigned represents that it is not relying on (and will not at any time rely on) any communication (written or oral) of the Company, as investment advice or as a recommendation to purchase the Securities.
(ii) The undersigned confirms that the Company has not (A) given any guarantee or representation as to the potential success, return, effect or benefit (either legal, regulatory, tax, financial, accounting or otherwise) of an investment in the Securities or (B) made any representation to the undersigned regarding the legality of an investment in the Securities under applicable legal investment or similar laws or regulations. In deciding to purchase the Securities, the undersigned is not relying on the advice or recommendations of the Company and the undersigned has made its own independent decision that the investment in the Securities is suitable and appropriate for the undersigned.
3 |
(i) The undersigned has such knowledge, skill and experience in business, financial and investment matters that the undersigned is capable of evaluating the merits and risks of an investment in the Securities. With the assistance of the undersigned’s own professional advisors, to the extent that the undersigned has deemed appropriate, the undersigned has made its own legal, tax, accounting and financial evaluation of the merits and risks of an investment in the Securities and the consequences of this Subscription Agreement. The undersigned has considered the suitability of the Securities as an investment in light of its own circumstances and financial condition and the undersigned is able to bear the risks associated with an investment in the Securities and its authority to invest in the Securities.
(ii) The undersigned is an “accredited investor” as defined in Rule 501(a) under the Securities Act. The undersigned agrees to furnish any additional information requested by the Company or any of its affiliates to assure compliance with applicable U.S. federal and state securities laws in connection with the purchase and sale of the Securities. The undersigned acknowledges that the undersigned has completed the Investor Questionnaire contained in Appendix B and that the information contained therein is complete and accurate as of the date thereof and is hereby affirmed as of the date hereof. Any information that has been furnished or that will be furnished by the undersigned to evidence its status as an accredited investor is accurate and complete, and does not contain any misrepresentation or material omission.
(e) Restrictions on Transfer or Sale of Securities. As applies to the Purchaser:
(i) The undersigned is acquiring the Securities solely for the undersigned’s own beneficial account, for investment purposes, and not with a view to, or for resale in connection with, any distribution of the Securities. The undersigned understands that the offer and sale of the Securities have not been registered under the Securities Act or any State Securities Laws by reason of specific exemptions under the provisions thereof which depend in part upon the investment intent of the undersigned and of the other representations made by the undersigned in this Subscription Agreement. The undersigned understands that the Company is relying upon the representations and agreements contained in this Subscription Agreement (and any supplemental information) for the purpose of determining whether this transaction meets the requirements for such exemptions.
(ii) The undersigned understands that the Securities are “restricted securities” under applicable federal securities laws and that the Securities Act and the rules of the Commission provide in substance that the undersigned may dispose of the Securities only pursuant to an effective registration statement under the Securities Act or an exemption therefrom, and the undersigned understands that the Company has no obligation or intention to register the offer or sale any of the Securities, or to take action so as to permit sales pursuant to the Securities Act (including Rule 144 thereunder). Consequently, the undersigned understands that the undersigned must bear the economic risks of the investment in the Securities for an indefinite period of time.
4 |
(iii) The undersigned agrees: (A) that the undersigned will not sell, assign, pledge, give, transfer or otherwise dispose of the Securities or any interest therein, or make any offer or attempt to do any of the foregoing, except pursuant to a registration of the Securities under the Securities Act and all applicable State Securities Laws, or in a transaction which is exempt from the registration provisions of the Securities Act and all applicable State Securities Laws; (B) that the certificates representing the Securities will bear a legend making reference to the foregoing restrictions; and (C) that the Company and its affiliates shall not be required to give effect to any purported transfer of such Securities except upon compliance with the foregoing restrictions.
(iv) The undersigned acknowledges that neither the Company nor any other person offered to sell the Securities to it by means of any form of general solicitation or advertising, including but not limited to: (A) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio or (B) any seminar or meeting whose attendees were invited by any general solicitation or general advertising.
The undersigned agrees to promptly notify the Issuer of any event or change in circumstances that occurs after the date it signs this Agreement and prior to its purchase of all of the Securities offered hereunder that would cause any breach or violation of any of the representations, warranties and covenants provided in this Section 4.
9. Submission to Jurisdiction. With respect to any suit, action or proceeding relating to any offers, purchases or sales of the Securities by the undersigned (“Proceedings”), the undersigned and the Company irrevocably submits to the jurisdiction of the federal or state courts located in Palm Beach County, Florida, which submission shall be exclusive unless none of such courts has lawful jurisdiction over such Proceedings.
10. Governing Law. This Subscription Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without regard to principles of conflicts of laws.
5 |
If to the Company:
| 13355 Xxxx Rock Drive Auburn, California 95602 Attention: Xxxxx Xxxxxxx, President email: xxxxxxxx@xxxxxxxxxxxxxxxxx.xxx |
|
|
With a copy, which shall not constitute notice, to:
| Legal & Compliance, XXX 000 Xxxxxxxx Xxxxxx, Xxxxx 000 X. Xxxx Xxxxx, XX 33401 E-mail: XXxxxxxx@xxxxxxxxxxxxxxxxxx.xxx Xxxxxxxxx: Xxxxx Xxxxxxx, Xxx. Xxxxx: xxxxxxxx@xxxxxxxxxxxxxxxxxx.xxx |
|
|
If to the Purchaser:
| ___________________ ___________________ ___________________ Attention: ___________________ E-mail: _____________________ |
[SIGNATURE PAGE FOLLOWS]
6 |
PURCHASER: | |||
By: | |||
| Name: | ||
Title: |
Aggregate Subscription Amount: US$_____________
The offer to purchase Securities as set forth above is confirmed and accepted by the Company.
By: | |||
| Name: | Xxxxx Xxxxxxx | |
Title: | Chief Executive Officer |
7 |
APPENDIX A
CONSIDERATION TO BE DELIVERED
Securities to Be Acquired | Aggregate Purchase Price to be Paid |
|
|
$______ in principal of Secured Convertible Promissory Note | US$_______ (to be paid as provided for in the Note) |
|
|
Warrants to purchase ______ shares of common stock | (no additional consideration) |
1 |
APPENDIX B
Accredited Investor Certificate
As of the date of that certain Subscription Agreement by and between the undersigned and IDdriven, Inc., a Nevada corporation, the undersigned hereby certifies to being an “accredited investor” as that term is defined in Regulation D adopted pursuant to the Securities Act of 1933, as amended (the “Securities Act”). The specific category(s) of accredited investor applicable to the undersigned is checked below.
| ¨ | an individual whose individual net worth, or joint net worth with the individual’s spouse, exceeds $1,000,000 (excluding the value of the individual’s primary residence) (the term “net worth” means the excess of total assets over total liabilities). |
|
|
|
| ¨ | an individual who had an individual income in excess of $200,000 in each of 2014 and 2015 or joint income with that person’s spouse in excess of $300,000 in each of those years and who reasonably expects to reach the same income level in 2016. |
|
|
|
| ¨ | a bank as defined in Section3(a)(2) of the Securities Act, or a savings and loan association or other institution as defined in Section3(a)(5)(A) of the Securities Act, whether acting in its individual or fiduciary capacity; a broker or dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934, as amended; an insurance company as defined in Section2(a)(13) of the Securities Act; an investment company registered under the Investment Company Act of 1940 (the “1940 Act”) or a business development company as defined in Section2(a)(48) of the 1940 Act; a Small Business Investment Company licensed by the U.S. Small Business Administration under Section301(c) or (d) of the Small Business Investment Act of 1958; any plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, if such plan has total assets in excess of $5,000,000; or an employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974 (“ERISA”), if the investment decision is made by a plan fiduciary, as defined in Section3(21) of ERISA, which is either a bank, savings and loan association, insurance company or registered investment adviser, or if the employee benefit plan has total assets in excess of $5,000,000 or if a self-directed plan, with investment decisions made solely by persons that are accredited investors. |
|
|
|
| ¨ | a private business development company as defined in Section202(a)(22) of the Investment Advisers Act of 1940. |
|
|
|
| ¨ | an organization described in Section501(c)(3) of the Internal Revenue Code, a corporation, a Massachusetts or similar business trust, or a partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000. |
|
|
|
| ¨ | an individual who is a director or executive officer of the Company. |
|
|
|
| ¨ | a trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a person who has such knowledge and experience in financial and business matters that he or she is capable of evaluating the merits and risks of the prospective investment. |
|
|
|
| ¨ | an entity in which all of the equity owners are accredited investors as set forth above. |
1 |
PURCHASER: | |||
By: | |||
| Name: | ||
Title: |
2 |
EXHIBIT A
SECURED CONVERTIBLE PROMISSORY NOTE
A-1 |
[Investor]
NEITHER THE ISSUANCE NOR SALE OF THIS NOTE NOR THE SECURITIES INTO WHICH THIS NOTE IS CONVERTIBLE (THE “SECURITIES”) HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE NOTE AND THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE NOTE OR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL (WHICH COUNSEL SHALL BE SELECTED BY THE HOLDER), IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE NOTE MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE NOTE.
Principal Amount: $____________ | Issue Date: September 12, 2016 |
SECURED CONVERTIBLE PROMISSORY NOTE
FOR VALUE RECEIVED, IDdriven, Inc., a Nevada corporation (hereinafter referred to as “Borrower”), hereby promises to pay to the order of _____________ or its registered assigns (the “Holder”) the principal sum of $_________, or such portion of the foregoing as has been advanced to Borrower as set forth below, together with interest from the date of payment to Borrower of the cash portion of the Consideration (as hereinafter defined) at the rate of twenty percent (20%) per annum, at maturity or upon acceleration or otherwise, as set forth herein (this “Note”). Such interest shall accrue from the date of payment to Borrower as to each payment, and shall be computed on the basis of a 365-day year and the actual number of days elapsed.
As collateral security for the repayment of this Note, (a) Berlisa B.V., an entity controlled by Geurt van Wijk and (b) Sterling Skies B.V., an entity controlled by Remy de Vries shall pledge all of their shares of common stock in the Borrower pursuant to the terms of that certain Stock Pledge Agreement of even date herewith.
As additional collateral security for the repayment of this Note, the obligations of Borrower hereunder are secured by a security interest in certain intellectual property assets of Borrower pursuant to that certain Intellectual Property Security Agreement of even date herewith.
The consideration to the Borrower for this Note is $______ (the “Consideration”), payable in cash in the following installments: (i) $______ on the Issue Date, (ii) $______ due in 30 days from the Issue Date, but no later than 45 days from the Issue Date, and (iii) $______ due in 60 days from the Issue Date, but no later than 90 days from the Issue Date (each, an "Installment").
All references in this Note to the principal amount then due hereunder shall refer to the Consideration that has been paid to the Borrower in accordance with each Installment that has not subsequently been converted under Article I of this Note or repaid by Borrower, as of such date. The maturity date for the Note shall be twelve (12) months from the Issue Date (the “Maturity Date”), and is the date upon which the principal sum, as well as any accrued and unpaid interest and other fees relating to this Note, shall be due and payable. This Note may not be prepaid in whole or in part except as otherwise explicitly set forth herein.
Any amount of principal or interest on this Note, which is not paid by the Maturity Date, shall bear interest at the rate of the lesser of (i) twenty-two percent (22%) and (ii) the highest rate allowed by law, per annum from the due date thereof until the same is paid (“Default Interest”). Default Interest shall commence accruing on the date that the applicable payment is not made as required herein and shall be computed on the basis of a 365-day year and the actual number of days elapsed.
All payments due hereunder (to the extent not converted into the Borrower’s common stock, $0.001 par value per share (the “Common Stock”) in accordance with the terms hereof) shall be made in lawful money of the United States of America. All payments shall be made at such address as the Holder shall hereafter give to the Borrower by written notice made in accordance with the provisions of this Note. Whenever any amount expressed to be due by the terms of this Note is due on any day which is not a business day, the same shall instead be due on the next succeeding day which is a business day and, in the case of any interest payment date which is not the date on which this Note is paid in full, the extension of the due date thereof shall not be taken into account for purposes of determining the amount of interest due on such date. As used in this Note, the term “business day” shall mean any day other than a Saturday, Sunday or a day on which commercial banks in the city of New York, New York are authorized or required by law or executive order to remain closed.
This Note is free from all taxes, liens, claims and encumbrances with respect to the issue thereof and shall not be subject to preemptive rights or other similar rights of shareholders of the Borrower and the shares of Common Stock issued upon conversion of this Note will, upon payment of the Conversion Price (as defined below) to the Borrower, not impose personal liability upon the holder thereof.
The following additional terms shall apply to this Note:
A-2 |
A-3 |
(b) Each time, while this Note is outstanding, the Borrower enters into a transaction structured in accordance with, based upon, or related or pursuant to, in whole or in part, Section 3(a)(9) of the Securities Act of 1933, as amended (the “Securities Act”), including but not limited to the issuance of new promissory notes or of a replacement promissory note (a “Section 3(a)(9) Transaction”), or into a transaction structured in accordance with, based upon, or related or pursuant to, in whole or in part, to Section 3(a)(10) of the Securities Act (a “Section 3(a)(10) Transaction”), in which any 3rd party has the right to convert monies owed to that 3rd party (or receive shares pursuant to a settlement or otherwise) at a discount to market greater than the Conversion Price in effect at that time (prior to all other applicable adjustments in this Note), then the Conversion Price shall be automatically adjusted to such greater discount percentage (prior to all applicable adjustments in this Note) until this Note is no longer outstanding. Each time, while this Note is outstanding, the Borrower enters into a Section 3(a)(9) Transaction, or Section 3(a)(10) Transaction, in which any 3rd party has a look back period greater than the look back period in effect under the Note at that time (currently a twenty (20) Trading Day look back period as described in this Section 1.2(a) applies), then the Holder’s look back period shall automatically be adjusted to such greater number of days until this Note is no longer outstanding. The Borrower shall give written notice to the Holder, with the adjusted Conversion Price and/or adjusted look back period (each adjustment that is applicable due to the triggering event), within one (1) business day of an event that requires any adjustment described in the two immediately preceding sentences.
A-4 |
A-5 |
“NEITHER THE OFFER, ISSUANCE OR SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL (WHICH COUNSEL SHALL BE SELECTED BY THE HOLDER), IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.”
A-6 |
The legend set forth above shall be removed and the Borrower shall issue to the Holder a new certificate therefore free of any transfer legend if (i) the Borrower or its transfer agent shall have received an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the effect that a public sale or transfer of such Common Stock may be made without registration under the Securities Act, which opinion shall be accepted by the Borrower so that the sale or transfer is effected or (ii) in the case of the Common Stock issuable upon conversion of this Note, such security is registered for sale by the Holder under an effective registration statement filed under the Securities Act or otherwise may be sold pursuant to Rule 144 without any restriction as to the number of securities as of a particular date that can then be immediately sold. In the event that the Borrower does not accept the opinion of counsel provided by the Holder with respect to the transfer of Securities pursuant to an exemption from registration, such as Rule 144 or Regulation S under the Securities Act, at the Deadline, and such opinion has, in the opinion of the Borrower’s counsel, been properly rendered, it will be considered an Event of Default pursuant to Section 3.2.
A-7 |
ARTICLE III. EVENTS OF DEFAULT
If any of the following events of default as set forth in Sections 3.1 through 3.13, inclusive, occur, then an “Event of Default” hereunder shall occur:
A-8 |
A-9 |
In the event of an Event of Default, the Borrower shall pay to the Holder, in full satisfaction of Borrower’s obligations hereunder, an amount equal to 150% of the then outstanding principal amount due hereunder (including the principal amount advanced to Borrower hereunder and not subsequently converted under Article I or repaid by Borrower and accrued and unpaid interest thereon) plus Default Interest, if any, plus any amounts owed to the Holder pursuant to Section 1.4(g) (collectively, in the aggregate of all of the above, the “Default Sum”), and all other amounts payable hereunder shall immediately become due and payable, all without demand, presentment or notice, all of which hereby are expressly waived, together with all costs, including, without limitation, legal fees and expenses, of collection, and the Holder shall be entitled to exercise all other rights and remedies available at law or in equity.
If the Borrower fails to pay the Default Sum within five (5) business days of written notice that such amount is due and payable, then the Holder shall have the right at any time, so long as the Borrower remains in default (and so long and to the extent that there are sufficient authorized shares), to require the Borrower, upon written notice, to immediately issue, in lieu of the Default Sum, the number of shares of Common Stock of the Borrower equal to the Default Sum divided by the Conversion Price then in effect, subject to issuance in tranches due to the beneficial ownership limitations contained in this Note.
A-10 |
If to the Borrower:
00000 Xxxx Xxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx, President
email: xxxxxxxx@xxxxxxxxxxxxxxxxx.xxx
With a copy, which shall not constitute notice, to:
Legal & Compliance, LLC
000 Xxxxxxxx Xxxxxx, Xxxxx 000
X. Xxxx Xxxxx, XX 00000
E-mail: XXxxxxxx@xxxxxxxxxxxxxxxxxx.xxx
Attention: Xxxxx Xxxxxxx, Esq.
Email: xxxxxxxx@xxxxxxxxxxxxxxxxxx.xxx
If to the Holder:
________
________
________
Attention: ________
E-mail: ________
A-11 |
4.6 Governing Law. This Note shall be governed by and construed in accordance with the laws of the State of Florida without regard to principles of conflicts of laws. Any action brought by either party against the other concerning the transactions contemplated by this Note shall be brought only in the state and/or federal courts of Florida. The parties to this Note hereby irrevocably waive any objection to jurisdiction and venue of any action instituted hereunder and shall not assert any defense based on lack of jurisdiction or venue or based upon forum non conveniens. The Borrower and Holder waive trial by jury. The prevailing party shall be entitled to recover from the other party its reasonable attorney's fees and costs. In the event that any provision of this Note or any other agreement delivered in connection herewith is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any such provision which may prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision of any agreement. Each party hereby irrevocably waives personal service of process and consents to process being served in any suit, action or proceeding in connection with this Note by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Note and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law.
A-12 |
4.10 Section 3(a)(10) Transactions. If at any time while this Note is outstanding, the Borrower enters into a Section 3(a)(10) Transaction, then a liquidated damages charge of 25% of the outstanding principal balance of this Note at that time, will be assessed and will become immediately due and payable to the Holder, either in the form of cash payment or as an addition to the balance of the Note, as determined by mutual agreement of the Borrower and Holder.
By: | |||
| Name: | Xxxxx Xxxxxxx | |
Title: | Chief Executive Officer |
A-13 |
EXHIBIT A -- NOTICE OF CONVERSION
The undersigned hereby elects to convert $_________________principal amount of the Note (defined below) into that number of shares of Common Stock to be issued pursuant to the conversion of the Note (“Common Stock”) as set forth below, of IDdriven, Inc., a Nevada corporation (the “Borrower”) according to the conditions of the convertible note of the Borrower dated as of September 12, 2016 (the “Note”), as of the date written below. No fee will be charged to the Holder for any conversion, except for transfer taxes, if any.
Box Checked as to applicable instructions:
| o | The Borrower shall electronically transmit the Common Stock issuable pursuant to this Notice of Conversion to the account of the undersigned or its nominee with DTC through its Deposit Withdrawal Agent Commission system (“DWAC Transfer”). |
|
|
|
| Name of DTC Prime Broker: | |
|
|
|
| o | The undersigned hereby requests that the Borrower issue a certificate or certificates for the number of shares of Common Stock set forth below (which numbers are based on the Holder’s calculation attached hereto) in the name(s) specified immediately below or, if additional space is necessary, on an attachment hereto: |
_____
e-mail: ____
Date of Conversion: ____________________
Applicable Conversion Price: $____________
Number of Shares of Common Stock to be Issued Pursuant to Conversion of the Notes: ______________
Amount of Principal Balance Due remaining Under the Note after this conversion: __________________
By:_____________________________
Name: __________________________
Date: ___________________________
X-00 |
XXXXXXX X
XXXXXXX
X-0 |
WARRANT
[Investor]
NEITHER THE ISSUANCE OF THIS WARRANT NOR THE ISSUANCE AND SALE OF THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR QUALIFIED UNDER ANY STATE OR FOREIGN SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED OR ASSIGNED UNLESS (I) A REGISTRATION STATEMENT COVERING THE ISSUANCE AND SALE OF SUCH SHARES IS EFFECTIVE UNDER THE ACT AND IS QUALIFIED UNDER APPLICABLE STATE AND FOREIGN LAW OR (II) THE TRANSACTION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS UNDER THE ACT AND THE QUALIFICATION REQUIREMENTS UNDER APPLICABLE STATE AND FOREIGN LAW AND, IF THE CORPORATION REQUESTS, AN OPINION SATISFACTORY TO THE CORPORATION TO SUCH EFFECT HAS BEEN RENDERED BY COUNSEL.
Original Issue Date: September 12, 2016
FOR VALUE RECEIVED, IDdriven, Inc., a Nevada corporation (the “Company”), hereby certifies that _____________ or its registered assigns (the “Holder”) is entitled to purchase from the Company ________ duly authorized, validly issued, fully paid and nonassessable shares of Common Stock at a purchase price per share as set forth in the definition of “Exercise Price” below, all subject to the terms, conditions and adjustments set forth below in this Warrant. Certain capitalized terms used herein are defined in Section 1 of this Warrant.
“Aggregate Exercise Price” means an amount equal to the product of (a) the number of Warrant Shares in respect of which this Warrant is then being exercised pursuant to Section 3 hereof, multiplied by (b) the Exercise Price in effect as of the Exercise Date in accordance with the terms of this Warrant.
“Board” means the board of directors of the Company.
“Business Day” means any day, except a Saturday, Sunday or legal holiday, on which banking institutions in New York, N.Y. are authorized or obligated by law or executive order to close.
“Common Stock” means the common stock, $0.001 par value per share, of the Company, and any capital stock into which such Common Stock shall have been converted, exchanged or reclassified following the date hereof.
“Company” has the meaning set forth in the preamble.
B-2 |
“Exercise Date” means, for any given exercise of this Warrant, the date on which the conditions to such exercise as set forth in Section 3 shall have been satisfied at or prior to 5:00 p.m., Eastern Time (U.S.), on a Business Day, including, without limitation, the receipt by the Company of the Exercise Agreement, the Warrant and the Aggregate Exercise Price.
“Exercise Notice” has the meaning set forth in Section 3(a)(i).
“Exercise Period” has the meaning set forth in Section 2.
“Exercise Price” means 120% of the Market Price (subject, in each case, to equitable adjustments for stock splits, stock dividends or rights offerings by the Company relating to the Company’s securities or the securities of any subsidiary of the Company, combinations, recapitalization, reclassifications, extraordinary distributions and similar events) (also subject to adjustment as further described herein).
“Fair Market Value” means, as of any particular date: (a) the volume weighted average of the closing sales prices of the Common Stock for such day on all domestic securities exchanges on which the Common Stock may at the time be listed; (b) if there have been no sales of the Common Stock on any such exchange on any such day, the average of the highest bid and lowest asked prices for the Common Stock on all such exchanges at the end of such day; (c) if on any such day the Common Stock is not listed on a domestic securities exchange, the closing sales price of the Common Stock as quoted on the OTC Bulletin Board, the Pink OTC Markets or similar quotation system or association for such day; or (d) if there have been no sales of the Common Stock on the OTC Bulletin Board, the Pink OTC Markets or similar quotation system or association on such day, the average of the highest bid and lowest asked prices for the Common Stock quoted on the OTC Bulletin Board, the Pink OTC Markets or similar quotation system or association at the end of such day; in each case, averaged over twenty (20) consecutive Business Days ending on the Business Day immediately prior to the day as of which "Fair Market Value" is being determined; provided, that if the Common Stock is listed on any domestic securities exchange, the term “Business Day” as used in this sentence means Business Days on which such exchange is open for trading. If at any time the Common Stock is not listed on any domestic securities exchange or quoted on the OTC Bulletin Board, the Pink OTC Markets or similar quotation system or association, the “Fair Market Value” of the Common Stock shall be the fair market value per share as determined jointly by the Board and the Holder.
“Holder” has the meaning set forth in the preamble.
“Market Price” means the lowest Trading Price for the Common Stock during the twenty (20) Trading Day period ending on the last complete Trading Day prior to the Exercise Date.
“Original Issue Date” means, the date on which the Warrant was issued by the Company.
“Nasdaq” means The NASDAQ Stock Market LLC.
“OTC Bulletin Board” means the Financial Industry Regulatory Authority OTC Bulletin Board electronic inter-dealer quotation system.
B-3 |
“Person” means any individual, sole proprietorship, partnership, limited liability company, corporation, joint venture, trust, incorporated organization or government or department or agency thereof.
“Pink OTC Markets” means the OTC Markets Group Inc. electronic inter-dealer quotation system, including OTCQX, OTCQB and OTC Pink.
“Trading Day” shall mean any day on which the Common Stock is tradable for any period on the Pink OTC Markets on the principal securities exchange or other securities market on which the Common Stock is then being traded.
“Trading Price” means, for any security as of any date, the lowest traded price on the Pink OTC Markets as reported by a reliable reporting service designated by the Holder (e.g., Bloomberg) or, if the Pink OTC Markets are not the principal trading market for such security, on the principal securities exchange or trading market where such security is listed or traded or, if the lowest intraday trading price of such security is not available in any of the foregoing manners, the lowest intraday price of any market makers for such security that are quoted on the OTC Markets, provided that if the Trading Price cannot be calculated for such security on such date in the manner provided above, the Trading Price shall be the fair market value as mutually determined by the Company and the Holder for which the calculation of the Trading Price is required in order to determine the Exercise Price.
“Warrant” means this Warrant and all warrants issued upon division or combination of, or in substitution for, this Warrant.
“Warrant Shares” means the shares of Common Stock or other capital stock of the Company then purchasable upon exercise of this Warrant in accordance with the terms of this Warrant.
(i) surrender of this Warrant to the Company at its then principal executive offices (or an indemnification undertaking with respect to this Warrant in the case of its loss, theft or destruction), together with an Exercise Notice in the form attached hereto as Exhibit A (each, an “Exercise Notice”), duly completed (including specifying the number of Warrant Shares to be purchased) and executed; and
B-4 |
(ii) payment to the Company of the Aggregate Exercise Price in accordance with Section 3(b).
(i) This Warrant is, and any Warrant issued in substitution for or replacement of this Warrant shall be, upon issuance, duly authorized and validly issued.
(ii) All Warrant Shares issuable upon the exercise of this Warrant pursuant to the terms hereof shall be, upon issuance, and the Company shall take all such actions as may be necessary or appropriate in order that such Warrant Shares are, validly issued, fully paid and non-assessable, issued without violation of any preemptive or similar rights of any stockholder of the Company and free and clear of all taxes, liens and charges.
B-5 |
(iii) The Company shall take all such actions as may be necessary to ensure that all such Warrant Shares are issued without violation by the Company of any applicable law or governmental regulation or any requirements of any domestic securities exchange upon which shares of Common Stock or other securities constituting Warrant Shares may be listed at the time of such exercise (except for official notice of issuance which shall be immediately delivered by the Company upon each such issuance).
(iv) The Company shall pay all expenses in connection with, and all taxes and other governmental charges that may be imposed with respect to, the issuance or delivery of Warrant Shares upon exercise of this Warrant; provided, that the Company shall not be required to pay any tax or governmental charge that may be imposed with respect to any applicable withholding or the issuance or delivery of the Warrant Shares to any Person other than the Holder, and no such issuance or delivery shall be made unless and until the Person requesting such issuance has paid to the Company the amount of any such tax, or has established to the satisfaction of the Company that such tax has been paid.
B-6 |
(c) Certificate as to Adjustment.
B-7 |
(i) As promptly as reasonably practicable following any adjustment of the Exercise Price, but in any event not later than ten (10) Business Days thereafter, the Company shall furnish to the Holder a certificate of an executive officer setting forth in reasonable detail such adjustment and the facts upon which it is based and certifying the calculation thereof.
(ii) As promptly as reasonably practicable following the receipt by the Company of a written request by the Holder, but in any event not later than ten (10) Business Days thereafter, the Company shall furnish to the Holder a certificate of an executive officer certifying the Exercise Price then in effect and the number of Warrant Shares or the amount, if any, of other shares of stock, securities or assets then issuable upon exercise of the Warrant.
(i) that the Company shall take a record of the holders of its Common Stock (or other capital stock or securities at the time issuable upon exercise of the Warrant) for the purpose of entitling or enabling them to receive any dividend or other distribution, to receive any right to subscribe for or purchase any shares of capital stock of any class or any other securities, or to receive any other security; or
(ii) of any capital reorganization of the Company, any reclassification of the Common Stock of the Company, any consolidation or merger of the Company with or into another Person, or sale of all or substantially all of the Company's assets to another Person; or
(iii) of the voluntary or involuntary dissolution, liquidation or winding-up of the Company;
then, and in each such case, the Company shall send or cause to be sent to the Holder at least ten (10) days prior to the applicable record date or the applicable expected effective date, as the case may be, for the event, a written notice specifying, as the case may be, (A) the record date for such dividend, distribution or other right or action, and a description of such dividend, distribution or other right or (B) the effective date on which such reorganization, reclassification, consolidation, merger, sale, dissolution, liquidation or winding-up is proposed to take place, and the date, if any is to be fixed, as of which the books of the Company shall close or a record shall be taken with respect to which the holders of record of Common Stock (or such other capital stock or securities at the time issuable upon exercise of the Warrant) shall be entitled to exchange their shares of Common Stock (or such other capital stock or securities) for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, sale, dissolution, liquidation or winding-up, and the amount per share and character of such exchange applicable to the Warrant and the Warrant Shares.
B-8 |
25. Compliance with the Securities Act.
“NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), NOR QUALIFIED UNDER ANY STATE OR FOREIGN SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED OR ASSIGNED UNLESS (I) A REGISTRATION STATEMENT COVERING THE ISSUANCE AND SALE OF SUCH SHARES IS EFFECTIVE UNDER THE ACT AND IS QUALIFIED UNDER APPLICABLE STATE AND FOREIGN LAW OR (II) THE TRANSACTION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS UNDER THE ACT AND THE QUALIFICATION REQUIREMENTS UNDER APPLICABLE STATE AND FOREIGN LAW AND, IF THE CORPORATION REQUESTS, AN OPINION SATISFACTORY TO THE CORPORATION TO SUCH EFFECT HAS BEEN RENDERED BY COUNSEL.”
B-9 |
(i) The Holder is an “accredited investor” as defined in Rule 501(a) of Regulation D promulgated under the Securities Act. The Holder is acquiring this Warrant and the Warrant Shares to be issued upon exercise hereof for investment for its own account and not with a view towards, or for resale in connection with, the public sale or distribution of this Warrant or the Warrant Shares, except pursuant to sales registered or exempted under the Securities Act.
(ii) The Holder understands and acknowledges that this Warrant and the Warrant Shares to be issued upon exercise hereof are “restricted securities” under the federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that, under such laws and applicable regulations, such securities may be resold without registration under the Securities Act only in certain limited circumstances. In addition, the Holder represents that it is familiar with Rule 144 under the Securities Act, as presently in effect, and understands the resale limitations imposed thereby and by the Securities Act.
(iii) The Holder acknowledges that it can bear the economic and financial risk of its investment for an indefinite period, and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment in the Warrant and the Warrant Shares. The Holder has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering of the Warrant and the business, properties, prospects and financial condition of the Company.
B-10 |
If to the Company:
| IDdriven, Inc. 13355 Xxxx Rock Drive Auburn, California 95602 Attention: Xxxxx Verweij email: xxxxxxxx@xxxxxxxxxxxxxxxxx.xxx |
|
|
with a copy, which shall not constitute notice, to:
| Legal & Compliance, XXX 000 Xxxxxxxx Xxxxxx, Xxxxx 000 X. Xxxx Xxxxx, XX 33401 E-mail: XXxxxxxx@xxxxxxxxxxxxxxxxxx.xxx Xxxxxxxxx: Xxxxx Xxxxxxx, Esq. Email: xxxxxxx@xxxxxxxxxxxxxxxxxx.xxx |
|
|
If to the Holder:
| _______________ _______________ _______________ Attention: _______________ E-mail: __________________ |
B-11 |
36. Governing Law. This Warrant shall be governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Florida.
37. Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or based upon this Warrant or the transactions contemplated hereby may be instituted in the federal courts of the United States of America or the courts of the State of Florida, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by certified or registered mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or any proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
B-12 |
[SIGNATURE PAGE FOLLOWS]
B-13 |
IN WITNESS WHEREOF, the Company has duly executed this Warrant on the Original Issue Date.
IDdriven, Inc. | |||
By: | |||
| Name: | Xxxxx Xxxxxxx | |
Title: | President |
Accepted and agreed | |||
|
|
|
|
By: | |||
Name: | |||
Title: |
B-14 |
Exhibit A
Exercise Notice
(To be executed upon exercise of this Warrant)
The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant, to purchase ___________________ shares of Common Stock and herewith tenders payment for such shares to the order of the Company in the amount of $___________ in accordance with the terms of this Warrant. The undersigned requests that a certificate for such Warrant Shares be registered in the name of the undersigned and that such certificates be delivered to the undersigned’s address below.
The undersigned represents that it is acquiring such shares for its own account for investment and not with a view to or for sale in connection with any distribution thereof (subject, however, to any requirement of law that the disposition thereof shall at all times be within its control).
Dated: __________, 20___
Signature | |||
(Print Name) | |||
|
|
|
|
(Street Address) | |||
|
|
|
|
|
| (City) (State) (Zip Code) |
|
1 |
Exhibit B
Assignment Form
(To be executed upon exercise of this Warrant)
FOR VALUE RECEIVED, __________________ does hereby sell, assign and transfer unto:
|
|
|
(Please print name and address |
| (Please insert social security or |
the rights represented by the Warrant and does hereby irrevocably constitute and appoint ____________ Attorney to transfer said Warrant on the books of the IDdriven, Inc., a Nevada corporation, with full power of substitution in the premises.
Dated: __________, 20___
Signature | |||
|
|
|
|
|
| (Print Name) | |
|
|
|
|
|
| (Street Address) |
|
|
| (City) (State) (Zip Code) |
|
1 |
EXHIBIT C
IRREVOCABLE TRANSFER AGENT INSTRUCTION LETTER
[Intentionally Omitted]
C-1 |
EXHIBIT D
STOCK PLEDGE AGREEMENT
D-1 |
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT (as may be amended, restated or modified from time to time, this “Agreement”), dated as of September 12, 2016 is made by and betweenBerlisa B.V., and Sterling Skies B.V., on the one hand (each, a “Pledgor” and collectively, the “Pledgors”) and the parties listed on the signature page hereto, on the other hand, (each a “Pledgee” and collectively, “Pledgees”) and Legal & Compliance, LLC, as escrow agent (“Escrow Agent”).
NOW, THEREFORE, in consideration of the premises set forth above, the covenants and agreements hereinafter set forth, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Pledgors and the Pledgees agree as set forth below:
SECTION 1. Defined Terms. Except as otherwise defined herein, terms defined in the Note shall have the same meaning when used herein.
(a) As security for the Borrower’s obligations set forth in the Notes, the Pledgors hereby grant to each Pledgee a first priority lien on and a first priority security interest, in proportion to the Interest Percentage for each Pledgee as set forth on the signature page hereto (the “Interest Percentage”), in and to the following (collectively, the “Pledged Collateral”):
(i) the Pledged Shares and all capital, revenue, profit, income, gain or other property or proceeds, return on contribution or otherwise with respect to the Pledged Shares;
(ii) all securities, moneys or property representing dividends or interest on any of the Pledged Shares, or representing a distribution in respect of the Pledged Shares, or resulting from a split-up, revision, reclassification or other like change of the Pledged Shares or otherwise received in exchange therefor, and any subscription warrants, rights or options issued to the holders of, or otherwise in respect of, the Pledged Shares;
D-2 |
(iii) all right, title and interest of Pledgors in, to and under any policy of insurance payable by reason of loss or damage to the Pledged Shares;
(iv) all other payments due or to become due to the Pledgors in respect of the Pledged Shares whether under any organizational document or otherwise, whether as contractual obligations, damages or otherwise; and
(v) all other property hereafter delivered in substitution for or in addition to any of the foregoing, all certificates and instruments representing or evidencing such other property and all cash, securities, interest, dividends, rights and other property at any time and from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all thereof.
(b) Simultaneously with the execution of the Note and this Agreement (the “Transaction Documents”), the Pledgors shall deliver to the Escrow Agent stock certificates representing the Pledged Shares (the “Transfer Documents”), and such stock certificates and Transfer Documents shall be held by the Escrow Agent until the full payment of all amounts due to the Pledgees under the Notes and through repayment in accordance with the terms of the Notes, or the termination or expiration of this Agreement.
(c) In addition to the remedies set forth in Section 5, below, upon the occurrence of an Event of Default (as defined in Section 5 below), the Pledgees shall be entitled to vote the Pledged Shares, to receive dividends and other distributions thereon, and to enjoy all other rights and privileges incident to the ownership of the Pledged Shares in proportion to the Interest Percentage.
(d) Upon the payment of all amounts due to the Pledgees under the Notes by repayment in accordance with the terms of the Notes, the parties hereto shall notify the Escrow Agent to such effect in writing. Upon receipt of such written notice for payment of the amounts due to the Pledgees under the Notes, the Escrow Agent shall return to the Pledgors the Pledged Shares and the certificates representing the Pledged Shares, whereupon any and all rights of Pledgees in the Pledged Shares shall be terminated. Notwithstanding anything to the contrary contained herein, upon full payment of all amounts due to the Pledgees under the Notes, by repayment in accordance with the terms of the Notes, this Agreement and Pledgees’ security interest and rights in and to the Pledged Shares shall terminate.
SECTION 3. Representations and Warranties. Each Pledgor represents and warrants that:
(a) it is the legal and beneficial owner of, and has good and marketable title to, the Pledged Shares, subject to no pledge, lien, mortgage, hypothecation, security interest, charge, option or other encumbrance whatsoever, except the lien and security interest created and contemplated by this Agreement;
(b) it has full power, authority and legal right to execute, deliver and perform its obligations under this Agreement and to create the lien and security interest contemplated by this Agreement; and
(c) this Agreement constitutes a valid obligation of the Pledgor, legally binding upon him and enforceable in accordance with its terms.
D-3 |
SECTION 4. Covenants. Each Pledgor hereby covenants that during the continuance of this Agreement:
(a) he shall warrant and defend the right and title of the Pledgee conferred by this Agreement in and to the Pledged Shares at the cost of the Pledgor against the claims and demands of all persons whomsoever; and
(b) he shall not sell, assign, transfer, charge, pledge or encumber in any manner any part of the Pledged Shares or suffer to exist any encumbrance on the Pledged Shares;
SECTION 5. Remedies. At any time after the occurrence of an Event of Default (as defined in the Note) that has not yet been cured as set forth in the Note, Pledgees shall jointly provide written notice of such Default (the “Default Notice”) to the Escrow Agent, with a copy to the Pledgors. As soon as practicable after receipt of the Default Notice, the Escrow Agent shall deliver to Pledgees the Pledged Shares held by the Escrow Agent hereunder in proportion to the Interest Percentage, whereupon Pledgees may exercise all rights and remedies of a secured party with respect to such Pledged Shares as may be available under the Uniform Commercial Code as in effect in the State of Florida (the “UCC”).
SECTION 6. Application of Proceeds. All moneys collected or received by the Pledgees pursuant to this Agreement shall be applied to payment of the Borrower’s obligations under the Notes proportionately pursuant to the Interest Percentage.
SECTION 7. Concerning the Escrow Agent. The Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no implied duties or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent may act in reliance upon any writing or instrument or signature which it, in good faith, believes to be genuine, may assume the validity and accuracy of any statement or assertion contained in such a writing or instrument, and may assume that any person purporting to give any writing, notice, advice or instructions in connection with the provisions hereof has been duly authorized to do so. The Escrow Agent shall not be liable in any manner for the sufficiency or correctness as to form, manner, and execution, or validity of any instrument deposited in this escrow, nor as to the identity, authority, or right of any person executing the same; and its duties hereunder shall be limited to the safekeeping of such certificates, monies, instruments, or other document received by him as such escrow holder, and for the disposition of the same in accordance with the written instruments accepted by him in the escrow. Pledgees and the Pledgors hereby agree, to defend and indemnify the Escrow Agent and hold it harmless from any and all claims, liabilities, losses, actions, suits, or proceedings at law or in equity, or any other expenses, fees, or charges of any character or nature which it may incur or with which it may be threatened by reason of his acting as Escrow Agent under this Agreement; and in connection therewith, to indemnify the Escrow Agent against any and all expenses, including attorneys’ fees and costs of defending any action, suit, or proceeding or resisting any claim . The Escrow Agent shall be vested with a lien on all property deposited hereunder, for indemnification of attorneys’ fees and court costs regarding any suit, proceeding or otherwise, or any other expenses, fees, or charges of any character or nature, which may be incurred by the Escrow Agent by reason of disputes arising between the makers of this escrow as to the correct interpretation of this Agreement and instructions given to the Escrow Agent hereunder, or otherwise, with the right of the Escrow Agent, regardless of the instructions aforesaid, to hold said property until and unless said additional expenses, fees, and charges shall be fully paid. Any fees and costs charged by the Escrow Agent for serving hereunder shall be paid by the Pledgors. The Escrow Agent may resign upon ten (10) days’ written notice to the parties in this Agreement. If a successor Escrow Agent is not appointed within this ten (10) day period, the Escrow Agent may petition a court of competent jurisdiction to name a successor.
D-4 |
D-5 |
8.11 Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Florida without regard to the principles of conflict of laws thereof. Each party agrees that all legal proceedings concerning the interpretation, enforcement and defense of the transactions contemplated by the Agreement and any of the other agreements referenced herein (the “Transaction Documents”)(whether brought against a party hereto or its respective Affiliates, directors, officers, shareholders, employees or agents) shall be commenced in the state and federal courts sitting in Broward County, Florida (the “Florida Courts”). Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the Florida Courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of such Florida Courts, or such Florida Courts are improper or inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under the Notes and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by applicable law. Each party hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. If any party shall commence an action or proceeding to enforce any provisions of this Agreement, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorneys’ fees and other costs and expenses incurred in the investigation, preparation and prosecution of such action or proceeding.
D-6 |
[Signatures appear on following pages]
D-7 |
PLEDGORS: | |||
| Berlisa B.V. |
| |
|
|
|
|
By: | |||
| Name: | Geurt van Wijk | |
Title: | |||
|
|
|
|
| Sterling Skies B.V. |
| |
|
|
|
|
| By: |
|
|
| Name: | Remy de Vries |
|
| Title: |
|
|
[Signatures Continue on Following Page]
D-8 |
PLEDGEES:
Secured Party | Current Balance of Note | Interest Percentage | ||
[Investor]
By: _________________________________ Name: _______________________________ Title: ________________________________ | $_______ | _____% | ||
|
|
|
|
|
[Investor]
By: _________________________________ Name: _______________________________ Title: ________________________________ | $_______ | _____% | ||
|
|
|
|
|
[Investor]
By: _________________________________ Name: _______________________________ Title: ________________________________ | $_______ | _____% |
ESCROW AGENT:
Legal and Compliance, LLC | |||
By: | |||
|
|
|
|
Xxxxx Xxxxxxx, for the firm |
D-9 |
Exhibit A
Convertible Promissory Notes
(Attached)
1 |
EXHIBIT E
INTELLECTUAL PROPERTY SECURITY AGREEMENT
E-1 |
INTELLECTUAL PROPERTY SECURITY AGREEMENT
This Intellectual Property Security Agreement (this “Agreement”) dated September 12, 2016, is made and executed by and between IDdriven, Inc., a Nevada corporation (the “Company”), on the one hand, and the parties listed on the signature to this Agreement, and or their assigns, on the other hand (each, a “Secured Party” and collectively, the “Secured Parties”).
A. The Company is indebted to the Secured Parties in the aggregate principal amount of up to $401,511 (the “Debt”) and in the individual amounts as evidenced by those certain Secured Convertible Promissory Notes of the Company to each Secured Party, as attached hereto as Exhibit A (each, a “Note” and collectively, the “Notes”);
B. It is a condition of the Notes that Company execute and deliver this Agreement to the Secured Parties, to secure, for the full benefit of each Secured Party and any and all future holders from time to time of each Note, the full payment and performance of the applicable Note and the other obligations referred to herein, in proportion to the Interest Percentage for each Secured Party as set forth on the signature page hereto (the “Interest Percentage”).
1. Certain Definitions. As used in this Agreement, the following terms shall have the meanings set forth in this Section 1. Terms used but not otherwise defined in this Agreement that are defined in the UCC (such as “account”, “chattel paper”, “commercial tort claim”, “deposit account”, “document”, “equipment”, “fixture”, “general intangible”, “goods”, “instruments”, “inventory”, “investment property”, “letter-of-credit rights”, “proceeds” and “supporting obligations”) shall have the respective meanings given such terms in the UCC.
(a) “Collateral” means the collateral in which the Secured Party is granted a security interest by this Agreement and which shall include the Intellectual Property of the Company, whether presently owned or existing or hereafter acquired or coming into existence, wherever situated, and all additions and accessions thereto and all substitutions and replacements thereof, and all proceeds, products and accounts thereof, including, without limitation, all proceeds from the sale or transfer of the Collateral and of insurance covering the same and of any tort claims in connection therewith.
(b) “Intellectual Property” means the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including, without limitation, (i) all copyrights arising under the laws of the United States, any other country or any political subdivision thereof, whether registered or unregistered and whether published or unpublished, all registrations and recordings thereof, and all applications in connection therewith, including, without limitation, all registrations, recordings and applications in the United States Copyright Office, (ii) all letters patent of the United States, any other country or any political subdivision thereof, all reissues and extensions thereof, and all applications for letters patent of the United States or any other country and all divisions, continuations and continuations-in-part thereof, (iii) all trademarks, trade names, corporate names, company names, business names, fictitious business names, trade dress, service marks, logos, domain names and other source or business identifiers, and all goodwill associated therewith, now existing or hereafter adopted or acquired, all registrations and recordings thereof, and all applications in connection therewith, whether in the United States Patent and Trademark Office or in any similar office or agency of the United States, any State thereof or any other country or any political subdivision thereof, or otherwise, and all common law rights related thereto, (iv) all trade secrets arising under the laws of the United States, any other country or any political subdivision thereof, (v) all rights to obtain any reissues, renewals or extensions of the foregoing, (vi) all licenses for any of the foregoing, and (vii) all causes of action for infringement of the foregoing.
E-2 |
(c) “Obligations” means all of the Company’s obligations under this Agreement, the Notes and any other instruments, agreements or other documents executed and/or delivered in connection herewith or therewith, in each case, whether now or hereafter existing, voluntary or involuntary, direct or indirect, absolute or contingent, liquidated or unliquidated, whether or not jointly owed with others, and whether or not from time to time decreased or extinguished and later increased, created or incurred, and all or any portion of such obligations or liabilities that are paid, to the extent all or any part of such payment is avoided or recovered directly or indirectly from the Secured Party as a preference, fraudulent transfer or otherwise as such obligations may be amended, supplemented, converted, extended or modified from time to time. Without limiting the generality of the foregoing, the term “Obligations” shall include, without limitation: (i) principal of, and interest on the Notes and the loans extended pursuant thereto; (ii) any and all other fees, indemnities, costs, obligations and liabilities of the Company from time to time under or in connection with this Agreement, the Notes, and any other instruments, agreements or other documents executed and/or delivered in connection herewith or therewith; and (iii) all amounts (including but not limited to post-petition interest) in respect of the foregoing that would be payable but for the fact that the obligations to pay such amounts are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Company.
(d) “UCC” means the Uniform Commercial Code of the State of Florida and or any other applicable law of any state or states which has jurisdiction with respect to all, or any portion of, the Collateral or this Agreement, from time to time. It is the intent of the parties that defined terms in the UCC should be construed in their broadest sense so that the term “Collateral” will be construed in its broadest sense. Accordingly, if there are, from time to time, changes to defined terms in the UCC that broaden the definitions, they are incorporated herein and if existing definitions in the UCC are broader than the amended definitions, the existing ones shall be controlling.
(e) Grant of Security. To secure the full payment of the Notes and performance of the obligations contained in the Notes, Company hereby grants to the Secured Parties, for the joint benefit of the Secured Parties and any subsequent holder of any of the Notes, a continuing security interest in and to the Collateral. Company further agrees that the Secured Parties shall have the rights stated in this Agreement with respect to the Collateral as well as other rights which the Secured Parties may have under the laws of the State of Florida.
E-3 |
2. Further Assurances. The Company will, and the Secured Parties may, from time to time execute (if required) and file or record, at the cost and expense of Company, all financing statements, amendments or supplements thereto, continuation statements with respect thereto and all other instruments, including the filing of this Agreement, which may be necessary or which the Secured Parties may from time to time reasonably deem appropriate and request (if the Secured Parties choose not to act on their own), in order to perfect, protect and maintain the security interests hereby granted. Company will promptly deliver to the Secured Parties a copy of each such instrument filed or recorded by it and evidence of its filing or recording in the manner required. Company further agrees that a carbon, photographic, photostatic or other reproduction of this Agreement or of a financing statement is sufficient as a financing statement.
3. Representations and Warranties. Company hereby represents and warrants to the Secured Parties that:
(a) Company holds good and marketable title to the Collateral, free and clear of all liens and encumbrances except for the lien of this Agreement. No financing statement covering any of the Collateral is on file in any public office other than those which reflect the security interest created by this Agreement or to which the Secured Parties have specifically consented. Company shall defend the Secured Parties’ rights in the Collateral against the claims and demands of all other persons;
(b) Company agrees to take whatever actions are required by the Secured Parties to perfect and continue the Secured Parties’ security interest in the Collateral;
(c) Company shall notify the Secured Parties in writing at each Secured Party’s address prior to any: (i) change in Company’s name; (ii) change in Company’s assumed business name; or (iii) change in the jurisdiction of its organization. No change in Company’s name or jurisdiction will take effect until after the Secured Party has received notice;
(d) The execution and delivery of this Agreement shall not violate any law or agreement governing Company or to which Company is a party;
(e) Company shall not sell, offer to sell, or otherwise transfer or dispose of the Collateral. Company shall not pledge, mortgage, encumber or otherwise permit the Collateral to be subject to any lien, security interest, encumbrances, or charge, other than the security interest provide for in this Agreement, without the prior written consent of the Secured Parties. This includes security interests even if junior in right to the security interest granted under this Agreement. Unless waived by the Secured Parties, all proceeds from any disposition of the Collateral for whatever reason shall be held in trust for the Secured Parties and shall not be commingled with any other funds, provided, however, that this requirement shall not constitute consent by the Secured Parties to any sale or other disposition. Upon receipt, Company shall immediately deliver any such proceeds to the Secured Parties pursuant to their Interest Percentage;
E-4 |
(f) Company agrees to keep and maintain, and to cause others to keep and maintain, if applicable, the Collateral in good order, repair and condition at all times while this Agreement remains in effect. Company further agrees to pay when due all claims for work done on, or services rendered or material furnished in connection with the Collateral so that no lien or encumbrance may ever attach to or be filed against the Collateral;
(g) The Secured Parties, or any person or persons designated by any of them, shall have the right, from time to time, to call at Company’s place or places of business during reasonable business hours, and, without hindrance or delay, to inspect, audit, check and make extracts from Company’s books, records, journals, orders, receipts and any correspondence and other data relating to the Collateral or to Company’s business and shall have the right to make such verification concerning the Collateral as such Secured Party may consider reasonable under the circumstances, all at Company’s expense;
(h) Company shall pay, when due, all taxes, assessments, and liens upon the Collateral, or its use or operation;
(i) Company shall comply promptly with all laws, ordinances, rules and regulations of all governmental authorities, now or hereafter in effect, applicable to the ownership, production, disposition, or use of the Collateral;
(j) Without the prior written consent of Secured Parties holding a majority of the Interest Percentages, Company will not enter into any merger or consolidation, or sell, lease or otherwise dispose of all or substantially all of its assets, or enter into any transaction outside the ordinary course of Company’s business unless it provides for the full payment and satisfaction of the obligations under the Notes; and
(k) In addition to any other notices required pursuant to this Agreement, Company will promptly advise the Secured Parties in reasonable detail: (i) of the assertion or imposition of any lien against any or all of the Collateral; (ii) of any material adverse change in the composition or aggregate value of the Collateral; (iii) concerning the commencement of or any material development in any investigation of Company, or any administrative or judicial proceeding against Company, by any governmental authority if such investigation or proceeding may result in the imposition of any lien against the Collateral or any part thereof (whether or not any such lien has then been claimed or asserted); or (iv) concerning any other event likely to have a material adverse effect on the aggregate value of the Collateral or on the perfection or priority of the Secured Parties’ security interest therein.
4. Cross-Collaterization. In addition to the Note, this Agreement shall secure all obligations, debts, and liabilities, plus interest thereon, of Company to the Secured Parties, any one or more of them, as well as all claims by the Secured Parties against Company or any one or more of them whether now existing or hereafter arising, whether related or unrelated to the purpose of the Note, whether voluntary or otherwise, whether due or not due, direct or indirect, determined or undetermined, absolute or contingent, liquidated or unliquidated whether Company may be liable individually or jointly with others, whether obligated as guarantor, surety, accommodation party or otherwise, and whether recovery upon such amounts may be or hereafter may become barred by any statute of limitation, and whether the obligation to repay such amounts may be or hereafter may become otherwise unenforceable, in each case in proportion to the Interest Percentage of each Secured Party.
E-5 |
5. Company’s Right to Possession. Until default under any of the Notes, Company may have possession of the tangible assets and beneficial use of all the Collateral and may use it in any lawful manner not inconsistent with this Agreement, provided that Company’s right to possession and beneficial use shall not apply to any Collateral where possession of the Collateral by any Secured Party is required by law to perfect such Secured Party’s security interest in such Collateral. The applicable Secured Party shall not be required to take any steps necessary to preserve any rights in the Collateral against prior parties, neither to protect nor to preserve nor to maintain any security interest given to secure the indebtedness.
6. Rights, Powers and Limitation of Liability.
(a) Appointment as Company’s Attorney-in-Fact. Company hereby irrevocably appoints the each Secured Party as Company’s agent and attorney-in-fact, with full power in Company’s name or its own name and at Company’s expense, and whether such Secured Party acts directly or through one or more of its representatives, to execute, endorse and deliver any and all agreements, assignments, pledges, instruments, documents, and any other writings, and to take any and all other actions, which such Secured Party may in its sole discretion deem necessary or desirable to effect the terms and purposes of this Agreement, including without limitation: (i) to take any action which such Secured Party is authorized to take under Section 7(b) hereof in the event Company fails to perform or comply with any of its duties, covenants or agreements hereunder; and (ii) to exercise, during the continuation of an Event of Default, any and all rights and remedies specified in Section 8 hereof.
(b) Right to Perform for Company. If Company fails at any time to perform or comply with any of its obligations, covenants or agreements hereunder, each Secured Party may (but shall not be obligated to) take such action, in its own name or as the Company’s attorney-in-fact as provided in Section 7(a) hereof, as such Secured Party shall deem necessary or desirable to effect such performance or compliance, including without limitation: (i) the preservation and maintenance of the Collateral and the payment, discharge, contest and/or settlement of any and all taxes and third-party claims and charges; (ii) the removal or avoidance of the imposition of liens against any or all of the Collateral; and (iii) the timely collection of payments due and the enforcement of remedies available under or with respect to the Collateral and related warranties and other agreements; and (iv) the execution and filing (to the extent permitted under the UCC and other applicable law) of financing and continuation statements and amendments and other documents with appropriate governmental authorities.
(c) Limitation of Liability. Company agrees that each Secured Party shall have no obligation to exercise any of its rights, powers and remedies hereunder and no liability to Company or any other person for not doing so. Company further agrees that to the extent any Secured Party does exercise any of such rights, powers or remedies (i) such Secured Party shall be accountable to Company and/or any other persons only for amounts it actually receives as the result of such exercise (and not for amounts to which it is or may be entitled or which it might have received had it elected to take additional action) and (ii) neither such Secured Party nor any of its representatives shall have any liability to Company or any other person for any act or omission in connection with such exercise except for (A) such Secured Party’s or any such representative’s failure to exercise reasonable care as required under the UCC or to otherwise comply with UCC provisions or (B) such Secured Party’s or any such representative’s willful misconduct.
E-6 |
7. Default. Each of following shall constitute an Event of Default under this Agreement:
(a) Payment Default. Company fails to make any payment when due under the Note;
(b) Other Defaults. Company fails to comply with or to perform any other material term, obligation, covenant or condition contained in this Agreement or any Note;
(c) Default in Favor of Third Parties. In the event that Company defaults under any loan, extension of credit, agreement, purchase and sale agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of Company’s assets or Company’s ability to repay the Notes or perform its respective obligations under this Agreement;
(d) Defective Collateralization. This Agreement ceases to be in full force and effect, including failure of any collateral document to create a valid and perfected security interest or line, at any time and for any reason;
(e) False Statements. Any warranty, representation, or statement made or furnished to the Secured Parties by Company or on Company’s behalf under this Agreement is false or misleading in any material respect, either now or at the time made or furnished or becomes false or misleading at any time thereafter;
(f) Bankruptcy. The appointment of a receiver for any part of Company’s assets, any assignment for the benefit of creditors, any type of creditor workout, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Company; and/or
(g) Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help, repossession or any other method, by any creditor of Company or by any governmental agency against any collateral securing the indebtedness. This includes a garnishment of any of Company’s accounts.
8. Rights and Remedies on Default. If an Event of Default occurs under this Agreement, at any time thereafter, the Secured Party, in proportion to their Interest Percentage shall have all the rights of a secured party under the UCC. In addition and without limitation, the Secured Parties may exercise any one or more of the following rights and remedies, in each case in proportion to their Interest Percentage with respect to the Collateral:
(a) all obligations under the applicable Note for each Secured Party and hereunder may (notwithstanding any provisions thereof), at the option of such Secured Party and without demand, notice or legal process of any kind, be declared, and immediately shall become, due and payable;
E-7 |
(b) without notice, demand or legal process of any kind, the Secured Parties may take possession of any or all of the Collateral (in addition to Collateral of which it already has possession), wherever it may be found, in proportion to their respective Interest Percentages, and for that purpose may pursue the same wherever it may be found, and may, without a breach of the peace, enter into any of Company’s premises where any of the Collateral may be or be supposed to be, and search for, take possession of, remove, keep and store any of the Collateral until the same shall be sold or otherwise disposed of, and such Secured Party shall have the right to store the same in any of Company’s premises without cost to the applicable Secured Party, and such Secured Party may exercise from time to time any rights and remedies available to it under applicable law, including the UCC, in addition to, and not in lieu of, any rights and remedies expressly granted in this Agreement or in any other instrument or agreement executed by Company;
(c) at any Secured Party’s request, Company will, at Company’s expense, assemble the Collateral at one or more places, reasonably convenient to all of the parties, where the Collateral may, at the option of the applicable Secured Party, remain, at Company’s expense, pending sale or other disposition thereof;
(d) a Secured Party may, at any time in such Secured Party’s discretion, transfer any Collateral into its own name or that of the Secured Party’s nominee, and the Secured Party may, pursuant to Section 7(a) of this Agreement, execute any such documents as may be necessary to effectuate said change;
(e) each Secured Party shall have the right, either itself or through a receiver, to: (i) collect the payments, rents, income, or revenues from the Collateral and hold the same as security for the amounts due under such Secured Party’s Note or apply it to payment of the indebtedness under such Note in such order of preference as the applicable Secured Party may determine; (ii) notify any account debtor that accounts have been assigned to such Secured Party and that such Secured Party has a security interest therein; (iii) direct all such account debtors to make payments to such Secured Party of all or any part of the sums owing Company by such account debtor; (iv) enforce collection of any of the accounts by suit or otherwise; (v) surrender, release or exchange all or any part of said accounts; or (vi) compromise, settle, extend or renew for any period (whether or not longer than the original period) any indebtedness thereunder or evidenced thereby;
(f) each Secured Party shall have the full power to sell, lease, transfer, or otherwise deal with the Collateral or proceeds thereof in such Secured Party’s own name or that of Company. Each Secured Party may sell the Collateral at public auction or private sale. Unless the Collateral threatens to decline speedily in value or of a type customarily sold on a recognized market, such Secured Party shall give Company, as required by law, reasonable notice of the time and place of any public sale or the time after which any private sale or any other disposition of the Collateral is to be made. The requirements of reasonable notice shall be met if such notice is given at least ten (10) days before the time of the sale or disposition. All expenses relating to the disposition of the Collateral, including without limitation the expenses of retaking, holing, insuring, preparing for sale and selling the Collateral, shall become a part of the indebtedness secured by this Agreement and shall be payable on demand, with interest at the rate as set forth in the applicable Note from date of expenditure until repaid. Any proceeds of any sale, lease or other disposition by the Secured Party of any of the Collateral shall be applied as follows: (i) first, to the payment of the applicable Secured Party’s reasonable expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses; (ii) second, to the payment of all other obligations in such manner as such Secured Party may deem advisable; and (iii) third, the balance, if any, to or at the direction of Company. Company shall remain liable for any deficiency; and/or
E-8 |
(g) Except as may be prohibited by applicable law, all of each Secured Party’s rights and remedies, whether evidenced by this Agreement or other writing, shall be cumulative and may be exercise singularly or concurrently. Election by any Secured Party to pursue any remedy shall not exclude pursuit of any other remedy, and an election to make expenditures or to take action to perform an obligation of Company under this Agreement, after Company’s failure to perform, shall not affect any Secured Party’s right to declare a default and exercise its remedies.
9. Term.
(a) This Agreement shall continue in full force and effect until each and all of the obligations under the Notes and any arising hereunder have been paid and discharged in full, whereupon (subject to Section 10(b) below) this Agreement shall automatically terminate. Such termination shall not in any way affect or impair the rights and obligations of the parties hereto relating to any transactions or events prior to such termination, and all indemnities by Company shall survive such termination.
(b) If after receipt of any payment of, or the proceeds of any Collateral for, all or any part of the obligations, any Secured Party is compelled to surrender or voluntarily surrenders such payment or proceeds to any person because such payment or application of proceeds is or may be avoided, invalidated, recaptured, or set aside as a preference, fraudulent conveyance, impermissible setoff or for any other reason, whether or not such surrender is the result of (i) any judgment, decree or order of any court or administrative body having jurisdiction over the Secured Party, or (ii) any settlement or compromise by such Secured Party of any claim as to any of the foregoing with any person (including the primary obligor with respect to any of the Obligations), then the Obligations or part thereof affected shall be reinstated and continue and this Agreement shall be reinstated and continue in full force as to such Obligations or part thereof as if such payment or proceeds had not been received, notwithstanding any previous cancellation of any instrument evidencing any such Obligation or any previous instrument delivered to evidence the satisfaction thereof or the termination of this Agreement.
10. Notices. All notices of request, demand and other communications hereunder shall be addressed, sent and deemed delivered in accordance with the Notes.
11. Modifications. This Agreement, together with any related documents constitutes the entire understanding and agreement of the parties as to the matters set forth in this Agreement. No alteration of or amendment to this Agreement shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. Notwithstanding the forgoing, the parties acknowledge and agree that, as of the date hereof, the amount of the Notes entered into by the Company does not equal $401,511. Therefore the Company, acting alone, shall have the right to amend this Agreement for the purposes of adding additional Secured Parties in the event that additional Secured Parties enter into additional Notes with the Borrower, and in connection therewith may amend the Interest Percentage of the Secured Parties solely up to the point to reflect up to a total of $401,511 of Notes being issued (and therefore a Secured Party’s Interest Percentage hereunder may not be lowered below the Interest Percentage resulting from the issuance of $401,511 in Notes.)
12. Attorney’s Fees. Company shall pay or reimburse the Secured Parties on demand for all costs and expenses (including without limitation reasonable attorneys’ fees and legal expenses) paid or incurred by the Secured Parties in exercising or enforcing any of their rights, powers and remedies under this Agreement and for all other costs and expenses which the Secured Parties have or shall have paid by reason of Company’s failure or refusal to do so as and when required hereunder. The amount of any such cost or expense shall be repayable on demand and, until repayment, all such expenditures incurred or paid by the Secured Parties for such purposes will then bear interest at the rate charged under the applicable Note from the date incurred or paid by the applicable Secured Party to the date of repayment by Company. All such expenses will become a part of the Debt.
E-9 |
13. No Waiver by the Secured Parties. No Secured Party shall be deemed to have waived any rights under this Agreement unless such waiver is given in writing and signed by the applicable Secured Party. No delay or omission on the part of any Secured Party in exercising any right shall operate as a waiver of such right or any other right. A waiver by any Secured Party of a provision of this Agreement shall not prejudice or constitute a waiver of such Secured Party’s right otherwise to demand strict compliance with that provision or any other provision of this Agreement. Neither prior waiver by any Secured Party nor any course of dealing between any Secured Party and Company shall constitute a waiver of any of any Secured Party’s rights or of any of Company’s obligations as to any future transactions. Whenever the consent of any Secured Party is required under this Agreement, the granting of such consent by such Secured Party in any instance shall not constitute continuing consent to subsequent instances where such consent is required, and in all cases such consent may be granted or withheld in the sole discretion of each Secured Party.
14. Severability. If a court of competent jurisdiction finds any provision of this Agreement to be illegal, invalid, or unenforceable, as to any circumstances, that finding shall not make the offending provision illegal, invalid, or unenforceable as to any other circumstances. If feasible, the offending provision shall be considered modified so that it becomes legal, valid, and enforceable. If the offending provision cannot be so modified, it shall be considered deleted from this Agreement. Unless otherwise required by law, the illegality, invalidity, or unenforceability of any provision of this Agreement shall not affect the legality, validity, or enforceability of any other provision of this Agreement.
15. Successors and Assigns. Subject to any limitations stated in this Agreement on transfer of Company’s interest, this Agreement shall be binding upon and inure to the benefit of the parties, their successors, and assigns, provided, however, that Company shall not assign or otherwise transfer any of its rights, interests or obligations hereunder without the Secured Parties’ prior written consent. If ownership of the Collateral becomes vested in a person other than Company, the Secured Parties, without notice to Company, may deal with Company’s successors with reference to this Agreement and the indebtedness by way of forbearance or extension without releasing Company from the obligations of this Agreement or liability under the Notes. If there shall be more than one entity in which ownership of the collateral becomes vested, each such entity shall be jointly and severally liable hereunder.
16. Survival of Representations and Warranties. All representations and warranties of Company and all terms, provisions, conditions and agreements to be performed by Company contained herein, and in any other agreement, document and instrument executed by Company concurrently herewith, shall be true and satisfied at the time of the execution of this Agreement, and shall survive the closing hereof and the execution and delivery of this Agreement.
E-10 |
17. Governing Law/Jurisdiction. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Florida without regard to the principles of conflict of laws thereof. Each party agrees that all legal proceedings concerning the interpretation, enforcement and defense of the transactions contemplated by the Agreement and any of the other agreements referenced herein (the “Transaction Documents”)(whether brought against a party hereto or its respective Affiliates, directors, officers, shareholders, employees or agents) shall be commenced in the state and federal courts sitting in Broward County, Florida (the “Florida Courts”). Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the Florida Courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of such Florida Courts, or such Florida Courts are improper or inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under the Notes and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by applicable law. Each party hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. If any party shall commence an action or proceeding to enforce any provisions of this Agreement, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorneys’ fees and other costs and expenses incurred in the investigation, preparation and prosecution of such action or proceeding.
18. Caption Headings. Caption headings in this Agreement are for convenience purposes only and are not to be used to interpret or define the provisions of this Agreement.
19. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument. This Agreement or any counterpart may be executed and delivered by facsimile copies or delivered by electronic communications by portable document format (.pdf), each of which shall be deemed an original.
20. Security Interest Savings Clause. Notwithstanding anything to the contrary in this Agreement, each Secured Party and the Secured Parties collectively shall have the right to the Collateral only up to the extent of their Interest Percentage.
[Signatures appear on following pages]
E-11 |
IN WITNESS WHEREOF, this Agreement has been duly executed as of the first date written above.
IDdriven, Inc.: |
|
| |
By: | |||
Name: | Xxxxx Xxxxxxx | ||
Title: | President |
Secured Party | Current Balance of Note | Interest Percentage | ||
[Investor]
By: _________________________________ Name: _______________________________ Title: ________________________________ | $_______ | _____% | ||
|
|
|
|
|
[Investor]
By: _________________________________ Name: _______________________________ Title: ________________________________ | $_______ | _____% | ||
|
|
|
|
|
[Investor]
By: _________________________________ Name: _______________________________ Title: ________________________________ | $_______ | _____% | ||
|
|
|
|
|
[Investor]
By: _________________________________ Name: _______________________________ Title: ________________________________ | $_______ | _____% |
E-12 |
Exhibit A
Convertible Promissory Notes
(Attached)
1 |