EQUITY PURCHASE AGREEMENT
Exhibit 10.1
THIS EQUITY PURCHASE AGREEMENT (this
“Agreement”) is entered
into as of October 3, 2019 (the “Execution Date”), by and
between Premier Biomedical, Inc., a Nevada corporation (the
“Company”), and Green
Coast Capital International SA, a Panama Corporation (the
“Investor”).
RECITALS
WHEREAS, the parties desire that, upon
the terms and subject to the conditions contained herein, the
Company shall issue and sell to the Investor, from time to time as
provided herein, and the Investor shall purchase from the Company
up to Five Million Dollars ($5,000,000.00) of the Company’s
Common Stock (as defined below);
NOW, THEREFORE, in consideration of the
mutual covenants contained in this Agreement, and for other good
and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Company and the Investor hereby agree as
follows:
ARTICLE I
CERTAIN
DEFINITIONS
Section
1.1 RECITALS.
The parties acknowledge and agree that the recitals set forth above
are true and correct and are hereby incorporated in and made a part
of this Agreement.
Section
1.2 DEFINED
TERMS. As used in this
Agreement, the following terms shall have the following meanings
specified or indicated (such meanings to be equally applicable to
both the singular and plural forms of the terms
defined):
“Agreement” shall have the
meaning specified in the preamble hereof.
“Available Amount” means,
initially, the Maximum Commitment Amount, which amount shall be
reduced by the Investment Amount following each successful Closing,
each time the Investor purchases shares of Common Stock pursuant to
a Put.
“Average Daily Trading
Volume” shall mean the average trading volume of the
Company’s Common Stock in the ten (10) Trading Days
immediately preceding the respective Put Date.
“Bankruptcy
Law” means Title 11, U.S. Code, or any similar federal
or state law for the relief of debtors.
“Claim Notice” shall have
the meaning specified in Section IX.3(a).
“Clearing Costs” shall
mean all of the Investor’s broker and Transfer Agent fees,
excluding commissions, up to a maximum of $500 per Put.
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“Clearing Date” shall be
the date on which the Investor receives the Put Shares as DWAC
Shares in its brokerage account.
“Closing” shall mean one
of the closings of a purchase and sale of shares of Common Stock
pursuant to Section
II.3.
“Closing Certificate”
shall mean the closing “Officer’s Certificate” of
the Company in the form of Exhibit B hereto.
“Closing Date” shall mean
the date of any Closing hereunder.
“Commitment
Period” shall mean the period commencing on the
Execution Date, and ending on the earlier of (i) the date on which
the Investor shall have purchased Put Shares pursuant to this
Agreement equal to the Maximum Commitment Amount, (ii) September
26, 2022, or (iii) written notice of termination by the Company to
the Investor (which shall not occur at any time that the Investor
holds any of the Put Shares).
“Commitment Note” means a
$150,000 unsecured convertible note issued by the Company to the
Investor pursuant to Section 6.5.
“Common Stock” shall mean
the Company’s common stock, $0.00001 par value per share, and
any shares of any other class of common stock whether now or
hereafter authorized, having the right to participate in the
distribution of dividends (as and when declared) and assets (upon
liquidation of the Company).
“Common Stock Equivalents”
means any securities of the Company or the Subsidiaries which would
entitle the holder thereof to acquire at any time Common Stock,
including, without limitation, any debt, preferred stock, right,
option, warrant or other instrument that is at any time convertible
into or exercisable or exchangeable for, or otherwise entitles the
holder thereof to receive, Common Stock.
“Company” shall have the
meaning specified in the preamble to this Agreement.
“Confidential Information”
means any information disclosed by either party to this Agreement,
or their affiliates, agents or representatives, to the other party
to this Agreement, either directly or indirectly, in writing,
orally or by inspection of tangible objects (including, without
limitation, documents, formulae, business information, trade
secrets, technology, strategies. prototypes, samples, plant and
equipment), which may or may not be designated as
“Confidential,” “Proprietary” or some
similar designation. Information communicated orally shall be
considered Confidential Information if such information is
confirmed in writing as being Confidential Information within ten
(10) Trading Days after the initial disclosure. Confidential
Information may also include information disclosed by third
parties. Confidential Information shall not, however, include any
information which (i) was publicly known and made generally
available in the public domain prior to the time of disclosure by
the disclosing party; (ii) becomes publicly known and made
generally available after disclosure by the disclosing party to the
receiving party through no action or inaction of the receiving
party; (iii) is already in the possession of the receiving party at
the time of disclosure by the disclosing party as shown by the
receiving party’s files and records immediately prior to the
time of disclosure; (iv) is obtained by the receiving party from a
third party without a breach of such third party’s
obligations of confidentiality; (v) is independently developed by
the receiving party without use of or reference to the disclosing
party’s Confidential Information, as shown by documents and
other competent evidence in the receiving party’s possession;
or (vi) is required by law to be disclosed by the receiving party,
provided that the receiving party gives the disclosing party prompt
written notice of such requirement prior to such disclosure and
assistance in obtaining an order protecting the information from
public disclosure.
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“Current Report” shall
have the meaning set forth in Section VI.4.
“Custodian” means any
receiver, trustee, assignee, liquidator or similar official under
any Bankruptcy Law.
“Damages” shall mean any
loss, claim, damage, liability, cost and expense (including,
without limitation, reasonable attorneys’ fees and
disbursements and costs and expenses of expert witnesses and
investigation).
“Dispute Period” shall
have the meaning specified in Section IX.3(a).
“Disqualification Event”
shall have the meaning specified in Section IV.27.
“DTC” shall mean The
Depository Trust Company, or any successor performing substantially
the same function for the Company.
“DTC/FAST Program” shall
mean the DTC’s Fast Automated Securities Transfer
Program.
“DWAC” shall mean Deposit
Withdrawal at Custodian as defined by the DTC.
“DWAC Eligible” shall mean
that (a) the Common Stock is eligible at DTC for full services
pursuant to DTC’s operational arrangements, including,
without limitation, transfer through DTC’s DWAC system, (b)
the Company has been approved (without revocation) by the
DTC’s underwriting department, (c) the Transfer Agent is
approved as an agent in the DTC/FAST Program, (d) the Commitment
Shares or Put Shares, as applicable, are otherwise eligible for
delivery via DWAC, and (e) the Transfer Agent does not have a
policy prohibiting or limiting delivery of the Commitment Shares or
Put Shares, as applicable, via DWAC.
“DWAC Shares” means shares
of Common Stock that are (i) issued in electronic form, (ii) freely
tradable and transferable and without restriction on resale and
(iii) timely credited by the Company to the Investor’s or its
designee’s specified DWAC account with DTC under the DTC/FAST
Program, or any similar program hereafter adopted by DTC performing
substantially the same function.
“Environmental Laws” shall
have the meaning set forth in Section IV.14.
“Exchange Act” shall mean
the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
“Exchange Cap” shall have
the meaning set forth in Section VII.1(c).
“Execution Date” shall
have the meaning set forth in the preamble to this
Agreement.
“FINRA” shall mean the
Financial Industry Regulatory Authority, Inc.
“Indemnified
Party” shall have the meaning specified in
Section
IX.2.
“Indemnifying Party” shall
have the meaning specified in Section IX.2.
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“Indemnity Notice” shall
have the meaning specified in Section IX.3(b).
“Intellectual Property”
shall mean all trademarks, trademark applications, trade names,
service marks, service xxxx registrations, service names, patents,
patent applications, patent rights, copyrights, inventions,
licenses, approvals, government authorizations, trade secrets or
other intellectual property rights.
“Investment Amount” shall
mean the dollar value equal to the amount of Put Shares referenced
in the Put Notice multiplied by the Purchase Price minus the
Clearing Costs.
“Investor” shall have the
meaning specified in the preamble to this Agreement.
“Issuer Covered Person”
shall have the meaning specified in Section IV.27.
“Lien” means a lien,
charge, pledge, security interest, encumbrance, right of first
refusal, preemptive right or any other restriction.
“Low Trade Price” shall
mean for any date, the price determined by the first of the
following clauses that applies: (a) if the Common Stock is then
listed or quoted on a national exchange as included in the term
Principal Market, the lowest traded price of the Common Stock for
such date (or the nearest preceding date) on such national exchange
on which the Common Stock is then listed or quoted for trading as
reported by Bloomberg L.P. or Quotestream, a product of QuoteMedia,
Inc. (based on a Trading Day from 9:30 a.m. (New York City time) to
4:02 p.m. (New York City time)); (b) if the Common Stock is not
then traded on a national exchange, the lowest traded price of the
Common Stock for such date (or the nearest preceding date) on the
OTCQX, OTCQB, OTC Pink or OTC Bulletin Board (as
applicable).
“Market Price” shall mean
the one lowest trade price of the Common Stock on the Principal
Market during the Valuation Period, as reported by Bloomberg
Finance L.P. or other reputable source.
“Material Adverse Effect”
shall mean any effect on the business, operations, properties, or
financial condition of the Company and/or the Subsidiaries that is
material and adverse to the Company and/or the Subsidiaries and/or
any condition, circumstance, or situation that would prohibit or
otherwise materially interfere with the ability of the Company
and/or the Subsidiaries to enter into and/or perform its
obligations under any Transaction Document.
“Maximum Commitment
Amount” shall mean Five Million Dollars
($5,000,000.00).
“Person” shall mean an
individual, a corporation, a partnership, an association, a trust
or other entity or organization, including a government or
political subdivision or an agency or instrumentality
thereof.
“Principal Market” shall
mean any of the national exchanges (i.e. NYSE, NYSE AMEX, NASDAQ),
or principal quotation systems (i.e. OTCQX, OTCQB, OTC Pink, the
OTC Bulletin Board), or other principal exchange or recognized
quotation system which is at the time the principal trading
platform or market for the Common Stock.
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“Purchase Price” shall
mean 90% of the Market Price on such date on which the Purchase
Price is calculated in accordance with the terms and conditions of
this Agreement.
“Put” shall mean the right
of the Company to require the Investor to purchase shares of Common
Stock, subject to the terms and conditions of this
Agreement.
“Put Date” shall mean any
Trading Day during the Commitment Period that a Put Notice is
deemed delivered pursuant to Section II.2(b).
“Put Notice” shall mean a
written notice, substantially in the form of Exhibit A hereto, addressed to
the Investor and setting forth the amount of Put Shares which the
Company intends to require the Investor to purchase pursuant to the
terms of this Agreement.
“Put Shares” shall mean
all shares of Common Stock issued, or that the Company shall be
entitled to issue, per any applicable Put Notice in accordance with
the terms and conditions of this Agreement.
“Registration Rights
Agreement” means that agreement in the form attached
hereto as Exhibit
D.
“Registration Statement”
shall have the meaning specified in Section VI.4.
“Regulation D” shall mean
Regulation D promulgated under the Securities Act.
“Required
Minimum” shall mean, as of any date, the maximum
aggregate number of shares of Common Stock then issued or
potentially issuable in the future pursuant to the Transaction
Documents.
“Rule 144” shall mean Rule
144 promulgated under the Securities Act or any similar provision
then in force under the Securities Act.
“SEC” shall mean the
United States Securities and Exchange Commission.
“SEC Documents” shall have
the meaning specified in Section IV.5.
“Securities” means,
collectively, the Put Shares and the Commitment
Shares.
“Securities Act” shall
mean the Securities Act of 1933, as amended.
“Short Sales” shall mean
all “short sales” as defined in Rule 200 of Regulation
SHO under the Exchange Act.
“Subsidiary” or
“Subsidiaries” means any
Person the Company wholly-owns or controls, or in which the
Company, directly or indirectly, owns a majority of the voting
stock or similar voting interest, in each case that would be
disclosable pursuant to Item 601(b)(21) of Regulation S-K
promulgated under the Securities Act.
“Third Party Claim” shall
have the meaning specified in Section IX.3(a).
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“Trading Day” shall mean a
day on which the Principal Market shall be open for
business.
“Transaction Documents”
shall mean this Agreement, the Registration Rights Agreement, and
all schedules and exhibits hereto and thereto.
“Transfer Agent” shall
mean Direct Transfer, LLC, the current transfer agent of the
Company, and any successor transfer agent of the
Company.
“Transfer Agent Instruction
Letter” means the letter from the Company to the
Transfer Agent which instructs the Transfer Agent to issue the Put
Shares and the Commitment Shares pursuant to the Transaction
Documents, in the form of Exhibit C attached
hereto.
“Valuation Period” shall
mean the period of five (5) Trading Days immediately following the
Clearing Date associated with the applicable Put Notice during
which the Purchase Price of the Common Stock is valued; provided,
however, that the Valuation Period shall instead begin on the
Clearing Date if the respective Put Shares are received as DWAC
Shares in Investor’s brokerage account prior to 11:00 a.m.
EST on the respective Clearing Date.
“Variable Security Holder”
means any holder of any securities of the Company in an amount in
excess of $100,000 that (A) have or may have conversion rights of
any kind, contingent, conditional or otherwise, in which the number
of shares that may be issued pursuant to such conversion right
varies with the market price of the Common Stock, or (B) are or may
become convertible into Common Stock (including without limitation
convertible debt, warrants or convertible preferred stock), with a
conversion price that varies with the market price of the Common
Stock, even if such security only becomes convertible following an
event of default, the passage of time, or another trigger event or
condition.
ARTICLE II
PURCHASE
AND SALE OF COMMON STOCK
Section
2.1 PUTS.
Upon the terms and conditions set forth herein (including, without
limitation, the provisions of Article
VII), the Company shall have
the right, but not the obligation, to direct the Investor, by its
delivery to the Investor of a Put Notice from time to time during
the Commitment Period, to purchase Put Shares in an amount, in each
instance, up to but no greater than the lesser of $1,000,000 or
200% of the Average Daily Trading Volume (the
“Put
Cap”), provided that such
Put Cap may be increased in each instance upon the Company’s
written request subject to the Investor’s written
approval.
Section
2.2 MECHANICS.
(a) PUT
NOTICE. At any time and from
time to time during the Commitment Period, except as provided in
this Agreement, the Company may deliver a Put Notice to Investor,
subject to satisfaction of the conditions set forth in
Section
VII.2 and otherwise provided
herein. The Company shall deliver, or cause to be delivered, the
Put Shares as DWAC Shares to the Investor within two (2) Trading
Days following the Put Date.
(b) DATE OF DELIVERY OF
PUT NOTICE. A Put Notice shall
be deemed delivered on (i) the Trading Day it is received by e-mail
by the Investor if such notice is received on or prior to 8:30 a.m.
EST or (ii) the immediately succeeding Trading Day if it is
received by e-mail after 8:30 a.m. EST on a Trading Day or at any
time on a day which is not a Trading Day. The Company shall not
deliver another Put Notice to the Investor within ten (10) Trading
Days of a prior Put Notice.
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(a) TIMING.
The Closing of a Put shall occur within one (1) Trading Day
following the end of the respective Valuation Period, whereby the
Investor shall deliver the Investment Amount by wire transfer of
immediately available funds to an account designated by the
Company. In addition, on or
prior to such Closing, each of the Company and the Investor shall
deliver to each other all documents, instruments and writings
required to be delivered or reasonably requested by either of them
pursuant to this Agreement in order to implement and effect the
transactions contemplated herein.
(b) RETURN
OF SURPLUS. If the value of the
Put Shares delivered to the Investor causes the Company to exceed
the Maximum Commitment Amount, then the Investor shall return to
the Company the surplus amount of Put Shares associated with such
Put and the Purchase Price with respect to such Put shall be
reduced by any Clearing Costs related to the return of such Put
Shares.
ARTICLE III
REPRESENTATIONS
AND WARRANTIES OF INVESTOR
The
Investor represents and warrants to the Company that:
Section
3.1 INTENT.
The Investor is entering into this Agreement for its own account,
and the Investor has no present arrangement (whether or not legally
binding) at any time to sell the Securities to or through any
Person in violation of the Securities Act or any applicable state
securities laws; provided,
however,
that the Investor reserves the right to dispose of the Securities
at any time in accordance with federal and state securities laws
applicable to such disposition.
Section
3.2 NO LEGAL ADVICE FROM
THE COMPANY. The Investor
acknowledges that it has had the opportunity to review this
Agreement and the transactions contemplated by this Agreement with
its own legal counsel and investment and tax advisors. Except with
respect to the representations, warranties and covenants contained
in this Agreement, the Investor is relying solely on such counsel
and advisors and not on any statements or representations of the
Company or any of its representatives or agents for legal, tax or
investment advice with respect to this investment, the transactions
contemplated by this Agreement or the securities laws of any
jurisdiction.
Section
3.3 ACCREDITED
INVESTOR. The Investor is an
accredited investor as defined in Rule 501(a)(3) of Regulation D,
and the Investor has such experience in business and financial
matters that it is capable of evaluating the merits and risks of an
investment in the Securities. The Investor acknowledges that an
investment in the Securities is speculative and involves a high
degree of risk.
Section
3.4 AUTHORITY.
The Investor has the requisite power and authority to enter into
and perform its obligations under this Agreement and the other
Transaction Documents and to consummate the transactions
contemplated hereby and thereby. The execution and delivery of this
Agreement and the other Transaction Documents and the consummation
by it of the transactions contemplated hereby and thereby have been
duly authorized by all necessary action and no further consent or
authorization of the Investor is required. Each Transaction
Document to which it is a party has been duly executed by the
Investor, and when delivered by the Investor in accordance with the
terms hereof, will constitute the valid and binding obligation of
the Investor enforceable against it in accordance with its terms,
subject to applicable bankruptcy, insolvency, or similar laws
relating to, or affecting generally the enforcement of,
creditors’ rights and remedies or by other equitable
principles of general application.
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Section
3.5 NOT AN
AFFILIATE. To the
Investor’s knowledge, the Investor is not an officer,
director or “affiliate” (as such term is defined in
Rule 405 of the Securities Act) of the Company.
Section
3.6 ORGANIZATION AND
STANDING. The Investor is an
entity duly formed, validly existing and in good standing under the
laws of the jurisdiction of its formation with full right, limited
liability company power and authority to enter into and to
consummate the transactions contemplated by this Agreement and the
other Transaction Documents.
Section
3.7 ABSENCE OF
CONFLICTS. The execution and
delivery of this Agreement and the other Transaction Documents, and
the consummation of the transactions contemplated hereby and
thereby and compliance with the requirements hereof and thereof,
will not (a) violate any law, rule, regulation, order, writ,
judgment, injunction, decree or award binding on the Investor, (b)
violate any provision of any indenture, instrument or agreement to
which the Investor is a party or is subject, or by which the
Investor or any of its assets is bound, or conflict with or
constitute a material default thereunder, (c) result in the
creation or imposition of any lien pursuant to the terms of any
such indenture, instrument or agreement, or constitute a breach of
any fiduciary duty owed by the Investor to any third party, or (d)
require the approval of any third-party (that has not been
obtained) pursuant to any material contract, instrument, agreement,
relationship or legal obligation to which the Investor is subject
or to which any of its assets, operations or management may be
subject.
Section
3.8 DISCLOSURE; ACCESS TO
INFORMATION. The Investor had
an opportunity to review copies of the SEC Documents filed on
behalf of the Company and has had access to all publicly available
information with respect to the Company; provided, however, that
the Investor makes no representation or warranty hereunder with
respect to any SEC Document and is relying on the representations
and warranties of the Company in Article IV
with respect to the SEC
Documents.
Section
3.9 MANNER OF
SALE. At no time was the
Investor presented with or solicited by or through any leaflet,
public promotional meeting, television advertisement or any other
form of general solicitation or advertisement regarding the
Securities.
ARTICLE IV
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The
Company represents and warrants to the Investor that, except as set
forth in the disclosure schedules hereto that as of the Execution
Date and at each Closing Date:
Section
4.1 ORGANIZATION OF THE
COMPANY. The Company is a
corporation duly incorporated, validly existing and in good
standing under the laws of the State of Nevada, with the requisite
power and authority to own and use its properties and assets and to
carry on its business as currently conducted. Each of the
Subsidiaries is an entity duly incorporated or otherwise organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization, with the
requisite power and authority to own and use its properties and
assets and to carry on its business as currently conducted. Each of
the Company and the Subsidiaries is not in violation or default of
any of the provisions of its respective certificate or articles of
incorporation, bylaws or other organizational or charter documents.
Each of the Company and the Subsidiaries is duly qualified to
conduct business and is in good standing as a foreign corporation
or other entity in each jurisdiction in which the nature of the
business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good
standing, as the case may be, could not have or reasonably be
expected to result in a Material Adverse Effect and no proceeding
has been instituted in any such jurisdiction revoking, limiting or
curtailing or seeking to revoke, limit or curtail such power and
authority or qualification.
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Section
4.2 AUTHORITY.
The Company has the requisite corporate power and authority to
enter into and perform its obligations under this Agreement and the
other Transaction Documents. The execution and delivery of this
Agreement and the other Transaction Documents by the Company and
the consummation by it of the transactions contemplated hereby and
thereby have been duly authorized by all necessary corporate action
and no further consent or authorization of the Company or its Board
of Directors or stockholders is required. Each of this Agreement
and the other Transaction Documents has been duly executed and
delivered by the Company and constitutes a valid and binding
obligation of the Company enforceable against the Company in
accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, or similar laws
relating to, or affecting generally the enforcement of,
creditors’ rights and remedies or by other equitable
principles of general application.
Section
4.3 CAPITALIZATION.
As of the Execution Date, the authorized capital stock of the
Company consists of (a) 1,000,000,000 shares of Common Stock, par
value of $0.00001 per share, of which approximately 39,199,442
shares of Common Stock are issued and outstanding. Except as set
forth on Schedule
4.3, the Company has not issued
any capital stock since its most recently filed periodic report
under the Exchange Act, other than pursuant to the exercise of
employee stock options under the Company’s stock option
plans, the issuance of shares of Common Stock to employees pursuant
to the Company’s employee stock purchase plans and pursuant
to the conversion and/or exercise of Common Stock Equivalents
outstanding as of the date of the most recently filed periodic
report under the Exchange Act. No Person has any right of first
refusal, preemptive right, right of participation, or any similar
right to participate in the transactions contemplated by the
Transaction Documents. Except as set forth on Schedule
4.3, and except as a result of
the purchase and sale of the Securities, there are no outstanding
options, warrants, scrip rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities,
rights or obligations convertible into or exercisable or
exchangeable for, or giving any Person any right to subscribe for
or acquire any shares of Common Stock, or contracts, commitments,
understandings or arrangements by which the Company or any
Subsidiary is or may become bound to issue additional shares of
Common Stock or Common Stock Equivalents. The issuance and sale of
the Securities will not obligate the Company to issue shares of
Common Stock or other securities to any Person (other than the
Investor) and will not result in a right of any holder of Company
securities to adjust the exercise, conversion, exchange or reset
price under any of such securities. There are no stockholders
agreements, voting agreements or other similar agreements with
respect to the Company’s capital stock to which the Company
is a party or, to the knowledge of the Company, between or among
any of the Company’s stockholders.
Section
4.4 LISTING AND
MAINTENANCE REQUIREMENTS. The
Common Stock is registered pursuant to Section 12(b) or 12(g) of
the Exchange Act, and the Company has taken no action designed to,
or which to its knowledge is likely to have the effect of,
terminating the registration of the Common Stock under the Exchange
Act, nor has the Company received any notification that the SEC is
contemplating terminating such registration. The Company has not,
in the twelve (12) months preceding the Execution Date, received
notice from the Principal Market on which the Common Stock is or
has been listed or quoted to the effect that the Company is not in
compliance with the listing or maintenance requirements of such
Principal Market. The Company is, and has no reason to believe that
it will not in the foreseeable future continue to be, in compliance
with all such listing and maintenance
requirements.
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Section
4.5 SEC DOCUMENTS;
DISCLOSURE. Except as set forth
on Schedule
4.5, the Company has filed all
reports, schedules, forms, statements and other documents required
to be filed by the Company under the Securities Act and the
Exchange Act, including pursuant to Section 13(a) or 15(d) thereof,
for the one (1) year preceding the Execution Date (or such shorter
period as the Company was required by law or regulation to file
such material) (the foregoing materials, including the exhibits
thereto and documents incorporated by reference therein, being
collectively referred to herein as the “SEC
Documents”) on a timely
basis or has received a valid extension of such time of filing and
has filed any such SEC Documents prior to the expiration of any
such extension. As of their respective dates, the SEC Documents
complied in all material respects with the requirements of the
Securities Act and the Exchange Act, as applicable, and other
federal laws, rules and regulations applicable to such SEC
Documents, and none of the SEC Documents when filed contained any
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which
they were made, not misleading. The financial statements of the
Company included in the SEC Documents comply as to form and
substance in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC or
other applicable rules and regulations with respect thereto. Such
financial statements have been prepared in accordance with
generally accepted accounting principles applied on a consistent
basis during the periods involved (except (a) as may be otherwise
indicated in such financial statements or the notes thereto or (b)
in the case of unaudited interim statements, to the extent they may
not include footnotes or may be condensed or summary statements)
and fairly present in all material respects the financial position
of the Company as of the dates thereof and the results of
operations and cash flows for the periods then ended (subject, in
the case of unaudited statements, to normal, immaterial, year-end
audit adjustments). The Company maintains a system of internal
accounting controls appropriate for its size. There is no
transaction, arrangement, or other relationship between the Company
and an unconsolidated or other off balance sheet entity that is not
disclosed by the Company in its financial statements or otherwise
that would be reasonably likely to have a Material Adverse Effect.
Except with respect to the material terms and conditions of the
transactions contemplated by the Transaction Documents, the Company
confirms that neither it nor any other Person acting on its behalf
has provided the Investor or its agents or counsel with any
information that it believes constitutes or might constitute
material, non-public information. The Company understands and
confirms that the Investor will rely on the foregoing
representation in effecting transactions in securities of the
Company.
Section
4.6 VALID
ISSUANCES. The Securities are
duly authorized and, when issued and paid for in accordance with
the applicable Transaction Documents, will be validly issued, fully
paid, and non-assessable, free and clear of all Liens imposed by
the Company, other than restrictions on transfer provided for in
the Transaction Documents and under the Securities
Act.
Section
4.7 NO
CONFLICTS. The execution,
delivery and performance of this Agreement and the other
Transaction Documents by the Company, and the consummation by the
Company of the transactions contemplated hereby and thereby,
including, without limitation, the issuance of the Put Shares and
the Commitment Shares do not and will not: (a) result in a
violation of the Company’s or any Subsidiary’s
certificate or articles of incorporation, by-laws or other
organizational or charter documents, (b) conflict with, or
constitute a material default (or an event that with notice or
lapse of time or both would become a material default) under,
result in the creation of any Lien upon any of the properties or
assets of the Company or any Subsidiary, or give to others any
rights of termination, amendment, acceleration or cancellation of,
any agreement, indenture, instrument or any “lock-up”
or similar provision of any underwriting or similar agreement to
which the Company or any Subsidiary is a party, or (c) result in a
violation of any federal, state or local law, rule, regulation,
order, judgment or decree (including federal and state securities
laws and regulations) applicable to the Company or any Subsidiary
or by which any property or asset of the Company or any Subsidiary
is bound or affected (except for such conflicts, defaults,
terminations, amendments, accelerations, cancellations and
violations as would not, individually or in the aggregate, have a
Material Adverse Effect), nor is the Company otherwise in violation
of, conflict with or in default under any of the foregoing. The
business of the Company is not being conducted in violation of any
law, ordinance or regulation of any governmental entity, except for
possible violations that either singly or in the aggregate do not
and will not have a Material Adverse Effect. The Company is not
required under federal, state or local law, rule or regulation to
obtain any consent, authorization or order of, or make any filing
or registration with, any court or governmental agency in order for
it to execute, deliver or perform any of its obligations under this
Agreement or the other Transaction Documents (other than any SEC,
FINRA or state securities filings that may be required to be made
by the Company subsequent to any Closing or any registration
statement that may be filed pursuant hereto); provided that, for
purposes of the representation made in this sentence, the Company
is assuming and relying upon the accuracy of the relevant
representations and agreements of Investor
herein.
10
Section
4.8 NO MATERIAL ADVERSE
CHANGE. No event has occurred
that would have a Material Adverse Effect on the Company or any
Subsidiary that has not been disclosed in subsequent SEC
filings.
Section
4.9 LITIGATION AND OTHER
PROCEEDINGS. Except as
disclosed in the SEC Documents or as set forth on
Schedule
4.9, there are no actions,
suits, investigations, inquiries or proceedings pending or, to the
knowledge of the Company, threatened against or affecting the
Company, any Subsidiary or any of their respective properties, nor
has the Company received any written or oral notice of any such
action, suit, proceeding, inquiry or investigation, which would
have a Material Adverse Effect or would require disclosure under
the Securities Act or the Exchange Act. No judgment, order, writ,
injunction or decree or award has been issued by or, to the
knowledge of the Company, requested of any court, arbitrator or
governmental agency which would have a Material Adverse Effect.
Except as disclosed on Schedule 4.9,
there has not been, and to the
knowledge of the Company, there is not pending or contemplated, any
investigation by the SEC involving the Company, any Subsidiary or
any current or former director or officer of the Company or any
Subsidiary.
Section
4.10 REGISTRATION
RIGHTS. Except as set forth
on Schedule
4.10, no Person (other than the
Investor) has any right to cause the Company to effect the
registration under the Securities Act of any securities of the
Company or any Subsidiary.
Section
4.11 INVESTOR’S
STATUS. The Company
acknowledges and agrees that the Investor is acting solely in the
capacity of arm’s length purchaser with respect to the
Transaction Documents and the transactions contemplated hereby and
thereby. The Company further acknowledges that the Investor is not
acting as a financial advisor or fiduciary of the Company (or in
any similar capacity) with respect to the Transaction Documents and
the transactions contemplated hereby and thereby and any advice
given by the Investor or any of its representatives or agents in
connection with the Transaction Documents and the transactions
contemplated hereby and thereby is merely incidental to the
Investor’s purchase of the Securities. The Company further
represents to the Investor that the Company’s decision to
enter into the Transaction Documents has been based solely on the
independent evaluation by the Company and its representatives and
advisors.
Section
4.12 NO GENERAL
SOLICITATION; NO INTEGRATED OFFERING. Neither the Company, any Subsidiary, nor any of
their respective affiliates, nor any Person acting on their behalf,
has engaged in any form of general solicitation or general
advertising (within the meaning of Regulation D under the
Securities Act) in connection with the offer or sale of the
Securities. Neither the Company, any Subsidiary, nor any of their
respective affiliates, nor any Person acting on their behalf has,
directly or indirectly, made any offers or sales of any security or
solicited any offers to buy any security, under circumstances that
would require registration of the offer and sale of any of the
Securities under the Securities Act, whether through integration
with prior offerings or otherwise, or cause this offering of the
Securities to be integrated with prior offerings by the Company in
a manner that would require stockholder approval pursuant to the
rules of the Principal Market on which any of the securities of the
Company are listed or designated. The issuance and sale of the
Securities hereunder does not contravene the rules and regulations
of the Principal Market.
11
Section
4.13 INTELLECTUAL PROPERTY
RIGHTS. The Company and the
Subsidiaries own or possess adequate rights or licenses to use all
material trademarks, trade names, service marks, service xxxx
registrations, service names, patents, patent rights, copyrights,
inventions, licenses, approvals, governmental authorizations, trade
secrets and rights necessary to conduct their respective businesses
as now conducted. None of the Company’s, nor any
Subsidiary’s material Intellectual Property has expired or
terminated, or, by the terms and conditions thereof, could expire
or terminate within two years from the date of this Agreement. The
Company does not have any knowledge of any infringement by the
Company and/or any Subsidiary of any material Intellectual Property
of others, or of any such development of similar or identical trade
secrets or technical information by others, and there is no claim,
action or proceeding being made or brought against, or to the
Company’s knowledge, being threatened against, the Company
and/or any Subsidiary regarding the infringement of any
Intellectual Property, which could reasonably be expected to have a
Material Adverse Effect.
Section
4.14 ENVIRONMENTAL
LAWS. To the Company’s
knowledge, the Company and each Subsidiary (i) is in compliance
with any and all applicable foreign, federal, state and local laws
and regulations relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (“Environmental
Laws”), (ii) has received
all permits, licenses or other approvals required of it under
applicable Environmental Laws to conduct its respective businesses
and (iii) is in compliance with all terms and conditions of any
such permit, license or approval, except where, in each of the
three foregoing clauses, the failure to so comply could not
reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
Section
4.15 TITLE.
Except as disclosed in the SEC Documents, the Company and each
Subsidiary has good and marketable title in fee simple to all real
property owned by it and good and marketable title in all personal
property owned by it that is material to the business of the
Company and each Subsidiary, in each case free and clear of all
Liens and, except for Liens as do not materially affect the value
of such property and do not materially interfere with the use made
and proposed to be made of such property by the Company or any
Subsidiary and Liens for the payment of federal, state or other
taxes, the payment of which is neither delinquent nor subject to
penalties. Any real property and facilities held under lease by the
Company or any Subsidiary is held under valid, subsisting and
enforceable leases with which the Company is in compliance with
such exceptions as are not material and do not interfere with the
use made and proposed to be made of such property and buildings by
the Company or any Subsidiary.
Section
4.16 INSURANCE.
The Company and each Subsidiary is insured by insurers of
recognized financial responsibility against such losses and risks
and in such amounts as management of the Company believes to be
prudent and customary in the businesses in which the Company and
each Subsidiary is engaged. Neither the Company, nor any Subsidiary
has been refused any insurance coverage sought or applied for, and
the Company has no reason to believe that it or any Subsidiary will
not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar insurers as may be necessary
to continue its business at a cost that would not materially and
adversely affect the condition, financial or otherwise, or the
earnings, business or operations of the Company, taken as a
whole.
12
Section
4.17 REGULATORY
PERMITS. The Company and each
Subsidiary possesses all material certificates, authorizations and
permits issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct its businesses, and
neither the Company, nor any Subsidiary has received any notice of
proceedings relating to the revocation or modification of any such
certificate, authorization or permit.
Section
4.18 TAX
STATUS. The Company and each
Subsidiary has made or filed all federal and state income and all
other material tax returns, reports and declarations required by
any jurisdiction to which it is subject (unless and only to the
extent that the Company has set aside on its books provisions
reasonably adequate for the payment of all unpaid and unreported
taxes) and has paid all taxes and other governmental assessments
and charges that are material in amount, shown or determined to be
due on such returns, reports and declarations, except those being
contested in good faith and has set aside on its books provision
reasonably adequate for the payment of all taxes for periods
subsequent to the periods to which such returns, reports or
declarations apply. There are no unpaid taxes in any material
amount claimed to be due by the taxing authority of any
jurisdiction, and the officers of the Company know of no basis for
any such claim.
Section
4.19 TRANSACTIONS WITH
AFFILIATES. Except as set forth
in the SEC Documents, none of the officers or directors of the
Company or any Subsidiary, and to the knowledge of the Company,
none of the employees of the Company or any Subsidiary is presently
a party to any transaction with the Company or any Subsidiary
(other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing
for the furnishing of services to or by, providing for rental of
real or personal property to or from, or otherwise requiring
payments to or from any officer, director or such employee or, to
the knowledge of the Company, any entity in which any officer,
director, or any such employee has a substantial interest or is an
officer, director, trustee or partner, in each case in excess of
the lesser of (i) $120,000 or (ii) one percent of the average of
the Company’s total assets at year end for the last two
completed fiscal years, other than for (i) payment of salary or
consulting fees for services rendered, (ii) reimbursement for
expenses incurred on behalf of the Company or any Subsidiary and
(iii) other employee benefits, including stock option agreements
under any stock option plan of the Company.
Section
4.20 APPLICATION OF
TAKEOVER PROTECTIONS. The
Company and its board of directors have taken or will take prior to
the Execution Date all necessary action, if any, in order to render
inapplicable any control share acquisition, business combination,
poison pill (including any distribution under a rights agreement)
or other similar anti-takeover provision under the certificate of
incorporation or the laws of the state of its incorporation which
is or could become applicable to the Investor as a result of the
transactions contemplated by this Agreement, including, without
limitation, the Company’s issuance of the Securities and the
Investor’s ownership of the Securities.
Section
4.21 FOREIGN CORRUPT
PRACTICES. Neither the Company,
any Subsidiary, nor to the knowledge of the Company, any agent or
other Person acting on behalf of the Company or any Subsidiary, has
(i) directly or indirectly, used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses
related to foreign or domestic political activity, (ii) made any
unlawful payment to foreign or domestic government officials or
employees or to any foreign or domestic political parties or
campaigns from corporate funds, (iii) failed to disclose fully any
contribution made by the Company or any Subsidiary (or made by any
Person acting on its behalf of which the Company is aware) which is
in violation of law, or (iv) violated in any material respect any
provision of the Foreign Corrupt Practices Act of 1977, as
amended.
13
Section
4.22 XXXXXXXX-XXXXX.
The Company is in compliance with all provisions of the
Xxxxxxxx-Xxxxx Act of 2002, as amended, which are applicable to
it.
Section
4.23 CERTAIN
FEES. No brokerage or
finder’s fees or commissions are or will be payable by the
Company to any broker, financial advisor or consultant, finder,
placement agent, investment banker, bank or other Person with
respect to the transactions contemplated by the Transaction
Documents. The Investor shall have no obligation with respect to
any fees or with respect to any claims made by or on behalf of
other Persons for fees of a type contemplated in this
Section
IV.23 that may be due in
connection with the transactions contemplated by the Transaction
Documents.
Section
4.24 INVESTMENT
COMPANY. The Company is not an
“investment company” within the meaning of the
Investment Company Act of 1940, as amended.
Section
4.25 ACCOUNTANTS.
The Company’s accountants are set forth in the SEC Documents
and, to the knowledge of the Company, such accountants are an
independent registered public accounting firm as required by the
Securities Act.
Section
4.26 NO MARKET
MANIPULATION. Neither the
Company, nor any Subsidiary has, and to its knowledge no Person
acting on either of their behalf has, (i) taken, directly or
indirectly, any action designed to cause or to result in the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of any of the Securities,
(ii) sold, bid for, purchased, or, paid any compensation for
soliciting purchases of, any of the Securities, or (iii) paid or
agreed to pay to any Person any compensation for soliciting another
to purchase any other securities of the
Company.
Section
4.27 NO DISQUALIFICATION
EVENTS. None of the Company,
any Subsidiary, any of their predecessors, any affiliated issuer,
any director, executive officer, other officer of the Company or
any Subsidiary participating in the offering contemplated hereby,
any beneficial owner of 20% or more of the Company’s
outstanding voting equity securities, calculated on the basis of
voting power, nor any promoter (as that term is defined in Rule 405
under the Securities Act) connected with the Company in any
capacity at the time of sale (each, an “Issuer Covered
Person”) is subject to
any of the “Bad Actor” disqualifications described in
Rule 506(d)(1)(i) to (viii) under the Securities Act (a
“Disqualification
Event”), except for a
Disqualification Event covered by Rule 506(d)(2) or (d)(3) under
the Securities Act. The Company has exercised reasonable care to
determine whether any Issuer Covered Person is subject to a
Disqualification Event.
Section
4.28 MONEY
LAUNDERING. The Company and
each Subsidiary is in compliance with, and has not previously
violated, the USA PATRIOT ACT of 2001 and all other applicable U.S.
and non-U.S. anti-money laundering laws and regulations, including,
but not limited to, the laws, regulations and Executive Orders and
sanctions programs administered by the U.S. Office of Foreign
Assets Control, including, but not limited, to (i) Executive Order
13224 of September 23, 2001 entitled, “Blocking Property and
Prohibiting Transactions With Persons Who Commit, Threaten to
Commit, or Support Terrorism” (66 Fed. Reg. 49079 (2001));
and (ii) any regulations contained in 31 CFR, Subtitle B, Chapter
V.
14
Section
4.29 ILLEGAL OR
UNAUTHORIZED PAYMENTS; POLITICAL CONTRIBUTIONS. Neither the Company, nor any Subsidiary has,
nor, to the best of the Company’s knowledge (after reasonable
inquiry of its officers and directors), any of the officers,
directors, employees, agents or other representatives of the
Company, any Subsidiary or any other business entity or enterprise
with which the Company is or has been affiliated or associated,
has, directly or indirectly, made or authorized any payment,
contribution or gift of money, property, or services, whether or
not in contravention of applicable law, (a) as a kickback or bribe
to any Person or (b) to any political organization, or the holder
of or any aspirant to any elective or appointive public office
except for personal political contributions not involving the
direct or indirect use of funds of the Company.
Section
4.30 SHELL COMPANY
STATUS. The Company is not
currently an issuer identified in Rule 144(i)(1)(i) under the
Securities Act, is subject to the reporting requirements of Section
13 or 15(d) of the Exchange Act, has filed all reports and other
materials required to be filed by Section 13 or 15(d) of the
Exchange Act, as applicable during the preceding 12 months, and, as
of a date at least one year prior to the Execution Date, has filed
current “Form 10 information” with the SEC (as defined
in Rule 144(i)(3) of the Securities Act) reflecting its status as
an entity that is no longer an issuer described in Rule
144(i)(1)(i) of the Securities Act.
Section
4.31 ABSENCE OF
SCHEDULES. In the event that,
at each Closing, the Company does not deliver any disclosure
schedule contemplated by this Agreement, the Company hereby
acknowledges and agrees that (i) each such undelivered disclosure
schedule shall be deemed to read as follows: “Nothing to
Disclose”, and (ii) the Investor has not otherwise waived
delivery of such disclosure schedule.
ARTICLE V
COVENANTS
OF INVESTOR
Section
5.1 COMPLIANCE WITH LAW;
TRADING IN SECURITIES. The
Investor’s trading activities with respect to shares of
Common Stock will be in compliance with all applicable state and
federal securities laws and regulations and the rules and
regulations of FINRA and the Principal Market.
Section
5.2 SHORT SALES AND
CONFIDENTIALITY. Neither the
Investor, nor any affiliate of the Investor acting on its behalf or
pursuant to any understanding with it, will execute any Short Sales
during the period from the Execution Date to the end of the
Commitment Period. For the purposes hereof, and in accordance with
Regulation SHO, the sale after delivery of a Put Notice of such
number of shares of Common Stock reasonably expected to be
purchased under a Put Notice shall not be deemed a Short Sale. The
Investor shall, until such time as the transactions contemplated by
this Agreement are publicly disclosed by the Company in accordance
with the terms of this Agreement, maintain the confidentiality of
the existence and terms of this transaction and the information
included in the Transaction Documents. The Investor agrees not to
disclose any Confidential Information of the Company to any third
party, except for attorneys, accountants, advisors who have a need
to know such Confidential Information and are bound by
confidentiality, and shall not use any Confidential Information for
any purpose other than in connection with, or in furtherance of,
the transactions contemplated hereby. The Investor acknowledges
that the Confidential Information of the Company shall remain the
property of the Company and agrees that it shall take all
reasonable measures to protect the secrecy of any Confidential
Information disclosed by the Company.
15
ARTICLE VI
COVENANTS
OF THE COMPANY
Section
6.1 RESERVATION OF COMMON
STOCK. On the Execution Date,
the Company will have executed and delivered the Transfer Agent
Instruction Letter to, among other things, reserve shares of Common
Stock constituting at least 300% of the Required Minimum from its
authorized and unissued Common Stock to provide for issuances of
Common Stock under the Transaction Documents including any Shares
from the Commitment Fee (or as many shares as is available based on
the Company’s authorized but unissued and unreserved shares
of Common Stock) (the “Share
Reserve”). The Company
further agrees to add additional shares of Common Stock to the
Share Reserve in an amount of shares requested by the Investor if
as of the date of any such request the number of shares being held
in the Share Reserve is less than three (3) times the number of
shares of Common Stock obtained by dividing the remaining balance
on the Maximum Commitment Amount as of the date of the request by
the Purchase Price. The Company shall further require the Transfer
Agent to hold the shares of Common Stock reserved pursuant to the
Share Reserve exclusively for the benefit of the Investor. The
Company agrees that in the event that the Transfer Agent resigns as
the Company’s transfer agent, the Company shall engage a
suitable replacement transfer agent that will agree to serve as
transfer agent for the Company and be bound by the terms and
conditions of the Transfer Agent Instruction Letter within five (5)
business days. The Company shall not terminate the Transfer Agent
as the Company’s transfer agent without a signed consent from
the Investor.
Section
6.2 LISTING OF COMMON
STOCK. The Company shall
promptly secure the listing of all of the Put Shares and Commitment
Shares to be issued to the Investor hereunder on the Principal
Market (subject to official notice of issuance) and shall use
commercially reasonable best efforts to maintain, so long as any
shares of Common Stock shall be so listed, the listing of all such
Put Shares and Commitment Shares from time to time issuable
hereunder. The Company shall use its commercially reasonable
efforts to continue the listing and trading of the Common Stock on
the Principal Market (including, without limitation, maintaining
sufficient net tangible assets) and will comply in all respects
with the Company’s reporting, filing and other obligations
under the bylaws or rules of FINRA and the Principal Market. The
Company shall not take any action that would reasonably be expected
to result in the delisting or suspension of the Common Stock on the
Principal Market. The Company shall promptly, and in no event later
than the following Trading Day, provide to the Investor copies of
any notices it receives from any Person regarding the continued
eligibility of the Common Stock for listing on the Principal
Market. The Company shall pay all fees and expenses in connection
with satisfying its obligations under this Section
VI.2). The Company shall take
all action necessary to ensure that its Common Stock can be
transferred electronically as DWAC Shares.
Section
6.3 OTHER EQUITY LINES AND
CONVERTIBLE NOTES. So long as
this Agreement remains in effect, the Company covenants and agrees
that it will not, without the prior written consent of the
Investor, enter into any other equity line of credit agreement with
any other party or any new agreements with Variable Security
Holders, excluding the Investor, without the Investor’s prior
written consent, which consent may be granted or withheld in the
Investor’s sole and absolute discretion.
Section
6.4 FILING OF CURRENT
REPORT AND REGISTRATION STATEMENT. The Company agrees that it shall file a Current
Report on Form 8-K, including the Transaction Documents as exhibits
thereto, with the SEC within the time required by the Exchange Act,
relating to the transactions contemplated by, and describing the
material terms and conditions of, the Transaction Documents (the
“Current
Report”). The Company
shall permit the Investor to review and comment upon the final
pre-filing draft version of the Current Report at least two (2)
Trading Days prior to its filing with the SEC, and the Company
shall give reasonable consideration to all such comments. The
Investor shall use its reasonable best efforts to comment upon the
final pre-filing draft version of the Current Report within one (1)
Trading Day from the date the Investor receives it from the
Company. Subject to the terms of the Registration Rights Agreement,
the Company shall also file with the SEC, on or before the date
that is 90 days after the Execution Date, a registration statement
on Form S-1 (the “Registration
Statement”) covering only
the resale of the Put Shares and Commitment
Shares.
16
Section
6.5 ISSUANCE OF COMMITMENT
SHARES. In consideration for
the Investor’s execution and delivery of, and
performance under this Agreement, the Company shall cause the
Transfer Agent to issue the Commitment Shares to the Investor on
the Execution Date as set forth in the Transfer Agent Instruction
Letter. For the avoidance of
doubt, all of the Commitment Shares shall be fully earned as of the
Execution Date, and the issuance of the Commitment Shares is not
contingent upon any other event or condition, including, without
limitation, the effectiveness of the Registration Statement or the
Company’s submission of a Put Notice to the Investor and
irrespective of any termination of this
Agreement.
Section
6.6 DUE DILIGENCE;
CONFIDENTIALITY; NON-PUBLIC INFORMATION. The Investor shall have the right, from time to
time as the Investor may reasonably deem appropriate, to perform
reasonable due diligence on the Company during normal business
hours. The Company, each Subsidiary and their respective officers
and employees shall provide information and reasonably cooperate
with the Investor in connection with any reasonable request by the
Investor related to the Investor’s due diligence of the
Company. The Company agrees not to disclose any Confidential
Information of the Investor to any third party, except for
attorneys, accountants, advisors who have a need to know such
Confidential Information and are bound by confidentiality, and
shall not use any Confidential Information for any purpose other
than in connection with, or in furtherance of, the transactions
contemplated hereby. The Company acknowledges that the Confidential
Information of the Investor shall remain the property of the
Investor and agrees that it shall take all reasonable measures to
protect the secrecy of any Confidential Information disclosed by
the Investor. The Company
confirms that neither it nor any other Person acting on its behalf
shall provide the Investor or its agents or counsel with any
information that constitutes or might constitute material,
non-public information, unless a simultaneous public announcement
thereof is made by the Company in the manner contemplated by
Regulation FD. In the event of a breach of the foregoing covenant
by the Company or any Person acting on its behalf (as determined in
the reasonable good faith judgment of the Investor), in addition to
any other remedy provided herein or in the other Transaction
Documents, the Investor shall have the right to make a public
disclosure, in the form of a press release, public advertisement or
otherwise, of such material, non-public information without the
prior approval by the Company; provided the Investor shall have
first provided notice to the Company that it believes it has
received information that constitutes material, non-public
information, and the Company shall have had at least twenty-four
(24) hours to publicly disclose such material, non-public
information prior to any such disclosure by the Investor, and the
Company shall have failed to publicly disclose such material,
non-public information within such time period. The Investor shall
not have any liability to the Company, any Subsidiary, or any of
their respective directors, officers, employees, stockholders,
affiliates or agents, for any such disclosure. The Company
understands and confirms that the Investor shall be relying on the
foregoing covenants in effecting transactions in securities of the
Company.
Section
6.7 PURCHASE
RECORDS. The Company shall
maintain records showing the Available Amount at any given time and
the date, Investment Amount and Put Shares for each Put, contained
in the applicable Put Notice.
Section
6.8 TAXES.
The Company shall pay any and all transfer, stamp or similar taxes
that may be payable with respect to the issuance and delivery of
any shares of Common Stock to the Investor made under this
Agreement.
17
Section
6.9 USE OF
PROCEEDS. The Company will use
the net proceeds from the offering of Put Shares hereunder in the
manner described in the Registration Statement or the SEC
Documents.
Section
6.10 OTHER
TRANSACTIONS. The Company shall
not enter into, announce or recommend to its stockholders any
agreement, plan, arrangement or transaction in or of which the
terms thereof would restrict, materially delay, conflict with or
impair the ability or right of the Company to perform its
obligations under the Transaction Documents, including, without
limitation, the obligation of the Company to deliver the Put Shares
and the Commitment Shares to the Investor in accordance with the
terms of the Transaction Documents.
Section
6.11 INTEGRATION.
In any case subject to the terms of the Registration Rights
Agreement, from and after the Execution Date, neither the Company,
nor or any of its Subsidiaries or affiliates will, and the Company
shall use its reasonable best efforts to ensure that no Person
acting on their behalf will, directly or indirectly, make any
offers or sales of any security or solicit any offers to buy any
security, under circumstances that would require registration of
the offer and sale of any of the Securities under the Securities
Act.
Section
6.12 TRANSACTION
DOCUMENTS. On the Execution
Date, the Company shall deliver to the Investor executed copies of
all of the Transaction Documents.
ARTICLE VII
CONDITIONS
TO DELIVERY OF PUT NOTICES AND CONDITIONS TO CLOSING
Section
7.1 CONDITIONS PRECEDENT
TO THE RIGHT OF THE COMPANY TO ISSUE AND SELL PUT
SHARES. The right of the
Company to issue and sell the Put Shares to the Investor is subject
to the satisfaction of each of the conditions set forth
below:
(a) ACCURACY
OF INVESTOR’S REPRESENTATIONS AND
WARRANTIES. The representations
and warranties of the Investor shall be true and correct in all
material respects as of the Execution Date and as of the date of
each Closing as though made at each such time.
(b) PERFORMANCE
BY INVESTOR. Investor shall
have performed, satisfied and complied in all respects with all
covenants, agreements and conditions required by this Agreement to
be performed, satisfied or complied with by the Investor at or
prior to such Closing.
(c) PRINCIPAL MARKET
REGULATION. The Company shall
not issue any Put Shares, and the Investor shall not have the right
to receive any Put Shares, if the issuance of such Put Shares would
exceed the aggregate number of shares of Common Stock which the
Company may issue without breaching the Company’s obligations
under the rules or regulations of the Principal Market (the
“Exchange
Cap”).
(d) REGISTRATION
STATEMENT. The Company shall
not have the right to issue any Put Shares if the Registration
Statement, and any amendment or supplement thereto, shall fail to
be and remain effective for the resale by the Investor of the Put
Shares and Commitment Shares.
18
Section
7.2 CONDITIONS PRECEDENT
TO THE OBLIGATION OF INVESTOR TO PURCHASE PUT
SHARES. The obligation of the
Investor hereunder to purchase Put Shares is subject to the
satisfaction of each of the following
conditions:
(a) REGISTRATION
STATEMENT. The Registration
Statement, and any amendment or supplement thereto, shall be and
remain effective for the resale by the Investor of the Put Shares
and Commitment Shares and (i) neither the Company nor the Investor
shall have received notice that the SEC has issued or intends to
issue a stop order with respect to such Registration Statement or
that the SEC otherwise has suspended or withdrawn the effectiveness
of such Registration Statement, either temporarily or permanently,
or intends or has threatened to do so and (ii) no other suspension
of the use of, or withdrawal of the effectiveness of, such
Registration Statement or related prospectus shall exist. The
Company shall have prepared and filed with the SEC a final and
complete prospectus (the preliminary form of which shall be
included in the Registration Statement) and shall have delivered to
the Investor a true and complete copy thereof. Such prospectus
shall be current and available for the resale by the Investor of
all of the Securities covered thereby.
(b) ACCURACY
OF THE COMPANY’S REPRESENTATIONS AND
WARRANTIES. The representations
and warranties of the Company shall be true and correct in all
material respects as of the Execution Date and as of the date of
each Closing (except for representations and warranties under the
first sentence of Section
IV.3, which are specifically
made as of the Execution Date and shall be true and correct in all
respects as of the Execution Date).
(c) PERFORMANCE
BY THE COMPANY. The Company
shall have performed, satisfied and complied in all material
respects with all covenants, agreements and conditions required by
this Agreement to be performed, satisfied or complied with by the
Company.
(d) NO
INJUNCTION. No statute, rule,
regulation, executive order, decree, ruling or injunction shall
have been enacted, entered, promulgated or adopted by any court or
governmental authority of competent jurisdiction that prohibits or
directly and materially adversely affects any of the transactions
contemplated by the Transaction Documents, and no proceeding shall
have been commenced that may have the effect of prohibiting or
materially adversely affecting any of the transactions contemplated
by the Transaction Documents.
(e) ADVERSE
CHANGES. Since the date of
filing of the Company’s most recent SEC Document, no event
that had or is reasonably likely to have a Material Adverse Effect
has occurred.
(f) NO SUSPENSION OF
TRADING IN OR DELISTING OF COMMON STOCK. The trading of the Common Stock shall not have
been suspended by the SEC, the Principal Market or FINRA, or
otherwise halted for any reason, and the Common Stock shall have
been approved for listing or quotation on and shall not have been
delisted from the Principal Market. In the event of a suspension,
delisting, or halting for any reason, of the trading of the Common
Stock, as contemplated by this Section
7.2(f), the Investor shall have the right to return to
the Company any remaining amount of Put Shares associated with such
Put, and the Purchase Price with respect to such Put shall be
reduced accordingly.
19
(g) BENEFICIAL OWNERSHIP
LIMITATION. The number of Put
Shares to be purchased by the Investor shall not exceed the number
of such shares that, when aggregated with all other shares of
Common Stock then owned by the Investor beneficially or deemed
beneficially owned by the Investor, would result in the Investor
owning more than the Beneficial Ownership Limitation (as defined
below), as determined in accordance with Section 16 of the Exchange
Act and the regulations promulgated thereunder. For purposes of
this Section
7.2(g), in the event that the amount of Common Stock
outstanding, as determined in accordance with Section 16 of the
Exchange Act and the regulations promulgated thereunder, is greater
on a Closing Date than on the date upon which the Put Notice
associated with such Closing Date is given, the amount of Common
Stock outstanding on such Closing Date shall govern for purposes of
determining whether the Investor, when aggregating all purchases of
Common Stock made pursuant to this Agreement, would own more than
the Beneficial Ownership Limitation following such Closing Date.
The “Beneficial Ownership
Limitation” shall be
4.99% of the number of shares of the Common Stock outstanding
immediately after giving effect to the issuance of shares of Common
Stock issuable pursuant to a Put Notice.
(h) PRINCIPAL
MARKET REGULATION. The issuance
of the Put Shares shall not exceed the Exchange
Cap.
(i) NO
KNOWLEDGE. The Company shall
have no knowledge of any event more likely than not to have the
effect of causing the Registration Statement to be suspended or
otherwise ineffective (which event is more likely than not to occur
within the fifteen (15) Trading Days following the Trading Day on
which such Put Notice is deemed delivered). The Company shall have
no knowledge of any untrue statement (or alleged untrue statement)
of a material fact or omission (or alleged omission) of a material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading, in the Registration Statement, any
effective registration statement filed pursuant to the Registration
Rights Agreement or any post-effective amendment or prospectus
which is a part of the foregoing, unless the Company has filed an
amendment with the SEC or taken such other.
(j) NO
VIOLATION OF SHAREHOLDER APPROVAL REQUIREMENT. The issuance of the Put Shares shall not violate
the shareholder approval requirements of the Principal
Market.
(k) OFFICER’S
CERTIFICATE. On the date of
delivery of each Put Notice, the Investor shall have received the
Closing Certificate executed by an executive officer of the Company
and to the effect that all the conditions to such Closing shall
have been satisfied as of the date of each such
certificate.
(l) DWAC
ELIGIBLE. The Common Stock must
be DWAC Eligible and not subject to a “DTC
chill.”
(m) SEC
DOCUMENTS. All reports,
schedules, registrations, forms, statements, information and other
documents required to have been filed by the Company with the SEC
pursuant to the reporting requirements of the Exchange Act (other
than Forms 8-K) shall have been filed with the SEC within the
applicable time periods prescribed for such filings under the
Exchange Act.
20
(n) TRANSFER
AGENT INSTRUCTION LETTER. The
Transfer Agent Instruction Letter shall have been executed and
delivered by the Company to the Transfer Agent and acknowledged and
agreed to in writing by the Transfer Agent, and the Company shall
have no knowledge of any fact or circumstance that would prevent
the Transfer Agent from complying with the terms of the Transfer
Agent Instruction Letter.
(o) RESERVE.
The Company shall have caused the Transfer Agent to maintain the
Share Reserve and have added any additional sufficient shares to
the Share Reserve pursuant to Section
VI.1.
(p) MINIMUM
PRICING. The lowest traded
price of the Common Stock in the five (5) Trading Days immediately
preceding the respective Put Date must exceed $0.001 per
share.
(q) NO
VIOLATION. No statute,
regulation, order, guidance, decree, writ, ruling or injunction
shall have been enacted, entered, promulgated, threatened or
endorsed by any federal, state, local or foreign court or
governmental authority of competent jurisdiction, including,
without limitation, the SEC, which prohibits the consummation of or
which would materially modify or delay any of the transactions
contemplated by the Transaction Documents.
(r) LEGAL
OPINION. The Company shall
cause to be delivered to the Investor a written opinion of counsel
satisfactory to the Investor, in form and substance satisfactory to
the Investor and its counsel, relating to the availability and
effectiveness of the Registration Statement, as supplemented by any
prospectus supplement or amendment thereto, and regarding the
Company’s compliance with the Revised Nevada Statutes and the
federal securities laws of the United States in the issuance, sale
and registration of the Put Shares and Commitment
Shares.
ARTICLE VIII
LEGENDS
Section
8.1 NO RESTRICTIVE STOCK
LEGEND. No restrictive stock
legend shall be placed on the share certificates representing the
Put Shares.
Section
8.2 INVESTOR’S
COMPLIANCE. Nothing in
this Article VIII
shall affect in any way the
Investor’s obligations hereunder to comply with all
applicable securities laws upon the sale of the Common
Stock.
ARTICLE IX
NOTICES;
INDEMNIFICATION
Section
9.1 NOTICES.
All notices, demands, requests, consents, approvals, and other
communications required or permitted hereunder shall be in writing
and, unless otherwise specified herein, shall be (a) personally
served, (b) delivered by reputable air courier service with charges
prepaid, or (c) transmitted by hand delivery, telegram, or e-mail
as a PDF, addressed as set forth below or to such other address as
such party shall have specified most recently by written notice
given in accordance herewith. Any notice or other communication
required or permitted to be given hereunder shall be deemed
effective (i) upon hand delivery or delivery by e-mail at the
address designated below (if delivered on a business day during
normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than
on a business day during normal business hours where such notice is
to be received) or (ii) on the second business day following the
date of mailing by express courier service or on the fifth business
day after deposited in the mail, in each case, fully prepaid,
addressed to such address, or upon actual receipt of such mailing,
whichever shall first occur.
21
The
addresses for such communications shall be:
If to
the Company:
Premier
Biomedical, Inc.
X.X.
Xxx 00
Xxxxxxx
Xxxxxx, XX 00000
Email:
xxxx@xxxxxxxxxxxxxxxxx.xxx
Attention: Xxxxxxx
Xxxxxxx, President, Chief Executive Officer
with a
copy to:
Xxxxx
Xxxx & Sessions, PC
000 X.
Xxxx Xxxxxx, Xxxxx 0000
Xxxx
Xxxx Xxxx, XX 00000
Email:
xxx@xxxxxxxxx.xxx
Attn:
Xxxxx X. Xxxxxxxx
If to
the Investor:
Green
Coast Capital International SA
Plaza
2000 10th
fl, 00xx
xx
Xxxxxx
City, Rep. of Panama
Email:
xxxxxxxxxxx@xxxxxxxxxx-xxxxxxx.xxx
Attention: Xxxxx
Xxxxxx, President
Either
party hereto may from time to time change its address or e-mail for
notices under this Section
IX.1 by giving at least ten (10) days’ prior written
notice of such changed address to the other party
hereto.
Section
9.2 INDEMNIFICATION.
Each party hereto (an
“Indemnifying
Party”) agrees to
indemnify and hold harmless the other party along with its
officers, directors, employees, and authorized agents and
representatives, and each Person or entity, if any, who controls
such party within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act or the rules and regulations
thereunder (an “Indemnified
Party”) from and against
any and all Damages, joint or several, and any and all actions in
respect thereof to which the Indemnified Party becomes subject to,
resulting from, arising out of or relating to (i) any
misrepresentation, breach of warranty or nonfulfillment of or
failure to perform any covenant or agreement on the part of the
Indemnifying Party contained in this Agreement, (ii) any untrue
statement or alleged untrue statement of a material fact contained
in the Registration Statement, any registration statement pursuant
to the Registration Rights Agreement or any post-effective
amendment thereof or supplement thereto, or the omission or alleged
omission therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading, (iii)
any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus or contained in the final
prospectus (as amended or supplemented, if the Company files any
amendment thereof or supplement thereto with the SEC) or the
omission or alleged omission to state therein any material fact
necessary to make the statements made therein, in the light of the
circumstances under which the statements therein were made, not
misleading, or (iv) any violation or alleged violation by the
Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation under the Securities Act,
the Exchange Act or any state securities law, as such Damages are
incurred, except to the extent such Damages result primarily from
the Indemnified Party’s failure to perform any covenant or
agreement contained in this Agreement or the Indemnified
Party’s negligence, recklessness, fraud, willful misconduct
or bad faith in performing its obligations under this
Agreement; provided,
however,
that the foregoing indemnity agreement shall not apply to any
Damages of an Indemnified Party to the extent, but only to the
extent, arising out of or based upon any untrue statement or
alleged untrue statement or omission or alleged omission made by an
Indemnifying Party in reliance upon and in conformity with written
information furnished to the Indemnifying Party by the Indemnified
Party expressly for use in the Registration Statement, any
post-effective amendment thereof or supplement thereto, or any
preliminary prospectus or final prospectus (as amended or
supplemented).
22
Section
9.3 METHOD OF ASSERTING
INDEMNIFICATION CLAIMS. All
claims for indemnification by any Indemnified Party under
Section
IX.2 shall be asserted and
resolved as follows:
(a) In the event any claim or demand in respect of
which an Indemnified Party might seek indemnity under
Section
IX.2 is asserted against or
sought to be collected from such Indemnified Party by a Person
other than a party hereto or an affiliate thereof (a
“Third Party
Claim”), the Indemnified
Party shall deliver a written notification, enclosing a copy of all
papers served, if any, and specifying the nature of and basis for
such Third Party Claim and for the Indemnified Party’s claim
for indemnification that is being asserted under any provision
of Section IX.2
against an Indemnifying Party,
together with the amount or, if not then reasonably ascertainable,
the estimated amount, determined in good faith, of such Third Party
Claim (a “Claim
Notice”) with reasonable
promptness to the Indemnifying Party. If the Indemnified Party
fails to provide the Claim Notice with reasonable promptness after
the Indemnified Party receives notice of such Third Party Claim,
the Indemnifying Party shall not be obligated to indemnify the
Indemnified Party with respect to such Third Party Claim to the
extent that the Indemnifying Party’s ability to defend has
been prejudiced by such failure of the Indemnified Party. The
Indemnifying Party shall notify the Indemnified Party as soon as
practicable within the period ending thirty (30) calendar days
following receipt by the Indemnifying Party of either a Claim
Notice or an Indemnity Notice (as defined below) (the
“Dispute
Period”) whether the
Indemnifying Party disputes its liability or the amount of its
liability to the Indemnified Party under Section IX.2
and whether the Indemnifying Party
desires, at its sole cost and expense, to defend the Indemnified
Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified
Party within the Dispute Period that the Indemnifying Party desires
to defend the Indemnified Party with respect to the Third Party
Claim pursuant to this Section
IX.3(a),
then the Indemnifying Party shall have the right to defend, with
counsel reasonably satisfactory to the Indemnified Party, at the
sole cost and expense of the Indemnifying Party, such Third Party
Claim by all appropriate proceedings, which proceedings shall be
vigorously and diligently prosecuted by the Indemnifying Party to a
final conclusion or will be settled at the discretion of the
Indemnifying Party (but only with the consent of the Indemnified
Party in the case of any settlement that provides for any relief
other than the payment of monetary damages or that provides for the
payment of monetary damages as to which the Indemnified Party shall
not be indemnified in full pursuant to Section
IX.2). The Indemnifying Party
shall have full control of such defense and proceedings, including
any compromise or settlement thereof; provided,
however,
that the Indemnified Party may, at the sole cost and expense of the
Indemnified Party, at any time prior to the Indemnifying
Party’s delivery of the notice referred to in the first
sentence of this clause ((i)), file any
motion, answer or other pleadings or take any other action that the
Indemnified Party reasonably believes to be necessary or
appropriate to protect its interests; and provided,
further,
that if requested by the Indemnifying Party, the Indemnified Party
will, at the sole cost and expense of the Indemnifying Party,
provide reasonable cooperation to the Indemnifying Party in
contesting any Third Party Claim that the Indemnifying Party elects
to contest. The Indemnified Party may participate in, but not
control, any defense or settlement of any Third Party Claim
controlled by the Indemnifying Party pursuant to this clause
((i)), and except as provided in the preceding
sentence, the Indemnified Party shall bear its own costs and
expenses with respect to such participation. Notwithstanding the
foregoing, the Indemnified Party may takeover the control of the
defense or settlement of a Third Party Claim at any time if it
irrevocably waives its right to indemnity under Section IX.2
with respect to such Third Party
Claim.
23
(ii) If the Indemnifying Party fails to notify the
Indemnified Party within the Dispute Period that the Indemnifying
Party desires to defend the Third Party Claim pursuant to
this Section
IX.3(a),
or if the Indemnifying Party gives such notice but fails to
prosecute vigorously and diligently or settle the Third Party
Claim, or if the Indemnifying Party fails to give any notice
whatsoever within the Dispute Period, then the Indemnified Party
shall have the right to defend, at the sole cost and expense of the
Indemnifying Party, the Third Party Claim by all appropriate
proceedings, which proceedings shall be prosecuted by the
Indemnified Party in a reasonable manner and in good faith or will
be settled at the discretion of the Indemnified Party(with the
consent of the Indemnifying Party, which consent will not be
unreasonably withheld). The Indemnified Party will have full
control of such defense and proceedings, including any compromise
or settlement thereof; provided,
however,
that if requested by the Indemnified Party, the Indemnifying Party
will, at the sole cost and expense of the Indemnifying Party,
provide reasonable cooperation to the Indemnified Party and its
counsel in contesting any Third Party Claim which the Indemnified
Party is contesting. Notwithstanding the foregoing provisions of
this clause ((ii)), if the
Indemnifying Party has notified the Indemnified Party within the
Dispute Period that the Indemnifying Party disputes its liability
or the amount of its liability hereunder to the Indemnified Party
with respect to such Third Party Claim and if such dispute is
resolved in favor of the Indemnifying Party in the manner provided
in clause ((iii)) below,
the Indemnifying Party will not be required to bear the costs and
expenses of the Indemnified Party’s defense pursuant to this
clause ((ii)) or of the Indemnifying Party’s
participation therein at the Indemnified Party’s request, and
the Indemnified Party shall reimburse the Indemnifying Party in
full for all reasonable costs and expenses incurred by the
Indemnifying Party in connection with such litigation. The
Indemnifying Party may participate in, but not control, any defense
or settlement controlled by the Indemnified Party pursuant to this
clause ((ii)), and the Indemnifying Party shall bear its own
costs and expenses with respect to such
participation.
(iii) If the Indemnifying Party notifies the Indemnified
Party that it does not dispute its liability or the amount of its
liability to the Indemnified Party with respect to the Third Party
Claim under Section IX.2
or fails to notify the Indemnified
Party within the Dispute Period whether the Indemnifying Party
disputes its liability or the amount of its liability to the
Indemnified Party with respect to such Third Party Claim, the
amount of Damages specified in the Claim Notice shall be
conclusively deemed a liability of the Indemnifying Party
under Section IX.2
and the Indemnifying Party shall pay
the amount of such Damages to the Indemnified Party on demand. If
the Indemnifying Party has timely disputed its liability or the
amount of its liability with respect to such Third Party Claim, the
Indemnifying Party and the Indemnified Party shall proceed in good
faith to negotiate a resolution of such dispute;
provided,
however,
that if the dispute is not resolved within thirty (30) days after
the Claim Notice, the Indemnifying Party shall be entitled to
institute such legal action as it deems
appropriate.
(b) In
the event any Indemnified Party should have a claim under
Section
IX.2 against the Indemnifying
Party that does not involve a Third Party Claim, the Indemnified
Party shall deliver a written notification of a claim for indemnity
under Section IX.2
specifying the nature of and basis for
such claim, together with the amount or, if not then reasonably
ascertainable, the estimated amount, determined in good faith, of
such claim (an “Indemnity
Notice”) with reasonable
promptness to the Indemnifying Party. The failure by any
Indemnified Party to give the Indemnity Notice shall not impair
such party’s rights hereunder except to the extent that the
Indemnifying Party demonstrates that it has been irreparably
prejudiced thereby. If the Indemnifying Party notifies the
Indemnified Party that it does not dispute the claim or the amount
of the claim described in such Indemnity Notice or fails to notify
the Indemnified Party within the Dispute Period whether the
Indemnifying Party disputes the claim or the amount of the claim
described in such Indemnity Notice, the amount of Damages specified
in the Indemnity Notice will be conclusively deemed a liability of
the Indemnifying Party under Section IX.2
and the Indemnifying Party shall pay
the amount of such Damages to the Indemnified Party on demand. If
the Indemnifying Party has timely disputed its liability or the
amount of its liability with respect to such claim, the
Indemnifying Party and the Indemnified Party shall proceed in good
faith to negotiate a resolution of such dispute; provided, however,
that if the dispute is not resolved within thirty (30) days after
the Claim Notice, the Indemnifying Party shall be entitled to
institute such legal action as it deems
appropriate.
24
(c) The
Indemnifying Party agrees to pay the Indemnified Party, promptly as
such expenses are incurred and are due and payable, for any
reasonable legal fees or other reasonable expenses incurred by them
in connection with investigating or defending any such
claim.
(d) The
indemnity provisions contained herein shall be in addition to (i)
any cause of action or similar rights of the Indemnified Party
against the Indemnifying Party or others, and (ii) any liabilities
the Indemnifying Party may be subject to.
ARTICLE X
MISCELLANEOUS
Section
10.1 GOVERNING
LAW. This Agreement shall be
governed by and interpreted in accordance with the laws of the
State of Nevada without regard to the principles of conflicts of
law (whether of the State of Nevada or any other
jurisdiction).
Section
10.2 ARBITRATION.
Any disputes, claims, or controversies arising out of or relating
to the Transaction Documents, or the transactions, contemplated
thereby, or the breach, termination, enforcement, interpretation or
validity thereof, including the determination of the scope or
applicability of this Agreement to arbitrate, shall be referred to
and resolved solely and exclusively by binding arbitration to be
conducted before the Judicial Arbitration and Mediation Service
(“JAMS”
), or its successor pursuant the expedited procedures set forth in
the JAMS Comprehensive Arbitration Rules and Procedures (the
“Rules”
), including Rules 16.1 and 16.2 of those Rules. The arbitration
shall be held in New York, New York, before a tribunal consisting
of three (3) arbitrators each of whom will be selected in
accordance with the “strike and rank” methodology set
forth in Rule 15. Either party to this Agreement may, without
waiving any remedy under this Agreement, seek from any federal or
state court sitting in the State of Nevada any interim or
provisional relief that is necessary to protect the rights or
property of that party, pending the establishment of the arbitral
tribunal. The costs and expenses of such arbitration shall be paid
by and be the sole responsibility of the Company, including but not
limited to the Investor’s attorneys’ fees and each
arbitrator’s fees. The arbitrators’ decision must set
forth a reasoned basis for any award of damages or finding of
liability. The arbitrators’ decision and award will be made
and delivered as soon as reasonably possibly and in any case within
sixty (60) days’ following the conclusion of the arbitration
hearing and shall be final and binding on the parties and may be
entered by any court having jurisdiction
thereof.
Section
10.3 JURY TRIAL
WAIVER. THE COMPANY AND THE INVESTOR
HEREBY WAIVE A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE
OTHER IN RESPECT OF ANY MATTER ARISING OUT OF OR IN CONNECTION WITH
THE TRANSACTION DOCUMENTS.
Section
10.4 ASSIGNMENT.
This Agreement shall be binding upon and inure to the benefit of
the Company and the Investor and their respective successors.
Neither this Agreement nor any rights of the Investor or the
Company hereunder may be assigned by either party to any other
Person.
25
Section
10.5 NO THIRD PARTY
BENEFICIARIES. This Agreement
is intended for the benefit of the Company and the Investor and
their respective successors, and is not for the benefit of, nor may
any provision hereof be enforced by, any other Person, except as
set forth in Article
IX.
Section
10.6 TERMINATION.
The Company may terminate this Agreement at any time by written
notice to the Investor, except while the Investor holds any of the
Put Shares, or if sooner, 30 days after delivery of the last Put
Notice resulting in Put Shares being issued to and held by the
Investor. In addition, this Agreement shall automatically terminate
on the earlier of (i) the end of the Commitment Period; (ii) the
date that the Company sells and the Investor purchases the Maximum
Commitment Amount; or (iii) the date in which the Registration
Statement is no longer effective, or (iv) the date that, pursuant
to or within the meaning of any Bankruptcy Law, the Company
commences a voluntary case or any Person commences a proceeding
against the Company, a Custodian is appointed for the Company or
for all or substantially all of its property or the Company makes a
general assignment for the benefit of its creditors;
provided,
however,
that the provisions of Articles
III, IV, V, VI, IX and the agreements and covenants of the Company
and the Investor set forth in Article X
shall survive the termination of this
Agreement for the maximum length of time allowed under applicable
law.
Section
10.7 ENTIRE
AGREEMENT. The Transaction
Documents, together with the exhibits and schedules thereto,
contain the entire understanding of the Company and the Investor
with respect to the matters covered herein and therein and
supersede all prior agreements and understandings, oral or written,
with respect to such matters, which the parties acknowledge have
been merged into such documents, exhibits and
schedules.
Section
10.8 FEES AND
EXPENSES. Except as expressly
set forth in the Transaction Documents or any other writing to the
contrary, each party shall pay the fees and expenses of its
advisers, counsel, accountants and other experts, if any, and all
other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement.
The Company shall pay all Transfer Agent fees (including, without
limitation, any fees required for same-day processing of any
instruction letter delivered by the Company), stamp taxes and other
taxes and duties levied in connection with the delivery of any
Securities to the Investor. In addition, the Investor shall
withhold $10,000.00 from the Investment Amount with respect to the
first Put under this Agreement for reimbursement of
Investor’s legal fees relating to the preparation of this
Agreement.
Section
10.9 COUNTERPARTS.
This Agreement may be executed in multiple counterparts, each of
which may be executed by less than all of the parties and shall be
deemed to be an original instrument which shall be enforceable
against the parties actually executing such counterparts and all of
which together shall constitute one and the same instrument. This
Agreement may be delivered to the other parties hereto by e-mail of
a copy of this Agreement bearing the signature of the parties so
delivering this Agreement.
Section
10.10 SEVERABILITY.
In the event that any provision of this Agreement becomes or is
declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force
and effect without said provision; provided that such severability
shall be ineffective if it materially changes the economic benefit
of this Agreement to any party.
26
Section
10.11 FURTHER
ASSURANCES. Each party shall do
and perform, or cause to be done and performed, all such further
acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as the other
party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of
the transactions contemplated hereby.
Section
10.12 NO STRICT
CONSTRUCTION. The language used
in this Agreement will be deemed to be the language chosen by the
parties to express their mutual intent, and no rules of strict
construction will be applied against any party.
Section
10.13 EQUITABLE
RELIEF. The Company
acknowledges that a breach by it of its obligations hereunder will
cause irreparable harm to the Investor by vitiating the intent and
purpose of the transaction contemplated hereby. Accordingly, the
Company acknowledges that the remedy at law for a breach of its
obligations under this Agreement will be inadequate and agrees, in
the event of a breach or threatened breach by the Company of the
provisions of this Agreement, that the Investor shall be entitled,
in addition to all other available remedies at law or in equity,
and in addition to the penalties assessable herein, to an
injunction or injunctions restraining, preventing or curing any
breach of this Agreement and to enforce specifically the terms and
provisions hereof, without the necessity of showing economic loss
and without any bond or other security being
required.
Section
10.14 TITLE AND
SUBTITLES. The titles and
subtitles used in this Agreement are used for the convenience of
reference and are not to be considered in construing or
interpreting this Agreement.
Section
10.15 AMENDMENTS;
WAIVERS. No provision of this
Agreement may be amended or waived by the parties from and after
the date that is one (1) Trading Day immediately preceding the
initial filing of the Registration Statement with the SEC. Subject
to the immediately preceding sentence, (i) no provision of this
Agreement may be amended other than by a written instrument signed
by both parties hereto and (ii) no provision of this Agreement may
be waived other than in a written instrument signed by the party
against whom enforcement of such waiver is sought. No failure or
delay in the exercise of any power, right or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right or privilege preclude other or
further exercise thereof or of any other right, power or
privilege.
Section
10.16 PUBLICITY.
The Company and the Investor shall consult with each other in
issuing any press releases or otherwise making public statements
with respect to the transactions contemplated hereby and no party
shall issue any such press release or otherwise make any such
public statement, other than as required by law, without the prior
written consent of the other parties, which consent shall not be
unreasonably withheld or delayed, except that no prior consent
shall be required if such disclosure is required by law, in which
such case the disclosing party shall provide the other party with
prior notice of such public statement. Notwithstanding the
foregoing, the Company shall not publicly disclose the name of the
Investor without the prior written consent of the Investor, except
to the extent required by law. The Investor acknowledges that this
Agreement and all or part of the Transaction Documents may be
deemed to be “material contracts,” as that term is
defined by Item 601(b)(10) of Regulation S-K, and that the Company
may therefore be required to file such documents as exhibits to
reports or registration statements filed under the Securities Act
or the Exchange Act. The Investor further agrees that the status of
such documents and materials as material contracts shall be
determined solely by the Company, in consultation with its
counsel.
** Signature Page Follows **
27
IN WITNESS WHEREOF, the parties have
caused this Agreement to be duly executed by their respective
officers thereunto duly authorized as of the Execution
Date.
Premier
Biomedical, Inc.
By:
Name:
Xxxxxxx Xxxxxxx
Title: Chief
Executive Officer
Green
Coast Capital International SA
By:
_________
Name:
Xxxxx Xxxxxx
Title:
President
** Signature Page to equity purchase agreement **
28
EXHIBIT A
FORM OF PUT NOTICE
TO:
Green Coast Capital International SA
DATE:
We
refer to the Equity Purchase Agreement, dated September 26, 2019
(the “Agreement”), entered into
by and between Premier Biomedical, Inc. and you. Capitalized terms
defined in the Agreement shall, unless otherwise defined herein,
have the same meaning when used herein.
We
hereby:
1)
Give you notice
that we require you to purchase
Put Shares;
and
2)
The purchase price
per share, pursuant to the terms of the Agreement, is;
and
3)
Certify that, as of
the date hereof, the conditions set forth in Section 7.2 of the Agreement
are satisfied.
Premier
Biomedical, Inc.
By:
Name:
Xxxxxxx Xxxxxxx
Title:
President, Chief Executive Officer
29
EXHIBIT B
FORM OF OFFICER’S CERTIFICATE
OF PREMIER BIOMEDICAL, INC.
Pursuant to
Section 7.2(k) of
that certain Equity Purchase Agreement, dated September 26, 2019
(the “Agreement”), by and
between Premier Biomedical, Inc. (the “Company”) and Green Coast
Capital International SA (the “Investor”), the
undersigned, in his capacity as Chief Executive Officer of the
Company, and not in his individual capacity, hereby certifies, as
of the date hereof (such date, the “Condition Satisfaction
Date”), the following:
1. The
representations and warranties of the Company contained in the
Agreement are true and correct in all material respects as of the
Condition Satisfaction Date as though made on the Condition
Satisfaction Date (except for representations and warranties
specifically made as of a particular date) with respect to all
periods, and as to all events and circumstances occurring or
existing to and including the Condition Satisfaction Date, except
for any conditions which have temporarily caused any
representations or warranties of the Company set forth in the
Agreement to be incorrect and which have been corrected with no
continuing impairment to the Company or the Investor;
and
2. All
of the conditions precedent to the obligation of the Investor to
purchase Put Shares set forth in the Agreement, including but not
limited to Section
7.2 of the Agreement, have been satisfied as of the
Condition Satisfaction Date.
Capitalized terms
used herein shall have the meanings set forth in the Agreement
unless otherwise defined herein.
IN WITNESS WHEREOF, the undersigned has
hereunto affixed his hand as of the 26th day of September,
2019.
By:
Name: Xxxxxxx
Xxxxxxx
Title:
President, Chief Executive Officer
30
EXHIBIT C
FORM OF TRANSFER AGENT
INSTRUCTION LETTER
31
EXHIBIT D
REGISTRATION RIGHTS AGREEMENT
32
DISCLOSURE SCHEDULES
33
