COMMON STOCK PURCHASE AGREEMENT
This Common Stock Purchase Agreement is entered
into effective as of this 28th
day of May, 2021 (this
“Agreement”),
by and between TPT Global Tech, Inc., a Florida
corporation
(the “Company”),
and WHITE LION CAPITAL LLC, a Nevada limited liability company (the
“Investor”).
WHEREAS, the parties desire that, upon the terms and
subject to the conditions contained herein, the Investor shall
purchase, from time to time, as provided herein, and the Company
shall issue and sell up to Five Million Dollars ($5,000,000) of the
Company’s Common Stock (as defined
below).
NOW,
THEREFORE, the parties hereto
agree as follows:
ARTICLE I CERTAIN DEFINITIONS
Section
1.1. 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.
“Average Daily Trading
Volume” shall mean the
median daily trading volume of the Company’s Common Stock
over the most recent five (5) Business Days prior to the respective
Purchase Date, as reported by Bloomberg.
“Bankruptcy
Law” means Title 11, U.S.
Code, or any similar federal or state law for the relief of
debtors.
“Beneficial Ownership
Limitation” shall have
the meaning specified in Section
7.2(h).
“Business
Day” shall mean a day on
which the Principal Market shall be open for
business.
“Claim
Notice” shall have the
meaning specified in Section
9.3(a).
“Clearing
Costs” shall mean $3,000
to cover the Investor’s broker and Transfer Agent costs with
respect to each deposit of the Purchase Notice
Shares.
“Closing”
shall mean the closing of a purchase and sale of shares of Common
Stock pursuant to Section 2.2.
“Closing
Date” shall have the
meaning specified in Section
2.2(b).
“Commitment
Amount” shall mean Five
Million Dollars ($5,000,000).
“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 a number
of Purchase Notice Shares pursuant to this Agreement equal to the
Commitment Amount or (ii) December 31, 2021.
“Common
Stock” shall mean the
Company’s common stock, $0.001 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 entitling 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.
“Custodian”
means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
“Current
Report” has the meaning
set forth in Section
6.2.
“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).
“Disclosure
Schedules” means the
Disclosure Schedules of the Company delivered concurrently
herewith.
“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 Purchase Notice Shares are
otherwise eligible for delivery via DWAC, and (e) the Transfer
Agent does not have a policy prohibiting or limiting delivery of
the Purchase Notice 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.
“Exchange
Act” shall mean the
Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
“Execution
Date” shall mean the date
of this Agreement.
“Fixed
Purchase” shall mean a
purchase and sale of Common Stock whereby the Company and Investor
agree in writing to a negotiated purchase of Common Stock as
outlined in Exhibit B; provided that Company has submitted at least
one Purchase Notice.
“Indemnified
Party” shall have the
meaning specified in Section
9.2.
“Indemnifying
Party” shall have the
meaning specified in Section
9.2.
“Indemnity
Notice” shall have the
meaning specified in Section
9.3(b).
“Investment
Amount” shall mean the
Purchase Notice Amount less Clearing Costs.
“Investment
Limit” shall mean
$1,000,000 initially, subject to increase at the sole discretion of
the Investor.
“Investor”
shall have the meaning specified in the preamble to this
Agreement.
“Lien”
means a lien, charge, pledge, security interest, encumbrance, right
of first refusal, preemptive right or other
restriction.
“Material Adverse
Effect” shall mean any
effect on the business, operations, properties, or financial
condition of the Company that is material and adverse to the
Company and/or any condition, circumstance, or situation that would
prohibit or otherwise materially interfere with the ability of the
Company to enter into and perform its obligations under any
Transaction Document.
“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, 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.
“Purchase
Amount” means a dollar
amount equal to the closing price of the Common Stock on the
Purchase Date multiplied by the number of shares listed in the
respective Purchase Notice, not to exceed the Investment
Limit.
“Purchase
Date” shall have the
meaning specified in Section
2.2(a).
“Purchase
Notice” shall mean a
written notice from Company, substantially in the form of
Exhibit
A hereto, to the Investor
setting forth the Purchase Notice Shares which the Company requires
the Investor to purchase pursuant to the terms of this
Agreement.
“Purchase Notice
Amount” shall mean the
Purchase Notice Shares referenced in the Purchase Notice multiplied
by the Purchase Price.
“Purchase Notice
Date” shall mean the
Business Day on which the Investor receives the DWAC Shares set
forth in the Purchase Notice in its brokerage
account.
“Purchase Notice
Limit” shall mean the
maximum amount of Purchase Notice Shares the Company may request
the Investor to purchase per each Purchase Notice shall be the
lesser of: (i) 200% of the Average Daily Trading Volume or (ii) the
Investment Limit divided by the highest closing price of the Common
Stock over the most recent five (5) Business Days including the
respective Purchase Date. Notwithstanding the forgoing, the
Investor may waive the Purchase Notice Limit at any time to allow
the Investor to purchase additional shares under a Purchase
Notice.
“Purchase Notice
Shares” shall mean all
shares of Common Stock that the Company shall be entitled to issue
as set forth in all Purchase Notices in accordance with the terms
and conditions of this Agreement.
“Purchase
Price” shall mean 85% of
the lowest daily VWAP of the Common Stock during the Valuation
Period.
“Registration Rights
Agreement” means the
registration rights agreement to be entered into by and among the
Company and the Investor, in the form set forth in
Exhibit
C. “Registration
Statement” shall have the
meaning specified in Section
6.2.
“Regulation
D” shall mean Regulation
D promulgated under the Securities Act.
“Restricted
Shares” shall have the
meaning set forth in Section
2.3.
“Rule
144” shall mean Rule 144
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
4.5.
“Securities”
mean the Purchase Notice Shares to be issued to the Investor
pursuant to the terms of this Agreement.
“Securities
Act” shall mean the
Securities Act of 1933, as amended.
“Subsidiary”
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.
“Transaction
Documents” shall mean
this Agreement, the Registration Rights Agreement and all schedules
and exhibits hereto and thereto.
“Transfer
Agent” shall mean the
current transfer agent of the Company, and any successor transfer
agent of the Company.
“Valuation
Period” shall mean the
five (5) Business days prior to the Closing
Date.
“VWAP”
means, for any security as of any date, the dollar volume-weighted
average price for such security on the Principal Market (or, if the
Principal Market is not the principal trading market for such
security, then on the principal securities exchange or securities
market on which such security is then traded), during the period
beginning at 9:30 a.m., New York time, and ending at 4:00 p.m., New
York time, as reported by Bloomberg through its “VAP”
function (set to 09:30 start time and 16:00 end time) or, if the
foregoing does not apply, the dollar volume-weighted average price
of such security in the over-the-counter market on the electronic
bulletin board for such security during the period beginning at
9:30 a.m., New York time, and ending at 4:00 p.m., New York time,
as reported by Bloomberg, or, if no dollar volume-weighted average
price is reported for such security by Bloomberg for such hours,
the average of the highest closing bid price and the lowest closing
ask price of any of the market makers for such security as reported
in the “pink sheets” by OTC Markets Group Inc.
(formerly Pink Sheets LLC). If the VWAP cannot be calculated for
such security on such date on any of the foregoing bases, the VWAP
of such security on such date shall be the fair market value as
mutually determined by the Company and the Investor. If the Company
and the Investor are unable to agree upon the fair market value of
such security, then such dispute shall be resolved in accordance
with the procedures in Section 10.16. All such determinations shall
be appropriately adjusted for any share dividend, share split,
share combination, recapitalization or other similar transaction
during such period.
ARTICLE II PURCHASE AND SALE OF COMMON STOCK
Section 2.1 PURCHASE
NOTICES. 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 Purchase Notice from time to time, to purchase
Purchase Notice Shares provided that the amount of Purchase Notice
Shares shall not exceed the Purchase Notice Limit or the Beneficial
Ownership
Limitation set forth in Section 7.2(h). The Company may not deliver
a subsequent Purchase Notice until the Closing of an active
Purchase Notice, unless waived by Investor in writing.
Notwithstanding the forgoing, the Company may not submit a Purchase
Notice to the Investor if the Purchase Amount is less than $30,000.
In addition, the Company and the Investor may negotiate a Fixed
Purchase and in such case, the Company shall deliver the Fixed
Purchase Notice to the Investor, to direct the Investor to purchase
certain number of Purchase Notice Shares at a price as agreed to by
the parties.
Section
2.2 MECHANICS.
(a)
PURCHASE
NOTICE. At any time and from
time to time during the
Commitment Period, except as provided in this Agreement, the
Company may deliver a Purchase Notice to Investor, subject to
satisfaction of the conditions set forth in Section 7.2 and
otherwise provided herein. The Company shall deliver the Purchase
Notice Shares as DWAC Shares to the Investor alongside delivery of
the Purchase Notice. A Purchase Notice shall be deemed delivered on
(i) the Business Day it is received by email by the Investor if
such notice is received on or prior to 4:00 p.m. New York time or
(ii) the next Business Day if it is received by email after 4:00
p.m. New York time on a Business Day or at any time on a day which
is not a Business
Day (the “Purchase Date”).
(b)
CLOSING.
The Closing of a Purchase Notice shall occur five (5)
Business
Day after the Purchase Notice Date (the “Closing
Date”); whereby the Investor shall deliver to the Company, by
5:00 p.m. New York time the applicable Investment Amount by wire
transfer of immediately available funds to an account designated by
the Company.
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. 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 the Transaction Documents and to
consummate the transactions contemplated hereby and thereby. The
execution and delivery of the 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. The
Transaction Documents 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.
Section 3.5 NOT
AN AFFILIATE. The Investor is
not an officer, director or “affiliate”
(as that 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 incorporated or formed, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or
formation with full right, corporate, partnership, limited
liability company or similar power and authority to enter into and
to consummate the transactions contemplated by the Transaction
Documents.
Section 3.7 ABSENCE
OF CONFLICTS. The execution and
delivery of the 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.
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 advertising.
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE
COMPANY
Except as set forth in the SEC Documents and the Disclosure
Schedules, which Disclosure Schedules shall be deemed a part hereof
and shall qualify any representation or otherwise made herein to
the extent of the disclosure contained in the corresponding section
of the Disclosure Schedules, the Company represents and warrants to
the Investor, as of the date hereof, that:
Section 4.1 ORGANIZATION
OF THE COMPANY. The Company 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. The Company is not in
violation or default of any of the provisions of its certificate of
incorporation, bylaws or other organizational or charter documents.
The Company is duly qualified to conduct business and is in good
standing as a foreign corporation 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. The Company has
no Subsidiaries.
Section 4.2 AUTHORITY.
The Company has the requisite corporate power and authority to
enter into and perform its obligations under the Transaction
Documents. The execution and delivery of the 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. The Transaction Documents have 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 date hereof, the authorized capital stock of the Company
consists of 1,000,000,000 shares of Common Stock, Common Stock, of
which approximately 873,064,371 shares of Common Stock are issued
and outstanding as of the Execution Date. 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 in the SEC Documents,
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 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(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 date hereof, 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.
Section 4.5 SEC
DOCUMENTS; DISCLOSURE. 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) thereof, for the one (1) year preceding the date hereof (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). 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 duly and 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.
Section 4.7 NO
CONFLICTS. The execution,
delivery and performance of the Transaction Documents by the
Company and the consummation by the Company of the transactions
contemplated hereby and thereby, including, without limitation, the
issuance of the Purchase Notice Shares, do not and will not: (a)
result in a violation of the Company’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
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 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 by which any property or
asset of the Company 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 the Transaction Documents (other than
any SEC or state securities filings that may be required to be made
by the Company in connection with the issuance of Purchase Notice
Shares or 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.
Section 4.8 NO
MATERIAL ADVERSE EFFECT. No
event has occurred that would have a Material Adverse Effect on the
Company that has not been disclosed in subsequent SEC
Documents.
Section 4.9 LITIGATION
AND OTHER PROCEEDINGS. Except
as disclosed in the SEC Documents and the Disclosure Schedule,
there are no material actions, suits, investigations, inquiries or
similar proceedings (however any governmental agency may name them)
pending or, to the knowledge of the Company, threatened against or
affecting the Company or its 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. 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. 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 or any current
or former director or officer of the Company.
Section 4.10 REGISTRATION
RIGHTS. Except as set forth in
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.
Section 4.11 ACKNOWLEDGMENT
REGARDING INVESTOR’S PURCHASE OF SECURITIES.
The Company acknowledges and agrees that the Investor is acting
solely in the capacity of an arm’s length purchaser with
respect to the Transaction Documents and the transactions
contemplated hereby and thereby and that the Investor is not (i) an
officer or director of the Company, or (ii) an
“affiliate” (as defined in Rule 144) of the Company.
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 Shares. 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.
Section 4.12 NO
GENERAL SOLICITATION; PLACEMENT AGENT. Neither the Company,
nor any Person acting on its 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. The Company has not engaged a placement
agent in connection with the sale of the Securities.
Section 4.13 NO
INTEGRATED OFFERING. None of
the Company, its affiliates, and 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 cause this offering of the Securities to
be integrated with prior offerings for purposes of any applicable
stockholder approval provisions, including, without limitation,
under the rules and regulations of any exchange or automated
quotation system on which any of the securities of the Company are
listed or designated, but excluding stockholder consents required
to authorize and issue the Securities or waive any anti-dilution
provisions in connection therewith.
Section 4.14 OTHER
COVERED PERSONS. The Company is
not aware of any Person (other than any Issuer Covered Person) that
has been or will be paid (directly or indirectly) remuneration for
solicitation of the Investor in connection with the sale of any
Regulation D Securities.
ARTICLE V COVENANTS OF INVESTOR
Section 5.1 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 date hereof to the end of the Commitment Period.
For the purposes hereof, and in accordance with Regulation SHO, the
sale after delivery of the Purchase Notice of such number of shares
of Common Stock reasonably expected to be purchased under the
Purchase Notice shall not be deemed a Short Sale. The Investor
shall, until such time as the transactions contemplated by the
Transaction Documents are publicly disclosed by the Company in
accordance with the terms of the Transaction Documents, maintain
the confidentiality of the existence and terms of this transaction
and the information included in the Transaction
Documents.
Section 5.2 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 the Principal
Market.
ARTICLE VI COVENANTS OF THE COMPANY
Section 6.1 LISTING
OF COMMON STOCK. The Company
shall promptly secure the listing, where applicable, of all of the
Common Stock to be issued to the Investor hereunder on the
Principal Market (subject to official notice of issuance, where
applicable) and shall use commercially reasonable best efforts to
maintain, so long as any shares of Common Stock shall be so listed,
the listing, if required, of all such Common Stock from time
to-time issuable hereunder. The Company shall use its commercially
reasonable best efforts to continue the listing or quotation and
trading of the Common Stock on the Principal Market (including,
without limitation, maintaining sufficient net tangible assets, if
required) and will comply in all respects with the Company’s
reporting, filing and other obligations under the bylaws or rules
of the Principal Market.
Section 6.2 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 and in compliance with 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 one (1)
Business Day 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)
Business Day from the date the Investor receives it from the
Company. The Company shall also file with the SEC, within thirty
(30) Business Days from the Execution Date, a new Registration
Statement on Form S-1 or S-3 (the “Registration
Statement”) in compliance
with the terms of the Registration Rights Agreement, covering the
resale of the Securities.
ARTICLE VII CONDITIONS TO DELIVERY OF
PURCHASE NOTICE AND CONDITIONS TO CLOSING
Section 7.1 CONDITIONS
PRECEDENT TO THE RIGHT OF THE COMPANY TO ISSUE AND SELL
PURCHASE NOTICE SHARES. The
right of the Company to issue and sell the Purchase Notice 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 date of this Agreement 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) 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.
(d) PRINCIPAL
MARKET REGULATION. The Company
shall not issue
any Purchase Notice Shares, and the Investor shall not have the
right to receive any Purchase Notice Shares, if the issuance of
such Purchase Notice 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.
Section 7.2 CONDITIONS
PRECEDENT TO THE OBLIGATION OF INVESTOR TO PURCHASE THE
PURCHASE NOTICE SHARES. The
obligation of the Investor hereunder to purchase the Purchase
Notice Shares is subject to the satisfaction of each of the
following conditions:
(a) *intentionally
omitted*
(b) EFFECTIVE
REGISTRATION STATEMENT. The
Registration Statement,
and any amendment or supplement thereto, shall remain effective for
the offering of the Securities and (i) the Company shall not 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
Investor shall not have received any notice from the Company that
the prospectus and/or any prospectus supplement fails to meet the
requirements of Section 5(b) or Section 10 of the Securities
Act.
(c) 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 date of this Agreement and as of the date of each Closing
(except for representations and warranties specifically made as of
a particular date).
(d) 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.
(e) 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.
(f) ADVERSE
CHANGES. Since the date of
filing of the Company’s most
recent annual report on Form 10-K, no event that had or is
reasonably likely to have a Material Adverse Effect has
occurred.
(g) NO
SUSPENSION OF TRADING IN OR DELISTING OF COMMON STOCK.
The trading of the Common Stock shall
not have been suspended by the SEC or the Principal Market, 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 or no longer quoted on 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(g), the Investor shall have the right to return to the Company
any amount of Purchase Notice Shares associated with such Purchase
Notice, and the Investment Amount with respect to such Purchase
Notice shall be refunded accordingly.
(h) BENEFICIAL
OWNERSHIP LIMITATION. The
number of Purchase
Notice Shares then 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 13 of the
Exchange Act. For purposes of this Section 7.2(h), in the event
that the amount of Common Stock outstanding is greater or lesser on
a Closing Date than on the date upon which the Purchase Notice
associated with such Closing Date is given, the amount of Common
Stock outstanding on such issuance of a Purchase Notice 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 a purchase on any such Closing Date. In the event the
Investor claims that compliance with a Purchase Notice would result
in the Investor owning more than the Beneficial Ownership
Limitation, upon request of the Company the Investor will provide
the Company with evidence of the Investor’s then existing
shares beneficially or deemed beneficially owned. The
“Beneficial Ownership Limitation” shall be 4.99% of the
number of shares of the Common Stock outstanding immediately prior
to the issuance of shares of Common Stock issuable pursuant to a
Purchase Notice. Notwithstanding the foregoing, the Investor may
increase the Beneficial Ownership Limitation up to 9.99% at its
sole discretion. To the extent that the Beneficial Ownership
Limitation is exceeded, the number of shares of Common Stock
issuable to the Investor shall be reduced so it does not exceed the
Beneficial Ownership Limitation.
(i) [INTENTIONALLY
OMITTED]
(j) NO
KNOWLEDGE. The Company shall
have no knowledge of any event more likely than not to have the
effect of causing the effectiveness of the Registration Statement
to be suspended or any prospectus or prospectus supplement failing
to meet the requirement of Sections 5(b) or 10 of the Securities
Act (which event is more likely than not to occur within the
fifteen (15) Business Days following the Business Day on which such
Purchase Notice is deemed delivered).
(k) NO VIOLATION
OF
SHAREHOLDER APPROVAL REQUIREMENT.
The issuance of the Purchase Notice
Shares shall not violate the shareholder approval requirements of
the Principal Market.
(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 shall have been filed with the SEC
within the applicable time periods prescribed for such filings
under the Exchange Act.
ARTICLE VIII LEGENDS
Section 8.1 NO
RESTRICTIVE STOCK LEGEND. No
restrictive stock legend shall be placed on the share certificates
representing the Purchase Notice 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 INDEMNIFICATION
Section 9.1 INDEMNIFICATION.
Each party (an “Indemnifying
Party”) agrees to
indemnify and hold harmless the other party along with its
officers, directors, employees, and authorized agents, 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 (an “Indemnified
Party”) from and against
any Damages, and any action in respect thereof to which the
Indemnified Party becomes subject to, resulting from, arising out
of this Agreement 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 or any post-effective amendment thereof or prospectus or
prospectus supplement, 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, recklessness or willful misconduct 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, prospectus, prospectus supplement thereto, or
any preliminary prospectus or final prospectus (as amended or
supplemented).
Section 9.2 INDEMNIFICATION
PROCEDURE.
(a) A party that seeks indemnification under must
promptly give the other
party notice of any legal action. But a delay in notice does not
relieve an Indemnifying Party of any liability to any Indemnified
Party, except to the extent the Indemnifying Party shows that the
delay prejudiced the defense of the action.
(b) The Indemnifying Party may participate in the
defense at any time or
it may assume the defense by giving notice to the Indemnified
Parties. After assuming the defense, the Indemnifying
Party
(i) must
select counsel (including local counsel if
appropriate) that
is reasonably satisfactory to the Indemnified Parties;
(ii)
is not liable to the other party for
any later attorney’s fees or
for any other later expenses that the Indemnified Parties incur,
except for reasonable investigation costs;
(iii) must
not compromise or settle the action without the Indemnified Parties
consent (which may not be unreasonably withheld); and
(iv) is
not liable for any compromise or settlement made
without
its consent.
(c) If the Indemnifying Party fails to assume the
defense within 10 days
after receiving notice of the action, the Indemnifying Party shall
be bound by any determination made in the action or by any
compromise or settlement made by the Indemnified Parties, and also
remains liable to pay the Indemnified Parties’ legal fees and
expenses.
Section 9.3 METHOD
OF ASSERTING INDEMNIFICATION CLAIMS. All claims for
indemnification by any Indemnified Party under Section 9.2 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 9.2 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 9.2 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 9.2 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 9.3(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 9.2). 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 take over 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 9.2 with respect to such Third Party
Claim.
(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 Section 9.3(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 9.2 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 9.2 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.
(b) In
the event any Indemnified Party should have a claim under Section
9.2 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 9.2 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 9.2 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.
(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; JURISDICTION. This
Agreement shall be governed by and interpreted in accordance with
the laws of the State of California without regard to the
principles of conflicts of law. Each of the Company and the
Investor hereby submits to the exclusive jurisdiction of the United
States federal and state courts located in Los Angeles, California,
with respect to any dispute arising under the Transaction Documents
or the transactions contemplated thereby.
Section 10.2 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 10.3 ASSIGNMENT.
The Transaction Documents 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.
Section 10.4 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 contemplated by Article IX.
Section 10.5 TERMINATION.
The Company or Investor may terminate
this Agreement at any time in the event of a material breach of the
Agreement by the Company or Investor, which shall be effected by
written notice being sent by the non-breaching party to the
breaching party. In addition, this Agreement shall automatically
terminate on the earlier of (i) the end of the Commitment Period;
(ii) the date in which the Registration Statement is no longer
effective, or (iii) 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 (the “Automatic Termantion
Date”); 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 this Article X shall survive the
termination of this Agreement. If the Company terminates the
Agreement prior to the Automatic Termination Date, the Company
shall wire $50,000 to the Investor irrespective of any other event
or condition, including, without limitation, the Company’s
submission of a Purchase Notice.
Section 10.6 ENTIRE
AGREEMENT. The Transaction
Documents, together with the exhibits 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 and exhibits.
Section 10.7 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 the Clearing Cost associated
with each Closing, and any Transfer Agent fees (including 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.
Section 10.8 COUNTERPARTS.
The Transaction Documents 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. The Transaction Documents may be delivered to the
other parties hereto by email of a copy of the Transaction
Documents bearing the signature of the parties so delivering this
Agreement.
Section 10.9 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.
Section 10.10 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 10.11 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 10.12 EQUITABLE
RELIEF. The Company recognizes
that in the event that it fails to perform, observe, or discharge
any or all of its obligations under this Agreement, any remedy at
law may prove to be inadequate relief to the Investor. The Company
therefore agrees that the Investor shall be entitled to temporary
and permanent injunctive relief in any such case without the
necessity of proving actual damages. In addition to being entitled
to exercise all rights provided herein or granted by law, both
parties will be entitled to specific performance under the
Transaction Documents. The parties agree that monetary damages may
not be adequate compensation for any loss incurred by reason of any
breach of obligations contained in the Transaction Documents and
hereby agree to waive and not to assert in any action for specific
performance of any such obligation the defense that a remedy at law
would be adequate.
Section 10.13 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 10.14 AMENDMENTS;
WAIVERS. No provision of this
Agreement may be amended or waived by the parties from and after
the date that is one (1) Business Day immediately preceding the
initial filing of the prospectus to 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 10.15 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 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.
Section 10.16 DISPUTE
RESOLUTION.
(a)
Submission to Dispute
Resolution.
(i) In
the case of a dispute relating to the Average Daily Trading Volume,
Purchase Notice Limit or VWAP (as the case may be) (including,
without limitation, a dispute relating to the determination of any
of the foregoing), the Company or the Investor (as the case may be)
shall submit the dispute to the other party via facsimile or
electronic mail (A) if by the Company, within two (2) Business Days
after the occurrence of the circumstances giving rise to such
dispute or (B) if by the Investor at any time after the Investor
learned of the circumstances giving rise to such dispute. If the
Investor and the Company are unable to promptly resolve such
dispute relating to such Average Daily Trading Volume, Purchase
Notice Limit or VWAP (as the case may be), at any time after the
second (2nd) Business Day following such initial notice by the
Company or the Investor (as the case may be) of such dispute to the
Company or the Investor (as the case may be), then the Company and
the Investor may select an independent, reputable investment bank
as mutually agreed upon to resolve such dispute.
(ii) The
Investor and the Company shall each deliver to such investment bank
(A) a copy of the initial dispute submission so delivered in
accordance with the first sentence of this Section 10.16 and (B)
written documentation supporting its position with respect to such
dispute, in each case, no later than 5:00 p.m. (New York time) by
the fifth (5th) Business Day immediately following the date on
which such investment bank was selected (the “Dispute
Submission Deadline”) (the documents referred to in the
immediately preceding clauses (A) and (B) are collectively referred
to herein as the “Required Dispute Documentation”) (it
being understood and agreed that if either the Investor or the
Company fails to so deliver all of the Required Dispute
Documentation by the Dispute Submission Deadline, then the party
who fails to so submit all of the Required Dispute Documentation
shall no longer be entitled to (and hereby waives its right to)
deliver or submit any written documentation or other support to
such investment bank with respect to such dispute and such
investment bank shall resolve such dispute based solely on the
Required Dispute Documentation that was delivered to such
investment bank prior to the Dispute Submission Deadline). Unless
otherwise agreed to in writing by both the Company and the Investor
or otherwise requested by such investment bank, neither the Company
nor the Investor shall be entitled to deliver or submit any written
documentation or other support to such investment bank in
connection with such dispute (other than the Required Dispute
Documentation).
(iii) The
Company and the Investor shall cause such investment bank to
determine the resolution of such dispute and notify the Company and
the Investor of such resolution no later than ten (10) Business
Days immediately following the Dispute Submission Deadline. The
fees and expenses of such investment bank shall be borne solely by
the party submitting such dispute, and such investment bank’s
resolution of such dispute shall be final and binding upon all
parties absent manifest error.
(b) Miscellaneous.
Both the Company and the Investor
expressly acknowledge and agree that (i) this Section 10.16
constitutes an agreement to arbitrate between the Company and the
Investor (and constitutes an arbitration agreement) only with
respect to such dispute in connection with Section 10.16(a)(i) and
that both the Company and the Investor are authorized to apply for
an order to compel arbitration in order to compel compliance with
this Section 10.16, (ii) the terms of this Agreement and each other
applicable Transaction Document shall serve as the basis for the
selected investment bank’s resolution of the applicable
dispute, such investment bank shall be entitled (and is hereby
expressly authorized) to make all findings, determinations and the
like that such investment bank determines are required to be made
by such investment bank in connection with its resolution of such
dispute and in resolving such dispute such investment bank shall
apply such findings, determinations and the like to the terms of
this Agreement and any other applicable Transaction Documents,
(iii) the Company and the Investor shall have the right to submit
any dispute other than described in this Section 10.16 (a) to any
state or federal court sitting in The City of Los Angeles and (iv)
nothing in this Section 10.16 shall limit the Company or the
Investor from obtaining any injunctive relief or other equitable
remedies (including, without limitation, with respect to any
matters described in this Section 10.16). The Company and the
Investor agree that all dispute resolutions may be conducted in a
virtual setting to be mutually agreed by both
parties.
Section 10.17 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 next Business Day delivery, or (c) transmitted by hand
delivery, or email 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 upon hand delivery or delivery by email 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).
The
addresses for such communications shall be:
If
to the Company:
Email:
xxxxxxx@xxxxxxxxxxxxx.xxx
with
a copy (not constituting notice) to:
Email:
If
to the Investor:
WHITE
LION CAPITAL LLC
Email:
xxxx@xxxxxxxxxxxxxxxx.xxx
Either party hereto may from time to time change its address or
email for notices under this Section 10.17 by giving prior written
notice of such changed address to the other party
hereto.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties
have caused this Agreement to be duly executed by their respective
officers thereunto duly authorized as of the day and year first
above written.
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TPT Global Tech, Inc
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By:
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Name:
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Xxxxxxx
Xxxxxx
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Title:
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Chief
Executive Officer
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WHITE
LION CAPITAL LLC
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By:
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Name:
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Xxxx Xxxxxxx
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Title:
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Managing Director
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DISCLOSURE SCHEDULES TO
Schedule 4.5 – SEC Documents
Schedule 4.9 – Litigation
Schedule 4.10 – Registration Rights
EXHIBIT A FORM OF PURCHASE NOTICE
TO: WHITE LION CAPITAL LLC
We
refer to the Common Stock Purchase Agreement, dated as of 28 May,
2021, (the “Agreement”),
entered into by and between TPT Global Tech, Inc. and White Lion
Capital LLC. 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 __________ Purchase
Notice Shares; and
2)
Certify
that, as of the date hereof, the conditions set forth in Section 7
of the Agreement are satisfied.
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By:
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/s/
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Name:
Xxxxxxx
Xxxxxx
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Title:
Chief
Executive Officer
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EXHIBIT B
FIXED PURCHASE NOTICE
TO: WHITE LION CAPITAL LLC
We
refer to the Common Stock Purchase Agreement, dated as of May 28,
2021 (the “Agreement”),
entered into by and between TPT Global Tech, Inc., and White Lion
Capital LLC. Capitalized terms defined in the Agreement shall,
unless otherwise defined herein, have the same meaning when used
herein.
We hereby:
1) Certify that, as of the date hereof, the conditions set forth in
Section 7 of the Agreement are satisfied.
The Company and Investor agree to as follows:
Purchase Price:
Share Amount:
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TPT
Global Tech, Inc
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By:
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Name:
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Xxxxxxx
Xxxxxx
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Title:
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Chief
Executive Officer
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WHITE
LION CAPITAL LLC
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By:
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Name:
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Xxxx Xxxxxxx
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Title:
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Managing Director
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EXHIBIT C
REGISTRATION RIGHTS AGREEMENT
