8% FIXED CONVERTIBLE PROMISSORY NOTE OF EWELLNESS HEALTHCARE CORPORATION
Note: April 11, 2017
NEITHER THESE SECURITIES NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE
CONVERTIBLE HAVE BEEN REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE
COMMISSION IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
THIS NOTE DOES NOT REQUIRE PHYSICAL SURRENDER OF THE NOTE IN THE EVENT OF A
PARTIAL REDEMPTION OR CONVERSION. AS A RESULT, FOLLOWING ANY REDEMPTION OR
CONVERSION OF ANY PORTION OF THIS NOTE, THE OUTSTANDING PRINCIPAL SUM
REPRESENTED BY THIS NOTE MAY BE LESS THAN THE PRINCIPAL SUM AND ACCRUED INTEREST
SET FORTH BELOW.
8% FIXED CONVERTIBLE PROMISSORY NOTE
OF
EWELLNESS HEALTHCARE CORPORATION
Issuance Date: April 11, 2017
Total Face Value of Note: $308,000
This Note is a duly authorized Fixed Convertible Promissory Note of eWellness
Healthcare Corporation a corporation duly organized and existing under the laws
of the State of Nevada (the "Company"), designated as the Company's 8% Fixed
Convertible Promissory Note due November 11, 2018 ("Maturity Date") in the
principal amount of $308,000 (the "Note").
For Value Received, the Company hereby promises to pay to the order of Tangiers
Global, LLC or its registered assigns or successors-in-interest (the "Holder")
the Principal Sum of $308,000 (the "Principal Sum") and to pay "guaranteed"
interest on the principal balance hereof at an amount equivalent to 8% of the
Principal Sum, to the extent such Principal Sum and "guaranteed" interest and
any other interest, fees, liquidated damages and/or items due to Holder herein
have not been repaid or converted into the Company's Common Stock (the "Common
Stock"), in accordance with the terms hereof. The sum of $280,000 shall be
remitted and delivered to the Company, and $28,000 shall be retained by the
Purchaser through an original issue discount (the "OID") for due diligence and
legal bills related to this transaction. The OID is set at 10% of any
consideration paid.
In addition to the "guaranteed" interest referenced above, and in the Event of
Default pursuant to Section 2.00(a), additional interest will accrue from the
date of the Event of Default at the rate equal to the lower of 20% per annum or
the highest rate permitted by law (the "Default Rate").
This Note will become effective only upon the execution by both the Company and
the Holder (collectively, the "Parties" and individually, a "Party"), including
the execution of Exhibits B, C, D and E and the Irrevocable Transfer Agent
Instructions (the "Date of Execution") and delivery of the initial payment of
consideration by the Holder (the "Effective Date").
This Note may be prepaid by the Company, in whole or in part, according to the
following schedule:
Days Since Effective Date Prepayment Amount
Under 30 100% of Principal Amount
31-60 110% of Principal Amount
61-90 120% of Principal Amount
00-000 000% of Principal Amount
000-000 000% of Principal Amount
000-000 000% of Principal Amount
After 180 days from the Effective Date, this Note may not be prepaid without
written consent from Holder, which consent may be withheld, delayed or denied in
Xxxxxx's sole and absolute discretion. Whenever any amount expressed to be due
by the terms of this Note is due on any day which is not a Business Day (as
defined below), the same shall instead be due on the next succeeding day which
is a Business Day. If the Note is in default, per Section 2.00(a) below, the
Company may not prepay the Note without written consent of the Holder.
For purposes hereof the following terms shall have the meanings ascribed to them
below:
"Act" shall mean the Securities Act of 1933, as amended.
"Business Day" shall mean any day other than a Saturday, Sunday or a day on
which commercial banks in the City of New York are authorized or required by law
or executive order to remain closed.
"Conversion Price" shall be equal to $.20.
"Exchange Act" shall mean the Securities Exchange Act of 1934.
"Exempt Persons" shall mean those persons and entities set forth in Exhibit F.1
and F.2 hereto.
"Principal Amount" shall refer to the sum of (i) the original principal amount
of this Note (including the original issue discount, prorated if the Note has
not been funded in full), (ii) all guaranteed and other accrued but unpaid
interest hereunder, (iii) any fees due hereunder, (iv) liquidated damages, and
(v) any default payments owing under the Note, in each case previously paid or
added to the Principal Amount.
"Principal Market" shall refer to the primary exchange on which the Company's
common stock is traded or quoted.
"Trading Day" shall mean a day on which there is trading or quoting for any
security on the Principal Market.
"Underlying Shares" means the shares of common stock into which the Note is
convertible (including interest, fees, liquidated damages and/or principal
payments in common stock as set forth herein) in accordance with the terms
hereof.
(a) Payment of Expenses. The Company agrees to pay all reasonable charges and
expenses, including attorneys' fees and expenses, which may be incurred by the
Holder in successfully enforcing this Note and/or collecting any amount due
under this Note.
(b) Assignment, Etc. The Holder may assign or transfer this Note to any
transferee at its sole discretion. This Note shall be binding upon the Company
and its successors and shall inure to the benefit of the Holder and its
successors and permitted assigns.
(c) Amendments. This Note may not be modified or amended, or any of the
provisions of this Note waived, except by written agreement of the Company and
the Holder.
(d) Funding Window. The Company agrees that it will not enter into a convertible
debt financing transaction with any party other than the Holder for a period of
45 Trading Days following the Effective Date. The Company agrees that this is a
material term of this Note and any breach of this will result in a default of
the Note.
(e) Piggyback Registration Rights. The Company shall include on the next
registration statement that the Company files with the SEC (or on the subsequent
registration statement if such registration statement is withdrawn) all shares
issuable upon conversion of this Note to the maximum extent permitted by Section
415 of the Act. Failure to do so will result in liquidated damages of 30% of the
outstanding Principal Sum of this Note, but not less than $20,000, being
immediately due and payable to the Holder at its election in the form of a cash
payment or an addition to the Principal Sum of this Note.
(f) Terms of Future Financings. So long as this Note is outstanding, upon any
issuance by the Company or any of its subsidiaries of any convertible debt
security (whether such debt begins with a convertible feature or such feature is
added at a later date) with any term more favorable to the holder of such
security or with a term in favor of the holder of such security that was not
similarly provided to the Holder in this Note, then the Company shall notify the
Holder of such additional or more favorable term and such term, at the Holder's
option, shall become a part of this Note and its supporting documentation.. The
types of terms contained in the other security that may be more favorable to the
holder of such security include, but are not limited to, terms addressing
conversion discounts, conversion look back periods, interest rates, original
issue discount percentages and warrant coverage.
(g) Governing Law; Jurisdiction.
(i) Governing Law. This Note shall be governed by, and construed and interpreted
in accordance with, the substantive laws of the Commonwealth of Puerto Rico
without giving effect to any conflict of laws rule or principle that might
require the application of the laws of another jurisdiction.
(ii) Jurisdiction and Venue. Any dispute, claim, suit, action or other legal
proceeding arising out of or relating to this Note or the rights and obligations
of each of the parties shall be brought only in a competent court in San Xxxx,
Puerto Rico or in the federal courts of the United States of America located in
San Xxxx, Puerto Rico.
(iii) No Jury Trial. The Company hereto knowingly and voluntarily waives any and
all rights it may have to a trial by jury with respect to any litigation based
on, or arising out of, under, or in connection with, this Note.
(iv) Delivery of Process by the Holder to the Company. In the event of an action
or proceeding by the Holder against the Company, and only by the Holder against
the Company, service of copies of summons and/or complaint and/or any other
process that may be served in any such action or proceeding may be made by the
Holder via U.S. Mail, overnight delivery service such as FedEx or UPS, email,
fax, or process server, or by mailing or otherwise delivering a copy of such
process to the Company at its last known attorney as set forth in its most
recent SEC filing.
(v) Notices. Any notice required or permitted hereunder (including Conversion
Notices) must be in writing and either personally served, sent by facsimile or
email transmission, or sent by overnight courier. Notices will be deemed
effectively delivered at the time of transmission if by facsimile or email, and
if by overnight courier the business day after such notice is deposited with the
courier service for delivery.
(h) No Bad Actor. No officer or director of the Company would be disqualified
under Rule 506(d) of the Securities Act of 1933, as amended, on the basis of
being a "bad actor" as that term is established in the September 13, 2013 Small
Entity Compliance Guide published by the SEC.
(i) Usury. If it shall be found that any interest or other amount deemed
interest due hereunder violates any applicable law governing usury, the
applicable rate of interest due hereunder shall automatically be lowered to
equal the maximum rate of interest permitted under applicable law. The Company
covenants (to the extent that it may lawfully do so) that it will not seek to
claim or take advantage of any law that would prohibit or forgive the Company
from paying all or a portion of the principal, fees, liquidated damages or
interest on this Note.
(j) Securities Laws Disclosure; Publicity. The Company shall (a) by 9:30 a.m.
Eastern Time on the Trading Day immediately following the Date of Execution,
issue a press release disclosing the material terms of the transactions
contemplated hereby, and (b) file a Current Report on Form 8-K, including a copy
of this Note as an exhibit thereto, with the SEC within the time required by the
1934 Act. From and after the filing of such press release, the Company
represents to the Holder that it shall have publicly disclosed all material,
non-public information delivered to the Holder by the Company, or any of its
officers, directors, employees, or agents in connection with the transactions
contemplated by this Note. The Company and the Holder shall consult with each
other in issuing any other press releases with respect to the transactions
contemplated hereby, and neither the Company nor the Holder shall issue any such
press release nor otherwise make any such public statement without the prior
consent of the Company, with respect to any press release of the Holder, or
without the prior consent of the Holder, with respect to any press release of
the Company, none of which consents shall be unreasonably withheld, delayed,
denied, or conditioned except if such disclosure is required by law, in which
case the disclosing party shall promptly provide the other party with prior
notice of such public statement or communication. Notwithstanding the foregoing,
the Company shall not publicly disclose the name of the Holder, or include the
name of the Holder in any filing with the SEC or any regulatory agency or
Principal Market, without the prior written consent of the Holder, except to the
extent such disclosure is required by law or Principal Market regulations, in
which case the Company shall provide the Holder with prior notice of such
disclosure permitted hereunder.
The Company agrees that this is a material term of this Note and any breach of
this Section 4.00(j) will result in a default of the Note.
(k) Right of First Refusal. From and after the date of this Note and at all
times hereafter while the Note is outstanding, the Parties agree that, in the
event that the Company receives any written or oral proposal (the "Proposal")
containing one or more offers to provide additional capital or equity or debt
financing (the "Financing Amount") from new third-party funding sources (other
than Exempt Persons, defined as existing investors and/or persons that presently
have or previously been issued convertible debt instruments by the Company), the
Company agrees that it shall provide a copy of all documents received relating
to the Proposal together with a complete and accurate description of the
Proposal to the Holder and all amendments, revisions, and supplements thereto
(the "Proposal Documents") no later than 3 business days from the receipt of the
Proposal Documents. Following receipt of the Proposal Documents from the
Company, the Holder shall have the right (the "Right of First Refusal"), but not
the obligation, for a period of 5 business days thereafter (the "Exercise
Period"), to invest, at similar or better terms to the Company, an amount equal
to or greater than the Financing Amount, upon written notice to the Company that
the Holder is exercising the Right of First Refusal provided hereby. In
furtherance of the Right of First Refusal, the Company agrees that it will
cooperate and assist the Holder in conducting a due diligence investigation of
the Company and its corporate and financial affairs and promptly provide the
Holder with information and documents that the Holder may reasonably request so
as to allow the Holder to make an informed investment decision. However, the
Company and the Holder agree that the Holder shall have no more than 5 business
days from and after the expiration of the Exercise Period to exercise its Right
of First Refusal hereunder. This Right of First Refusal shall extend to all
purchases of debt held by, or assigned to or from, current stockholders,
vendors, or creditors, all transactions under Sections 3(a)9 and/or 3(a)10 of
the Act, and all equity line-of-credit transactions ("New Financing
Transactions"), other than from or involving Exempt Persons . In the event that
the Company does enter into, or makes any issuance of Common Stock related to a
3(a)(9) Transaction or a 3(a)(10) Transaction while this note is outstanding,
without giving Right of First Refusal to the Holder, a liquidated damages charge
of 25% of the outstanding principal balance of this Note, but not less than
$25,000, will be assessed and will become immediately due and payable to the
Holder at its election in the form of cash payment or addition to the balance of
this Note. Such liquidated damages will be automatically added to the Principal
Sum of the Note and tack back to the Effective Date for purposes of Rule 144.
[Signature Page to Follow.]
IN WITNESS WHEREOF, the Company has caused this Fixed Convertible Promissory
Note to be duly executed on the day and in the year first above written.
EWELLNESS HEALTHCARE CORPORATION
By:
Name:
Title:
Email:
Address:
This Fixed Convertible Promissory Note of April 11, 2017 is accepted this ___
day of , 2017 by
TANGIERS GLOBAL, LLC
By:
Name:
Title: Managing Member
EXHIBIT A
FORM OF CONVERSION NOTICE
(To be executed by the Holder in order to convert all or part of that certain
$308,000 Fixed Convertible Promissory Note identified as the Note)
DATE: ____________________________
FROM: Tangiers Global, LLC (the "Holder")
Re: $308,000 Fixed Convertible Promissory Note (this "Note") originally issued
by eWellness Healthcare Corporation, a Nevada corporation, to Tangiers Global,
LLC on April 11, 2017.
The undersigned on behalf of Tangiers Global, LLC, hereby elects to convert
$_______________________ of the aggregate outstanding Principal Amount (as
defined in the Note) indicated below of this Note into shares of Common Stock,
$0.001 par value per share, of eWellness Healthcare Corporation (the "Company"),
according to the conditions hereof, as of the date written below. If shares are
to be issued in the name of a person other than undersigned, the undersigned
will pay all transfer taxes payable with respect thereto and is delivering
herewith such certificates and opinions as reasonably requested by the Company
in accordance therewith. No fee will be charged to the Holder for any
conversion, except for such transfer taxes, if any. The undersigned represents
as of the date hereof that, after giving effect to the conversion of this Note
pursuant to this Conversion Notice, the undersigned will not exceed the "Restricted Ownership Percentage" contained in this Note.
Conversion information:
Date to Effect Conversion
Aggregate Principal Sum of Note Being Converted
Aggregate Interest/ Fees of Principal Amount Being Converted
Remaining Principal Balance
Number of Shares of Common Stock to be Issued
Applicable Conversion Price
Signature
Name
Address
EXHIBIT B
WRITTEN CONSENT OF THE BOARD OF DIRECTORS OF
EWELLNESS HEALTHCARE CORPORATION
The undersigned, being directors of eWellness Healthcare Corporation, a Nevada
corporation (the "Company"), acting pursuant to the Bylaws of the Corporation,
do hereby consent to, approve and adopt the following preamble and resolutions:
Convertible Note with Tangiers Global, LLC
The board of directors of the Company has reviewed and authorized the following
documents relating to the issuance of a Fixed Convertible Promissory Note in the
amount of $308,000 with Tangiers Global, LLC.
The documents agreed to and dated April 11, 2017 are as follows:
8% Fixed Convertible Promissory Note of eWellness Healthcare Corporation
Irrevocable Transfer Agent Instructions
Notarized Certificate of Corporate Secretary
Disbursement Instructions
Company Capitalization Table
The board of directors further agree to authorize and approve the issuance of
shares to the Holder at Conversion prices that are below the Company's then
current par value.
IN WITNESS WHEREOF, the undersign member(s) of the board of the Company executed
this unanimous written consent as of April 11, 2017.
_________________________________
By:
Its:
EXHIBIT C
NOTARIZED CERTIFICATE OF CORPORATE SECRETARY OF
EWELLNESS HEALTHCARE CORPORATION
(Two Pages)
The undersigned, _______________________ is the duly elected Corporate Secretary
of eWellness Healthcare Corporation, a Nevada corporation (the "Company").
I hereby warrant and represent that I have undertaken a complete and thorough
review of the Company's corporate and financial books and records, including,
but not limited to, the Company's records relating to the following:
(A) The issuance of that certain Fixed Convertible Promissory Note dated April
11, 2017 (the "Note Issuance Date") issued to Tangiers Global, LLC (the "Holder") in the stated original principal amount of $308,000 (the
"Note");
(B) The Company's Board of Directors duly approved the issuance of the Note to
the Holder;
(C) The Company has not received and does not contemplate receiving any new
consideration from any persons in connection with any later conversion of the
Note and the issuance of the Company's Common Stock upon any said conversion;
(D) To my best knowledge and after completing the aforementioned review of the
Company's stockholder and corporate records, I am able to certify that the
Holder (and the persons affiliated with the Holder) are not officers, directors,
or directly or indirectly, ten percent (10.00%) or more stockholders of the
Company and none of said persons has had any such status in the one hundred
(100) days immediately preceding the date of this Certificate;
(E) The Company's Board of Directors have approved duly adopted resolutions
approving the Irrevocable Instructions to the Company's Stock Transfer Agent
dated April 11, 2017;
(F) Mark the appropriate selection:
___ The Company represents that it is not a "shell company," as that term is
defined in Section 12b-2 of the Securities Exchange Act of 1934, as amended, and
has never been a shell company, as so defined; or
___ The Company represents that (i) it was a "shell company," as that term is
defined in Section 12b-2 of the Securities Exchange Act of 1934, as amended,
(ii) since ______, 201__, it has no longer been a shell company, as so defined,
and (iii) on _______, 201__, it provided Form 10-type information in a filing
with the Securities and Exchange Commission.
(G) I understand the constraints imposed under Rule 144 on those persons who are
or may be deemed to be "affiliates," as that term is defined in Rule 144(a)(1)
of the Securities Act of 1933, as amended.
(H) I understand that all of the representations set forth in this Certificate
will be relied upon by counsel to Tangiers Global, LLC in connection with the
preparation of a legal opinion.
I hereby affix my signature to this Notarized Certificate and hereby confirm the
accuracy of the statements made herein.
Signed: ____________________________________ Date: __________________
Name: ____________________________________ Title: ___________________
SUBSCRIBED AND SWORN TO BEFORE ME ON THIS ________ DAY OF ____________________
2017.
Commission Expires: ______________
____________________________________
Notary Public
EXHIBIT D
TO: Tangiers Global, LLC
FROM: eWellness Healthcare Corporation
DATE: April 11, 2017
RE: Disbursement of Funds
Pursuant to that certain Fixed Convertible Promissory Note between the parties
listed above and dated April 11, 2017, a disbursement of funds will take place
in the amount and manner described below:
Please disburse to:
Amount to disburse: $280,000
Form of distribution Wire
Name eWellness Healthcare Corporation
Company Address
Wire Instructions: Bank:
ABA Routing Number:
Account Number:
SWIFT Code:
Account Name:
Phone:
TOTAL: $280,000
For: eWellness Healthcare Corporation
By: _________________________________________ Dated: April 11, 2017
Name:
Its:
EXHIBIT E
COMPANY CAPITALIZATION TABLE AS OF APRIL 11, 2017
COMMON STOCK AND COMMON STOCK EQUIVALENTS
ISSUED, OUTSTANDING AND RESERVED
DESCRIPTION AMOUNT
Authorized Stock
Authorized Capital Stock 420,000,000 shares
Authorized Common Stock 400,000,000 shares
Issued Common Stock 66,331,382 shares
Outstanding Common Stock 66,331,382 shares
Treasury Stock
*Authorized, but unissued
Authorized Preferred Stock 20,000,000 shares
Issued Preferred Stock -0-
Reserved for Equity Incentive Plans __
Reserved for Convertible Debt __
Reserved for Options and Warrants __
Reserved for Other Purposes __
TOTAL COMMON STOCK AND COMMON
STOCK EQUIVALENTS OUTSTANDING
* This number includes all shares reserved for Convertible Debt
Note: If not applicable, enter "n/a" or "zero" in Column 2.
EXHIBIT F.1
CURRENT DEBT AND LIABILITIES TABLE
FIXED CONVERTIBLE PROMISSORY NOTE BALANCES AND PROMISSORY NOTE BALANCES
(See table below)
DESCRIPTION AND NAME OF HOLDER ISSUANCE DATE AMOUNT
Convertible Promissory Note (See attached Table
Holder Issue Date Principal Amount Interest Rate Interest Balance Amount
Converted Principal & Interest remaining
XXX/Xxxxxx S 11/14/2016 $225,000 8% $7,200 ($18,800) $251,000
XXX 11/14/2016 $275,000 8% $8,800 $0 $283,800
XXX 2/14/2017 $55,000 8% $636 $0 $55,636
Crossover Capital 2/9/2017 $82,500 8% $1,045 $0 $83,545
Tangiers Global 2/10/2017 $105,000 8% $1,307 $0 $106,307
Note: If not applicable, enter "n/a" or "zero" in Column 2.
To my best knowledge and after completing the aforementioned review of the
Company's stockholder and corporate records, I am able to certify the accuracy
of the statements made herein.
EWELLNESS HEALTHCARE CORPORATION
By: Dated: April 11, 2017
Name:
Title:
EXHIBIT F.2
EXEMPT PERSONS
The table above sets forth the names of persons and entities that are not
included in or are otherwise subject to the Holder's Right of First Refusal
contained in Section 4.00(k), as follows:
XXX Partners
Xxxxxx Xxxxxxxxx and related entities
Crossover Capital