SERIES A PREFERRED STOCK PURCHASE AGREEMENT
EXHIBIT 10.2
This SERIES A PREFERRED STOCK
PURCHASE AGREEMENT (the
“Agreement”), dated as of June 3, 2020, by and
between FRIENDABLE,
INC., a Nevada corporation,
with its address at ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “Company”), and Eclectic Artists, LLC, a Georgia
limited liability company with its address at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “Buyer”).
A. Buyer
desire to purchase and the Company desires to issue and sell, upon
the terms and conditions set forth in this Agreement, up to 118
shares of Series A Preferred Stock of the Company
(“Series A
Shares”), collectively,
with the rights and preferences as set forth on the Certificate of
Designation of the Series A Preferred Stock attached hereto
as Exhibit
A (“Certificate of
Designation”).
B. The
Company is executing and delivering this Agreement and issuing the
Series A Shares in reliance upon the exemption from securities
registration afforded by the Securities Act of 1933, as amended
(the “1933 Act”), and the rules and regulations as
promulgated by the United States Securities and Exchange Commission
(the “SEC”) thereunder.
C. This
Agreement is the “stock subscription agreement”
contemplated by Section 3(b) of that certain Partner Agreement,
dated as of the date hereof, between Buyer and the Company (the
“Partner
Agreement”).
NOW
THEREFORE, in
consideration of the mutual covenants and agreements contained
herein, the receipt and sufficiency of which are hereby
acknowledged, the Company and the
Buyer hereby agree as follows:
a. Purchase of Series A
Shares. The Company
agrees to issue and sell the Series A Shares to Buyer and Buyer
agrees to purchase from the Company such Series A Shares
with the rights and preferences as set
forth in the Certificate of Designation.
b. Form of
Payment. At the closing
of the transactions contemplated hereby, Buyer shall purchase from
the Company, and the Company shall sell and issue to the Buyer the
Series A Shares in consideration of the rights and obligations set
forth on the Partner Agreement.
c. Closing.
The closing of the transactions contemplated hereby shall take
place remotely via the exchange of documents and signatures on the
Effective Date.
2. Buyer’s
Representations and Warranties. Buyer represents and warrants to the
Company as of the date hereof that:
a. The Buyer has full
power and authority to enter into this Agreement, the execution and
delivery of which has been duly authorized and this Agreement
constitutes a valid and legally binding obligation of the Buyer,
except as may be limited by bankruptcy, reorganization, insolvency,
moratorium and similar laws of general application relating to or
affecting the enforcement of rights of creditors, and except as
enforceability of the obligations hereunder are subject to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or law).
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b. The Buyer
acknowledges its understanding that the offering and sale of the
Series A Shares and the shares of
common stock issuable upon conversion of the Series A Shares (such
shares of common stock being collectively referred to herein as the
“Conversion
Shares” and, collectively
with the Series A Shares, the “Securities”) is intended to be exempt from
registration under the 1933 Act, by virtue of Section 4(a)(2) of
the 1933 Act and the provisions of Regulation D promulgated
thereunder. In furtherance thereof, the Buyer represents and
warrants to the Company and its affiliates as follows:
i. The
Buyer realizes that the basis for the exemption from registration
may not be available if, notwithstanding the Buyer’s
representations contained herein, the Buyer is merely acquiring the
Securities for a fixed or determinable period in the future, or for
a market rise, or for sale if the market does not rise. The Buyer
does not have any such intention.
ii. The
Buyer realizes that the basis for exemption would not be available
if the offering is part of a plan or scheme to evade registration
provisions of the 1933 Act or any applicable state or federal
securities laws, except sales pursuant to a registration statement
or sales that are exempted under the ▇▇▇▇ ▇▇▇.
iii. The
Buyer is acquiring the Securities solely for the Buyer’s own
beneficial account, for investment purposes, and not with a view
towards, or resale in connection with, any distribution of the
Securities.
iv. The
Buyer has the financial ability to bear the economic risk of the
Buyer’s investment, has adequate means for providing for its
current needs and contingencies, and has no need for liquidity with
respect to an investment in the Company.
v. The
Buyer and the Buyer’s attorney, accountant, purchaser
representative and/or tax advisor, if any (collectively, the
“Advisors”) has
such knowledge and experience in financial and business matters as
to be capable of evaluating the merits and risks of a prospective
investment in the Securities. The Buyer also represents it has not
been organized solely for the purpose of acquiring the
Securities.
c. The Buyer has
carefully considered the potential risks relating to the Company
and a purchase of the Securities, and fully understands that the
Securities are a speculative investment that involves a high degree
of risk of loss of the Buyer’s entire
investment.
d. The Buyer will not
sell or otherwise transfer any Securities without registration
under the 1933 Act or an exemption therefrom, and fully understands
and agrees that the Buyer must bear the economic risk of its
purchase because, among other reasons, the Securities have not been
registered under the 1933 Act or under the securities laws of any
state and, therefore, cannot be resold, pledged, assigned or
otherwise disposed of unless they are subsequently registered under
the 1933 Act and under the applicable securities laws of such
states, or an exemption from such registration is available. In
particular, the Buyer is aware that the Securities are
“restricted securities,” as such term is defined in
Rule 144, and they may not be sold pursuant to Rule 144 unless all
of the conditions of Rule 144 are met. The Buyer also understands
that the Company is under no obligation to register the Securities
on behalf of the Buyer. The Buyer understands that any sales or
transfers of the Securities are further restricted by state
securities laws and the provisions of this Agreement.
e. The Buyer and its
Advisors, if any, have had a reasonable opportunity to ask
questions of and receive answers from a person or persons acting on
behalf of the Company concerning the offering and the business,
financial condition, results of operations and prospects of the
Company. The foregoing, however, does not limit or modify the
representations and warranties of the Company in Section 3 of this
Agreement or the right of the Buyer to rely thereon.
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f. The Buyer
represents and warrants that: (i) the Buyer was contacted regarding
the sale of the Securities by the Company (or an authorized agent
or representative thereof) with whom the Buyer had a prior
substantial pre-existing relationship; and (ii) no Securities were
offered or sold to it by means of any form of general solicitation
or general advertising, and in connection therewith, the Buyer did
not: (A) receive or review any advertisement, article, notice
or other communication published in a newspaper or magazine or
similar media or broadcast over television or radio, whether closed
circuit, or generally available; or (B) attend any seminar
meeting or industry investor conference whose attendees were
invited by any general solicitation or general advertising; or (C)
observe any website or filing of the Company with the SEC in which
any offering of securities by the Company was described and as a
result learned of any offering of securities by the
Company.
g. The Buyer has taken
no action that would give rise to any claim by any person for
brokerage commissions, finders’ fees or the like relating to
this Agreement or the transactions contemplated
hereby.
h. The Buyer is an
“accredited investor” as that term is defined in Rule
501(a) of Regulation D.
i. Legends. The Buyer understands
that until such time as the Securities have been registered under
the 1933 Act or may be sold pursuant to an applicable exemption
from registration, the Securities shall bear a restrictive legend
in substantially the following form:
"THE
SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR UNDER ANY STATE SECURITIES LAWS, AND MAY NOT BE PLEDGED,
SOLD, ASSIGNED, HYPOTHECATED OR OTHERWISE TRANSFERRED UNLESS (1) A
REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE
SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR (2) THE
ISSUER OF SUCH SECURITIES RECEIVES AN OPINION OF COUNSEL TO THE
HOLDER OF SUCH SECURITIES, WHICH COUNSEL AND OPINION ARE REASONABLY
ACCEPTABLE TO THE ISSUER’S TRANSFER AGENT, THAT SUCH
SECURITIES MAY BE PLEDGED, SOLD, ASSIGNED, HYPOTHECATED OR
OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS."
The
legend set forth above shall be removed and the Company shall issue
a certificate without such legend to the holder of any Security
upon which it is stamped, if, unless otherwise required by
applicable state securities laws, (a) such Security is registered
for sale under an effective registration statement filed under the
1933 Act or otherwise may be sold pursuant to an exemption from
registration without any restriction as to the number of securities
as of a particular date that can then be immediately sold, or (b)
such holder provides the Company with an opinion of counsel, in
form, substance and scope customary for opinions of counsel in
comparable transactions, to the effect that a public sale or
transfer of such Security may be made without registration under
the 1933 Act, which opinion shall be accepted by the Company so
that the sale or transfer is effected. The Buyer agrees to sell all
Securities, including those represented by a certificate(s) from
which the legend has been removed, in compliance with applicable
prospectus delivery requirements, if any.
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3. Representations
and Warranties of the Company.
The Company represents and warrants to the Buyer
that:
a. Organization
and Qualification. The Company
and each of its Subsidiaries (as defined below), if any, is a
corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction in which it is incorporated,
with full power and authority (corporate and other) to own, lease,
use and operate its properties and to carry on its business as and
where now owned, leased, used, operated and conducted.
“Subsidiaries” means any corporation or other
organization, whether incorporated or unincorporated, in which the
Company owns, directly or indirectly, any equity or other ownership
interest.
b. Authorization;
Enforcement. (i) The Company
has all requisite corporate power and authority to enter into and
perform this Agreement and to consummate the transactions
contemplated hereby and thereby and to issue the Securities, in
accordance with the terms hereof and thereof, (ii) the execution
and delivery of this Agreement by the Company and the consummation
by it of the transactions contemplated hereby and thereby
(including without limitation, the issuance of the Series A Shares
and the issuance and reservation for issuance of the Conversion
Shares issuable upon conversion or exercise thereof) have been duly
authorized by the Company’s Board of Directors and no further
consent or authorization of the Company, its Board of Directors, or
its shareholders is required, (iii) this Agreement has been duly
executed and delivered by the Company by its authorized
representative, and such authorized representative is the true and
official representative with authority to sign this Agreement and
the other documents executed in connection herewith and bind the
Company accordingly, and (iv) this Agreement constitutes, and upon
execution and delivery by the Company of the Series A Shares, each
of such instruments will constitute, a legal, valid and binding
obligation of the Company enforceable against the Company in
accordance with its terms except as may be limited by
bankruptcy, reorganization, insolvency, moratorium and similar laws
of general application relating to or affecting the enforcement of
rights of creditors, and except as enforceability of the
obligations hereunder are subject to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or law).
(i) As of the date
hereof, the authorized common stock of the Company consists of
1,000,000,000
authorized shares of common stock (the “Common Stock”), $0.0001 par value
per share, of which 8,431,482 shares are issued and
outstanding and 50,000,000 shares of preferred stock, $0.0001 par
value per, of which 21,267 shares of Series A Preferred Stock are
issued and outstanding.
(ii) All
of the outstanding shares of Common Stock have been duly
authorized, are fully paid and nonassessable and were issued in
compliance with all applicable federal and state securities
laws.
(iii) The
rights, privileges and preferences of the Series A Preferred Stock
are as stated in the Certificate of Designation attached
hereto.
(iv) The
Company has obtained valid waivers of any rights by other parties
to purchase any of the Series A Shares covered by this
Agreement.
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d. Issuance
of Securities. The Securities
upon issuance will be validly issued, fully paid and
non-assessable, and free from all taxes, liens, claims and
encumbrances with respect to the issue thereof and shall not be
subject to preemptive rights or other similar rights of
shareholders of the Company and will not impose personal liability
upon the holder thereof. Assuming the accuracy of the representations made
by the Buyer in Section 2
of this Agreement, no consent,
approval, order or authorization of, or registration,
qualification, designation, declaration or filing with, any
federal, state or local governmental authority is required on the
part of the Company in connection with the consummation of the
transactions contemplated by this Agreement, except for filings
pursuant to Regulation D of the 1933 Act, and applicable state
securities laws, which have been made or will be made in a timely
manner.
e. No
Conflicts. The execution,
delivery and performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby
and thereby (including, without limitation, the issuance of the
Securities and reservation for issuance of the Conversion Shares)
will not (i) conflict with or result in a violation of any
provision of the Articles of Incorporation, as amended or By-laws,
or (ii) violate or conflict with, or result in a breach of any
provision of, or constitute a default (or an event which with
notice or lapse of time or both could become a default) under, or
give to others any rights of termination, amendment, acceleration
or cancellation of, any agreement, indenture, patent, patent
license or instrument to which the Company or any of its
Subsidiaries is a party, or (iii) result in a violation of any law,
rule, regulation, order, judgment or decree (including federal and
state securities laws and regulations and regulations of any
self-regulatory organizations to which the Company or its
securities are subject) applicable to the Company or any of its
Subsidiaries or by which any property or asset of the Company or
any of its Subsidiaries 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 (as defined herein)). The
businesses of the Company and its Subsidiaries, if any, are not
being conducted, and shall not be conducted so long as the Buyer
owns any of the Securities, in violation of any law, ordinance or
regulation of any governmental entity. “Material Adverse
Effect” means any material adverse effect on the business,
operations, assets, financial condition or prospects of the Company
or its Subsidiaries, if any, taken as a whole, or on the
transactions contemplated hereby or by the agreements or
instruments to be entered into in connection
herewith.
f. SEC
Documents; Financial Statements. The Company has filed all reports, schedules,
forms, statements and other documents required to be filed by it
with the SEC pursuant to the reporting requirements of the
Securities Exchange Act of 1934, as amended (the
“1934
Act”) (all of the
foregoing filed prior to the date hereof and all exhibits included
therein and financial statements and schedules thereto and
documents (other than exhibits to such documents) incorporated by
reference therein, being hereinafter referred to herein as the
“SEC
Documents”). Upon written
request the Company will deliver to the Buyer true and complete
copies of the SEC Documents, except for such exhibits and
incorporated documents. As of their respective dates or if amended,
as of the dates of the amendments, the SEC Documents complied in
all material respects with the requirements of the 1934 Act and the
rules and regulations of the SEC promulgated thereunder applicable
to the SEC Documents, and none of the SEC Documents, at the time
they were filed with the SEC, 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. None of the statements made in any such SEC
Documents is, or has been, required to be amended or updated under
applicable law (except for such statements as have been amended or
updated in subsequent filings prior the date hereof). As of their
respective dates or if amended, as of the dates of the amendments,
the financial statements of the Company included in the SEC
Documents complied as to form in all material respects with
applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto. Such financial
statements have been prepared in accordance with United States
generally accepted accounting principles, consistently applied,
during the periods involved and fairly present in all material
respects the consolidated financial position of the Company and its
consolidated Subsidiaries as of the dates thereof and the
consolidated results of their operations and cash flows for the
periods then ended (subject, in the case of unaudited statements,
to normal year-end audit adjustments). The Company is subject to
the reporting requirements of the ▇▇▇▇ ▇▇▇.
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g. Absence
of Certain Changes. Since
September 30, 2019, except as set forth in the SEC Documents, there
has been no material adverse change and no material adverse
development in the assets, liabilities, business, properties,
operations, financial condition, results of operations, prospects
or 1934 Act reporting status of the Company or any of its
Subsidiaries.
h. Absence
of Litigation. Except as set
forth in the SEC Documents, there is no action, suit, claim,
proceeding, inquiry or investigation before or by any court, public
board, government agency, self-regulatory organization or body
pending or, to the knowledge of the Company or any of its
Subsidiaries, threatened against or affecting the Company or any of
its Subsidiaries, or their officers or directors in their capacity
as such, that could have a Material Adverse Effect. The Company and
its Subsidiaries are unaware of any facts or circumstances which
might give rise to any of the foregoing. Neither the Company nor,
to the Company’s knowledge, any of its officers or directors
is a party or is named as subject to the provisions of any order,
writ, injunction, judgment or decree of any court or government
agency or instrumentality (in the case of officers or directors,
such as would affect the Company). There is no action, suit,
proceeding or investigation by the Company pending or which the
Company intends to initiate. The foregoing includes, without
limitation, actions, suits, proceedings or investigations pending
or threatened in writing (or any basis therefor known to the
Company) involving the prior employment of any of the
Company’s employees, their services provided in connection
with the Company’s business, any information or techniques
allegedly proprietary to any of their former employers or their
obligations under any agreements with prior
employers.
i. No
Integrated Offering. Neither
the Company, nor any of its affiliates, nor any person acting on
its or their behalf, has directly or indirectly made any offers or
sales in any security or solicited any offers to buy any security
under circumstances that would require registration under the 1933
Act of the issuance of the Securities to Buyer. The issuance of the
Securities to Buyer will not be integrated with any other issuance
of the Company’s securities (past, current or future) for
purposes of any shareholder approval provisions applicable to the
Company or its securities.
j. No
Investment Company. The Company
is not, and upon the issuance and sale of the Securities as
contemplated by this Agreement will not be an “investment
company” required to be registered under the Investment
Company Act of 1940 (an “Investment
Company”). The Company is
not controlled by an Investment Company.
k. Disclosure.
No representation or warranty of the Company contained in this
Agreement, and no certificate furnished or to be furnished to Buyer
in connection with the transactions contemplated hereby contains
any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained
herein or therein not misleading in light of the circumstances
under which they were made.
a. Best
Efforts. The Company shall use
its best efforts to satisfy timely each of the conditions described
in Section 6 of this
Agreement.
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b. Corporate
Existence. During the period
that any of the Series A Shares are outstanding, the Company shall
maintain its corporate existence and shall not sell all or
substantially all of the Company’s assets, except with the
prior written consent of the Buyer.
c. Failure
to Comply with the 1934 Act.
During the period that any of the Series A Shares are outstanding,
the Company shall comply with the reporting requirements of the
1934 Act and the Company shall continue to be subject to the
reporting requirements of the 1934 Act.
d. Breach
of Covenants. If the Company
breaches any of the covenants set forth in this Section
4, and in
addition to any other remedies available to Buyer pursuant to this
Agreement, it will be considered an event of default under the
Certificate of Designation.
5. Conditions
to the Company’s Obligation to Sell. The obligation of the Company hereunder to issue
and sell the Series A Shares to any Buyer at the closing is subject
to the satisfaction, at or before the closing date of each of the
following conditions thereto, provided that these conditions are
for the Company’s sole benefit and may be waived by the
Company at any time in its sole discretion:
a. The
Buyer shall have executed this Agreement and delivered the same to
the Company.
b. The
Buyer shall have executed the Partner Agreement.
c. The
representations and warranties of the Buyer shall be true and
correct in all material respects as of the date when made and as of
the closing date as though made at that time (except for
representations and warranties that speak as of a specific date),
and the Buyer shall have performed, satisfied and complied in all
material respects with the covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied
with by the Buyer at or prior to the closing date.
d. No
litigation, statute, rule, regulation, executive order, decree,
ruling or injunction shall have been enacted, entered, promulgated
or endorsed by or in any court or governmental authority of
competent jurisdiction or any self-regulatory organization having
authority over the matters contemplated hereby which prohibits the
consummation of any of the transactions contemplated by this
Agreement.
6. Conditions to the
Buyer’s Obligation to Purchase. The obligation of Buyer hereunder to
purchase the Series A Shares at the Closing is subject to the
satisfaction, at or before the closing date of each of the
following conditions, provided that these conditions are for such
Buyer’s sole benefit and may be waived by such Buyer at any
time in its sole discretion:
a. The
Company shall have executed this Agreement and delivered the same
to the Buyer.
b. The
Company shall have delivered to the Buyer the duly executed Series
A Shares stock certificates (in such denominations as the Buyer
shall request) in accordance with Section 1(b)
above.
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c. The
representations and warranties of the Company shall be true and
correct in all material respects as of the date when made and as of
the closing date as though made at such time (except for
representations and warranties that speak as of a specific date)
and the Company shall have performed, satisfied and complied in all
material respects with the covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied
with by the Company at or prior to the closing date. The Buyer
shall have received a certificate or certificates, executed by the
chief executive officer of the Company, dated as of the closing
date, to the foregoing effect and as to such other matters as may
be reasonably requested by the Buyer including, but not limited to
certificates with respect to the Board of Directors’
resolutions relating to the transactions contemplated
hereby.
d. No
litigation, statute, rule, regulation, executive order, decree,
ruling or injunction shall have been enacted, entered, promulgated
or endorsed by or in any court or governmental authority of
competent jurisdiction or any self-regulatory organization having
authority over the matters contemplated hereby which prohibits the
consummation of any of the transactions contemplated by this
Agreement.
e. No
event shall have occurred which could reasonably be expected to
have a Material Adverse Effect on the Company including, but not
limited, to a change in the 1934 Act reporting status of the
Company or the failure of the Company to be timely in its 1934 Act
reporting obligations.
f. The Certificate of
Designation shall be in effect.
g. The Company shall
have delivered to the Buyer a Certificate of the Secretary of the
Company certifying (i) the Charter and Bylaws of the Company, and
(ii) resolutions of the Board of Directors of the Company approving
the transactions contemplated hereby.
a. Governing
Law. This Agreement shall be
governed by and construed in accordance with the laws of the State
of Nevada without regard to principles of conflicts of laws. Any
action brought by either party against the other concerning the
transactions contemplated by this Agreement shall be brought only
in the state courts of California located in Santa ▇▇▇▇▇ County,
California or in the federal courts located in the Northern
District of California. The parties to this Agreement hereby
irrevocably waive any objection to jurisdiction and venue of any
action instituted hereunder and shall not assert any defense based
on lack of jurisdiction or venue or based upon forum non
conveniens. The Company and the
Buyer waive trial by jury. The prevailing party shall be entitled
to recover from the other party its reasonable attorney's fees and
costs. In the event that any provision of this Agreement or any
other agreement delivered in connection herewith is invalid or
unenforceable under any applicable statute or rule of law, then
such provision shall be deemed inoperative to the extent that it
may conflict therewith and shall be deemed modified to conform with
such statute or rule of law. Any such provision which may prove
invalid or unenforceable under any law shall not affect the
validity or enforceability of any other provision of any agreement.
Each party hereby irrevocably waives personal service of process
and consents to process being served in any suit, action or
proceeding in connection with this Agreement, the Series A Shares,
the Certificate of Designation or any related document or agreement
by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the
address in effect for notices to it under this Agreement and agrees
that such service shall constitute good and sufficient service of
process and notice thereof. Nothing contained herein shall be
deemed to limit in any way any right to serve process in any other
manner permitted by law.
b. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which shall constitute
one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the
other party.
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c. Headings.
The headings of this Agreement are for convenience of reference
only and shall not form part of, or affect the interpretation of,
this Agreement.
d. Severability.
In the event that any provision of this Agreement is invalid or
unenforceable under any applicable statute or rule of law, then
such provision shall be deemed inoperative to the extent that it
may conflict therewith and shall be deemed modified to conform with
such statute or rule of law. Any provision hereof which may prove
invalid or unenforceable under any law shall not affect the
validity or enforceability of any other provision
hereof.
e. Entire
Agreement; Amendments. This
Agreement and the instruments referenced herein contain the entire
understanding of the parties with respect to the matters covered
herein and therein and, except as specifically set forth herein or
therein, neither the Company nor the Buyer makes any
representation, warranty, covenant or undertaking with respect to
such matters. No provision of this Agreement may be waived or
amended other than by an instrument in writing signed by the
parties hereto.
f. 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 (i) personally
served, (ii) deposited in the mail, registered or certified, return
receipt requested, postage prepaid, (iii) delivered by reputable
air courier service with charges prepaid, or (iv) transmitted by
hand delivery, telegram, facsimile, or email, addressed as set
forth above or to such other address as such party shall have
specified most recently by written notice. Any notice or other
communication required or permitted to be given hereunder shall be
deemed effective (a) upon hand delivery or delivery by email or
facsimile, with accurate confirmation generated by the transmitting
facsimile machine, at the address or number designated below (if
delivered on a business day during normal business hours where such
notice is to be received), or the first (1st)
business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to
be received) or (b) on the second (2nd)
business day following the date of mailing by express courier
service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur.
Each party shall provide notice to the
other party of any change in address.
g. Successors
and Assigns. This Agreement
shall be binding upon and inure to the benefit of the parties and
their successors and assigns. Neither the Company nor the Buyer
shall assign this Agreement or any rights or obligations hereunder
without the prior written consent of the other. Notwithstanding the
foregoing, any Buyer may assign its rights hereunder to any person
that purchases Securities in a private transaction from such Buyer
or to any of its “affiliates,” as that term is defined
under the 1934 Act, without the consent of the
Company.
h. Survival
and Indemnification. The
representations and warranties of the Company and the agreements
and covenants set forth in this Agreement shall survive the closing
hereunder notwithstanding any due diligence investigation conducted
by or on behalf of the Buyer. The Company agrees to indemnify and
hold harmless the Buyer and all their officers, directors,
employees and agents for loss or damage arising as a result of or
related to any breach or alleged breach by the Company of any of
its representations, warranties and covenants set forth in this
Agreement or any of its covenants and obligations under this
Agreement, including advancement of expenses as they are
incurred.
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i. 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.
j. 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.
k. Remedies.
The Company acknowledges that a breach by it of its obligations
hereunder will cause irreparable harm to the Buyer by vitiating the
intent and purpose of the transaction contemplated hereby.
Accordingly, the Company acknowledges that the remedy at law for a
breach of its obligations under this Agreement will be inadequate
and agrees, in the event of a breach or threatened breach by the
Company of the provisions of this Agreement, that the Buyer shall
be entitled, in addition to all other available remedies at law or
in equity, and in addition to the penalties assessable herein, to
an injunction or injunctions restraining, preventing or curing any
breach of this Agreement and to enforce specifically the terms and
provisions hereof, without the necessity of showing economic loss
and without any bond or other security being required. No delay or
omission to exercise any right, power or remedy accruing to any
party under this Agreement, upon any breach or default of any other
party under this Agreement, shall impair any such right, power or
remedy of such non-breaching or non-defaulting party nor shall it
be construed to be a waiver of any such breach or default, or an
acquiescence therein, or of or in any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or
approval of any kind or character on the part of any party of any
breach or default under this Agreement, or any waiver on the part
of any party of any provisions or conditions of this Agreement,
must be in writing and shall be effective only to the extent
specifically set forth in such writing.
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REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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▇▇▇▇▇▇▇▇ ▇▇.
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Chief
Executive Officer
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BUYER:
ECLECTIC ARTISTS, LLC
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| Name: |
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| Address: |
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11
EXHIBIT A
Certificate of Designation
See attached.
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