SHARE EXCHANGE AGREEMENT
Exhibit 10.1
THIS SHARE EXCHANGE
AGREEMENT (this “Agreement”) is entered into as of
the 31st
day of August, 2018 by and among Guided Therapeutics, Inc., a
Delaware corporation (the “Company”) and each of the
shareholders of the Company identified on Schedule A hereto (each a
“Shareholder,”
and collectively, the “Shareholders,” and, together with
the Company, the “Parties”).
WHEREAS, each Shareholder currently owns
the shares of Series C1 Convertible Preferred Stock, par value
$0.001 per share (the “Series
C1 Shares”), of the Company listed and specified
on Schedule
A hereto.
WHEREAS, each Shareholder wishes to
exchange its Series C1 Shares for shares of Series C2 Convertible
Preferred Stock, par value $0.001 per share (the
“Series C2
Shares”), of the Company, upon the terms and
conditions set forth in this Agreement and the related Series C2
Preferred Stock Certificate of Designation filed with the Secretary
of State of the State of Delaware.
NOW, THEREFORE, in consideration of the
mutual promises, covenants and agreements herein, and intending to
be legally bound hereby, the Parties agree as follows:
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1.
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Exchange of Shares.
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(a)
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Exchange. On the terms and subject
to the conditions set forth in this Agreement, at the Closing
(i) each Shareholder will convey, transfer and assign to the
Company, free and clear of all liens, pledges, encumbrances,
changes, restrictions or known claims of any kind, nature or
description, and the Company will accept from each Shareholder, the
Series C1 Shares in the individual amounts as set forth
on Schedule A,
and (ii) in exchange for the transfer of such Series C1 Shares
by the Shareholders, the Company will issue to the Shareholders the
Series C2 Shares in the individual amounts as set forth
on Schedule
A (such exchange referred to herein as the
“Exchange”).
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(b)
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Closing. The closing of the
Exchange (the “Closing”) shall occur
simultaneously with the filing of the Certificate of Designation by
the Company with the Secretary of State of the State of
Delaware.
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2.
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Representations and
Warranties.
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(a)
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Representations and Warranties of the
Shareholders. Each Shareholder severally, and not
jointly, hereby represents and warrants to the Company as
follows:
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(i)
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Authorization; No Restrictions,
Consents or Approvals. Such Shareholder has the right,
power, legal capacity and authority to enter into and perform such
Shareholder’s obligations under this Agreement; and no
approvals or consents are necessary in connection
therewith. All of the Series C1 Shares owned by such
Shareholder are owned free and clear of all liens, pledges,
encumbrances, changes, restrictions or known claims of any kind,
nature or description.
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(ii)
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Transfer of Series C1
Shares. The Series C1 Shares owned by such Shareholder
will, at the Closing, be validly transferred to the Company free
and clear of any encumbrances, taxes, liens and charges with
respect to the transfer thereof and such shares shall be fully paid
and non-assessable with the holder being entitled to all rights
accorded to a holder of Series C1 Shares.
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(iii)
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Investment
Representations.
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(A)
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Each such Shareholder
understands that the Series C2 Shares have not been registered
under the Securities Act of 1933, as amended (the
“Securities
Act”) or any other applicable securities laws. Each
such Shareholder also understands that the Series C2 Shares are
being offered and issued pursuant to an exemption from the
registration requirements of the Securities Act, under
Section 3(a)(9), Section 4(a)(2) of the Securities Act and/or
Regulation D promulgated under the Securities
Act.
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(B)
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Each such Shareholder
has received all the information such Shareholder considers
necessary or appropriate for deciding whether to acquire the Series
C2 Shares. Each such Shareholder understands the risks involved in
an investment in the Series C2 Shares. Each such Shareholder
further represents that such Shareholder has had an opportunity to
ask questions and receive answers from the Company regarding the
terms and conditions of the exchange of the Series C2 Shares and
the business, properties, prospects, and financial condition of the
Company and to obtain such additional information necessary to
verify the accuracy of any information furnished to such
Shareholder or to which such Shareholder had access. Each such
Shareholder further represents that such Shareholder is an
“accredited investor” within the meaning of Rule 501(a)
of the Securities Act.
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(C)
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Each such Shareholder
is acquiring the Series C2 Shares for such Shareholder’s own
account for investment only and not with a view towards their
resale or “distribution” (within the meaning of the
Securities Act) of any part of the Series C2 Shares.
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(D)
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Each such Shareholder
understands that the Series C2 Shares may not be offered, sold or
otherwise transferred except in compliance with the registration
requirements of the Securities Act and any other applicable
securities laws or pursuant to an exemption therefrom, and in each
case in compliance with the conditions set forth in this
Agreement.
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(E)
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Each such Shareholder
acknowledges and agrees that each certificate representing the
Series C2 Shares shall bear a legend substantially in the following
form:
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“THE SECURITIES
REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE
SECURITIES LAWS OF ANY STATE. THE SECURITIES MAY NOT BE TRANSFERRED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH
ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN
APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT
AND SUCH LAWS.”
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(iv)
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No Reliance. Each such
Shareholder has not relied on and is not relying on any
representations, warranties or other assurances regarding the
Company other than the representations and warranties expressly set
forth in this Agreement.
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(b)
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Representations and Warranties of the
Company. The Company hereby represents and warrants to
the Shareholders that the representations and warranties made by
the Company are true and correct in all material
respects. The Company hereby further represents and
warrants to Shareholders as follows:
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(i)
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Organization and
Qualification. The Company is a corporation duly
organized, validly existing and in good standing under the laws of
the jurisdiction of its incorporation.
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(ii)
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Authorization; No Restrictions,
Consents or Approvals. The Company has full power
and authority to enter into and perform its obligations under this
Agreement. This Agreement has been duly executed by the Company and
constitutes the legal, valid, binding and enforceable obligation of
the Company, enforceable against the Company in accordance with its
terms. The execution and delivery of this Agreement and the
consummation by the Company of the transactions contemplated herein
do not and will not on the Closing (A) conflict with or
violate any of the terms of the certificate of incorporation and
bylaws of the Company or any applicable law relating to the
Company, (B) conflict with, or result in a breach of any of
the terms of, or result in the acceleration of any indebtedness or
obligations under, any material agreement, obligation or instrument
by which the Company is bound or to which any property of the
Company is subject, or constitute a default thereunder, other than
those material agreements, obligations or instruments for which the
Company has obtained consent for the transactions contemplated
under this Agreement, (C) result in the creation or imposition
of any lien on any of the assets of the Company,
(D) constitute an event permitting termination of any material
agreement or instrument to which the Company is a party or by which
any property or asset of the Company is bound or affected, pursuant
to the terms of such agreement or instrument, other than those
material agreements or instruments for which the Company has
obtained consent for the transactions contemplated under this
Agreement, or (E) conflict with, or result in or constitute a
default under or breach or violation of or grounds for termination
of, any license, permit or other governmental authorization to
which the Company is a party or by which the Company may be bound,
or result in the violation by the Company of any laws to which the
Company may be subject, which would materially adversely affect the
transactions contemplated herein. No authorization, consent or
approval of, notice to, or filing with, any public body or
governmental authority or any other person is necessary or required
in connection with the execution and delivery by the Company of
this Agreement or the performance by the Company of its obligations
hereunder.
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3.
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Closing.
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(a)
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Conditions to Shareholders’
Obligations. The obligations of Shareholders under this
Agreement shall be subject to satisfaction of the following
conditions, unless waived by Shareholders: (i) the Company
shall have performed in all material respects all agreements, and
satisfied in all material respects all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing;
(ii) all of the representations and warranties of the Company
herein shall have been true and correct in all respects when made,
shall have continued to have been true and correct in all respects
at all times subsequent thereto, and shall be true and correct in
all material respects on and as of the Closing as though made on,
as of, and with reference to such Closing; (iii) the Company
shall have executed and delivered to Shareholders all documents
necessary to issue the Series C2 Shares to Shareholders, as
contemplated by this Agreement; and (iv) the Company shall
have obtained or made, as applicable, all consents, authorizations
and approvals from, and all declarations, filings and registrations
required to consummate the Exchange contemplated by this
Agreement.
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(b)
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Closing Documents. At the Closing:
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(i)
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Shareholders shall
deliver to the Company, in form and substance reasonably
satisfactory to the Company, certificates evidencing the Series C1
Shares, together with stock powers authorizing the officers of the
Company to effect the transfer of the Series C1 Shares to the
Company;
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(ii)
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The Company shall
deliver to Shareholders, in form and substance reasonably
satisfactory to Shareholders, certificates evidencing the Series C2
Shares, registered in the name of Shareholders.
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4.
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General Provisions.
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(a)
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Governing Law. This Agreement is to
be construed in accordance with and governed by the internal laws
of the State of Delaware without giving effect to any choice of law
rule that would cause the application of the laws of any
jurisdiction other than the internal laws of the State of Delaware
to the rights and duties of the Parties.
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(b)
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Severability. If any provision of
this Agreement is held by a court or other tribunal of competent
jurisdiction to be invalid or unenforceable for any reason, the
remaining provisions shall continue in full force and effect
without being impaired or invalidated in any way, and the Parties
agree to replace any invalid provision with a valid provision which
most closely approximates the intent and economic effect of the
invalid provision.
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(c)
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Waiver. The waiver by either party
of a breach of or default under any provision of this Agreement
shall not be effective unless in writing and shall not be construed
as a waiver of any subsequent breach of or default under the same
or any other provision of this Agreement. Further, any failure or
delay on the part of either party to exercise or avail itself of
any right or remedy that it has or may have hereunder shall not
operate as a waiver of any such right or remedy or preclude other
or further exercise thereof or of any other right or
remedy.
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(d)
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Notices. Any notices required or
permitted hereunder shall be given to the appropriate party at the
address specified in writing. Such notice shall be deemed given:
(i) if delivered personally, upon delivery as evidenced by
delivery records; (ii) if sent by telephone facsimile, upon
confirmation of receipt; (iii) if sent by certified or
registered mail, postage prepaid, five (5) days after the date
of mailing; of (iv) if sent by nationally recognized express
courier, two (2) business days after date of placement with
such courier.
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(e)
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No Third Party
Beneficiaries. Nothing in this Agreement shall be
construed to confer any rights or benefits upon any person other
than the Parties hereto, and no other person shall have any rights
or remedies hereunder.
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(f)
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Termination. This Agreement may be
terminated upon written notice at any time prior to Closing by
mutual written consent of the terminating Shareholder and the
Company (the Terminating
Parties”). Termination of this Agreement will
terminate all rights and obligations of the Terminating Parties
under this Agreement and this Agreement will become void and have
no force or effect on the Terminating Parties.
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(g)
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Entire Agreement. This Agreement
constitutes the entire agreement between the Parties and supersedes
all prior oral and written agreements between the Parties hereto
with respect to the subject matter hereof.
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(h)
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Counterparts. This Agreement may be
executed in one or more counterparts (including fax counterparts)
each of which shall be deemed an original and all of which shall be
taken together and deemed to be one instrument.
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[SIGNATURE PAGES
FOLLOW]
IN WITNESS WHEREOF,
the parties have executed this Share Exchange Agreement as of the
date first above written.
COMPANY:
Guided Therapeutics, Inc.
By:
Name: Xxxx X.
Xxxxxxxxxx
Title: President
and Chief Executive Officer
SHAREHOLDERS:
By:
Name:
Title:
By:
Name:
Title:
By:
Name:
Title:
