SECURITIES PURCHASE AGREEMENT
Exhibit 10.58
This
SECURITIES PURCHASE AGREEMENT (the "Agreement"), dated as of March
31, 2020, by and between GUIDED THERAPEUTICS, INC., a Delaware
corporation, with headquarters located at 0000 Xxxxxxxxx Xxxxxx
Xxxx, Xxxxx X, Xxxxxxxx, Xxxxxxx 00000 (the "Company"), and AUCTUS
FUND, LLC, a Delaware limited liability company, with its address
at 000 Xxxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx, XX 00000 (the
"Buyer").
A. The
Company and the Buyer are executing and delivering this Agreement
in reliance upon the exemption from securities registration
afforded by the rules and regulations as promulgated by the United
States Securities and Exchange Commission (the "SEC") under the
Securities Act of 1933, as amended (the "1933 Act");
B.
Buyer desires to purchase and the Company desires to issue and
sell, upon the terms and conditions set forth in this Agreement the
12% convertible note of the Company, in the form attached hereto as
Exhibit A, in the aggregate principal amount of US$1l2,750.00
(together with any note(s) issued in replacement thereof or as a
dividend thereon or otherwise with respect thereto in accordance
with the terms thereof, the "Note"), convertible into shares of
common stock, $0.001 par value per share, of the Company (the
"Common Stock"), upon the terms and subject to the limitations and
conditions set forth in such Note.
C. The
Buyer wishes to purchase, upon the terms and conditions stated in
this Agreement, such principal amount of Note as is set forth
immediately below its name on the signature pages hereto;
and
1.
PURCHASE AND SALE OF NOTE.
a.
Purchase of Note. On the Closing Date (as defined below), the
Company shall issue and sell to the Buyer and the Buyer agrees to
purchase from the Company such principal amount of Note as is set
forth immediately below the Buyer's name on the signature pages
hereto. In connection with the issuance of the Note, the Company
shall issue a common stock purchase warrant to Buyer to purchase
250,000 shares of the Company's common stock (the "Warrant") as a
commitment fee upon the terms and subject to the limitations and
conditions set forth in such Warrant.
b.
Form of Payment. On the Closing Date (as defined below), (i) the
Buyer shall pay the purchase price for the Note to be issued and
sold to it at the Closing (as defined below) (the "Purchase Price")
by wire transfer of immediately available funds to the Company, in
accordance with the Company's written wiring instructions, against
delivery of the Note in the principal amount equal to the Purchase
Price as is set forth immediately below the Buyer' s name on the
signature pages hereto, and (ii) the Company shall deliver such
duly executed Note and Warrant on behalf of the Company, to the
Buyer, against delivery of such Purchase Price.
c.
Closing Date. Subject to the satisfaction (or written waiver) of
the conditions thereto set forth in Section 7 and Section 8 below,
the date and time of the issuance and sale of the Note pursuant to
this Agreement (the "Closing Date") shall be 12:00 noon, Eastern
Standard Time on or about March 31, 2020, or such other mutually
agreed upon time. The closing of the transactions contemplated by
this Agreement (the "Closing") shall occur on the Closing Date at
such location as may be agreed to by the parties.
2.
REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer represents
and warrants to the Company that:
a.
Investment Purpose. As of the date hereof, the Buyer is purchasing
the Note and the shares of Common Stock issuable upon conversion of
or otherwise pursuant to the Note (including, without limitation,
such additional shares of Common Stock, if any, as are issuable (i)
on account of interest on the Note (ii) as a result of the events
described in Sections 1.3 and 1.4(g) of the Note or (iii) in
payment of the Standard Liquidated Damages Amount (as defined in
Section 2(t) below) pursuant to this Agreement, such shares of
Common Stock being collectively referred to herein as the
"Conversion Shares" and, collectively with the Note, Warrant, and
the shares of Common Stock issuable upon exercise of the Warrant,
the "Securities") for its own account and not with a present view
towards the public sale or distribution thereof, except pursuant to
sales registered or exempted from registration under the 1933 Act;
provided, however, that by making the representations herein, the
Buyer does not agree to hold any of the Securities for any minimum
or other specific term and reserves the right to dispose of the
Securities at any time in accordance with or pursuant to a
registration statement or an exemption under the 1933
Act.
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b.
Accredited Investor Status. The Buyer is an "accredited investor"
as that term is defined in Rule 501(a) of Regulation D (an
"Accredited Investor").
c. Reliance on Exemptions. The Buyer understands
that the Securities are being offered and sold to
it
in reliance upon specific exemptions
from the registration requirements of United States federal and
state securities laws and that the Company is relying upon the
truth and accuracy of, and the Buyer's compliance with, the
representations, warranties, agreements, acknowledgments and
understandings of the Buyer set forth herein in order to determine
the availability of such exemptions and the eligibility of the
Buyer to acquire the Securities.
d.
Information. The Buyer and its advisors, if any, have been, and for
so long as the Note remains outstanding will continue to be,
furnished with all materials relating to the business, finances and
operations of the Company and materials relating to the offer and
sale of the Securities which have been requested by the Buyer or
its advisors. The Buyer and its advisors, if any, have been, and
for so long as the Note remains outstanding will continue to be,
afforded the opportunity to ask questions of the Company.
Notwithstanding the foregoing, the Company has not disclosed to the
Buyer any material nonpublic information and will not disclose such
information unless such information is disclosed to the public
prior to or promptly following such disclosure to the Buyer.
Neither such inquiries nor any other due diligence investigation
conducted by Buyer or any of its advisors or representatives shall
modify, amend or affect Buyer's right to rely on the Company's
representations and warranties contained in Section 3 below. The
Buyer understands that its investment in the Securities involves a
significant degree of risk. The Buyer is not aware of any facts
that may constitute a breach of any of the Company's
representations and warranties made herein.
e.
Governmental Review. The Buyer understands that no United States
federal or state agency or any other government or governmental
agency has passed upon or made any recommendation or endorsement of
the Securities.
f.
Transfer or Re-sale. The Buyer understands that (i) the sale or
re-sale of the Securities has not been and is not being registered
under the 1933 Act or any applicable state securities laws, and the
Securities may not be transferred unless (a) the Securities are
sold pursuant to an effective registration statement under the 1933
Act, (b) the Buyer shall have delivered to the Company, at the cost
of the Company, an opinion of counsel that shall be in form,
substance and scope customary for opinions of counsel in comparable
transactions to the effect that the Securities to be sold or
transferred may be sold or transferred pursuant to an exemption
from such registration, which opinion shall be accepted by the
Company, (c) the Securities are sold or transferred to an
"affiliate" (as defined in Rule 144 promulgated under the 1933 Act
(or a successor rule) ("Rule 144")) of the Buyer who agrees to sell
or otherwise transfer the Securities only in accordance with this
Section 2(f) and who is an Accredited Investor, (d) the Securities
are sold pursuant to Rule 144, or (e) the Securities are sold
pursuant to Regulation S under the 1933 Act (or a successor rule)
("Regulation S"), and the Buyer shall have delivered to the
Company, at the cost of the Company, an opinion of counsel that
shall be in form, substance and scope customary for opinions of
counsel in corporate transactions, which opinion shall be accepted
by the Company; (ii) any sale of such Securities made in reliance
on Rille 144 may be made only in accordance with the terms of said
Rule and further, if said Rule is not applicable, any re-sale of
such Securities under circumstances in which the seller (or the
person through whom the sale is made) may be deemed to be an
underwriter (as that term is defined in the 0000 Xxx) may require
compliance with some other exemption under the 1933 Act or the
rules and regulations of the SEC thereunder;and (iii) neither the
Company nor any other person is under any obligation to register
such Securities under the 1933 Act or any state securities laws or
to comply with the terms and conditions of any exemption thereunder
(in each case). Notwithstanding the foregoing or anything else
contained herein to the contrary, the Securities may be pledged as
collateral in connection with a bona fide margin account or other
lending arrangement. In the event that the Company does not accept
the opinion of counsel provided by the Buyer with respect to the
transfer of Securities pursuant to an exemption from registration,
such as Rule 144 or Regulation S, within three (3) business days of
delivery of the opinion to the Company, the Company shall pay to
the Buyer liquidated damages of five percent (5%) of the
outstanding amount of the Note per day plus accrued and unpaid
interest on the Note, prorated for partial months, in cash or
shares at the option of the Buyer ("Standard Liquidated Damages
Amount"). If the Buyer elects to be pay the Standard Liquidated
Damages Amount in shares of Common Stock, such shares shall be
issued at the Conversion Price (as defined in the Note) at the time
of payment.
g.
Legends. The Buyer understands that the Note and, until such time
as the Conversion Shares have been registered under the 1933 Act
may be sold pursuant to Rule 144 or Regulation S without any
restriction as to the number of securities as of a particular date
that can then be immediately sold, the Conversion Shares may bear a
restrictive legend in substantially the following form (and a
stop-transfer order may be placed against transfer of the
certificates for such Securities):
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"NEITHER THE
ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY TIDS CERTIFICATE
NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED
FOR SALE, SOLD, TRANSFERRED OR ASSIGNED
(I) IN
THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN
OPINION OF COUNSEL (WHICH COUNSEL SHALL BE SELECTED BY THE HOLDER),
IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED
UNDER SAID ACT OR (U) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A
UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY
BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER
LOAN OR FINANCING ARRANGEMENT SECURED BY THE
SECURITIES."
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 Rule 144 or
Regulation S 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. In the event that the
Company does not accept the opinion of counsel provided by the
Buyer with respect to the transfer of Securities pursuant to an
exemption from registration, such as Rule 144 or Regulation S, at
the Deadline, it will be considered an Event of Default pursuant to
Section 3.2 of the Note.
h.
Authorization; Enforcement. This Agreement has been duly and
validly authorized. This Agreement has been duly executed and
delivered on behalf of the Buyer, and this Agreement constitutes a
valid and binding agreement of the Buyer enforceable in accordance
with its terms.
I.
Residency. The Buyer is a resident of the jurisdiction set forth in
the preamble.
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. The Company and each of its
Subsidiaries is duly qualified as a foreign corporation to do
business and is in good standing in every jurisdiction in which its
ownership or use of property or the nature of the business
conducted by it makes such qualification necessary except where the
failure to be so qualified or in good standing would not have a
Material Adverse Effect. "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. "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, the Note 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, the Note by the Company and the consummation by it
of the transactions contemplated hereby and thereby (including
without limitation, the issuance of the Note 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 Note, each of such
instruments will constitute, a legal, valid and binding obligation
of the Company enforceable against the Company in accordance with
its terms.
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c.
Capitalization. As of the date hereof, the authorized capital stock
of the Company consists of: (i) 3,000,000,000 shares of Common
Stock, of which approximately 11,308,191 shares are issued and
outstanding; (ii) 9,000 shares of Series C preferred stock, of
which 300,000 are issued and outstanding, (iii) 20,300 shares of
Series Cl preferred stock, of which 1,000 are issued and
outstanding, and (iv) 5,000,000 shares of C2 preferred stock, of
which 3,300 are issued and outstanding. Except as disclosed in the
SEC Documents, no shares are reserved for issuance pursuant to the
Company's stock option plans, no shares are reserved for issuance
pursuant to securities (other than the Note and any other
convertible promissory note issued to the Buyer) exercisable for,
or convertible into or exchangeable for shares of Common Stock and
58,187,863 shares are reserved for issuance upon conversion of the
Note. All of such outstanding shares of capital stock are, or upon
issuance will be, duly authorized, validly issued, fully paid and
non-assessable. No shares of capital stock of the Company are
subject to preemptive rights or any other similar rights of the
shareholders of the Company or any liens or encumbrances imposed
through the actions or failure to act of the Company. Except as
disclosed in the SEC Documents, as of the effective date of this
Agreement, (i) there are no outstanding options, warrants, scrip,
rights to subscribe for, puts, calls, rights of first refusal,
agreements, understandings, claims or other commitments or rights
of any character whatsoever relating to, or securities or rights
convertible into or exchangeable for any shares of capital stock of
the Company or any of its Subsidiaries, or arrangements by which
the Company or any of its Subsidiaries is or may become bound to
issue additional shares of capital stock of the Company or any of
its Subsidiaries, (ii) there are no agreements or arrangements
under which the Company or any of its Subsidiaries is obligated to
register the sale of any of its or their securities under the 1933
Act and (iii) there are no anti-dilution or price adjustment
provisions contained in any security issued by the Company (or in
any agreement providing rights to security holders) that will be
triggered by the issuance of the Note or the Conversion Shares. The
Company has filed in its SEC Documents true and correct copies of
the Company's Certificate of Incorporation as in effect on the date
hereof ("Certificate of Incorporation"), the Company's By-laws, as
in effect on the date hereof (the "By-laws"), and the terms of all
securities convertible into or exercisable for Common Stock of the
Company and the material rights of the holders thereof in respect
thereto. The Company shall provide the Buyer with a written update
of this representation signed by the Company's Chief Executive on
behalf of the Company as of the Closing Date.
d.
Issuance of Shares. The issuance of the Note is duly authorized
and, upon issuance in accordance with the terms of this Agreement,
will be validly issued, fully paid and non-assessable and free from
all preemptive or similar rights, taxes, liens, charges and other
encumbrances with respect to the issue thereof. The Conversion
Shares are duly authorized and reserved for issuance and, upon
conversion of the Note in accordance with its respective terms,
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.
e.
Acknowledgment of Dilution. The Company understands and
acknowledges the potentially dilutive effect to the Common Stock
upon the issuance of the Conversion Shares upon conversion of the
Note. The Company further acknowledges that its obligation to issue
Conversion Shares upon conversion of the Note in accordance with
this Agreement, the Note is absolute and unconditional regardless
of the dilutive effect that such issuance may have on the ownership
interests of other shareholders of the Company.
f.
No Conflicts. The execution, delivery and performance of this
Agreement and the Note by the Company and the consummation by the
Company of the transactions contemplated hereby and thereby
(including, without limitation, the issuance and reservation for
issuance of the Conversion Shares) will not (i) conflict with or
result in a violation of any provision of the Certificate of
Incorporation 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). Neither the Company nor
any of its Subsidiaries is in violation of its Certificate of
Incorporation, By-laws or other organizational documents and
neither the Company nor any of its Subsidiaries is in default (and
no event has occurred which with notice or lapse of time or both
could put the Company or any of its Subsidiaries in default) under,
and neither the Company nor any of its Subsidiaries has taken any
action or failed to take any action that would give to others any
rights of termination, amendment, acceleration or cancellation of,
any agreement, indenture or instrument to which the Company or any
of its Subsidiaries is a party or by which any property or assets
of the Company or any of its Subsidiaries is bound or affected,
except for possible defaults as would not, individually or in the
aggregate, have a Material Adverse Effect. 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. Except as specifically contemplated by this
Agreement and as required under the 1933 Act and any applicable
state securities laws, the Company is not required to obtain any
consent, authorization or order of, or make any filing or
registration with, any court, governmental agency, regulatory
agency, self-regulatory organization or stock market or any third
party in order for it to execute, deliver or perform any of its
obligations under this Agreement, the Note in accordance with the
terms hereof or thereof or to issue and sell the Note in accordance
with the terms hereof and to issue the Conversion Shares upon
conversion of the Note. All consents, authorizations, orders,
filings and registrations which the Company is required to obtain
pursuant to the preceding sentence have been obtained or effected
on or prior to the date hereof. The Company is not in violation of
the listing requirements of the OTC Pink (the "OTC Pink"), the
OTCQB or any similar quotation system, and does not reasonably
anticipate that the Common Stock will be delisted by the OTC Pink,
the OTCQB or any similar quotation system, in the foreseeable
future nor are the Company's securities "chilled" by DTC. The
Company and its Subsidiaries are unaware of any facts or
circumstances which might give rise to any of the
foregoing.
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g.
SEC Documents;Financial Statements. On or before February 10, 2020,
the Company will have 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"). The Company has delivered to the Buyer true and
complete copies of the SEC Documents, except for such exhibits and
incorporated documents. As of their respective dates, 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, 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). Except
as set forth in the financial statements of the Company included in
the SEC Documents, the Company has no liabilities, contingent or
otherwise, other than (i) liabilities incurred in the ordinary
course of business subsequent to September 30, 2019, and (ii)
obligations under contracts and commitments incurred in the
ordinary course of business and not required under generally
accepted accounting principles to be reflected in such financial
statements, which, individually or in the aggregate, are not
material to the financial condition or operating results of the
Company. The Company is subject to the reporting requirements of
the 1934 Act For the avoidance of doubt, filing of the documents
required in this Section 3(g) via the SEC's Electronic Data
Gathering, Analysis, and Retrieval system ("XXXXX") shall satisfy
all delivery requirements of this Section 3(g).
h.
Absence of Certain Changes. Since September 30, 2019, 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.
i.
Absence of Litigation. 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 Schedule 3(i)
contains a complete list and summary description of any pending or,
to the knowledge of the Company, threatened proceeding against or
affecting the Company or any of its Subsidiaries, without regard to
whether it would 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.
j.
Patents, Copyrights, etc. The Company and each of its Subsidiaries
owns or possesses the requisite licenses or rights to use all
patents, patent applications, patent rights, inventions, know-how,
trade secrets, trademarks, trademark applications, service marks,
service names, trade names and copyrights ("Intellectual Property")
necessary to enable it to conduct its business as now operated
(and, as presently contemplated to be operated in the future).
Except as disclosed in the SEC Documents, there is no claim or
action by any person pertaining to, or proceeding pending, or to
the Company's knowledge threatened, which challenges the right of
the Company or of a Subsidiary with respect to any Intellectual
Property necessary to enable it to conduct its business as now
operated (and, as presently contemplated to be operated in the
future); to the best of the Company's knowledge, the Company's or
its Subsidiaries' current and intended products, services and
processes do not infringe on any Intellectual Property or other
rights held by any person; and the Company is unaware of any facts
or circumstances which might give rise to any of the foregoing. The
Company and each of its Subsidiaries have taken reasonable security
measures to protect the secrecy, confidentiality and value of their
Intellectual Property.
k.
No Materially Adverse Contracts, Etc. Neither the Company nor any
of its Subsidiaries is subject to any charter, corporate or other
legal restriction, or any judgment, decree, order, rule or
regulation which in the judgment of the Company's officers has or
is expected in the future to have a Material Adverse Effect.
Neither the Company nor any of its Subsidiaries is a party to any
contract or agreement which in the judgment of the Company's
officers has or is expected to have a Material Adverse
Effect.
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n.
Disclosure. All information relating to or concerning the Company
or any of its Subsidiaries set forth in this Agreement and provided
to the Buyer pursuant to Section 2( d) hereof and otherwise in
connection with the transactions contemplated hereby is true and
correct in all material respects and the Company has not omitted to
state any material fact necessary in order to make the statements
made herein or therein, in light of the circumstances under which
they were made, not misleading. No event or circumstance has
occurred or exists with respect to the Company or any of its
Subsidiaries or its or their business, properties, prospects,
operations or financial conditions, which, under applicable law,
rule or regulation, requires public disclosure or announcement by
the Company but which has not been so publicly announced or
disclosed (assuming for this purpose that the Company's reports
filed under the 1934 Act are being incorporated into an effective
registration statement filed by the Company under the 1933
Act).
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(i)
There are, to the Company's knowledge, with respect to the Company
or any of its Subsidiaries or any predecessor of the Company, no
past or present violations of Environmental Laws (as defined
below), releases of any material into the environment, actions,
activities, circumstances, conditions, events, incidents, or
contractual obligations which may give rise to any common law
environmental liability or any liability under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 or
similar federal, state, local or foreign laws and neither the
Company nor any of its Subsidiaries has received any notice with
respect to any of the foregoing, nor is any action pending or, to
the Company's knowledge, threatened in connection with any of the
foregoing. The term "Environmental Laws" means all federal, state,
local or foreign laws relating to pollution or protection of human
health or the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface
strata), including, without limitation, laws relating to emissions,
discharges, releases or threatened releases of chemicals,
pollutants contaminants, or toxic or hazardous substances or wastes
(collectively, "Hazardous Materials") into the environment, or
otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of
Hazardous Materials, as well as all authorizations, codes, decrees,
demands or demand letters, injunctions, judgments, licenses,
notices or notice letters, orders, permits, plans or regulations
issued, entered, promulgated or approved thereunder.
(ii)
Other than those that are or were stored, used or disposed of in
compliance with applicable law, no Hazardous Materials are
contained on or about any real property currently owned, leased or
used by the Company or any of its Subsidiaries, and no Hazardous
Materials were released on or about any real property previously
owned, leased or used by the Company or any of its Subsidiaries
during the period the property was owned, leased or used by the
Company or any of its Subsidiaries, except in the normal course of
the Company's or any of its Subsidiaries' business.
(iii)
There are no underground storage tanks on or under any real
property owned, leased or used by the Company or any of its
Subsidiaries that are not in compliance with applicable
law.
7
z.
Bad Actor. No officer or director of the Company would be
disqualified under Rule 506( d) of the Securities Act as amended on
the basis of being a "bad actor" as that term is established in the
September 19, 2013 Small Entity Compliance Guide published by the
SEC.
aa.
Shell Status. The Company represents that it is not a "shell"
issuer and has never been a "shell" issuer, or that if it
previously has been a "shell" issuer, that at least twelve (12)
months have passed since the Company has reported Form 10 type
information indicating that it is no longer a "shell" issuer.
Further, the Company will instruct its counsel to either (i) write
a 144-3(a)(9) opinion to allow for salability of the Conversion
Shares or (ii) accept such opinion from Holder's
counsel.
8
4.
COVENANTS.
a.
Best Efforts. The parties shall use their commercially reasonable
best efforts to satisfy timely each of the conditions described in
Section 7 and 8 of this Agreement.
b.
Form D; Blue Sky Laws. The Company agrees to file a Form D with
respect to the Securities as required under Regulation D and to
provide a copy thereof to the Buyer promptly after such filing. The
Company shall, on or before the Closing Date, take such action as
the Company shall reasonably determine is necessary to qualify the
Securities for sale to the Buyer at the applicable closing pursuant
to this Agreement under applicable securities or "blue sky" laws of
the states of the United States (or to obtain an exemption from
such qualification), and shall provide evidence of any such action
so taken to the Buyer on or prior to the Closing Date.
c.
Use of Proceeds. The Company shall use the proceeds from the sale
of the Note for working capital and other general corporate
purposes and shall not, directly or indirectly, use such proceeds
for any loan to or investment in any other corporation,
partnership, enterprise or other person (except in connection with
its currently existing direct or indirect
Subsidiaries).
d.
Right of First Refusal. Unless it shall have first delivered to the
Buyer, at least seventy two (72) hours prior to the closing of such
Future Offering (as defined herein), written notice describing the
proposed Future Offering, including the terms and conditions
thereof, and providing the Buyer an option during the seventy two
(72) hour period following delivery of such notice to purchase the
securities being offered in the Future Offering on the same terms
as contemplated by such Future Offering (the limitations referred
to in this sentence and the preceding sentence are collectively
referred to as the "Right of First Refusal") (and subject to the
exceptions described below), the Company will not conduct any
equity financing (including debt with an equity component) ("Future
Offerings") during the period beginning on the Closing Date and
ending twelve (12) months following the Closing Date. In the event
the terms and conditions of a proposed Future Offering are amended
in any respect after delivery of the notice to the Buyer concerning
the proposed Future Offering, the Company shall deliver a new
notice to the Buyer describing the amended terms and conditions of
the proposed Future Offering and the Buyer thereafter shall have an
option during the seventy two (72) hour period following delivery
of such new notice to purchase its pro rata share of the securities
being offered on the same terms as contemplated by such proposed
Future Offering, as amended. The foregoing sentence shall apply to
successive amendments to the terms and conditions of any proposed
Future Offering. The Right of First Refusal shall not apply to any
transaction involving (i) issuances of securities in a firm
commitment underwritten public offering (excluding a continuous
offering pursuant to Rule 415 under the 1933 Act), (ii) issuances
to employees, officers, directors, contractors, consultants or
other advisors approved by the Board, (iii) issuances to strategic
partners or other parties in connection with a commercial
relationship, or providing the Company with equipment leases, real
property leases or similar transactions approved by the Board (iv)
issuances of securities as consideration for a merger,
consolidation or purchase of assets, or in connection with any
strategic partnership or joint venture (the primary purpose of
which is not to raise equity capital), or in connection with the
disposition or acquisition of a business, product or license by the
Company. The Right of First Refusal also shall not apply to the
issuance of securities upon exercise or conversion of the Company's
options, warrants or other convertible securities outstanding as of
the date hereof or to the grant of additional options or warrants,
or the issuance of additional securities, under any Company stock
option or restricted stock plan approved by the shareholders of the
Company.
e.
Expenses. The Company shall reimburse Buyer for any and all
expenses incurred by them in connection with the negotiation,
preparation, execution, delivery and performance of this Agreement
and the other agreements to be executed in connection herewith
("Documents"), including, without limitation, reasonable attorneys'
and consultants' fees and expenses, transfer agent fees, fees for
stock quotation services, fees relating to any amendments or
modifications of the Documents or any consents or waivers of
provisions in the Documents, fees for the preparation of opinions
of counsel, escrow fees, and costs of restructuring the
transactions contemplated by the Documents. When possible, the
Company must pay these fees directly, including, but not limited
to, any and all wire fees, otherwise the Company must make
immediate payment for reimbursement to the Buyer for all fees and
expenses immediately upon written notice by the Buyer or the
submission of an invoice by the Buyer. At Closing, the Company's
initial obligation with respect to this transaction is to reimburse
Buyer's legal expenses shall be $2,750.00 plus the cost of wire
fees.
f.
Financial Information. The Company agrees to send or make available
the following reports to the Buyer until the Buyer transfers,
assigns, or sells all of the Securities:
(i)
within ten (10) days after the filing with the SEC, a copy of its
Annual Report on Form 10-K its Quarterly Reports on Form 10-Q and
any Current Reports on Form 8-K; (ii) within one (1) day after
release, copies of all press releases issued by the Company or any
of its Subsidiaries;and (iii) contemporaneously with the making
available or giving to the shareholders of the Company, copies of
any notices or other information the Company makes available or
gives to such shareholders. For the avoidance of doubt, filing the
documents required in (i) above via XXXXX or releasing any
documents set forth in (ii) above via a recognized wire service
shall satisfy the delivery requirements of this Section
4(f).
9
g.
Listing. The Company shall promptly secure the listing of the
Conversion Shares upon each national securities exchange or
automated quotation system, if any, upon which shares of Common
Stock are then listed (subject to official notice of issuance) and,
so long as the Buyer owns any of the Securities, shall maintain, so
long as any other shares of Common Stock shall be so listed, such
listing of all Conversion Shares from time to time issuable upon
conversion of the Note. The Company will obtain and, so long as the
Buyer owns any of the Securities, maintain the listing and trading
of its Common Stock on the OTC Pink, OTCQB or any equivalent
replacement exchange, the Nasdaq National Market (''Nasdaq''), the
Nasdaq SmallCap Market ("Nasdaq Small Cap"), the New York Stock
Exchange ("NYSE"), or the NYSE American and will comply in all
respects with the Company's reporting, filing and other obligations
under the bylaws or rules of the Financial Industry Regulatory
Authority ("FINRA") and such exchanges, as applicable. The Company
shall promptly provide to the Buyer copies of any material notices
it receives from the OTC Pink, OTCQB and any other exchanges or
quotation systems on which the Common Stock is then listed
regarding the continued eligibility of the Common Stock for listing
on such exchanges and quotation systems. The Company shall pay any
and all fees and expenses in connection with satisfying its
obligation under this Section 4(g).
h.
Corporate Existence. So long as the Buyer beneficially owns any
Note, the Company shall maintain its corporate existence and shall
not sell all or substantially all of the Company's assets, except
in the event of a merger or consolidation or sale of all or
substantially all of the Company's assets, where the surviving or
successor entity in such transaction (i) assumes the Company's
obligations hereunder and under the agreements and instruments
entered into in connection herewith and (ii) is a publicly traded
corporation whose Common Stock is listed for trading on the OTC
Pink, OTCQB, Nasdaq, NasdaqSmallCap, NYSE or AMEX.
i.
No Integration. The Company shall not make any offers or sales of
any security (other than the Securities) under circumstances that
would require registration of the Securities being offered or sold
hereunder under the 1933 Act or cause the offering of the
Securities to be integrated with any other offering of securities
by the Company for the purpose of any stockholder approval
provision applicable to the Company or its securities.
j.
Failure to Comply with the 1934 Act. So long as the Buyer
beneficially owns the Note, 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.
k.
[Intentionally Omitted].
l.
Restriction on Activities. Commencing as of the date first above
written, and until the payment of the Note in full or full
conversion of the Note, the Company shall not, directly or
indirectly, without the Buyer' s prior written consent, which
consent shall not be unreasonably withheld: (a) change the nature
of its business; (b) sell, divest, acquire, change the structure of
any material assets other than in the ordinary course of business;
or (c) solicit any offers for, respond to any unsolicited offers
for, or conduct any negotiations with any other person or entity in
respect of any variable rate debt transactions (except with respect
to the Notes (as defined belowΒ» (i.e., transactions were the
conversion or exercise price of the security issued by the Company
varies based on the market price of the Common Stock), whether a
transaction similar to the one contemplated hereby or any other
investment (unless the proceeds are sufficient to repay the Notes
in the entirety pursuant to the provisions of the Notes and the
Company repays the Notes in the entirety within one (l) business
day of the closing of the variable rate debt transaction); or (d)
file any registration statements with the SEC (except with respect
to the Buyer).
m.
Legal Counsel Opinions. Upon the request of the Buyer from to time
to time, the Company shall be responsible (at its cost) for
promptly supplying to the Company's transfer agent and the Buyer a
customary legal opinion letter of its counsel (the "Legal Counsel
Opinion") to the effect that the sale of Conversion Shares by the
Buyer or its affiliates, successors and assigns is exempt from the
registration requirements of the 1933 Act pursuant to Rule 144
(provided the requirements of Rule 144 are satisfied and provided
the Conversion Shares are not then registered under the 1933 Act
for resale pursuant to an effective registration statement). Should
the Company's legal counsel fail for any reason to issue the Legal
Counsel Opinion, the Buyer may (at the Company's cost) secure
another legal counsel to issue the Legal Counsel Opinion, and the
Company will instruct its transfer agent to accept such
opinion.
n.
Par Value. If the closing bid price at any time the Note is
outstanding falls below $0.00 l, the Company shall cause the par
value of its Common Stock to be reduced to $0.0000 I or
less.
o.
Breach of Covenants. The Company agrees that if the Company
breaches any of the covenants set forth in this Section 4, and in
addition to any other remedies available to the Buyer pursuant to
this Agreement, it will be considered an Event of Default under
Section 3.4 of the Note, the Company shall pay to the Buyer the
Standard Liquidated Damages Amount in cash or in shares of Common
Stock at the option of the Buyer, until such breach is cured, or
with respect to Section 4( d) above, the Company shall pay to the
Buyer the Standard Liquidated Damages Amount in cash or shares of
Common Stock, at the option of the Buyer, upon each violation of
such provision. If the Company elects to pay the Standard
Liquidated Damages Amounts in shares of Common Stock, such shares
shall be issued at the Conversion Price at the time of
payment.
10
1. Transaction Expense Amount. Upon Closing, the
Company shall pay Xxx Xxxxxxxx xxx 00/000 Xxxxxx Xxxxxx Dollars (US$10,000.00) to Auctus
Fund Management, LLC ("Auctus Management") to cover the Holder's
due diligence, monitoring, and other transaction costs incurred for
services rendered in connection herewith (the "Transaction Expense
Amount"). The Transaction Expense Amount shall be offset against
the proceeds of the Note and shall be paid to Auctus Management
upon the execution hereof.
2.Transfer
Agent Instructions. The Company shall issue irrevocable
instructions to its transfer agent to issue certificates,
registered in the name of the Buyer or its nominee, for the
Conversion Shares in such amounts as specified from time to time by
the Buyer to the Company upon conversion of the Note in accordance
with the terms thereof (the "Irrevocable Transfer Agent
Instructions"). In the event that the Borrower proposes to replace
its transfer agent, the Borrower shall provide, prior to the
effective date of such replacement, a fully executed Irrevocable
Transfer Agent Instructions in a form as initially delivered
pursuant to the Purchase Agreement (including but not limited to
the provision to irrevocably reserve shares of Common Stock in the
Reserved Amount) signed by the successor transfer agent to Borrower
and the Borrower. Prior to registration of the Conversion Shares
under the 1933 Act or the date on which the Conversion Shares may
be sold pursuant to Rule 144 without any restriction as to the
number of Securities as of a particular date that can then be
immediately sold, all such certificates shall bear the restrictive
legend specified in Section 2(g) of this Agreement. The Company
warrants that: (i) no instruction other than the Irrevocable
Transfer Agent Instructions referred to in this Section, and stop
transfer instructions to give effect to Section 2(f) hereof (in the
case of the Conversion Shares, prior to registration of the
Conversion Shares under the 1933 Act or the date on which the
Conversion Shares may be sold pursuant to Rule 144 without any
restriction as to the number of Securities as of a particular date
that can then be immediately sold), will be given by the Company to
its transfer agent and that the Securities shall otherwise be
freely transferable on the books and records of the Company as and
to the extent provided in this Agreement and the Note; (ii) it will
not direct its transfer agent not to transfer or delay, impair,
and/or hinder its transfer agent in transferring (or issuing)(
electronically or in certificated form) any certificate for
Conversion Shares to be issued to the Buyer upon conversion of or
otherwise pursuant to the Note as and when required by the Note and
this Agreement; and (iii) it will not fail to remove (or directs
its transfer agent not to remove or impairs, delays, and/or hinders
its transfer agent from removing) any restrictive legend (or to
withdraw any stop transfer instructions in respect thereof) on any
certificate for any Conversion Shares issued to the Buyer upon
conversion of or otherwise pursuant to the Note as and when
required by the Note and this Agreement. Nothing in this Section
shall affect in any way the Buyer's obligations and agreement set
forth in Section 2(g) hereof to comply with all applicable
prospectus delivery requirements, if any, upon re-sale of the
Securities. If the Buyer provides the Company, at the cost of the
Company, with (i) an opinion of counsel in form, substance and
scope customary for opinions in comparable transactions, to the
effect that a public sale or transfer of such Securities may be
made without registration under the 1933 Act and such sale or
transfer is effected or (ii) the Buyer provides reasonable
assurances that the Securities can be sold pursuant to Rule 144,
the Company shall permit the transfer, and, in the case of the
Conversion Shares, promptly instruct its transfer agent to issue
one or more certificates, free from restrictive legend, in such
name and in such denominations as specified by the Buyer. 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 transactions contemplated hereby.
Accordingly, the Company acknowledges that the remedy at law for a
breach of its obligations under this Section may be inadequate and
agrees, in the event of a breach or threatened breach by the
Company of the provisions of this Section, that the Buyer shall be
entitled, in addition to all other available remedies, to an
injunction restraining any breach and requiring immediate transfer,
without the necessity of showing economic loss and without any bond
or other security being required.
a.
The Buyer shall have executed this Agreement and delivered the same
to the Company.
b.
The Buyer shall have delivered the Purchase Price in accordance
with Section 1 (b) above.
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.
11
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.
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
Note (in such denominations as the Buyer shall request) and in
accordance with Section 1 (b) above as well as the duly executed
Warrant.
c.
The Irrevocable Transfer Agent Instructions, in form and substance
satisfactory to a majority-in-interest of the Buyer, shall have
been delivered to and acknowledged in writing by the Company's
Transfer Agent.
d.
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 Company's Certificate of
Incorporation, By-laws and Board of Directors' resolutions relating
to the transactions contemplated hereby.
e.
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.
f.
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.
g.
The Conversion Shares shall have been authorized for quotation on
the OTC Pink, OTCQB or any similar quotation system and trading in
the Common Stock on the OTC Pink, OTCQB or any similar quotation
system shall not have been suspended by the SEC or the OTC Pink,
OTCQB or any similar quotation system.
h.
The Buyer shall have received an officer's certificate described
ill Section 3( c) above, dated as of the Closing Date.
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, the Note or any other
agreement, certificate, instrument or document contemplated hereby
shall be brought only in the state courts located in the
Commonwealth of Massachusetts or in the federal courts located in
the Commonwealth of Massachusetts. 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. EACH PARTY HEREBY IRREVOCABLY
WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY
TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR UNDER ANY
OTHER TRANSACTION DOCUMENT OR IN CONNECTION WITH OR ARISING OUT OF
THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY OR THEREBY. 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 or any other
Transaction Document 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.
12
b.
Counterparts; Signatures by Facsimile. 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. This
Agreement, once executed by a party, may be delivered to the other
party hereto by facsimile transmission of a copy of this Agreement
bearing the signature of the party so delivering this
Agreement.
c.
Construction; Headings. This Agreement shall be deemed to be
jointly drafted by the Company and the Buyer and shall not be
construed against any person as the drafter hereof. 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, the Note 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 majority in interest of the
Buyer.
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, email, or facsimile,
addressed as set forth below 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 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 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. The addresses for such communications shall be:
If
to the Company, to:
Guided
Therapeutics, Inc.
0000
Xxxxxxxxx Xxxxxx Xxxx,
Xxxxx
X
Xxxxxxxx,
Xxxxxxx 00000
Attn:
Xxxx Xxxxxxxxxx
E-mail:
xxxx@xxxxxxxxx.xxx
If
to the Buyer:
Auctus
Fund, LLC
000
Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx,
XX 021 16
Attn:
Xxx Xxxxxx
Facsimile: (000)
000-0000
With a
copy to (which copy shall not constitute notice):
Xxxx
Friend, Esq., LL.X.
Xxxxxxx
L.G., PLLC
000 X.
Xxxxxxx Xxxxx, Xxxxx 000
Xxxx
Xxxx Xxxxx, XX 00000
E-mail:
XXxxxxx@XxxxxxxXXXX.xxx
Each
party shall provide notice to the other party of any change in
address.
13
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,
subject to Section 2(f), the Buyer may assign its rights hereunder
to any person that purchases Securities in a private transaction
from the Buyer or to any of its "affiliates," as that term is
defined under the 1934 Act, without the consent of the
Company.
h.
Third Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective permitted
successors and assigns, and is not for the benefit of, nor may any
provision hereof be enforced by, any other person.
i.
Survival. The representations and warranties of the Company and the
agreements and covenants set forth in this Agreement shall survive
the closing hereunder not withstanding 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.
j.
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.
k. 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.
l
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.
[signature
page follows]
14
GUIDED THERAPEUTICS, INC.
/s/
Xxxx X. Xxxxxxxxxx
Xxxx
X. Xxxxxxxxxx
Chef
Executive Officer
AUCTUS FUND, LLC
/s/
Xxx Xxxxxx
Xxx
Xxxxxx
Managing
Director
15