INVESTMENT RETURN PURCHASE AGREEMENT
Exhibit 10.1
THIS
INVESTMENT RETURN PURCHASE AGREEMENT is made as of this 15th day of
May 2018 by and between Global Digital Solutions, Inc., a New
Jersey Corporation with offices at 000 Xxxxx Xxxxxxx Xxxxx, Xxxx
Xxxx Xxxxx, Xxxxxxx 00000 (“GDSI”), and the undersigned
purchaser (the “Purchaser”).
1.
Purchase.
GDSI hereby transfers to Purchaser the Investment Return as set
forth on the signature page and the right to receive the Investment
Return (the “Transferred Interest”) and Purchaser
hereby accepts the transfer of the Transferred Interest from GDSI,
upon the terms set forth in this Agreement.
2.
Payment
of Purchase Price. The purchase price
for Transferred Interest (the “Purchase Price”) shall
be set forth on the signature page and shall be paid by wire
transfer on the execution of this Agreement to the wire
instructions set forth as Exhibit A.
3.
Payment
of Investment Return. GDSI agrees to pay Purchaser the
Investment Return set forth on the signature page
(“Investment Return”). The Investment Return shall be
paid within three (3) months of the date of this agreement. The
Investment return shall be paid earlier if the Company secures
funding during this 90 day period of at least
$500,000.
4.
Representations by
Purchaser. Purchaser represents and warrants
that:
(b) The
Purchaser acknowledges that the Purchaser and the Purchaser’s
advisors have been given the opportunity to ask questions of and
receive answers from representatives of GDSI regarding the business
and current plans of GDSI and to inspect such documents and to
obtain such additional information as the Purchaser has required so
as to more fully understand the nature of the investment and to
verify the accuracy of the information supplied to the Purchaser
and to evaluate the merits and risks of an investment in GDSI. The
Purchaser acknowledges that except as set forth herein and or in
documents delivered pursuant hereto no representations or
warranties have been made to the Purchaser or to the
Purchaser’s advisors or representatives by GDSI or by others
with respect to the business of GDSI and its financial condition
and that any such information given by GDSI to the Purchaser was
given in good faith reliance on the opinion of the Accountant as
hereinafter defined and is based on GDSI’s knowledge,
information, and belief at the time of this Agreement.
(c) The
Purchaser is at least twenty-one (21) years of age. The Purchaser
maintains his domicile at the address first hereinabove set
forth.
(d) The
Purchaser, in determining to purchase the Investment Return, has
not relied on GDSI, GDSI’s legal counsel, accountants or
other financial and tax advisors or representatives. In particular,
in regard to any tax matters, the Purchaser has not relied on the
advice of or has consulted with GDSI, GDSI’s own professional
advisors or any affiliate or agent of GDSI, directly or
indirectly.
(e) The
Purchaser has the requisite knowledge and experience in financial
and business matters to be capable of evaluating the merits and
risks of an investment in GDSI.
(f) The
Purchaser understands that no federal or state agency has passed
upon the offer and sale of the Investment Return, nor have the
merits of this investment been endorsed by or approved by any state
or federal authorities. The Purchaser acknowledges that (i) the
Investment Return has not been registered under the Securities Act
of 1933, as amended (the “1933 Act”), or the securities
laws of any state or other jurisdiction that, absent an exemption,
would require registration; (ii) the Investment Return is being
offered for sale in reliance upon exemptions from registration
contained in the 1933 Act and applicable state laws; and (iii)
GDSI’s reliance upon such exemptions is based in part upon
the Purchaser’s representations, warranties and agreements
contained in this Purchase Agreement.
(g) The
Purchaser is not purchasing the Investment Return as a result of or
subsequent to any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media
or broadcast via television or radio, or presented at any seminar
or meeting as to which the Purchaser received notice through any
advertisement, article, notice or other communication published in
any newspaper, magazine or similar media or broadcast via
television or radio.
(g) The
Purchaser is acquiring the Investment Return solely for
Purchaser’s own account, for investment purposes only and not
with a view to the resale or distribution thereof, in whole or in
part. Purchaser has been advised and understands that (i) there is
no public market for the Common Investment Return and it is not
expected that a public market for the Common Investment Return will
develop in the foreseeable future, and (ii) the Investment Return
has not been registered under the 1933 Act or the securities laws
of any state or other jurisdiction, and, therefore, cannot be sold
and purchaser agrees not to sell or otherwise dispose of the
Investment Return unless such Investment Return is subsequently
registered under the 1933 Act and such state securities laws as are
applicable, or unless there are available exemptions from such
registration. The Purchaser acknowledges that a legend to this
effect will be placed on the certificates evidencing the Investment
Return.
(h) Purchaser
understands that the Investment Return is being offered and sold in
reliance on specific exemptions from the registration requirements
of federal and state securities laws and that GDSI is relying upon
the truth and accuracy of the representations, warranties,
covenants, acknowledgments and understandings set forth in this
Agreement to determine the applicability of such exemptions to
Purchaser’s acquisition of the Investment
Return.
(i)
The undersigned is an "accredited investor" as defined under
Regulation D promulgated pursuant to the 1933 Act.
5.
Representations and
Warranties by GDSI.
By
executing this Agreement, GDSI makes the following representations
and warranties to the Purchaser, and that the below representations
and warranties are complete as of the date of this
Agreement:
(a)
Organization of
GDSI. GDSI is a duly organized corporation, validly
existing, and in good standing under the laws of New Jersey and has
full corporate power and authority to own or hold the assets and
properties which it owns or holds under lease and to perform all
its obligations under the agreements to which it is a party,
including, without limitation, this Agreement. GDSI is in good
standing in each other jurisdiction wherein the failure so to
qualify would have a material adverse effect on its business,
properties, operations, income, assets, prospects or condition,
financial or otherwise (hereinafter referred to as the "GDSI's
business or condition"). The copies of the Articles of
Incorporation and Bylaws of GDSI that have been delivered to the
Purchaser by GDSI are complete and correct.
(b)
GDSI Taxed as a
Corporation. As of the date of this Agreement, GDSI is taxed
as a corporation under Subchapter C of the Internal Revenue Code of
1986 (the “IRC”), as amended and files annually an
Internal Revenue Service Form 1120.
(c) Authorization
of Transaction. GDSI and GDSI’s officers have full
power and authority including full corporate or other entity power
and authority to execute and deliver this Agreement and to perform
his, her, or its obligations hereunder. This Agreement constitutes
the valid and legally binding obligation of GDSI, enforceable in
accordance with its terms and conditions. The execution, delivery
and performance of this Agreement and all other agreements
contemplated hereby have been duly authorized by GDSI.
(d)
Noncontravention.
Neither the execution and the delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, will (A)
violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge, or other restriction of
any government, governmental agency, or court to which GDSI is
subject or, if GDSI is an entity, any provision of its charter,
bylaws, or other governing documents, (B) conflict with, result in
a breach of, constitute a default under, result in the acceleration
of, create in any party the right to accelerate, terminate, modify,
or cancel, or require any notice under any agreement, contract,
lease, license, instrument, or other arrangement to which GDSI is a
party or by which it is bound or to which any of its assets is
subject, or (C) result in the imposition or creation of a Lien upon
or with respect to the Investment Return. Excluding any filings
required to comply with the exemptions from the registration
requirements of federal and state securities laws, no consents,
approvals or authorizations or filings or registrations with any
governmental agency or authority or any other person or entity are
required in connection with the execution and delivery of this
Agreement by GDSI or the consummation by GDSI of the transactions
contemplated hereby or thereby.
6.
Survival
of Representations and Warranties. All of the representations and warranties made
herein shall survive the execution and delivery of this Agreement
for the maximum time allowable by applicable
law.
7.
Notices.
All notices, demands and other communications provided for or
permitted hereunder shall be made in writing and shall be by
registered or certified first-class mail, return receipt requested,
telecopier, courier service or personal
delivery:
To
GDSI:
Global
Digital Solutions, Inc.,
000
Xxxxx Xxxxxxx Xxxxx
Xxxx
Xxxx Xxxxx, XX 00000
With
a copy to:
Brinen
& Associates, LLC
00
Xxxxx Xxxxxx, Xxxxxx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
Email:
xxxxxxx@xxxxxxxxx.xxx
To
Purchaser at the address set forth on the signature
page
All
such notices, demands and other communications shall be deemed to
have been duly given when delivered by hand, if personally
delivered; when delivered by courier, if delivered by commercial
courier service; five (5) Business Days after being deposited in
the mail, postage prepaid, if mailed; and when receipt is
mechanically acknowledged, if faxed or emailed.
8.
Successors
and Assigns; Third Party Beneficiaries. This Agreement shall inure to the benefit of and
be binding upon the successors and permitted assigns of the parties
hereto. No person other than the parties hereto and their
successors and permitted assigns is intended to be a beneficiary of
this Agreement.
9.
Assignments.
This Agreement is assignable only by Purchaser.
10.
Amendment
and Waiver. No failure or delay
on the part of a party hereto in exercising any right, power or
remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or remedy
preclude any other or further exercise thereof or the exercise of
any other right, power or remedy. The
remedies provided for herein are cumulative and are not exclusive
of any remedies that may be available to a party hereto at law, in
equity or otherwise. Any amendment, supplement or modification of
or to any provision of this
Agreement, any waiver of any provision of this Agreement, and any
consent to any departure by GDSI or Purchaser from the terms of any
provision of this Agreement, shall be effective (i) only if it is
made or given in writing and signed by GDSI and Purchaser and (ii)
only in the specific instance and for the specific purpose for
which made or given.
11.
Counterparts.
This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which together
shall constitute one and the same instrument. The parties hereto
confirm that any electronic copy of another party’s executed
counterpart of this Agreement (or its signature page thereof) will
be deemed to be an executed original thereof.
12.
Headings.
The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning
hereof.
13.
Severability.
If any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal
or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any
way impaired, unless the provisions held invalid, illegal or
unenforceable shall substantially impair the benefits of the
remaining provisions hereof.
14.
Rules of
Construction. Unless the
context otherwise requires, references to sections or subsections
refer to sections or subsections of this
Agreement.
15.
Entire
Agreement. This Agreement,
together with the Assignment, is intended by the parties as a final
expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein or
therein. There are no restrictions, promises, representations,
warranties or undertakings, other than those set forth or referred
to herein or therein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to
such subject matter.
16.
No Public
Announcement; No Disclosure.
The parties shall not make any public announcement concerning this
Agreement, their discussions or any other documents or
communications concerning the transactions contemplated hereby
unless advised by counsel that such disclosure is required by law
(in which case the party so advised will promptly notify the other
party). Except as permitted by the preceding sentence, without the
prior consent of Purchaser, GDSI, including its officers,
directors, employees, affiliates or agents, will not discuss the
existence or terms of this Agreement, except to their respective
legal, financial and accounting advisors who have a need to know
such information solely for the purposes of assisting their
respective clients with regard to the transactions contemplated
hereby.
17.
Governing
Law. This Agreement shall be binding upon and inure to the
benefit of the Company and the Purchaser and their respective
successors and assigns; provided that the Purchaser may not assign
this AGREEMENT, in whole or in part, by operation of law or
otherwise. This Agreement and any claims arising out of relating to
this Agreement whether in contract or tort, statutory or common
law, shall be governed exclusively by, and construed in accordance
with the laws of the State of New York without regard to principles
of conflicts of laws.
18.
Jurisdiction. THE
BORROWER CONSENTS THAT ANY LEGAL ACTION OR PROCEEDING AGAINST IT
UNDER, ARISING OUT OF OR IN ANY MANNER RELATING TO THIS AGREEMENT,
OR ANY OTHER INSTRUMENT OR DOCUMENT EXECUTED AND DELIVERED IN
CONNECTION HEREWITH SHALL BE BROUGHT EXCLUSIVELY IN ANY COURT OF
THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK. THE BORROWER, BY THE EXECUTION
AND DELIVERY OF THIS AGREEMENT, EXPRESSLY AND IRREVOCABLY CONSENTS
AND SUBMITS TO THE PERSONAL JURISDICTION OF ANY OF SUCH COURTS IN
ANY SUCH ACTION OR PROCEEDINGS. THE BORROWER AGREES THAT PERSONAL
JURISDICTION OVER IT MAY BE OBTAINED BY THE DELIVERY OF A SUMMONS
BY PERSONAL DELIVERY OR OVERNIGHT COURIER AT THE ADDRESS PROVIDED
IN SECTION 7 OF THIS AGREEMENT. ASSUMING DELIVERY OF THE SUMMONS IN
ACCORDANCE WITH THIS PROVISION, THE BORROWER HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES ANY ALLEGED LACK OF PERSONAL JURISDICTION,
IMPROPER VENUE OR FORUM NON-CONVENIENS OR ANY SIMILAR
BASIS.
20.
Transaction
Fees. Each party shall be
responsible for its own attorneys’ fees and other costs and
expenses associated with documenting and closing the transaction
contemplated by this Agreement.
21.
Attorneys’
Fees. In any litigation,
arbitration, mediation, or other legal proceeding, in law or in
equity to enforce or interpret the terms of this Agreement or any
other document contemplated hereby, the Prevailing Party (as
defined hereafter) shall be entitled to recover its costs,
including any costs of arbitration or mediation, and reasonable
attorney’s fees and paralegal fees in addition to any other
relief to which such party may be entitled. “Prevailing
Party” shall mean the party in any litigation or enforcement
action that prevails in the highest number of final rulings, counts
or judgments adjudicated by a court of competent
jurisdiction.
22.
Waiver of Jury
Trial. To the extent permitted by applicable law, each of
the arties hereto hereby irrevocably waives any and all right to
trial by jury in any legal proceeding arising out of or relating to
this Agreement or the transactions contemplated
hereby.
23.
Construction and
Interpretation.
(a) For
purposes of this Agreement, whenever the context requires, the
singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the
feminine gender shall include the masculine and neuter genders; and
the neuter gender shall include the masculine and feminine
genders.
(b)
Neither this Agreement nor any uncertainty or ambiguity herein
shall be construed or resolved against any party, whether under any
rule of construction or otherwise. No party to this Agreement shall
be considered the draftsman. The parties acknowledge and agree that
this Agreement has been reviewed, negotiated, and accepted by all
parties and their attorneys and shall be construed and interpreted
according to the ordinary meaning of the words used so as fairly to
accomplish the purposes and intentions of all parties
hereto.
(c) As used in this Agreement, the words
‘‘include’’ and
‘‘including,’’ and variations thereof,
shall not be deemed to be terms of limitation, but rather shall be
deemed to be followed by the words ‘‘without
limitation.’’
(d) Except as otherwise indicated, all
references in this Agreement to
‘‘Articles,’’
‘‘Sections,’’
‘‘Schedules’’ and
‘‘Exhibits’’ are intended to refer to an
Article or Section of, or Schedule or Exhibit to, this
Agreement.
(e) Except as otherwise indicated, all
references (i) to any agreement (including this Agreement),
contract or Law are to such agreement, contract or Law as amended,
modified, supplemented or replaced from time to time, and (ii) to
any Governmental Entity to include any successor to that
Governmental Entity.
[SIGNATURE
PAGE TO FOLLOW]
IN WITNESS WHEREOF, the undersigned has
executed this Agreement on the 15th day of May
2018.
Original Purchase $200,000 + Investment Return: $20,000 for a total
of $220,000.00
Additional Return: 2,000,000 Warrants to purchase Common
Stock at $.01/Share, exercisable for a period of 3
Years.
|
_____________________________________
Social
Security or Federal Tax
Identification
Number
_____________________________________
Social
Security or Federal Tax
Identification
Number (if any)
_____________________________________
Address
_____________________________________
City
and
State Zip
Code
_____________________________________
Telephone
Number(s)
ACCEPTED BY:
Global Digital Solutions, Inc.
By:
_______________________________
Xxxxxxx
Xxxxxxx, Chief Executive Officer
Date:
_______________________________
|
_________________________________
Signature
of Subscriber
________________________________
Signature
of Joint Subscriber
|
(The above information must be provided in its entirety. Any
failure to complete all of the above information may result in
rejection of or delay of acceptance of this Agreement)
