EXCHANGE AGREEMENT
Exhibit
10.49
This
EXCHANGE AGREEMENT (this “Agreement”) is made and
entered into effective as of the ___ day of December, 2019, by and
between GUIDED THERAPEUTICS, INC., a Delaware corporation (the
“Company”) and the
undersigned creditor of the Company (the “Creditor”).
W I
T N E S S E T H :
WHEREAS, the
Creditor is the payee of certain obligations owed to the Creditor
by the Company as set forth on Exhibit A hereto (the
“Obligations”);
WHEREAS, in
satisfaction in full of the Obligations, which may include both
cash and associated warrants to purchase the Company’s common
stock, the Creditor is willing to accept certain new securities of
the Company as set forth on Exhibit B hereto (the
“Securities”) and such
transaction, the “Exchange”, thereby
forfeiting any rights to warrants or other equity associated with
such Obligations;
WHEREAS, the
Exchange is being made in reliance upon the exemption from
registration provided by Section 4(a)(2) of the Securities Act;
and
WHEREAS, the
Company and the Creditor desire to enter into this Agreement to
evidence and set forth the terms of the exchange of the Securities
for and in satisfaction of the Obligations;
NOW,
THEREFORE, in consideration of the mutual covenants herein
contained, and intending to be legally bound hereby, the parties
hereto, being duly sworn, do covenant, agree and certify as
follows:
1. Recitals.
The parties hereto acknowledge and agree that the foregoing
recitals are true and accurate and constitute part of this
Agreement to the same extent as if contained in the body
hereof.
2. Definitions.
In addition to the terms defined elsewhere in this Agreement: (a)
capitalized terms that are not otherwise defined herein have the
meanings given to such terms in the Obligations (as defined
herein), and (b) the following terms have the meanings set forth in
this Section 1.1:
“Affiliate” means any
Creditor that, directly or indirectly through one or more
intermediaries, controls or is controlled by or is under common
control with a Creditor, as such terms are used in and construed
under Rule 405 under the Securities Act.
“Board of Directors” means
the board of directors of the Company.
“Common Stock” means the
common stock of the Company, par value $0.001 per share, and any
other class of securities into which such securities may hereafter
be reclassified or changed.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
“Liens” means a lien,
charge, pledge, security interest, encumbrance, right of first
refusal, preemptive right or other restriction.
“Creditor” means an
individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or
subdivision thereof) or other entity of any kind.
“Securities” has the
meaning set forth in the Preamble of this Agreement.
“Securities Act” means the
Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
3. Exchange
and Satisfaction. The
Obligations are hereby surrendered by the Creditor and exchanged
for the Securities and other considerations according to the
following terms and conditions.
a.
As of December
____, 2019, the Creditor currently holds unsecured notes with
Company in the amount of $_______, including both principal and
interest,. Both the Company and Creditor wish to continue their
relationship under mutually agreeable terms.
b.
In lieu of agreeing
to dismiss the entire amount of what the Creditor is currently owed
by the Company, the Creditor agrees to accept in exchange 1,905,270
shares of the Company’s Stock and warrants to purchase the
Company’s common shares, pursuant to a separate warrant
agreement to be executed once the Company has successfully
completed a new financing as defined in Section 3c. below. The
schedule of warrants to purchase common shares of Guided
Therapeutics is listed below:
(i)
Warrants to
purchase ______ shares at $0.20 (twenty cents) each.
(ii)
Warrants to
purchase ______ shares at $0.25 (twenty-five cents)
each.
(iii)
Warrants to
purchase ______ shares at $0.75 (seventy-five cents)
each.
All
warrants will be exercisable immediately upon issuance and will
expire after three years. Warrants will not have a cashless
exercise provision unless they are not registered within six (6)
months of issuance.
c.
Both parties agree
that the exchange of debt for equity contemplated by this Agreement
shall occur once the Company has successfully raised a minimum of
one million dollars ($1,000,000) in a new financing.
d.
A 10% blocker shall
be effected such that the Creditor agrees to restrict its holdings
of the Company’s Common Shares to less than 10% of the total
number of the Company’s outstanding common shares at one
point in time.
4. Representations
and Warranties of the Company. The Company hereby makes the following
representations and warranties to Creditor:
(a) Authorization; Enforcement. The
Company has the requisite corporate power and authority to enter
into and to consummate the transactions contemplated by this
Agreement and otherwise to carry out its obligations hereunder. The
execution and delivery of this Agreement by the Company and the
consummation by it of the transactions contemplated hereby and
thereby have been duly authorized by all necessary action on the
part of the Company and no further action is required by the
Company, the Board of Directors or the Company’s stockholders
in connection herewith or therewith. This Agreement have been (or
upon delivery will have been) duly executed by the Company and,
when delivered in accordance with the terms hereof and thereof,
will constitute the valid and binding obligations of the Company
enforceable against the Company in accordance with their terms,
except: (i) as limited by general equitable principles and
applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of
creditors’ rights generally, (ii) as limited by laws relating
to the availability of specific performance, injunctive relief or
other equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable
law.
(b) Issuance of the Securities. The
Securities are duly authorized and, when issued and paid for in
accordance with this Agreement, will be duly and validly issued,
fully paid and nonassessable, free and clear of all Liens imposed
by the Company. The shares of Common Stock underlying the
Securities (if any), when issued in accordance with the terms of
the Securities, will be validly issued, fully paid and
nonassessable, free and clear of all Liens imposed by the Company
other than restrictions on transfer required by law.
5. Representations
and Warranties of the Creditor. Creditor hereby represents
and warrants as of the date hereof and as of the Closing Date to
the Company as follows (unless as of a specific date
therein):
(a) Own
Account. Creditor understands that the Securities are
“restricted securities” and have not been registered
under the Securities Act or any applicable state securities law and
is acquiring the Securities as principal for its own account and
not with a view to or for distributing or reselling such Securities
or any part thereof in violation of the Securities Act or any
applicable state securities law, has no present intention of
distributing any of such Securities in violation of the Securities
Act or any applicable state securities law and has no direct or
indirect arrangement or understandings with any other Creditors to
distribute or regarding the distribution of such Securities in
violation of the Securities Act or any applicable state securities
law (this representation and warranty not limiting such
Creditor’s right to sell the Securities pursuant to the
Registration Statement or otherwise in compliance with applicable
federal and state securities laws). The Creditor is acquiring the
Securities hereunder in the ordinary course of its
business.
(c) Creditor’s
Status. At the time the Creditor was offered the Securities,
it was, and as of the date hereof it is, an “accredited
investor” as defined in Rule 501(a) under the Securities
Act.
(d) Experience
of Creditor. Creditor, either alone or together with its
representatives, has such knowledge, sophistication and experience
in business and financial matters so as to be capable of evaluating
the merits and risks of the prospective investment in the
Securities, and has so evaluated the merits and risks of such
investment. Such Creditor is able to bear the economic risk of an
investment in the Securities and, at the present time, is able to
afford a complete loss of such investment.
6. Release.
The Creditor acknowledges and agrees that it shall have no further
rights or interest in, and shall not receive any further
consideration, payment or distribution of any kind with respect to,
the Obligations. In such regard, the Creditor hereby waives,
relinquishes, remises and releases all rights, claims, interests or
liabilities, known and unknown, of any nature whatsoever in law or
equity which the Creditor may previously have had or may now or
hereafter have as against or to receive from the Company arising
out of, resulting from or relating to the Obligations or any rights
or interest of the Creditor with respect thereto.
7. Transfer
Restrictions. The Securities may only be disposed of in
compliance with state and federal securities laws. In connection
with any transfer of Securities other than pursuant to an effective
registration statement or Rule 144 under the Securities Act, to the
Company or to an Affiliate of a Creditor, the Company may require
the transferor thereof to provide to the Company an opinion of
counsel selected by the transferor and reasonably acceptable to the
Company, the form and substance of which opinion shall be
reasonably satisfactory to the Company, to the effect that such
transfer does not require registration of such transferred
Securities under the Securities Act. As a condition of transfer,
any such transferee shall agree in writing to be bound by the terms
of this Agreement. The Creditors agree to the imprinting of a
legend on any of the Securities in the following form:
[NEITHER] THIS
SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS
[EXERCISABLE] [CONVERTIBLE]] HAS [NOT] BEEN REGISTERED WITH THE
SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF
ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES
LAWS. THIS SECURITY [AND THE SECURITIES ISSUABLE UPON [EXERCISE]
[CONVERSION] OF THIS SECURITY] MAY BE PLEDGED IN CONNECTION WITH A
BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER
LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED
INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT
OR OTHER LOAN SECURED BY SUCH SECURITIES.
8. Further
Assurances. The
Creditor shall hereafter, without further consideration, execute
and deliver promptly to the Company such further consents, waivers,
assignments, endorsements and other documents and instruments, and
to take all such further actions, as the Company may from time to
time reasonably request with respect to the exchange and
satisfaction of the Obligations Interest and the consummation in
full thereof.
9. Successors
and Assigns. This
Agreement is binding upon, and shall inure to the benefit of, the
parties hereto and their respective successors and
assigns.
10. Counterparts.
This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original and all of which, when taken
together, shall constitute one and the same
instrument.
IN
WITNESS WHEREOF, the parties hereto have affixed their hands and
seals by signing this Agreement as of the day and year first above
written.
[Signatures on
Following Page]
Company:
GUIDED
THERAPEUTICS, INC.
By:
/s/Xxxx X. Xxxxxxxxxx
Name:
Xxxx Xxxxxxxxxx
Title:
CEO
Creditor:
____________________________________
Address:
_____________________________
_____________________________
_____________________________
