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 :
“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.
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.
(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.
[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.
[Signatures on
Following Page]
Company:
GUIDED
THERAPEUTICS, INC.
By:
/s/Xxxx X. Xxxxxxxxxx
Name:
Xxxx Xxxxxxxxxx
Title:
CEO
Creditor:
____________________________________
Address:
_____________________________
_____________________________
_____________________________