SECURITIES EXCHANGE AGREEMENT
Exhibit 10.1
This
Securities Exchange Agreement (this “Agreement”) is dated as
of October 13, 2016 by and between Meridian Waste Solutions, Inc.,
a New York corporation (the “Company”), and that
certain investor listed on the signature page attached hereto (the
“Investor”).
WHEREAS, the
Investor currently holds 23,706.67 shares of the Company’s
Series B Preferred Stock, par value $0.001 per share (the
“Preferred
Shares”); and
WHEREAS, subject to
the terms and conditions set forth in this Agreement the Company
desires to issue 3,333,333 shares of the Company’s common
stock, par value $0.025 per share (the “Common Shares”) to the
Investor, and the Investor desires to accept the Common Shares, in
exchange for the cancellation and return to treasury of the
Preferred Shares (the “Exchange”).
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in
this Agreement, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the Company
and the Investor hereby agree as follows:
ARTICLE
I.
DEFINITIONS
1.1 Definitions.
In addition to the terms defined elsewhere in this Agreement, the
following terms have the meanings set forth in this Section
1.1:
“Board of Directors” means
the board of directors of the Company;
“Business Day” means any
day except any Saturday, any Sunday, any day which is a federal
legal holiday in the United States or any day on which banking
institutions in the State of New York are authorized or required by
law or other governmental action to close;
“Closing” means the
consummation of the Exchange pursuant to Section 2.1
hereof;
“Closing Date” means the
Trading Day on which this Agreement has been executed and delivered
by the applicable parties hereto, and all conditions precedent to
(i) the Investor’s obligation to proceed with the Closing and
(ii) the Company’s obligations to deliver the Shares, in each
case, have been satisfied or waived;
“Commission” means the
United States Securities and Exchange Commission;
“Common Stock” means the
common stock of the Company, par value $0.001 per share, and any
other class of securities into which such Common Stock may
hereafter be reclassified or changed;
“Exchange”
shall have the meaning assigned to that term in the Recitals to
this Agreement.
“Interest Amount” shall
have the meaning assigned to that term in the Recitals to this
Agreement.
“Liens” means a lien,
charge, security interest, encumbrance, right of first refusal,
preemptive right or other restriction;
“Person” 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;
“Proceeding” means an
action, claim, suit, investigation or proceeding (including,
without limitation, an informal investigation or partial
proceeding, such as a deposition), whether commenced or
threatened;
“Securities Act” means the
Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder;
“Trading
Day” means a day on which the principal Trading Market
is open for trading; and
“Trading Market” means any
of the following markets or exchanges on which the Common Stock is
listed or quoted for trading on the date in question: the NYSE
AMEX, the Nasdaq Capital Market, the Nasdaq Global Market, the
Nasdaq Global Select Market, the NYSE Euronext, the OTC Bulletin
Board or OTC Markets (or any successors to any of the
foregoing).
ARTICLE
II.
EXCHANGE
2.1 Closing. On the Closing Date,
upon the terms and subject to the conditions set forth herein,
concurrent with the execution and delivery of this Agreement by the
parties hereto, the Company shall issue to the Investor in exchange
for the Preferred Shares, the Common Shares, in accordance with
Section 2.3(a) hereof. Upon satisfaction of the covenants and
conditions set forth in Sections 2.2, 2.3 and 2.4 hereof, the
Closing shall occur.
2.2
Deliveries.
(a) On or prior to the
Closing Date, the Company shall deliver or cause to be delivered to
the Investor the following:
(i)
this Agreement duly executed by the Company; and
(ii) the
Common Shares.
(b) On or prior to the
Closing Date, the Investor shall deliver or cause to be delivered
to the Company this Agreement duly executed by the
Investor.
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2.3
Closing
Conditions.
(a) The obligations of
the Company hereunder in connection with the Closing are subject to
the following conditions being met:
(i) the accuracy in all
material respects when made and on the Closing Date of the
representations and warranties of Investor contained herein (unless
expressly stated herein as of a specific date);
(ii) all
obligations, covenants and agreements of Investor required to be
performed at or prior to the Closing Date shall have been
performed; and
(iii) the
delivery by Investor of the items set forth in Section 2.3(b) of
this Agreement.
(b) The obligations of
the Investor hereunder in connection with the Closing are subject
to the following conditions being met:
(i) the accuracy in all
material respects when made and on the Closing Date of the
representations and warranties of the Company contained herein
(unless expressly stated herein as of a specific
date);
(ii) all
obligations, covenants and agreements of the Company required to be
performed at or prior to the Closing Date shall have been
performed; and
(iii) the
delivery by the Company of the items set forth in Section 2.3(a) of
this Agreement.
2.4 Cancellation of Preferred
Shares. Immediately upon the occurrence of the Closing the
Company will effect the cancellation of the Preferred Shares on its
corporate books and records and will return such shares to
treasury.
ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES
3.1
Representations and
Warranties of the Company. The Company hereby makes the
following representations and warranties to the
Investor:
(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 to otherwise 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 have
been duly authorized by all necessary action on the part of the
Company and no further action is required by the Company and the
Board of Directors in connection herewith. This Agreement has been
duly executed by the Company and, when delivered in accordance with
the terms hereof and upon receipt of Investor’s signature
page to this Agreement, will constitute the valid and binding
obligation of the Company, enforceable against the Company in
accordance with its 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.
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(b) Issuance of the Common Shares.
The Common Shares shall be duly authorized, issued and paid for in
accordance with this Agreement, shall be duly and validly issued,
fully paid and nonassessable, free and clear of all Liens imposed
by the Company other than restrictions on transfer provided for in
this Agreement.
(c) General Solicitation. The
Company has not undertaken any advertisement, article, notice or
other communication with regards to the Exchange or otherwise
published in any newspaper, magazine or similar media or broadcast
over television or radio or presented at any seminar or any other
general solicitation or general advertisement, regarding the
Exchange.
3.2 Representations,
Warranties and Covenants of Investor. Investor hereby
represents and warrants as of the date hereof and as of the Closing
Date to the Company as follows:
(a)
Organization and Standing of
Investor. If Investor is an entity, Investor is duly formed,
validly existing and in good standing under the laws of the
jurisdiction of its formation. If the Investor is a natural person,
Investor has the legal capacity and power to enter into this
Agreement.
(b)
Authorization and
Power. Such Investor has the requisite power and authority
to enter into and perform this Agreement. The execution, delivery
and performance of this Agreement by such Investor, and the
consummation by such Investor of the transactions contemplated
hereby and thereby, have been duly authorized by all necessary
action, and no further consent or authorization of Investor or its
board of directors, manager(s), trustee, stockholders, partners,
members or beneficiaries, as applicable, is required. This
Agreement has been duly authorized, executed and delivered by such
Investor and constitutes, or shall constitute, when executed and
delivered, a valid and binding obligation of such Investor,
enforceable against Investor in accordance with the terms
thereof.
(c)
No Conflicts. The
execution, delivery and performance of this Agreement by Investor
and the consummation by the Investor of the transactions
contemplated herein do not and will not (i) conflict with or
violate any provision of the Investor’s charter or other
organizational documents or (ii) conflict with or result in a
violation of any law, rule, regulation, order, judgment, injunction
decree or other restriction of any court or governmental authority
to which the Investor is subject (including federal and state
securities laws and regulations), or by which any property or asset
of the Investor is bound or affected.
(d)
No Liens. The
Preferred Shares are free and clear of all Liens and are not
subject to any other encumbrances.
(e)
No Further Rights in the
Preferred Shares or Series B Preferred Stock. The Investor
does not hold any ownership interest in any shares of Series B
Preferred Stock other than the Preferred Shares. The Investor does
not hold any physical stock certificate or similar instrument
evidencing the Preferred Shares. Effective upon cancellation of the
Preferred Shares pursuant to the Exchange, the Investor will have
no rights with respect to the Preferred Shares and will have no
remaining interest whatsoever in connection with the Companyís
Series B Preferred Stock.
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(f)
Filings, Consents and
Approvals. The Investor is not required to obtain any
approval, consent, waiver, authorization or order of, give any
notice to, or make any filing, qualification or registration with,
any court or other federal, state, local, foreign or other
governmental authority or other Person in connection with the
execution, delivery and performance by the Investor of this
Agreement or the cancellation of the Preferred Shares.
(g)
General
Solicitation. The Investor is not exchanging the Preferred
Shares for the Common Shares as a result of any advertisement,
article, notice or other communication regarding the Common Shares
published in any newspaper, magazine or similar media or broadcast
over television or radio or presented at any seminar or any other
general solicitation or general advertisement.
ARTICLE
IV.
MISCELLANEOUS
4.1 Fees
and Expenses. Each party hereto shall pay the fees and
expenses of its advisers, counsel, accountants and other experts,
if any, and all other expenses incurred by such party incident to
the negotiation, preparation, execution, delivery and performance
of this Agreement. The Company shall pay all transfer agent fees,
stamp taxes and other taxes and duties levied in connection with
the delivery of the Common Shares to the Investor.
4.2 Entire
Agreement. This Agreement contains the entire understanding
of the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings, oral or
written, with respect to such matters, which the parties hereto
acknowledge have been merged into such documents, exhibits and
schedules.
4.3
Notices. Any and
all notices or other communications or deliveries required or
permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of: (a) the date of
transmission, if such notice or communication is delivered via
facsimile at the facsimile number set forth on the signature pages
attached hereto prior to 5:30 p.m. (New York City time) on a
Trading Day, and confirmation of transmission shall have been
received, (b) the next Trading Day after the date of transmission,
if such notice or communication is delivered via facsimile at the
facsimile number set forth on the signature pages attached hereto
on a day that is not a Trading Day or later than 5:30 p.m. (New
York City time) on any Trading Day, and confirmation of
transmission shall have been received, (c) the second
(2nd)
Trading Day following the date of mailing, if sent by U.S.
nationally recognized overnight courier service or (d) upon actual
receipt by the party to whom such notice is required to be given if
delivered by hand or by registered or certified mail, return
receipt requested. The address for such notices and communications
shall be as set forth on the signature pages attached
hereto.
4.4
Amendments;
Waivers. No provision of this Agreement may be waived,
modified, supplemented or amended except in a written instrument
signed by the Company and the Investor. No waiver of any default
with respect to any provision, condition or requirement of this
Agreement shall be deemed to be a continuing waiver in the future
or a waiver of any subsequent default or a waiver of any other
provision, condition or requirement hereof, nor shall any delay or
omission of any party hereto to exercise any right hereunder in any
manner impair the exercise of any such right.
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4.5
Headings. The headings herein
are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the
provisions hereof.
4.6 Successors
and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their successors and
permitted assigns. The Company may not assign this Agreement or any
rights or obligations hereunder without the prior written consent
of the Investor (other than by merger). The Investor may assign any
or all of its rights under this Agreement to any Person to whom the
Investor assigns or transfers any of the Common Shares,
provided that such
transferee agrees in writing to be bound, with respect to the
Common Shares, by the provisions of this Agreement that apply to
the Investor.”
4.7
Governing Law. All
questions concerning the construction, validity, enforcement and
interpretation of this Agreement shall be governed by and construed
and enforced in accordance with the internal laws of the State of
New York, without regard to the principles of conflicts of law
thereof. Each party hereto agrees that all legal proceedings
concerning the interpretations, enforcement and defense of the
transactions contemplated by this Agreement (whether brought
against a party hereto or its respective affiliates, directors,
officers, shareholders, employees or agents) shall be commenced
exclusively in the state and federal courts sitting in the City of
New York. Each party hereto hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts sitting in
the City of New York, borough of Manhattan for the adjudication of
any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein (including with
respect to the enforcement of this Agreement), and hereby
irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim that it is not personally subject to the
jurisdiction of, any such court, that such suit, action or
proceeding is improper or is an inconvenient venue for such
proceeding. Each party hereto hereby irrevocably waives personal
service of process and consents to process being served in any such
suit, action or proceeding 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. If either party
hereto shall commence an action or proceeding to enforce any
provisions of this Agreement, then, the prevailing party in such
action or proceeding shall be reimbursed by the other party for its
reasonable attorneys’ fees and other costs and expenses
incurred with the investigation, preparation and prosecution of
such action or proceeding.
4.8 Survival.
The representations and warranties contained herein shall survive
the Closing and the cancellation of the Preferred
Shares.
4.9 Execution.
This Agreement may be executed in two or more counterparts, all of
which when taken together shall be considered one and the same
agreement and shall become effective when counterparts have been
signed by each party hereto and delivered to the other party, it
being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by
facsimile transmission or by e-mail delivery of a
“.pdf” format data file, such signature shall create a
valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect
as if such facsimile or “.pdf” signature page were an
original thereof.
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4.10
Severability. If
any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or
invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to
achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It
is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or
unenforceable.
4.11
Replacement of
Shares. If, subsequent to the date hereof, any certificate
or instrument evidencing any of the Common Shares is mutilated,
lost, stolen or destroyed, the Company shall issue or cause to be
issued in exchange and substitution for and upon cancellation
thereof (in the case of mutilation), or in lieu of and substitution
therefor, a new certificate or instrument, but only upon receipt of
evidence reasonably satisfactory to the Company of such loss, theft
or destruction. The applicant for a new certificate or instrument
under such circumstances shall also pay any reasonable third-party
costs (including customary indemnity) associated with the issuance
of such replacement certificates.
4.12
Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the
taking of any action or the expiration of any right required or
granted herein shall not be a Business Day, then such action may be
taken or such right may be exercised on the next succeeding
Business Day.
4.13 Construction.
The parties hereto agree that each of them and/or their respective
counsel has reviewed and had an opportunity to revise this
Agreement and, therefore, the normal rule of construction to the
effect that any ambiguities are to be resolved against the drafting
party shall not be employed in the interpretation of this Agreement
or any amendments hereto. In addition, each and every reference to
share prices and shares of Common Stock in this Agreement shall be
subject to adjustment for reverse and forward stock splits, stock
dividends, stock combinations and other similar transactions that
occur after the date of this Agreement.
[Signature Pages Follow]
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IN
WITNESS WHEREOF, the parties hereto have caused this Securities
Exchange Agreement to be duly executed by their respective
authorized signatories as of the date first indicated
above.
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Address for Notice:
00000
Xxxxxxxxx Xxxx, Xxxxx 0000
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Xxxxxx,
XX 00000
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By:__________________________________________
Name:
Xxxxxxx Xxxxxx
Title:
Chief Executive Officer
With a
copy to (which shall not constitute notice):
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Lucosky
Xxxxxxxx LLP
000
Xxxx Xxxxxx Xxxxx, 0xx Xxxxx
Xxxxxx,
XX 00000
Attn:
Xxxxx X. Xxxxxx, Esq.
Fax:
(000) 000-0000
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[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR
THE INVESTOR FOLLOW]
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[INVESTOR SIGNATURE
PAGE TO SECURITIES EXCHANGE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned has caused this Securities
Exchange Agreement to be duly executed by their respective
authorized signatories as of the date first indicated
above.
Name of
Investor:
Signature of Investor:
__________________________
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