EXHIBIT 10.1

 

CUR Platform Design

March 11, 2014

 

 

I. OVERVIEW

Wondersauce was contacted by CUR to design and architect a new music platform for iOS, Android (phone and tablet) and Web. The following is our approach, along with timing, costs and project assumptions.

II. APPROACH

Below is a breakdown of the project:

a) Discovery

b) User Experience / Design

c) Technical Advisement

 

III. PROCESS

Below is a breakdown of the project:

a) Discovery

b) User Experience / Design

c) Technical Advisement

Below is a breakdown of each phase.

a)     Discovery

The goal of this 2-3 week project discovery is for the Wondersauce team to fully immerse itself in your business and vision. The first step in the process is a project kickoff meeting. In this meeting we will align all key stakeholders from CUR and Wondersauce around project goals, process, necessary approval steps, and defining main points of contact for each party. We will interview key stakeholders around anything from company vision, existing technical infrastructure, desired features and functionality, app content and layout needs, competitive set, potential pain points and any other needs/wants for the new product. From there, we will collect, organize and review all materials provided by your team and create a design approach document, used to align the goals and vision for the experience moving forward. This document may include high-level thoughts/recommendations around user flows, personas, prioritized list of screens, targeted list of devices we’ll support at initial launch, and an initial application map.

Deliverables: Design Approach Document

b) User Experience / Branding / Design

Wondersauce envisions a hybrid model that takes elements of each of the below phases, yet allows us to handoff files to the internal CUR technical team in a fluid manner. We recommend starting with iOS devices, as it’s the most documented and structured platform. Once the key app screens are agreed upon we will extend the flows across different operating systems.

The goal of the user experience phase is to understand your users and provide them with a clear solution to a defined business problem. Wondersauce will draw from a series of user experience tactics to make sure our interface approach is well informed and set up for success. One key tactic in the process is creating user flows or user stories. These documents help organize functional thoughts. This organization will inform our information architecture and lead to a formal app map. Next, we’ll define our customer models and personas. This will indicate whom we are designing for, what they do, and how they will do it. We will aim to indicate different characteristics of the customer along with their pains and their desires in terms of interacting with the CUR digital experience. From there we will begin wireframing out the key site sections. This could be done as either low fidelity sketches or high fidelity wireframes.

The goal of our design process is to establish the overall visual identity of the experience. We’ll start by creating (2) moodboard directions based on your current branding that represent different visual treatments of the brand. In this exercise we will visualize how we treat images, color palette, typography, and general look and feel going forward. We will present each visual direction to CUR with the goal of selecting (1) direction as the base for our experience. Along with selecting a base direction, CUR will provide consolidated feedback. Wondersauce will take a second pass and finalize the moodboard based on the selected direction and consolidated feedback. A final moodboard and visual direction will be presented back to CUR.

 

Next, we begin applying the approved aesthetic form the moodboard to the wireframes and architecture defined in the user experience phase. We will start with the key priority screens defined in the discovery phase and present to CUR for feedback. Wondersauce will implement the feedback and begin designing out additional screens. We will follow this process and re-present to CUR until each app section is designed and approved. Once each screen is approved we will package and send over to CUR for implementation. Given the nature of this agreement, Wondersauce can continue to make improvements to screens after they are handed off and tested.

Deliverables: Wireframes, User Flows/Stories, Personas, Site Map, Wireframes, Photoshop Documents (PSDs)

c) Technical Advisement

Wondersauce will work with the internal CUR technical team to determine the best way to hand over the approved Photoshop Documents (PSD’s). Our initial recommendation is to provide an annotated PDF that lays out the intended functionality of each app screen. For any complex interactions, we will create an animation test that clearly displays intended functionality. The annotated PDF, along with the animation tests, will accompany the final approved PSD’s. We recommend handing off the final designs in batches, so the CUR technical team can implement designs and pass them back to the Wondersauce team for feedback/revisions.

Additionally, Wondersauce will assess and recommend technical solutions on a case-by-case basis. (i.e. 3rd party API integrations/limitations, low battery + no battery connection, etc.)

 

IV. BUDGET / TIMING/PAYMENT TERMS

Wondersauce and CUR have agreed to the following cash and stock option structure.

TOTAL CASH: $345,000

INVOICE 1: $90,000 UP FRONT

INVOICE 2: $15K (invoiced on 3/11/14)

INVOICE 3: $60,000 (to be invoiced on 4/1/14)

INVOICE 4: $60,000 (to be invoiced on 5/1/14)

INVOICE 5: $60,000 (to be invoiced on 6/1/14)

INVOICE 6: $60,000 (to be invoiced on 7/1/14)

All invoices are Net 30

TOTAL STOCK OPTIONS:

50,000 options with an exercise price equal to the final share price of the company’s common stock as per the company’s private placement offering expected to be completed by April 14, 2014.

TIMING:

Wondersauce anticipates final delivery of Photoshop Documents (PSDs) for all agreed upon devices to CUR in August of 2014 but will try and expedite the process if possible. Once final handoff occurs, Wondersauce will be available to provide feedback during the development process.

 

 

V. PROJECT ASSUMPTIONS

 

●	Any unexpected out-of-pocket costs (including travel) will be invoiced at cost, with the prior approval of CUR.

●	Project timing assumes there are no unforeseen delays.

●	Wondersauce is not responsible for any development.

●	Wondersauce will sign a 1-year non-compete within the music streaming service space

●	upon signature of this agreement. We will increase this non-compete to 2 years if all 10

●	months of this retainer agreement are realized.

●	CUR will take full ownership of all Wondersauce deliverables associated with this agreement.

●	Wondersauce is not responsible for app copy or content.

●	Wondersauce assumes all feedback to be turned around within 48 hours.

●	Wondersauce assumes access to all necessary assets (copy, images, etc..) upon project kickoff.

●	CUR is responsible for costs associated with hosting and licensing 3rd party software.

 

 

Wondersauce		CUR
John Sampogna		Tom Brophy
Signature		Signature
/s/ John Sampogna		/s/ Thomas Brophy
Date: 3/11/14		Date: 3/11/14

 

 

 

 

 

6

EXHIBIT 10.3

 

SECURITIES PURCHASE AGREEMENT

 

THIS SECURITIES PURCHASE AGREEMENT (this “Agreement”), is made effective as of __________, 2014, and is entered into by and among CÜR Media, Inc. (formerly named Duane Street Corp.), a Nevada corporation (the “Company”), and the Buyer(s) set forth on the signature pages affixed hereto (individually, a “Buyer” or collectively, the “Buyers”).

 

WITNESSETH:

 

WHEREAS , the Company and the Buyer(s) are executing and delivering this Agreement in reliance upon an exemption from securities registration pursuant to Section 4(2) and/or Rule 506 of Regulation D (“Regulation D”) and/or Regulation S (“Regulation S”) as promulgated by the U.S. Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”); and

 

WHEREAS , the parties desire that, upon the terms and subject to the conditions contained herein, the Company shall sell to the Buyers, as provided herein, and the Buyers shall purchase in a private placement offering (the “PPO”), a minimum of 4,000,000 units (the “Minimum PPO”) and a maximum of 7,000,000 units (the “Maximum PPO”) with an additional 3,000,000 units subject to offer and sale at the sole discretion of the Company, pursuant to an over-allotment option (the “Over-Allotment Option”), at a price of $1.00 per unit, with each PPO unit (the “Units”) consisting of one share of the Company’s common stock, $0.0001 par value per share (the “Common Stock”) and one five year common stock purchase warrant of the Company (the “PPO Warrant”) to purchase one share of Common Stock at a price of $2.00 per share (the “PPO Warrant Shares”); and

 

WHEREAS , the Company may offer the Units at any time through and including April 14, 2014 (the “Offering Period”); and

 

WHEREAS , on January 28, 2014, the Company consummated a membership interests contribution (the “Contribution”) with Raditaz, LLC, a Connecticut limited liability company (“Raditaz”) and the members of Raditaz, pursuant to which Raditaz has become a wholly owned subsidiary of the Company and the members of Raditaz received approximately 10,000,000 shares of Common Stock and had their outstanding Raditaz options converted into an aggregate of approximately 1,339,721 Company non-statutory stock options and approximately 316,331 Company restricted stock awards; and

 

WHEREAS , the PPO, in at least the Minimum PPO amount, closed simultaneously with the closing of the Contribution (the “Initial Closing”); and

 

WHEREAS, the Company stockholders prior to the Contribution and the PPO retained such numbers of shares of Common Stock following the Initial Closing of the PPO that was equal to 19.9% of the total number of shares of Company Common Stock after taking into account the PPO, Contribution, Forward Split (as defined below), Split-Off (as defined below) and Split-Off Share Cancellation (as defined below); and

 

 

WHEREAS , simultaneously with the closing of the Contribution and the Initial Closing of the PPO, the Company adopted a 4,000,000 share Equity Incentive Plan (the “2014 EIP”) for the issuance of awards to officers, directors, key employees and consultants of the Company; and

 

WHEREAS , the PPO Warrants and the Broker Warrants (as defined below) have weighted average anti-dilution price protection, for a period of two years, from the final PPO closing date, subject to customary exceptions, if prior to the earlier of the end of such two year period or their exercise or termination, the Company issues additional shares of Common Stock or Common Stock equivalents for a consideration per share less than the PPO Units offering price of $1.00 per Unit, as such price may be adjusted, subject to customary exceptions, including but not limited to issuances under the 2014 EIP; and

 

WHEREAS, the PPO Units also have weighted average anti-dilution protection for a period of two years from the final PPO closing date such that if the Company issues additional shares of Common Stock or Common Stock equivalents for a consideration per share less than the PPO offering price of $1.00 per Unit, as such PPO offering price may be adjusted, subject to customary exceptions, including but not limited to issuances under the 2014 EIP, the holder of the Units will be entitled to receive from the Company additional Units.

 

WHEREAS , following the Contribution and the Initial Closing of the PPO, the Company (i) changed its name to CÜR Media, Inc., and (ii) conducted a forward stock split in the form of a stock dividend in the ratio of 16.503906:1 (the “Forward Split”); and

 

WHEREAS , in conjunction with the closing of the Contribution and the Initial Closing of the PPO, the Company transferred all of its pre-Contribution operating assets and liabilities to a wholly owned subsidiary formed solely for this purpose (“Split-Off Subsidiary”), and thereafter, the Company transferred all of the outstanding shares of capital stock of Split-Off Subsidiary to the Company’s pre-Contribution insiders in exchange for the surrender and cancellation of shares (the “Split-Off Share Cancellation”) of Common Stock held by such insiders (the “Split-Off”) (the Contribution, the PPO, the Forward Split, the Split-Off, and the transactions contemplated thereby are sometimes hereinafter referred to as the “Transactions”); and

 

WHEREAS , all of the Transactions give retroactive effect to the Forward Split such that the number of Company securities to be issued in connection with the PPO and all other issuances of Company securities contemplated by this Agreement, were not affected by the effectuation of the Forward Split; and

 

WHEREAS , Gottbetter Capital Markets, LLC (the “Placement Agent”), a FINRA registered broker-dealer, has acted, and will continue to act, as the Company’s exclusive Placement Agent on a reasonable best efforts basis in the PPO and in connection therewith has engaged EDI Financial, Inc., and may engage other Financial Industry Regulatory Authority (“FINRA”) registered broker-dealers as sub-agents; and

 

WHEREAS , the Placement Agent has been, and will continue to be, paid a cash commission of 10% of funds raised from the Buyers introduced to the PPO by it plus a warrant commission in the form of a warrant (the “Broker Warrants”) to purchase such number of shares of the Company’s Common Stock as is equal to 10% of the number of shares of Common Stock sold to Buyers introduced to the PPO by it having a term of 5 years and an exercise price of $1.00 per share (the “Broker Warrant Shares”); and

 

WHEREAS, the Placement Agent has not been, and will not be, paid a cash commission or warrant commission on sales of Units to Buyers introduced to the PPO by Raditaz or to Buyers that are pre-PPO members of Raditaz; and

 

 

WHEREAS, the Placement Agent will also act as the Company’s Warrant Solicitation Agent in connection with the exercise of the PPO Warrants and will be paid a cash commission of 5% of funds raised upon exercise of PPO Warrants by Buyers introduced to the PPO by it and solicited by the Placement Agent for such purpose; and

 

WHEREAS , the aggregate proceeds from the sale of the Units shall be held in escrow pursuant to the terms of an escrow agreement substantially in the form of Exhibit A to this Agreement among the Company and the Escrow Agent (as defined below), as amended (the “Escrow Agreement”).

 

WHEREAS , promptly, but no later than ninety calendar days from the date of the final closing of the PPO, the Company shall file a registration statement on Form S-1, or similar form with the SEC covering (i) the shares of Common Stock comprising part of the PPO Units; (ii) the shares of Common Stock underlying the PPO Warrants; and (iii) the shares of Common Stock underlying the Broker Warrants.

 

NOW, THEREFORE , in consideration of the mutual covenants and other agreements contained in this Agreement the Company and the Buyer(s) hereby agree as follows:

 

1.   PURCHASE AND SALE OF UNITS .

 

(a)   Purchase of Units . Subject to the satisfaction (or waiver) of the terms and conditions of this Agreement, each Buyer agrees, severally and not jointly, to purchase at Closing (as defined below), and the Company agrees to sell and issue to each Buyer, severally and not jointly, at Closing, Units in the amounts set forth on the Buyer Omnibus Signature Page, attached hereto as Annex A , for each Buyer affixed hereto. The PPO Warrants comprising part of the Units shall be substantially in the form attached as Exhibit B to this Agreement. The Broker Warrants comprising part of the Placement Agent compensation shall be identical to the PPO Warrants in all material respects except exercise price. Upon execution of this Agreement on the Buyer Omnibus Signature Page and completion of the Investor Certification, the Investor Profile, the Anti-Money Laundering Information Form and if applicable, the Wire Transfer Authorization (each attached hereto) by a Buyer, the Buyer shall wire transfer the Subscription Amount set forth on its Buyer Omnibus Signature Page, in same-day funds in accordance with the instructions set forth immediately below, which Subscription Amount shall be held in escrow pursuant to the terms of the Escrow Agreement and disbursed in accordance therewith.

 

 

 

(b)   Closing Date . The Initial Closing of the purchase and sale of at least the Minimum Amount of Units (the “Closing”) took place on January 28, 2014 following the satisfaction of the conditions to the Closing set forth herein and in Sections 7 and 8 below. There may be multiple Closings, subject to prior termination, until such time as subscriptions for the Maximum Amount are accepted (the date of any such Closing is hereinafter referred to as a “Closing Date”). The Closings shall occur on the Closing Dates at the offices of Gottbetter & Partners, LLP, 488 Madison Avenue, New York, New York 10022 (or such other place as is mutually agreed to by the Company and the Buyer(s)). The Units may be offered and sold through the end of the Offering Period.

 

(c)   Escrow Arrangements; Form of Payment . Upon execution hereof by the Buyer and pending the Closing, the Purchase Price shall be deposited in a non-interest bearing escrow account with CSC Trust Company of Delaware, as escrow agent (the “Escrow Agent”), pursuant to the terms of the Escrow Agreement, as amended. Subject to the satisfaction of the terms and conditions of this Agreement, on the Closing Date or as soon as practicable thereafter, (i) the Escrow Agent shall deliver to the Company in accordance with the terms of the Escrow Agreement, as amended, the Purchase Price for the Units to be issued and sold to the Buyer(s) on such Closing Date, and (ii) the Company shall deliver to the Buyer(s), the certificates for the Common Stock and the PPO Warrants, duly executed on behalf of the Company.

 

(d)   Brokers or their sub-agents who introduce Buyers to the Company will be paid a commission in amounts and on terms as indicated in the placement agency agreement entered into between the Company and such brokers (collectively, the “Brokers’ Fees”), as such agreement may be amended from time to time (the “Placement Agency Agreement”).

 

2.   BUYER’S REPRESENTATIONS AND WARRANTIES .

 

Each Buyer represents and warrants, severally and not jointly, as to such Buyer, that:

 

(a)   Investment Purpose . Each Buyer is acquiring the Units, including the Common Stock, PPO Warrants and PPO Warrant Shares, for its own account for investment only and not with a view towards, or for resale in connection with, the public sale or distribution thereof, except pursuant to sales registered or exempted under the Securities Act; provided, however, that by making the representations herein, such Buyer reserves the right to dispose of the Common Stock comprising part of the Units and the Common Stock underlying the PPO Warrants at any time in accordance with or pursuant to an effective registration statement covering such Common Stock, or an available exemption under the Securities Act. The Buyer agrees not to sell, hypothecate or otherwise transfer the Buyer’s securities unless such securities are registered under the federal and applicable state securities laws or unless, in the opinion of counsel satisfactory to the Company, an exemption from such law is available. Each Buyer understands and agrees that the Company, in its sole discretion, reserves the right to accept or reject subscriptions for Units in whole or in part.

 

 

(b)   Residence of Buyer . Each Buyer resides in the jurisdiction set forth on the Buyer Omnibus Signature Page affixed hereto.

 

(c)   Investor Status . The Buyer meets the requirements of at least one of the suitability standards for an “ Accredited Investor ” as that term is defined in Rule 501(a)(3) of Regulation D or is not a “ U.S. Person ” as that term is defined in Rule 902(k) of Regulation S, and as set forth on the Investor Certification attached hereto.

 

(d)   Non-US Person . If a Buyer is not a person in the United States or a U.S. Person (as defined in Rule 902(k) of Regulation S) or is not purchasing the Units on behalf of a person in the United States or a U.S. Person:

 

(i)   neither the Buyer nor any disclosed principal is a U.S. Person nor are they subscribing for the Units for the account of a U.S. Person or for resale in the United States and the Buyer confirms that the Units have not been offered to the Buyer in the United States and that this Agreement has not been signed in the United States;

 

(ii)   the Buyer acknowledges that the Units have not been registered under the Securities Act and may not be offered or sold in the United States or to a U.S. Person unless the securities are registered under the U.S. Securities Act and all applicable state securities laws or an exemption from such registration requirements is available, and further agrees that hedging transactions involving such securities may not be conducted unless in compliance with the U.S. Securities Act;

 

(iii)   the Buyer and if applicable, the disclosed principal for whom the Buyer is acting, understands that the Company is the seller of the Units and underlying securities and that, for purposes of Regulation S, a “distributor” is any underwriter, dealer or other person who participates pursuant to a contractual arrangement in the distribution of securities sold in reliance on Regulation S and that an “affiliate” is any partner, officer, director or any person directly or indirectly controlling, controlled by or under common control with any person in question. Except as otherwise permitted by Regulation S, the Buyer and if applicable, the disclosed principal for whom the Buyer is acting, agrees that it will not, during a one year distribution compliance period, act as a distributor, either directly or through any affiliate, or sell, transfer, hypothecate or otherwise convey the Units or underlying securities other than to a non-U.S. Person;

 

 

(iv)   the Buyer and if applicable, the disclosed principal for whom the Buyer is acting, acknowledges and understands that in the event the Units are offered, sold or otherwise transferred by the Buyer or if applicable, the disclosed principal for whom the Buyer is acting, to a non-U.S Person prior to the expiration of a one year distribution compliance period, the purchaser or transferee must agree not to resell such securities except in accordance with the provisions of Regulation S, pursuant to registration under the Securities Act, or pursuant to an available exemption from registration; and must further agree not to engage in hedging transactions with regard to such securities unless in compliance with the Securities Act; and

 

(v)   neither the Buyer nor any disclosed principal will offer, sell or otherwise dispose of the Units or the underlying securities in the United States or to a U.S. Person unless (A) the Company has consented to such offer, sale or disposition and such offer, sale or disposition is made in accordance with an exemption from the registration requirements under the Securities Act and the securities laws of all applicable states of the United States or, (B) the SEC has declared effective a registration statement in respect of such securities.

 

(e)   Investor Qualifications. The Buyer (i) if a natural person, represents that the Buyer has reached the age of 21 and has full power and authority to execute and deliver this Agreement and all other related agreements or certificates and to carry out the provisions hereof and thereof; (ii) if a corporation, partnership, or limited liability company or partnership, or association, joint stock company, trust, unincorporated organization or other entity, represents that such entity was not formed for the specific purpose of acquiring the Units, such entity is duly organized, validly existing and in good standing under the laws of the state of its organization, the consummation of the transactions contemplated hereby is authorized by, and will not result in a violation of state law or its charter or other organizational documents, such entity has full power and authority to execute and deliver this Agreement and all other related agreements or certificates and to carry out the provisions hereof and thereof and to purchase and hold the Units, the execution and delivery of this Agreement has been duly authorized by all necessary action, this Agreement has been duly executed and delivered on behalf of such entity and is a legal, valid and binding obligation of such entity; or (iii) if executing this Agreement in a representative or fiduciary capacity, represents that it has full power and authority to execute and deliver this Agreement in such capacity and on behalf of the subscribing individual, ward, partnership, trust, estate, corporation, or limited liability company or partnership, or other entity for whom the Buyer is executing this Agreement, and such individual, partnership, ward, trust, estate, corporation, or limited liability company or partnership, or other entity has full right and power to perform pursuant to this Agreement and make an investment in the Company, and represents that this Agreement constitutes a legal, valid and binding obligation of such entity. The execution and delivery of this Agreement will not violate or be in conflict with any order, judgment, injunction, agreement or controlling document to which the Buyer is a party or by which it is bound.

 

(f)   Buyer Relationship with Brokers The Buyer’s substantive relationship with any broker for the transactions contemplated hereby or subagent thereof (collectively, “Brokers”) through which the Buyer is subscribing for the Units predates such Broker’s contact with the Buyer regarding an investment in the Units.

 

(g)   Solicitation . The Buyer is unaware of, is in no way relying on, and did not become aware of the offering of the Units through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, in connection with the offering and sale of the Units and is not subscribing for the Units and did not become aware of the offering of the Units through or as a result of any seminar or meeting to which the Buyer was invited by, or any solicitation of a subscription by, a person not previously known to the Buyer in connection with investments in securities generally.

 

 

(h)   Brokerage Fees . The Buyer has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transaction contemplated hereby (other than commissions to be paid by the Company to the Brokers, as described above).

 

(i)   Buyer’s Advisors . The Buyer and the Buyer’s attorney, accountant, purchaser representative and/or tax advisor, if any (collectively, the “Advisors”), as the case may be, has such knowledge and experience in financial, tax, and business matters, and, in particular, investments in securities, so as to enable it to utilize the information made available to it in connection with the Units to evaluate the merits and risks of an investment in the Units and the Company and to make an informed investment decision with respect thereto.

 

(j)   Buyer Liquidity . Each Buyer has adequate means of providing for such Buyer’s current financial needs and foreseeable contingencies and has no need for liquidity of its investment in the Units for an indefinite period of time.

 

(k)   High Risk Investment; Review of Risk Factors . The Buyer is aware that an investment in the Units involves a number of very significant risks, including those set forth in Exhibit D, hereto and has carefully reviewed and understands the risks of, and other considerations relating to, the purchase of the Unit, including the underlying securities.

 

(l)   Reliance on Exemptions . Each Buyer understands that the Units are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and such Buyer’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of such Buyer set forth herein in order to determine the availability of such exemptions and the eligibility of such Buyer to acquire such securities.

 

(m)   Information . Each Buyer and its Advisors have been furnished with all documents and materials relating to the business, finances and operations of the Company and information that Buyer requested and deemed material to making an informed investment decision regarding its purchase of the Units and the underlying securities. Each Buyer and its Advisors have been afforded the opportunity to review such documents and materials, as well as the Company’s SEC Filings, as such term is defined below (hard copies of which were made available to the Buyer upon request to the Company or were otherwise accessible to the Buyer via the SEC’s EDGAR system), and the information contained therein. Each Buyer and its Advisors have been afforded the opportunity to ask questions of the Company and its management. Each Buyer understands that such discussions, as well as any written information provided by the Company, were intended to describe the aspects of the Company’s business and prospects which the Company believes to be material, but were not necessarily a thorough or exhaustive description, and except as expressly set forth in this Agreement, the Company makes no representation or warranty with respect to the completeness of such information and makes no representation or warranty of any kind with respect to any information provided by any entity other than the Company. Some of such information may include projections as to the future performance of the Company, which projections may not be realized, may be based on assumptions which may not be correct and may be subject to numerous factors both beyond and within the Company’s control. Additionally, the Buyer understands and represents that he is purchasing the Units notwithstanding the fact that the Company may disclose in the future certain material information the Buyer has not received, including its financial results for its current fiscal quarter. Neither such inquiries nor any other due diligence investigations conducted by such Buyer or its Advisors shall modify, amend or affect such Buyer’s right to rely on the Company’s representations and warranties contained in Section 3 below. Each Buyer has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition of the Units.

 

 

(n)   No Other Representations or Information . In evaluating the suitability of an investment in the Units, the Buyer has not relied upon any representation or information (oral or written) other than as stated in this Agreement. No oral or written representations have been made, or oral or written information furnished, to the Buyer or its Advisors, if any, in connection with the offering of the Units.

 

(o)   No Governmental Review . Each Buyer understands that no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Units (or the underlying securities), or the fairness or suitability of the investment in the Units (and the underlying securities), nor have such authorities passed upon or endorsed the merits of the offering of the Units.

 

(p)   Transfer or Resale . (A) Each Buyer understands that: (i) the Units, including the underlying securities, have not been and are not being registered under the Securities Act or any state securities laws, and may not be offered for sale, sold, assigned or transferred unless (A) subsequently registered thereunder, or (B) such Buyer shall have delivered to the Company an opinion of counsel, in a generally acceptable form, to the effect that such securities to be sold, assigned or transferred may be sold, assigned or transferred pursuant to an exemption from such registration requirements; (ii) any sale of such securities made in reliance on Rule 144 under the Securities Act (or a successor rule thereto) (“ Rule 144 ”) may be made only in accordance with the terms of Rule 144 and further, if Rule 144 is not applicable, any resale 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 Securities Act) may require compliance with some other exemption under the Securities Act or the rules and regulations of the SEC thereunder; and (iii) except as otherwise set forth in this Agreement and the Registration Rights Agreement (substantially in the form attached as Exhibit C ), neither the Company nor any other person is under any obligation to register such securities under the Securities Act or any state securities laws or to comply with the terms and conditions of any exemption thereunder. The Company reserves the right to place stop transfer instructions against the shares and certificates for the Common Stock comprising part of the Units and the Warrant Shares underlying the PPO Warrant to the extent specifically set forth under this Agreement. There can be no assurance that there will be any market or resale for the Units (or the Common Stock, including the Common Stock underlying the Units and the PPO Warrants ), nor can there be any assurance that the Units (or the Common Stock, including the Common Stock underlying the Units and PPO Warrants) will be freely transferable at any time in the foreseeable future.

 

(B) Each Buyer understands that, prior to the Contribution, the Company was a “shell company” as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Pursuant to Rule 144(i), securities issued by a current or former shell company (that is, the Units (and the underlying securities)) that otherwise meet the holding period and other requirements of Rule 144 nevertheless cannot be sold in reliance on Rule 144 until one year after the Company (a) is no longer a shell company; and (b) has filed current “Form 10 information” (as defined in Rule 144(i)) with the SEC reflecting that it is no longer a shell company, and provided that at the time of a proposed sale pursuant to Rule 144, the Company is subject to the reporting requirements of section 13 or 15(d) of the Exchange Act and has filed all reports and other materials required to be filed by section 13 or 15(d) of the Exchange Act, as applicable, during the preceding 12 months (or for such shorter period that the issuer was required to file such reports and materials), other than Form 8-K reports. As a result, the restrictive legends on certificates for the Securities cannot be removed except in connection with an actual sale meeting the foregoing requirements or pursuant to an effective registration statement.

 

 

(q)   Legends . Each Buyer understands that the certificates or other instruments representing the Units and PPO Warrants (and the Common Stock underlying the Units and PPO Warrants) shall bear a restrictive legend in substantially the following form (and a stop transfer order may be placed against transfer of such stock certificates):

 

 

The legend set forth above shall be removed and the Company within three (3) business days shall issue a certificate without such legend to the holder of the Units and the PPO Warrants (and the Common Stock underlying the PPO Units and PPO Warrants,) upon which it is stamped, if, unless otherwise required by state securities laws, (i) the Buyer or its broker make the necessary representations and warranties to the transfer agent for the Common Stock that it has complied with the prospectus delivery requirements in connection with a sale transaction, provided the Units and PPO Warrants (and the Common Stock underlying the Units and PPO Warrants) are registered under the Securities Act or (ii) in connection with a sale transaction, after such holder provides the Company with an opinion of counsel satisfactory to the Company, which opinion shall be in form, substance and scope customary for opinions of counsel in comparable transactions, to the effect that a public sale, assignment or transfer of the Units or PPO Warrants (or the Common Stock underlying the Units and PPO Warrants) may be made without registration under the Securities Act.

 

(r)   Authorization, Enforcement . This Agreement has been duly and validly authorized, executed and delivered on behalf of such Buyer and is a valid and binding agreement of such Buyer enforceable in accordance with its terms, except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies.

 

(s)   Receipt of Documents . Each Buyer and its counsel have received and read in their entirety: (i) this Agreement, the Risk Factors applicable to an investment in the Units as set forth in Exhibit D, and each representation, warranty and covenant set forth herein; and (ii) all due diligence and other information necessary to verify the accuracy and completeness of such representations, warranties and covenants; each Buyer has received answers to all questions such Buyer submitted to the Company regarding an investment in the Company; and each Buyer has relied on the information contained therein and has not been furnished any other documents, literature, memorandum or prospectus.

 

(t)   Trading Activities . The Buyer’s trading activities with respect to the Company’s Common Stock shall be in compliance with all applicable federal and state securities laws, rules and regulations and the rules and regulations of the principal market on which the Company’s Common Stock is listed or traded. Neither the Buyer nor its affiliates has an open short position in the Common Stock of the Company and, except as set forth below, the Buyer shall not, and shall not cause any of its affiliates under common control with the Buyer, to engage in any short sale as defined in any applicable SEC or FINRA rules on any hedging transactions with respect to the Common Stock until the earlier to occur of (i) the second anniversary of the Closing Date and (ii) the Buyer(s) no longer own Common Stock. Without limiting the foregoing, the Buyer agrees not to engage in any naked short transactions in excess of the amount of shares owned (or an offsetting long position) by the Buyer.

 

 

(u)   Regulation FD . Each Buyer acknowledges and agrees that all of the information received by it in connection with the transactions contemplated by this Agreement and the other Transactions is of a confidential nature and may be regarded as material non-public information under Regulation FD promulgated by the SEC and that such information has been furnished to the Buyer for the sole purpose of enabling the Buyer to consider and evaluate an investment in the Units. The Buyer agrees that it will treat such information in a confidential manner, will not use such information for any purpose other than evaluating an investment in the Units, will not, directly or indirectly, trade or permit the Buyer’s agents, representatives or affiliates to trade in any securities of the Company while in possession of such information and will not, directly or indirectly, disclose or permit the Buyer’s agents, representatives or affiliates to disclose any of such information without the Company’s prior written consent. The Buyer shall make its agents, affiliates and representatives aware of the confidential nature of the information contained herein and the terms of this section including the Buyer’s agreement to not disclose such information, to not trade in the Company’s securities while in the possession of such information and to be responsible for any disclosure or other improper use of such information by such agents, affiliates or representatives. Likewise, without the Company’s prior written consent, the Buyer will not, directly or indirectly, make any statements, public announcements or other release or provision of information in any form to any trade publication, to the press or to any other person or entity whose primary business is or includes the publication or dissemination of information related to the transactions contemplated by this Agreement.

 

(v)   No Legal Advice from the Company . Each Buyer acknowledges that it had the opportunity to review this Agreement and the transactions contemplated by this Agreement with its own legal counsel and investment and tax advisors. Each Buyer is relying solely on such Advisors and not on any statements or representations of the Company or any of its representatives or agents for legal, tax or investment advice with respect to this investment, the transactions contemplated by this Agreement or the securities laws of any jurisdiction.

 

(w)   No Group Participation . Each Buyer and its affiliates is not a member of any group, nor is any Buyer acting in concert with any other person, including any other Buyer, with respect to its acquisition of the Units, including the PPO Warrants (and the Common Stock, including the Common Stock underlying the Units and PPO Warrants).

 

(x)   Reliance . Any information which the Buyer has heretofore furnished or is furnishing herewith to the Company or any Broker is complete and accurate and may be relied upon by the Company and any Broker in determining the availability of an exemption from registration under federal and state securities laws in connection with the offering of securities as described in the Transmittal Letter. The Buyer further represents and warrants that it will notify and supply corrective information to the Company immediately upon the occurrence of any change therein occurring prior to the Company’s issuance of the securities comprising part of the Units. Within five (5) days after receipt of a request from the Company or any Broker, the Buyer will provide such information and deliver such documents as may reasonably be necessary to comply with any and all laws and ordinances to which the Company or any Broker is subject.

 

 

(y)   (For ERISA plan Buyers only) . The fiduciary of the ERISA plan represents that such fiduciary has been informed of and understands the Company’s investment objectives, policies and strategies, and that the decision to invest “plan assets” (as such term is defined in ERISA) in the Company is consistent with the provisions of ERISA that require diversification of plan assets and impose other fiduciary responsibilities. The Buyer fiduciary or Plan (a) is responsible for the decision to invest in the Company; (b) is independent of the Company or any of its affiliates; (c) is qualified to make such investment decision; and (d) in making such decision, the Buyer fiduciary or Plan has not relied primarily on any advice or recommendation of the Company or any of its affiliates;

 

(z)   [The Buyer should check the Office of Foreign Assets Control (“OFAC”) website at http://www.treas.gov/ofac before making the following representations.] The Buyer represents that the amounts invested by it in the Company in the Units were not and are not directly or indirectly derived from activities that contravene federal, state or international laws and regulations, including anti-money laundering laws and regulations. Federal regulations and Executive Orders administered by OFAC prohibit, among other things, the engagement in transactions with, and the provision of services to, certain foreign countries, territories, entities and individuals. The lists of OFAC prohibited countries, territories, persons and entities can be found on the OFAC website at http://www.treas.gov/ofac. In addition, the programs administered by OFAC (the “OFAC Programs”) prohibit dealing with individuals 1 or entities in certain countries regardless of whether such individuals or entities appear on the OFAC lists;

 

(aa)   To the best of the Buyer’s knowledge, none of: (1) the Buyer; (2) any person controlling or controlled by the Buyer; (3) if the Buyer is a privately-held entity, any person having a beneficial interest in the Buyer; or (4) any person for whom the Buyer is acting as agent or nominee in connection with this investment is a country, territory, individual or entity named on an OFAC list, or a person or entity prohibited under the OFAC Programs. Please be advised that the Company may not accept any amounts from a prospective investor if such prospective investor cannot make the representation set forth in the preceding paragraph. The Buyer agrees to promptly notify the Company should the Buyer become aware of any change in the information set forth in these representations. The Buyer understands and acknowledges that, by law, the Company may be obligated to “freeze the account” of the Buyer, either by prohibiting additional subscriptions from the Buyer, declining any redemption requests and/or segregating the assets in the account in compliance with governmental regulations, and a Broker may also be required to report such action and to disclose the Buyer’s identity to OFAC. The Buyer further acknowledges that the Company may, by written notice to the Buyer, suspend the redemption rights, if any, of the Buyer if the Company reasonably deems it necessary to do so to comply with anti-money laundering regulations applicable to the Company or any Broker or any of the Company’s other service providers. These individuals include specially designated nationals, specially designated narcotics traffickers and other parties subject to OFAC sanctions and embargo programs;

 

 

(bb)   To the best of the Buyer’s knowledge, none of: (1) the Buyer; (2) any person controlling or controlled by the Buyer; (3) if the Buyer is a privately-held entity, any person having a beneficial interest in the Buyer; or (4) any person for whom the Buyer is acting as agent or nominee in connection with this investment is a senior foreign political figure 2 ,   or any immediate family 3 member   or close associate 4   of a senior foreign political figure, as such terms are defined in the footnotes below; and

 

(cc)   If the Buyer is affiliated with a non-U.S. banking institution (a “Foreign Bank”), or if the Buyer receives deposits from, makes payments on behalf of, or handles other financial transactions related to a Foreign Bank, the Buyer represents and warrants to the Company that: (1) the Foreign Bank has a fixed address, other than solely an electronic address, in a country in which the Foreign Bank is authorized to conduct banking activities; (2) the Foreign Bank maintains operating records related to its banking activities; (3) the Foreign Bank is subject to inspection by the banking authority that licensed the Foreign Bank to conduct banking activities; and (4) the Foreign Bank does not provide banking services to any other Foreign Bank that does not have a physical presence in any country and that is not a regulated affiliate.

 

3.   REPRESENTATIONS AND WARRANTIES OF THE COMPANY .

 

The Company represents and warrants to each of the Buyers that:

 

(a)   Organization and Qualification . The Company is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, and has the requisite corporate power to own its properties and to carry on its business as now being conducted. The Company is duly qualified as a foreign corporation to do business and is in good standing in every jurisdiction in which the nature of the business conducted by it makes such qualification necessary, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect, as defined below. The Company presently has no subsidiaries although it will form the Split-Off Subsidiary in connection with the Split-Off.

 

 

 

(b)   Authorization, Enforcement, Compliance with Other Instruments . (i) The Company has the requisite corporate power and authority to enter into and perform this Agreement, the Registration Rights Agreement, the Escrow Agreement, as amended, and all other documents necessary or desirable to effect the transactions contemplated hereby (collectively the “Transaction Documents”) to which it is a party and to issue the Units, including the PPO Warrants and the Broker Warrants (and the Common Stock, including the Common Stock underlying the Units, the PPO Warrants and the Broker Warrants) in accordance with the terms hereof and thereof, (ii) the execution and delivery of the Transaction Documents by the Company and the consummation by it of the transactions contemplated hereby and thereby, including, without limitation, the issuance of the Units (and the Common Stock, including the Common Stock underlying the Units, PPO Warrants and Broker Warrants ) and the reservation for issuance of the PPO Warrant Shares and Broker Warrant Shares have been duly authorized by the Company’s Board of Directors and no further consent or authorization is required by the Company, its Board of Directors or its stockholders, (iii) the Transaction Documents will be duly executed and delivered by the Company, (iv) the Transaction Documents when executed will constitute the valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of creditors’ rights and remedies.

 

(c)   Capitalization . The authorized capital stock of the Company consists of 300,000,000 shares of Common Stock and 10,000,000 shares of blank check preferred stock (“Preferred Stock”). As of the date hereof, the Company has 17,584,859 shares of Common Stock issued and outstanding and no shares of Preferred Stock outstanding. All of such outstanding shares have been duly authorized, validly issued and are fully paid and nonassessable. No shares of Common Stock are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company. Except as contemplated by the Contribution or PPO, as disclosed in the Company’s SEC Filings (as defined below), or as otherwise provided herein, (i) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company, or contracts, commitments, understandings or arrangements by which the Company is or may become bound to issue additional shares of capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company, (ii) there are no outstanding debt securities and (iii) there are no agreements or arrangements under which the Company is obligated to register the sale of any of their securities under the Securities Act (except in connection with the Contribution and the PPO), and (iv) there are no outstanding registration statements and there are no outstanding comment letters from the SEC or any other regulatory agency. There are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Units as described in this Agreement. The Units, including the PPO Warrants (and the Common Stock underlying the Units and PPO Warrants ) and the Broker Warrants when issued, will be free and clear of all pledges, liens, encumbrances and other restrictions (other than those arising under federal or state securities laws as a result of the issuance of the Unit and the underlying securities). No co-sale right, right of first refusal or other similar right exists with respect to the Units (or the Common Stock underlying the Units and PPO Warrants) or the issuance and sale thereof. The issue and sale of the Units (and the Common Stock underlying the Units and PPO Warrants) will not result in a right of any holder of Company securities to adjust the exercise, exchange or reset price under such securities. The Company has made available to the Buyer true and correct copies of the Company’s Articles of Incorporation, and as in effect on the date hereof (the “Articles of Incorporation”), and the Company’s By-laws, as in effect on the date hereof (the “By-laws”), and the terms of all securities exercisable for Common Stock and the material rights of the holders thereof in respect thereto other than stock options issued to employees and consultants.

 

 

(d)   Issuance of Securities . The Units are duly authorized and, upon issuance in accordance with the terms hereof, shall be duly issued, fully paid and nonassessable, are free from all taxes, liens and charges with respect to the issue thereof. The Common Stock underlying the Units, the PPO Warrants and Broker Warrants has been duly authorized and reserved for issuance. Upon issuance, the Common Stock underlying the Units, the PPO Warrants and the Broker Warrants will be duly issued, fully paid and nonassessable.

 

(e)   No Conflicts . The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the Company of the transactions contemplated hereby will not (i) result in a violation of the Articles of Incorporation or the 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 would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Company is a party, or result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations and the rules and regulations of the OTC Bulletin Board (the “OTCBB”) on which the Common Stock is quoted) applicable to the Company or by which any property or asset of the Company is bound or affected except for those which could not reasonably be expected to have a material adverse effect on the assets, business, condition (financial or otherwise), results of operations or future prospects of the Company (a “Material Adverse Effect”). Except those which could not reasonably be expected to have a Material Adverse Effect, the Company is not in violation of any term of or in default under its Articles of Incorporation or By-laws. Except as set forth on Schedule 3(c) and except for those which could not reasonably be expected to have a Material Adverse Effect, the Company is not in violation of any term of or in default under any material contract, agreement, mortgage, indebtedness, indenture, instrument, judgment, decree or order or any statute, rule or regulation applicable to the Company. The business of the Company is not being conducted, and shall not be conducted in violation of any material law, ordinance, or regulation of any governmental entity. Except as specifically contemplated by this Agreement and as required under the Securities 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 or governmental agency in order for it to execute, deliver or perform any of its obligations under or contemplated by this Agreement or the Escrow Agreement in accordance with the terms hereof or thereof. 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 unaware of any facts or circumstance, which might give rise to any of the foregoing.

 

 

(f)   SEC Filings; Financial Statements . The Company has filed (and, except for certain Current Reports on Form 8-K, has, within the past two years, timely filed (subject to 12b-25 filings with respect to certain periodic filings)) 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 “Exchange Act”) (all of the foregoing and all other documents filed with the SEC prior to the date hereof and all exhibits included therein and financial statements and schedules thereto and documents incorporated by reference therein, being hereinafter referred to herein as the “SEC Filings”). The SEC Filings are available to the Buyers via the SEC’s EDGAR system. As of their respective dates, the SEC Filings complied in all material respects with the requirements of the Exchange Act and the rules and regulations of the SEC promulgated thereunder, and none of the SEC Filings, 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. As of their respective dates, the audited financial statements of the Company included in the Company’s SEC Filings for the period from inception on February 15, 2008 to December 31, 2012, and the subsequent unaudited interim financial statements included in the Company’s SEC Filings (collectively, the “Financial Statements”) 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 were prepared in accordance with generally accepted accounting principles, consistently applied, during the periods involved (except (i) as may be otherwise indicated in such Financial Statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements), and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of its 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 on Schedule 3(f) attached hereto, as of the date hereof, there are no outstanding or unresolved comments in comment letters received from the staff of the SEC with respect to any of the SEC Filings. No other information provided by or on behalf of the Company to the Buyer including, without limitation, information referred to in this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

 

(g)   Absence of Litigation . Except as set forth in the Company’s SEC filings, there is no action, suit, proceeding, inquiry or investigation before or by any court, public board, government agency, self-regulatory organization or body pending against or affecting the Company or the Common Stock, wherein an unfavorable decision, ruling or finding would (i) adversely affect the validity or enforceability of, or the authority or ability of the Company to perform its obligations under, this Agreement or any of the documents contemplated herein, or (ii) have a Material Adverse Effect.

 

(h)   Acknowledgment Regarding Buyer’s Purchase of the Units . The Company acknowledges and agrees that each Buyer is acting solely in the capacity of an arm’s length purchaser with respect to this Agreement and the transactions contemplated hereby. The Company further acknowledges that each Buyer is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to this Agreement and the transactions contemplated hereby and any advice given by such Buyer or any of their respective representatives or agents in connection with this Agreement and the transactions contemplated hereby is merely incidental to such Buyer’s purchase of the Units and the underlying securities. The Company further represents to the Buyers that the Company’s decision to enter into this Agreement has been based solely on the independent evaluation by the Company and its representatives.

 

 

(i)   No General Solicitation . Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with the offer or sale of the Units and the underlying securities.

 

(j)   No Integrated Offering . Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would require registration of the Units, including the underlying securities, under the Securities Act or cause this offering of the Units to be integrated with prior offerings by the Company for purposes of the Securities Act.

 

(k)   Employee Relations . The Company is not involved in any labor dispute nor, to the knowledge of the Company, is any such dispute threatened. The Company has no employees.

 

(l)   Intellectual Property Rights . The Company has no proprietary intellectual property. The Company has not received any notice of infringement of, or conflict with, the asserted rights of others with respect to any intellectual property that it utilizes.

 

(m)   Environmental Laws .

 

(i)   The Company has complied with all applicable Environmental Laws (as defined below), except for violations of Environmental Laws that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. There is no pending or, to the knowledge of the Company, threatened civil or criminal litigation, written notice of violation, formal administrative proceeding, or investigation, inquiry or information request, relating to any Environmental Law involving the Company, except for litigation, notices of violations, formal administrative proceedings or investigations, inquiries or information requests that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. For purposes of this Agreement, “Environmental Law” means any federal, state or local law, statute, rule or regulation or the common law relating to the environment or occupational health and safety, including without limitation any statute, regulation, administrative decision or order pertaining to (i) treatment, storage, disposal, generation and transportation of industrial, toxic or hazardous materials or substances or solid or hazardous waste; (ii) air, water and noise pollution; (iii) groundwater and soil contamination; (iv) the release or threatened release into the environment of industrial, toxic or hazardous materials or substances, or solid or hazardous waste, including without limitation emissions, discharges, injections, spills, escapes or dumping of pollutants, contaminants or chemicals; (v) the protection of wild life, marine life and wetlands, including without limitation all endangered and threatened species; (vi) storage tanks, vessels, containers, abandoned or discarded barrels, and other closed receptacles; (vii) health and safety of employees and other persons; and (viii) manufacturing, processing, using, distributing, treating, storing, disposing, transporting or handling of materials regulated under any law as pollutants, contaminants, toxic or hazardous materials or substances or oil or petroleum products or solid or hazardous waste. As used above, the terms “release” and “environment” shall have the meaning set forth in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (“ CERCLA ”).

 

 

(ii)   To the knowledge of the Company there is no material environmental liability with respect to any solid or hazardous waste transporter or treatment, storage or disposal facility that has been used by the Company.

 

(iii)   The Company (i) has received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct its business and (ii) is in compliance with all terms and conditions of any such permit, license or approval.

 

(n)   Title . Except as set forth on Schedule 3(n), the Company does not own or lease any real or personal property.

 

(o)   Internal Accounting Controls . The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability, and (iii) the recorded amounts for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.

 

(p)   No Material Adverse Breaches, etc . Except as set forth in the SEC Filings, the Company is not 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. Except as set forth in the SEC Filings, the Company is not in breach of any contract or agreement which breach, in the judgment of the Company’s officers, has or is expected to have a Material Adverse Effect.

 

(q)   Tax Status . The Company has made and filed all federal and state income and all other tax returns, reports and declarations required by any jurisdiction to which it is subject and (unless and only to the extent that the Company has set aside on its books provisions reasonably adequate for the payment of all unpaid and unreported taxes) has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and declarations, except those being contested in good faith and has set aside on its books provision reasonably adequate for the payment of all taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company know of no basis for any such claim.

 

 

(r)   Certain Transactions . Except as set forth in the SEC Filings, and except for arm’s length transactions pursuant to which the Company makes payments in the ordinary course of business upon terms no less favorable than the Company could obtain from third parties, none of the officers, directors, or employees of the Company is presently a party to any transaction with the Company (other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of the Company, any corporation, partnership, trust or other entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee or partner.

 

(s)   Rights of First Refusal . The Company is not obligated to offer the securities offered hereunder on a right of first refusal basis or otherwise to any third parties including, but not limited to, current or former stockholders of the Company, underwriters, brokers, agents or other third parties.

 

(t)   Reliance . The Company acknowledges that the Buyers are relying on the representations and warranties made by the Company hereunder and that such representations and warranties are a material inducement to the Buyer purchasing the Units. The Company further acknowledges that without such representations and warranties of the Company made hereunder, the Buyers would not enter into this Agreement.

 

(u)   Brokers’ Fees . The Company does not have any liability or obligation to pay any fees or commissions to any broker, finder or agent with respect to the transactions contemplated by this Agreement, except for the payment of the Brokers’ Fees to the Brokers, as described above.

 

(v)   No Disqualification Event .

 

(i)   None of Company, any of its predecessors, any affiliated issuer, any director, executive officer, other officer of the Company participating in the Offering, any beneficial owner of 20% or more of the Company’s outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the Securities Act) connected with the Company in any capacity at the time of sale (each, an “Issuer Covered Person” and, together, “Issuer Covered Persons”) is subject to any of the “Bad Actor” disqualifications currently described in Rule 506(d)(1)(i) to (vii) under the Securities Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3). The Company has exercised reasonable care to determine whether any Covered Person is subject to a Disqualification Event. The Company has complied, to the extent applicable, with its disclosure obligations under Rule 506(e), and has furnished to the Placement Agent a copy of any disclosures provided thereunder.

 

(ii)   The Company is not aware of any person, other than any Issuer Covered Person or Placement Agent Covered Person, defined as directors, executive officers, general partners, manager members or other officers of the Placement Agent (the “Placement Agent Covered Person”) that has been or will be paid (directly or indirectly) remuneration for solicitation of purchasers in connection with the sale of any the Securities.

 

 

(iii)   The Company will promptly notify the Placement Agent in writing of (A) any Disqualification Event relating to any Issuer Covered Person and (B) any event that would, with the passage of time, become a Disqualification Event relating to any Issuer Covered Person.

 

4.   COVENANTS .

 

(a)   Best Efforts . Each party shall use its best efforts timely to satisfy each of the conditions to be satisfied by it as provided in Sections 5 and 6 of this Agreement.

 

(b)   Form D . The Company has filed in connection with the Initial Closing and agrees to file a Form D with respect to the offer and sale of the Units as required under Regulation D. The Company has taken, and shall continue to take, such action as the Company shall reasonably determine is necessary to qualify the Units, including the PPO Warrants (and the Common Stock underlying the Units and PPO Warrants), or obtain an exemption for the Units, including the PPO Warrants (and the Common Stock underlying the Units and the PPO Warrants ) for sale to the Buyers at the Closing pursuant to this Agreement under applicable securities or “Blue Sky” laws of the states of the United States, and shall provide evidence of any such action so taken to the Buyers on or prior to the Closing Date.

 

(c)   Reporting Status . Until the date on which the Buyer(s) shall have sold all the Common Stock, including the Common Stock underlying the Units and PPO Warrants, the Company shall file in a timely manner (or, with respect to Form 8-K reports, shall use its reasonable commercial efforts to file in a timely manner) all reports required to be filed with the SEC pursuant to the Exchange Act, and the regulations of the SEC thereunder, and the Company shall not terminate its status as an issuer required to file reports under the Exchange Act even if the Exchange Act or the rules and regulations thereunder would otherwise permit such termination.

 

(d)   Use of Proceeds . The Company shall use 100% of the net proceeds from the sale of the Units (after deducting Brokers’ Fees, legal and accounting fees and expenses and fees payable to the Escrow Agent) to complete the development of the CÜR product, negotiate with music labels, and for working capital purposes.

 

(e)   Listings or Quotation . The Company shall use its best efforts to maintain the listing or quotation of its Common Stock on the OTC Markets.

 

(f)   Corporate Existence . For a period of one (1) year from the date of the Contribution, the Company shall not directly or indirectly consummate any merger, reorganization, restructuring, reverse stock split, consolidation, sale of all or substantially all of the Company’s assets, enter into a change of control transaction, or any similar transaction or related transactions (each such transaction, an “Organizational Change”), unless, prior to the consummation of an Organizational Change, the Company obtains the written consent of the Buyers then owning a majority of the Units sold in the PPO. In any such case, the Company will make appropriate provision with respect to such holders’ rights and interests to insure that the provisions of this Section 4(f) will thereafter be applicable to the Units (including the underlying securities). The provisions of this Section 4(f) shall be inapplicable with respect to any Organizational Change, including the Name Change, Forward Split, the Split-Off, and the PPO, if any, effected in connection with the Contribution.

 

 

(g)   Resales Absent Effective Registration Statement . Each of the Buyers understands and acknowledges that (i) this Agreement and the agreements contemplated hereby may require the Company to issue and deliver the Common Stock, including the Common Stock underlying the Units and the PPO Warrants to the Buyers with legends restricting their transferability under the Securities Act, and (ii) it is aware that resales of such Common Stock, including the Common Stock underlying the Units and PPO Warrants may not be made unless, at the time of resale, there is an effective registration statement under the Securities Act covering such Buyer’s resale(s) or an applicable exemption from registration.

 

(h)   Cancellation of Common Stock Owned by Pre-Transaction Company Stockholders. At the Initial Closing, the pre-Transaction stockholders of the Company owned such number of shares of Common Stock as was equal to 19.9% of the Company’s issued and outstanding shares of Common Stock after taking into account the Forward Split, Split-Off, Split-Off Share Cancellation, PPO and Contribution. The-pre-Transaction stockholders of the Company, excluding the shareholders that were parties to the Split-Off Agreement, including the Split-Off Share Cancellation, owned an aggregate of 4,225,000 shares of Common Stock after giving effect to the Forward Split. Since the Initial Closing was for less than the Maximum PPO amount of $7,000,000, such pre-Transaction stockholders canceled, prior to Initial Closing, such number of shares of Common Stock as was necessary to insure that their aggregate holdings at the Closing represented 19.9% of the Company’s issued and outstanding shares of Common Stock at the Initial Closing. In the event that there are additional closings under the PPO following the Initial Closing, the pre-Transaction stockholders of the Company will receive additional shares of Common Stock in an amount necessary to maintain their aggregate 19.9% ownership. If, however, the Company issues additional shares of Common Stock subsequent to the Initial Closing and prior to, or in conjunction with, the final closing under the PPO, outside of the PPO issuances, such non-PPO share issuances shall not serve to increase the number of shares of Common Stock issuable by reason of the 19.9% maintenance provision.

 

(i)   Forward Stock Split . Following the closing of the Contribution, the Company effected a 16.503906-for-1 forward split of its Common Stock in the form of a dividend, with the result that each share of the Company’s Common Stock outstanding immediately prior to the stock split became 16.503906 shares of its Common Stock immediately thereafter.

 

(j)   Increase of Authorized Shares . Following the closing of the Contribution, the Company increased its number of authorized shares from 150,000,000 shares consisting of (i) 150,000,000 shares of Common Stock, and (ii) no shares of Preferred Stock, to 310,000,000 shares, consisting of (i) 300,000,000 shares of Common Stock, and (ii) 10,000,000 shares of Preferred Stock.

 

(k)   Name Change . Following the closing of the Contribution, the Company changed its name from “Duane Street Corp.” to “CUR Media, Inc.”

 

 

5.   CONDITIONS TO THE COMPANY’S OBLIGATION TO SELL .

 

The obligation of the Company hereunder to issue and sell the Units to the Buyer(s) at the Closing is subject to the satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions are for the Company’s sole benefit and may be waived by the Company at any time in its sole discretion:

 

(a)   Each Buyer shall have executed this Agreement and completed and executed the Investor Certification and the Investor Profile and delivered them to the Company.

 

(b)   The Buyer(s) shall have delivered to the Escrow Agent the Purchase Price for Units in respective amounts as set forth on the signature page(s) affixed hereto and the Escrow Agent shall have delivered the net proceeds to the Company by wire transfer of immediately available U.S. funds pursuant to the wire instructions provided by the Company.

 

(c)   The representations and warranties of the Buyer(s) contained in this Agreement 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(s) 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(s) at or prior to the Closing Date.

 

6.   CONDITIONS TO THE BUYER’S OBLIGATION TO PURCHASE .

 

(a)   The obligation of the Buyer(s) hereunder to purchase the Units at the Closing is subject to the satisfaction, at or before the Closing Date, of each of the following conditions:

 

(i)   The representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects (except to the extent that any of such representations and warranties is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct without further qualification) 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 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 Company shall have obtained any and all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Units, all of which shall be in full force and effect.

 

(ii)   The Company shall have delivered to the Buyers a certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the issuance of the Units, including the PPO Warrants and the Common Stock underlying the Units and PPO Warrants, certifying the current versions of the Articles of Incorporation and By-laws of the Company and certifying as to the signatures and authority of persons signing this Agreement on behalf of the Company. The foregoing certificate shall only be required to be delivered on the first Closing Date, unless any information contained in the certificate has changed.

 

 

(iii)   The Buyer(s) shall have received opinions from the Company’s and Raditaz’s legal counsels, dated as of the Closing Date. The foregoing opinions shall only be required to be delivered on the first Closing Date.

 

(b)   Indemnification of Buyers . In consideration of the Buyer’s execution and delivery of this Agreement and acquiring the Units, including the PPO Warrants (and the Common Stock underlying the Units and PPO Warrants) hereunder, and in addition to all of the Company’s other obligations under this Agreement, the Company shall defend, protect, indemnify and hold harmless the Buyer(s) and each other holder of the Units (and the Common Stock, including the Common Stock underlying the Units and PPO Warrants), and all of their officers, directors, employees and agents (including, without limitation, those retained in connection with the transactions contemplated by this Agreement) (collectively, the “Buyer Indemnitees”) from and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and expenses in connection therewith (irrespective of whether any such Buyer Indemnitee is a party to the action for which indemnification hereunder is sought), and including reasonable attorneys’ fees and disbursements (the “Indemnified Liabilities”), incurred by the Buyer Indemnitees or any of them as a result of, or arising out of, or relating to (a) any material breach of any covenant, agreement or obligation of the Company contained in this Agreement, or (b) any cause of action, suit or claim brought or made against such Buyer Indemnitee and arising out of or resulting from the execution, delivery, performance or enforcement of this Agreement by any of the Buyer Indemnitees. To the extent that the foregoing undertaking by the Company may be unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities, which is permissible under applicable law.

 

7.   [RESERVED]

 

8.   CONFLICT WAIVER .

 

The Buyers acknowledge that Adam S. Gottbetter is the owner of Gottbetter Capital Group, Inc., Gottbetter & Partners, LLP, and Gottbetter Capital Markets, LLC, and that Gottbetter Capital Group, Adam S. Gottbetter, and/or other affiliates of Mr. Gottbetter beneficially own or may in the future beneficially own shares in the Company. Gottbetter & Partners, LLP has been engaged by the Company to serve as its corporate and securities counsel. Such engagement of Gottbetter & Partners, LLP by the Company is subject to an executed agreement between the Company and Gottbetter & Partners, LLP. The Buyers agree that in the event of any dispute arising in connection with this Agreement, or otherwise in connection with any transaction or agreement contemplated and referred herein, Gottbetter & Partners, LLP shall be permitted to continue to represent the Company, and the Buyers will not seek to disqualify such counsel and waive any objection the Buyers might have with respect to the acting as the counsel to the Company pursuant to this Agreement. Gottbetter Capital Markets, LLC, has acted, and may continue to act, as a Placement Agent for the PPO, for which it has and may receive the Brokers’ Fees and Brokers’ Warrants in accordance with the executed Placement Agency Agreement.

 

 

9.   GOVERNING LAW: MISCELLANEOUS .

 

(a)   Governing Law . This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York without regard to the principles of conflict of laws.

 

(b)   The parties agree to submit all controversies to arbitration in accordance with the provisions set forth below and understand that:

 

(i) Arbitration shall be final and binding on the parties.

 

(ii) The parties are waiving their right to seek remedies in court, including the right to a jury trial.

 

(iii) Pre-arbitration discovery is generally more limited and different from court proceedings.

 

(iv) The arbitrator’s award is not required to include factual findings or legal reasoning and any party’s right to appeal or to seek modification of rulings by arbitrators is strictly limited.

 

(v) The panel of arbitrators will typically include a minority of arbitrators who were or are affiliated with the securities industry.

 

(vi) All controversies which may arise between the parties concerning this Agreement shall be determined by arbitration pursuant to the rules then pertaining to the Financial Industry Regulatory Authority in New York, New York. Judgment on any award of any such arbitration may be entered in the Supreme Court of the State of New York or in any other court having jurisdiction of the person or persons against whom such award is rendered. Any notice of such arbitration or for the confirmation of any award in any arbitration shall be sufficient if given in accordance with the provisions of this Agreement. The parties agree that the determination of the arbitrators shall be binding and conclusive upon them. The prevailing party, as determined by such arbitrators, in a legal proceeding shall be entitled to collect any costs, disbursements and reasonable attorney’s fees from the other party. Prior to filing an arbitration, the parties hereby agree that they will attempt to resolve their differences first by submitting the matter for resolution to a mediator, acceptable to all parties, and whose expenses will be borne equally by all parties. The mediation will be held in the County of New York, State of New York, on an expedited basis. If the parties cannot successfully resolve their differences through mediation, the matter will be resolved by arbitration. The arbitration shall take place in the County of New York, State of New York, on an expedited basis.

 

(c)   Counterparts . This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party. In the event any signature page is delivered by facsimile transmission, the party using such means of delivery shall cause four (4) additional original executed signature pages to be physically delivered to the other party within five (5) days of the execution and delivery hereof.

 

 

(d)   Headings . The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation of, this Agreement.

 

(e)   Severability . If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of any provision of this Agreement in any other jurisdiction.

 

(f)   Entire Agreement, Amendments . This Agreement supersedes all other prior oral or written agreements between the Buyer(s), the Company, their affiliates and persons acting on their behalf with respect to the matters discussed herein (including any term sheet), and this Agreement 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 any 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 party to be charged with enforcement.

 

(g)   Notices . Any notices, consents, waivers, or other communications required or permitted to be given under the terms of this Agreement must be in writing and will be deemed to have been delivered (i) upon receipt, when delivered personally; (ii) upon confirmation of receipt, when sent by facsimile; (iii) upon receipt when sent by U.S. certified mail, return receipt requested, or (iv) one (1) day after deposit with a nationally recognized overnight delivery service, in each case properly addressed to the party to receive the same. The addresses and facsimile numbers for such communications shall be:

 

If to the Company, to:	CÜR Media, Inc.
	2217 New London Turnpike
	South Glastonbury, CT 06073
	Attention: Thomas Brophy, CEO
	Telephone: (860) 430-1520
	Facsimile: _______________
With a copy to:	Gottbetter & Partners, LLP
	488 Madison Avenue, 12 th Floor
	New York, New York 10022
	Attention: Adam S. Gottbetter, Esq.
	Telephone: (212) 400-6900
	Facsimile: (212) 400-6901

 

If to the Buyer(s), to its address and facsimile number set forth on the Buyer Omnibus Signature Page affixed hereto. Each party shall provide five (5) days’ prior written notice to the other party of any change in address or facsimile number.

 

(h)   Successors and Assigns . This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. No party shall assign this Agreement or any rights or obligations hereunder without the prior written consent of the other party hereto.

 

 

(i)   No 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.

 

(j)   Survival . Unless this Agreement is terminated under Section 9(m), the representations and warranties of the Company and the Buyer(s) contained in Sections 2 and 3, the agreements and covenants set forth in Sections 4, 5 and 9, and the indemnification provisions set forth in Section 6, shall survive the Closing for a period of two (2) years. The Buyer(s) shall be responsible only for its own representations, warranties, agreements and covenants hereunder.

 

(k)   Publicity . The Company shall have the right to approve, before issuance any press release or any other public statement with respect to the transactions contemplated hereby made by any other party; and the Company shall be entitled, without the prior approval of any Buyer, to issue any press release or other public disclosure with respect to such transactions required under applicable securities or other laws or regulations or as it otherwise deems appropriate.

 

(l)   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.

 

(m)   Termination . Subject to the prior termination at the discretion of the Company and the Placement Agent, in the event the Closing shall not have occurred on or before five (5) business days from the end of the Offering Period, the Offering shall not be completed and the Company shall arrange for the prompt return of all subscription proceeds without interest or deduction.

 

(n)   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.

 

(o)   Remedies . In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, the Buyer and the Company will be entitled to specific performance under this Agreement. The parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations described in the foregoing sentence and hereby agree to waive in any action for specific performance of any such obligation the defense that a remedy at law would be adequate.

 

 

 

What are we required to do to eliminate money laundering?
Under new rules required by the USA PATRIOT Act, our anti-money laundering program must designate a special compliance officer, set up employee training, conduct independent audits, and establish policies and procedures to detect and report suspicious transaction and ensure compliance with the new laws.	As part of our required program, we may ask you to provide various identification documents or other information. Until you provide the information or documents we need, we may not be able to effect any transactions for you.

 

(p)            Omnibus Signature Page . This Agreement is intended to be read and construed in conjunction with the Registration Rights Agreement. Accordingly, pursuant to the terms and conditions of this Agreement and such related agreements, it is hereby agreed that the execution by the Buyer of this Agreement, in the place set forth on the Buyer Omnibus Signature Page below, shall constitute agreement to be bound by the terms and conditions hereof and the terms and conditions of the Registration Rights Agreement, with the same effect as if each of such separate but related agreement were separately signed.

 

To subscribe for Units in the private offering of CÜR Media, Inc. (formerly named Duane Street Corp.):

 

1.	Date and Fill in the amount of Units being purchased and Complete and Sign (i) the Buyer Omnibus Signature Page of the Securities Purchase Agreement, attached as Annex A .

 

2.	Initial the Investor Certification, attached as Annex B .

 

3.	Complete and Sign the Investor Profile, attached as Annex C .

 

4.	Complete and Sign the Anti-Money Laundering Information Form, attached as Annex D .

 

5.	Fax or email all forms and then send all signed original documents to:

 

Gottbetter & Partners, LLP

488 Madison Avenue, 12 th Floor

New York, NY 10022

Facsimile Number: 212.400.6901

Telephone Number: 212.400.6900

Attention: Kathleen L. Rush

Email: klr@gottbetter.com

 

6.

If you are paying the Purchase Price by check, a check for the exact dollar amount of the Purchase Price for the amount of Units you are offering to purchase should be made payable to the order of “CSC Trust Company of Delaware, as Escrow Agent for CÜR Media, Inc.” and should be sent to CSC Trust Company of Delaware, 2711 Centerville Road, One Little Falls Centre, Wilmington, DE 19808, Attention: Alan R. Halpern.

 

7.	If you are paying the Purchase Price by wire transfer, you should send a wire transfer for the exact dollar amount of the Purchase Price of the Units you are offering to purchase, rounded up to the nearest whole cent, according to the following instructions:

 

 

 

IN WITNESS WHEREOF , the Buyers and the Company have caused this Securities Purchase Agreement to be duly executed as of the date first written above.

 

 

 

 

BUYER OMNIBUS SIGNATURE PAGE

to

Securities Purchase Agreement and

Registration Rights Agreement

 

The undersigned, desiring to: (i) enter into the Securities Purchase Agreement, dated as of _______________ 5 , 201_ (the “Securities Purchase Agreement”), between the undersigned, CÜR MEDIA, INC., a Delaware corporation (the “Company”), and the other parties thereto, in or substantially in the form furnished to the undersigned, (ii) enter into the Registration Rights Agreement (the “Registration Rights Agreement”), between the undersigned, the Company, and the other parties thereto, in or substantially in the form furnished to the undersigned and (iii) purchase the Units of the Company as set forth below, hereby agrees to purchase such Units from the Company and further agrees to join the Securities Purchase Agreement and the Registration Rights Agreement as a party thereto, with all the rights and privileges appertaining thereto, and to be bound in all respects by the terms and conditions thereof. The undersigned specifically acknowledges having read the representations section in the Securities Purchase Agreement entitled “Buyer’s Representations and Warranties,” and hereby represents that the statements contained therein are complete and accurate with respect to the undersigned as a Buyer.

 

The Buyer hereby elects to purchase _____________ Units ($__________) (to be completed by the Buyer) under the Securities Purchase Agreement.

 

 

 

 

 

Initial _______

I am a director or executive officer of [__________].

 

 

 

(all Investors who are not a U.S. Person must INITIAL this section):

 

Initial _______

The investor is not a “U.S. Person” as defined in Regulation S; and specifically the investor is not:

 

A.

a natural person resident in the United States of America, including its territories and possessions (“United States”);

 

B.

a partnership or corporation organized or incorporated under the laws of the United States;

 

C.

an estate of which any executor or administrator is a U.S. Person;

 

D.

a trust of which any trustee is a U.S. Person;

 

E.

an agency or branch of a foreign entity located in the United States;

 

F.

a non-discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary for the benefit or account of a U.S. Person;

 

G.

a discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary organized, incorporated, or (if an individual) resident in the United States; or

 

H.

a partnership or corporation: (i) organized or incorporated under the laws of any foreign jurisdiction; and (ii) formed by a U.S. Person principally for the purpose of investing in securities not registered under the Securities Act, unless it is organized or incorporated, and owned, by accredited investors (as defined in Rule 501(a) under the Securities Act) who are not natural persons, estates or trusts.

 

 

I.

the investor was not offered the securities in the United States;

 

J.

at the time the buy-order for the securities was originated, the investor was outside the United States; and

 

K.

the investor is purchasing the securities for its own account and not on behalf of any U.S. Person (as defined in Regulation S) and a sale of the securities has not been pre-arranged with a purchaser in the United States.

 

 

 

CÜR MEDIA, INC.

 

Investor Profile

(Must be completed by Investor)

 

Section A - Personal Investor Information

 

Date of Birth:			Marital Status:
Joint Party Date of Birth:			Investment Experience (Years):
Annual Income:			Liquid Net Worth:
Net Worth ( excluding value of primary residence ):

Tax Bracket:

15% or below

25% - 27.5%

Over 27.5%

Home Phone:

Home Fax:

Home Email:

Bus. Phone:

Bus. Fax:

Bus. Email:

		Please deliver certificate to the Employer Address listed in Section A.
		Please deliver certificate to the Home Address listed in Section A.
		Please deliver certificate to the following address: ____________________________________________
Section C – Form of Payment – Check or Wire Transfer
		Check payable to CSC Trust Company of Delaware , as Escrow Agent for CÜR Media, Inc.
		Wire funds from my outside account according to Section 1(a) of the Securities Purchase Agreement.
		The funds for this investment are rolled over, tax deferred from __________ within the allowed 60 day window.
Please check if you are a FINRA member or affiliate of a FINRA member firm: ________

Investor Signature		Date

 

 

ANTI MONEY LAUNDERING REQUIREMENTS

 

The USA PATRIOT Act

 

The USA PATRIOT Act is designed to detect, deter, and punish terrorists in the United States and abroad. The Act imposes new anti-money laundering requirements on brokerage firms and financial institutions. Since April 24, 2002 all brokerage firms have been required to have new, comprehensive anti-money laundering programs.

 

To help you understand these efforts, we want to provide you with some information about money laundering and our steps to implement the USA PATRIOT Act.

 

What is money laundering?

 

Money laundering is the process of disguising illegally obtained money so that the funds appear to come from legitimate sources or activities. Money laundering occurs in connection with a wide variety of crimes, including illegal arms sales, drug trafficking, robbery, fraud, racketeering, and terrorism.

 

How big is the problem and why is it important?

 

The use of the U.S. financial system by criminals to facilitate terrorism or other crimes could well taint our financial markets. According to the U.S. State Department, one recent estimate puts the amount of worldwide money laundering activity at $1 trillion a year.

 

What are we required to do to eliminate money laundering?

 

Under rules required by the USA PATRIOT Act, our anti-money laundering program must designate a special compliance officer, set up employee training, conduct independent audits, and establish policies and procedures to detect and report suspicious transaction and ensure compliance with such laws. As part of our required program, we may ask you to provide various identification documents or other information. Until you provide the information or documents we need, we may not be able to effect any transactions for you.

 

ANTI-MONEY LAUNDERING INFORMATION FORM

The following is required in accordance with the AML provision of the USA PATRIOT ACT.

(Please fill out and return with requested documentation.)

 

 

*

For purposes of calculating your net worth in this form, (a) your primary residence shall not be included as an asset ; (b) indebtedness secured by your primary residence, up to the estimated fair market value of your primary residence at the time of your purchase of the securities, shall not be included as a liability (except that if the amount of such indebtedness outstanding at the time of your purchase of the securities exceeds the amount outstanding 60 days before such time, other than as a result of the acquisition of your primary residence, the amount of such excess shall be included as a liability); and (c) indebtedness that is secured by your primary residence in excess of the estimated fair market value of your primary residence at the time of your purchase of the securities shall be included as a liability.

 

FOR INVESTORS WHO ARE INDIVIDUALS : OCCUPATION: __________________________________

 

ADDRESS OF BUSINESS OR OF EMPLOYER: ______________________________________________

 

FOR INVESTORS WHO ARE ENTITIES:

 

YEARLY INCOME: _______ NET WORTH:____________

 

TYPE OF BUSINESS: ____________________________________

 

INVESTMENT OBJECTIVE(S) (FOR ALL INVESTORS): ________________________

 

IDENTIFICATION & DOCUMENTATION AND SOURCE OF FUNDS:

 

1.	Please submit a copy of non-expired identification for the authorized signatory(ies) on the investment documents, showing name, date of birth, address and signature. The address shown on the identification document MUST match the Investor’s address shown on the Investor Signature Page.

 

Current Driver’s License

or

Valid Passport

or

Identity Card

( Circle one or more)

 

2.

If the Investor is a corporation, limited liability company, trust or other type of entity, please submit the following requisite documents: (i) Articles of Incorporation, By-Laws, Certificate of Formation, Operating Agreement, Trust or other similar documents for the type of entity; and (ii) Corporate Resolution or power of attorney or other similar document granting authority to signatory(ies) and designating that they are permitted to make the proposed investment.

 

3.	Please advise where the funds were derived from to make the proposed investment:

 

Investments

Savings

Proceeds of Sale

Other ____________

(Circle one or more)

 

Signature: ____________________________________________

 

Print Name: ___________________________________________

 

Title (if applicable): _____________________________________

 

Date: ________________________________________________

 

 

 

 

35

EXHIBIT 10.5

 

FIRST AMENDMENT TO

SUBSCRIPTION ESCROW AGREEMENT

 

This First Amendment to the Subscription Escrow Agreement (the “Amendment”) is made as of January 31, 2014, by and among the Issuer, Depositor and Escrow Agent. This Amendment amends the Subscription Escrow Agreement by and among the Issuer, Depositor and Escrow Agent, dated as of December 30, 2013 (the “Agreement”). Capitalized terms used and not otherwise defined herein have the respective meanings ascribed to them in the Agreement.

 

The third recital of the Agreement is hereby amended to read in its entirety as follows:

 

WHEREAS , Units will be offered through April 14, 2014 (the “ Offering Period ” );

 

The Schedule 1 to the Agreement is hereby amended as follows:

 

 

 

FFC:

Duane Street Corp.: 79-2052 [insert Subscriber’s name]

 

FFC:

CÜR Media, Inc.; 79-2052 [insert Subscriber’s name]

 

The Schedule 3 to the Agreement is hereby amended as follows:

 

This Amendment may be executed in multiple counterparts, each of which may be executed by less than all of the parties and shall be deemed to be an original instrument which shall be enforceable against the parties actually executing such counterparts and all of which together shall constitute one and the same instrument. The exchange of copies of this Amendment and of signature pages by facsimile transmission or in pdf format shall constitute effective execution and delivery of this Amendment as to the parties and may be used in lieu of the original Amendment for all purposes. Signatures of the parties transmitted by facsimile or in pdf format shall be deemed to be their original signatures for all purposes.

 

This Amendment is hereby made part of and incorporated into the Subscription Escrow Agreement, with all the terms and conditions of the Agreement remaining in full force and effect, except to the extent modified hereby. The Parties agree for and on behalf of their respective party this 31 st day of January, 2014.

 

 

SIGNATURE PAGE TO FOLLOW

 

IN WITNESS WHEREOF , the parties hereto have executed this Amendment as of the date first set forth above.

 

 

EXHIBIT 10.6

 

SECOND AMENDMENT TO

SUBSCRIPTION ESCROW AGREEMENT

 

This Second Amendment to the Subscription Escrow Agreement (the “Amendment”) is made as of March 13, 2014, by and among the Issuer, Depositor and Escrow Agent. This Amendment amends the Subscription Escrow Agreement by and among the Issuer, Depositor and Escrow Agent, dated as of December 30, 2013, as amended January 31, 2014 (collectively herein referred to as the “Agreement”). Capitalized terms used and not otherwise defined herein have the respective meanings ascribed to them in the Agreement.

 

The first recital of the Agreement is hereby amended to read in its entirety as follows:

WHEREAS , the Issuer intends to offer and sell to investors in a private placement offering (the “Offering”) its units (the “Units”) with each Unit consisting of (i) one share of the Issuer’s common stock (“Common Stock”), and (ii) one warrant representing the right to purchase one share of Common Stock, exercisable for a period of five years at an exercise price of $33.007812 ($2.00 post-split) per whole share. The Offering will consist of a minimum of Four Million Dollars ($4,000,000) through the sale of 242,367 pre-split (4,000,000 post-split) Units (the “Minimum Amount”) and a maximum of Seven Million Dollars ($7,000,000 ) through the sale of 424,142 pre-split (7,000,000 post-split) Units (the “Maximum Amount”), at a purchase price of $16.503906 pre-split ($1.00 post-split) per Unit (the “Purchase Price”). In the event the Offering is oversubscribed, the Issuer may, in its discretion, sell additional Units up to Three Million Dollars ($3,000,000) through the sale of up to One Hundred Eighty One Thousand Seven Hundred Seventy Six (181,776 pre-split) or Three Million (3,000,000 post-split) (the “Over-Allotment”) at the same purchase price per Unit;

 

This Amendment may be executed in multiple counterparts, each of which may be executed by less than all of the parties and shall be deemed to be an original instrument which shall be enforceable against the parties actually executing such counterparts and all of which together shall constitute one and the same instrument. The exchange of copies of this Amendment and of signature pages by facsimile transmission or in pdf format shall constitute effective execution and delivery of this Amendment as to the parties and may be used in lieu of the original Amendment for all purposes. Signatures of the parties transmitted by facsimile or in pdf format shall be deemed to be their original signatures for all purposes.

 

This Amendment is hereby made part of and incorporated into the Subscription Escrow Agreement, with all the terms and conditions of the Agreement remaining in full force and effect, except to the extent modified hereby. The Parties agree for and on behalf of their respective party this 13 th day of March, 2014.

 

SIGNATURE PAGE TO FOLLOW

 

IN WITNESS WHEREOF , the parties hereto have executed this Amendment as of the date first set forth above.

 

 

	CSC Trust Company of Delaware as Escrow Agent
	By:	/s/ Alan R. Halpern
	Name:	Alan R. Halpern
	Title:	Vice President
	CÜR MEDIA, INC.
	By:	/s/ Thomas Brophy
	Name:	Thomas Brophy
	Title:	Chief Executive Officer
	DEPOSITOR
	Gottbetter Capital Markets, LLC
	By:	/s/ Julio A. Marquez
	Name:	Julio A. Marquez
	Title:	President

 

 

 

 

2

EXHIBIT 10.8

 

FIRST AMENDMENT TO

PLACEMENT AGENCY AGREEMENT

 

This First Amendment to the Placement Agency Agreement (“Amendment”) is entered into as of the 31 st day of January 2014, by and between CÜR Media, Inc. f/k/a Duane Street Corp. (“Company”) and Gottbetter Capital Markets, LLC (“Placement Agent”) and amends the Placement Agency Agreement dated December 30, 2013 (the “Agreement”).

 

The parties to the Agreement hereby amend and restate in its entirety Paragraph 5 of the Agreement to read as follows:

 

The Offering will be offered until the earlier of the time that the Maximum Amount plus any discretionary over-allotment are sold or until April 14, 2014 (the “Offering Period”).

 

This Amendment is hereby made part of and incorporated into the Agreement, with all the terms and conditions of the Agreement remaining in full force and effect, except to the extent modified hereby.

 

This Amendment may be executed in multiple counterparts, each of which may be executed by less than all of the parties and shall be deemed to be an original instrument which shall be enforceable against the parties actually executing such counterparts and all of which together shall constitute one and the same instrument. The exchange of copies of this Amendment and of signature pages by facsimile transmission or in pdf format shall constitute effective execution and delivery of this Amendment as to the parties and may be used in lieu of the original Amendment for all purposes. Signatures of the parties transmitted by facsimile or in pdf format shall be deemed to be their original signatures for all purposes.

 

IN WITNESS WHEREOF, this Amendment has been executed and delivered by the parties below effective as of the date first set forth above.

 

 

EXHIBIT 10.9

 

SECOND AMENDMENT TO

PLACEMENT AGENCY AGREEMENT

 

This Second Amendment to the Placement Agency Agreement (“Amendment”) is entered into as of the 13 th day of March 2014, by and CÜR Media Inc., f/k/a Duane Street Corp. (“Company”) and Gottbetter Capital Markets, LLC (“Placement Agent”) and amends the Placement Agency Agreement dated December 30, 2013, as amended January 31, 2014 (collectively herein referred to as the “Agreement”).

 

The parties to the Agreement hereby amend and restate in its entirety Paragraph 2 of the Agreement to read as follows:

 

The Offering will consist of a minimum of Four Million Dollars ($4,000,000) through the sale of Two Hundred Forty Two Thousand Three Hundred Sixty Seven (242,367 pre-split) or Four Million (4,000,000 post-split) Units (the “Minimum Amount”) and a maximum of Seven Million Dollars ($7,000,000) through the sale of Four Hundred Twenty Four Thousand One Hundred Forty Three (424,143 pre-split) or Seven Million (7,000,000 post-split) Units (the “Maximum Amount”). In the event the Offering is oversubscribed, the Company, with the consent of the Placement Agent, may sell additional Units up to an amount no greater than Three Million Dollars ($3,000,000) through the sale of One Hundred Eighty One Thousand Seven Hundred Seventy Six (181,776 pre-split) or Three Million (3,000,000 post-split) Units (the “Over-allotment Option”). The Offering of the Units will be made by the Placement Agent and its selected dealers, with each Unit consisting of one (1) share of the Company’s Common Stock and a warrant to purchase one (1) share of the Company’s Common Stock at an exercise price per share of $33.007812 pre-split ($2.00 post-split), which warrant will be exercisable for a period of five (5) years from the date of issuance (the “Investor Warrants”). The Offering Price for the Units will be $16.503906 pre-split ($1.00 post-split) per Unit (the “Offering Price”).

 

This Amendment is hereby made part of and incorporated into the Agreement, with all the terms and conditions of the Agreement remaining in full force and effect, except to the extent modified hereby.

This Amendment may be executed in multiple counterparts, each of which may be executed by less than all of the parties and shall be deemed to be an original instrument which shall be enforceable against the parties actually executing such counterparts and all of which together shall constitute one and the same instrument. The exchange of copies of this Amendment and of signature pages by facsimile transmission or in pdf format shall constitute effective execution and delivery of this Amendment as to the parties and may be used in lieu of the original Amendment for all purposes. Signatures of the parties transmitted by facsimile or in pdf format shall be deemed to be their original signatures for all purposes.

 

SIGNATURE PAGE TO FOLLOW

 

 

IN WITNESS WHEREOF, this Amendment has been executed and delivered by the parties below effective as of the date first set forth above.

 

 

	CÜR MEDIA, INC.
	By:	/s/ Thomas Brophy
	Name:	Thomas Brophy
	Title:	Chief Executive Officer
	GOTTBETTER CAPITAL MARKETS, LLC
	By:	/s / Julio A. Marquez
	Name:	Julio A. Marquez
	Title:	President

 

 

 

 

 

2

EXHIBIT 10.11

 

EMPLOYMENT AGREEMENT

 

THIS EMPLOYMENT AGREEMENT (this “ Agreement ”) by and among CÜR Media, Inc., a Delaware corporation (the “ Company ”) and Gordon Mackenzie III (“ Executive ”) is entered into as of March 11, 2014 (the “ Execution Date ”).

 

W I T N E S S E T H:

 

WHEREAS , the Board of Directors of the Company (the “ Board ”) has determined that it is in the best interests of the Company and its shareholders to employ Executive as Chief Technology Officer of the Company pursuant to the terms of this Agreement; and

 

WHEREAS , the Executive desires to accept employment as the Chief Technology Officer of the Company pursuant to the terms of this Agreement.

 

NOW THEREFORE , the Parties agree as follows:

 

1.   EMPLOYMENT; DUTIES

 

As of the Effective Date, the Company hereby agrees to employ Executive as the Chief Technology Officer of the Company and Executive hereby accepts such employment upon the terms and conditions set forth below.

 

2.   TERM AND PLACE OF PERFORMANCE

 

The term of this Agreement shall begin on March 11, 2014 (the “ Effective Date ”), and, unless sooner terminated as provided herein, shall end on March 11, 2016 (the “ Term ”); provided that the Term shall automatically be extended for successive one-year periods unless either party gives at least three months’ advance written notice of its intention not to extend the Term (a “ Non-Renewal Notice ”). The Term may be sooner terminated by either party in accordance with the provisions of Section 5. The principal place of employment of Executive shall be at the Company’s headquarters in South Glastonbury, Connecticut; provided , that , Executive shall be required to travel from time to time during the Term.

 

3.   POSITION AND DUTIES

 

3.1   Position and Duties .

 

(a)   Executive shall serve as the Chief Technology Officer of the Company and shall report to the Chief Executive Officer of the Company (the “ CEO ”). Executive shall have responsibility for building and maintaining the technical infrastructure, including both hardware and software, of the Company.

 

3.2   Devotion of Time and Effort . Executive shall use Executive’s good faith, best efforts and judgment (a) in performing Executive’s duties required hereunder and (b) to act in the best interests of the Company. Executive shall devote his full time, attention and efforts to the business of the Company, but may participate in charitable and personal investment activities to a reasonable extent, as long as such activities do not, in the reasonable discretion of the Board, interfere or compete with the performance of his duties and responsibilities hereunder.

 

4.   COMPENSATION

 

4.1   Base Salary . For the services to be rendered by Executive under this Agreement, Executive shall be entitled to receive, commencing as of the Effective Date, salary at the annual rate of One Hundred and Seventy Five Thousand Dollars ($175,000) (the “ Base Salary ”), less all applicable tax withholdings and deductions by the Company. The Base Salary shall be payable in accordance with the Company’s customary payroll practices. The Chief Executive Officer of the Company (the “ Committee ”) shall review Executive’s Base Salary annually and may make adjustments to increase but not decrease such Base Salary, in accordance with the compensation practices and guidelines of the Company.

 

4.2   Vacation . During the Term, Executive shall be entitled to four (3) weeks of paid vacation per year to be used and accrued in accordance with the Company’s policy as it may be established from time to time. In addition, Executive shall receive other paid time-off in accordance with the Company’s policies for senior executives as such policies may exist from time to time.

 

4.3   Welfare, Pension and Incentive Benefit Plans . During the Term, the Company shall provide Executive with employee benefit plans, including, without limitation, company-paid medical benefits; provided, that if the provision of such company-paid medical benefits would cause the imposition of any tax under Section 4980D of the Internal Revenue Code of 1986, as amended, and the regulations thereunder (the “ Code ”), the parties agree to negotiate in good faith an alternative arrangement for providing such benefits in an economically neutral manner which does not cause the imposition of such tax.

 

4.4   Business Expenses . Executive will be promptly reimbursed for all reasonable business expenses incurred by Executive in connection with Executive’s employment in accordance with the Company’s expense reimbursement policies.

 

5.   TERMINATION; TERMINATION BENEFITS

 

5.1   Due to Death or Disability .

 

(a)   If Executive dies during the Term, Executive’s employment and this Agreement shall terminate on the date of his death. The Company may terminate Executive’s employment if he becomes “ Disabled ,” as defined below, upon delivery of a Notice of Termination (as defined below) to Executive.

 

Upon termination of Executive’s employment due to Executive’s death or by the Company due to Executive’s Disability, Executive (or his estate, as applicable) shall be entitled to compensation and payment for any unreimbursed expenses incurred, accrued but unpaid then current Base Salary and other accrued but unpaid employee benefits as provided in this Agreement, in each case through the Date of Termination (as defined below) (the “ Accrued Amounts ”); provided, that the portion of such Accrued Amounts representing unreimbursed expenses shall be paid as soon as practicable following remittance of such expenses by Executive or its estate;

 

(b)   For purposes of this Agreement, the term “Disabled ” or “Disability ” shall mean a medically determined physical or mental incapacity as a result of which Executive cannot perform the functions and/or duties of his position for more than six months or becomes eligible to receive long term disability benefits under the Company’s long term disability policy, which shall be in effect as of the Effective Date, or if no such policy is in effect, entitles Executive to a Social Security disability award.

 

5.2   By the Company Without “Cause” .

 

(a)   The Company may terminate Executive’s employment without “Cause” (as defined below) at any time following the Effective Date upon delivery of a Notice of Termination to Executive.

 

(b)   Upon termination of Executive’s employment by the Company Without Cause, Executive shall be entitled to the Accrued Amounts, payable in accordance with Section 5.1(a).

 

5.3   By the Company For Cause .

 

(a)   The Company may terminate Executive’s employment for “Cause” in accordance with the requirements of this Section 5.3.

 

(b)   Upon termination of Executive’s employment by the Company for Cause, Executive shall be entitled to the Accrued Amounts.

 

(c)   For purposes of this Agreement, “ Cause ” shall mean:

 

(i)   continuing willful failure, neglect or refusal by Executive to perform his duties under this Agreement or to follow the lawful instructions of the Chief Executive which has not been cured by Executive (if curable) within ten (10) days after written notice thereof to Executive from the Company;

 

(ii)   Executive’s commission of any material act of fraud or embezzlement against the Company;

 

(iii)   any material breach of any covenant in Section 6, 7 or 8 of this Agreement, which breach has not been cured by Executive (if curable) within thirty (30) days after written notice thereof to Executive from the Company;

 

(iv)   Executive’s conviction of (or pleading guilty or nolo contendere to) any felony.

 

5.4   By Executive .

 

(a)   Executive may terminate his employment without Good Reason by providing a Notice of Termination to the Company at least thirty (30) days prior to the Date of Termination.

 

(b)   Upon termination by Executive of his employment, Executive shall be entitled to receive the Accrued Amounts payable in accordance with Section 5.1(a).

 

5.5   Non-Renewal of the Term .

 

(a)   Upon termination of Executive’s employment as a result of non-renewal of the Term by the Executive, Executive will be entitled to the Accrued Amounts payable in accordance with Section 5.1(a).

 

5.6   Notice of Termination; Non-Renewal . Any termination of employment pursuant to Sections 5.1 through 5.5 shall be communicated by a Notice of Termination to the other party hereto given in accordance with Section 16.2.

 

(a)   For purposes of this Agreement, a “ Notice of Termination ” means a written notice that (i) indicates the specific termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Executive’s employment under the provision so indicated and (iii) if the Date of Termination (as defined below) is other than the date of receipt of such notice, specifies the termination date.

 

(b)   For purposes of this Agreement, “ Date of Termination ” means (i) if Executive’s employment is terminated pursuant to Section 5.1 through 5.5, the date of receipt of the Notice of Termination, (ii) if Executive’s employment is terminated by reason of death, the date of death, and (iii) t he expiration of the Term .

 

(c)   A termination of employment pursuant to Section 5.6 shall be communicated by a Notice of Non-Renewal to the other party hereto given in accordance with Section 2 and Section 16.2.

 

6.   NON-SOLICITATION

 

Executive acknowledges that by virtue of Executive’s position as Chief Technology Officer and Executive’s employment hereunder, he will have advantageous familiarity with, and knowledge about, the Company and will be instrumental in establishing and maintaining goodwill between the Company and its employees and customers, which goodwill is the property of the Company. Therefore, Executive agrees as follows during the Term and for an twelve (12) month period following the Date of Termination: (a) Executive shall not on behalf of himself, or any other person or entity, solicit, take away, hire, employ or endeavor to employ any of the employees of the Company and/or (b) Executive shall not influence or attempt to influence vendors or business partners of the Company or any of its present or future subsidiaries or affiliates, either directly or indirectly, to divert their business to any individual, partnership, firm, corporation or other entity then in competition with the business of the Company, or any subsidiary or affiliate of the Company.

 

7.   NON-COMPETITION

 

Executive acknowledges and recognizes the highly competitive nature of the business of the Company and its affiliates and accordingly agrees as follows: During his employment and for a twelve (12) month period commencing from the Date of Termination (twelve (12) months in the case of a non-renewal of the Term), Executive will not, directly or indirectly, (a) engage in any business for Executive's own account that competes with the business of the Company or its affiliates (including, without limitation, businesses which the Company or its affiliates have specific plans to conduct in the future and as to which Executive is aware of such planning), (b) enter the employ of, or render any services to, any person engaged in any business that competes with the business of the Company or its affiliates, (c) acquire a financial interest in any person engaged in any business that competes with the business of the Company or its affiliates, directly or indirectly, as an individual, partner, stockholder, officer, director, principal, agent, trustee or consultant, or (d) interfere with business relationships (whether formed before or after the date of this Agreement) between the Company or any of its affiliates and customers, suppliers, partners, members or investors of the Company or its affiliates. Notwithstanding anything to the contrary in this Agreement, Executive may, directly or indirectly, own, solely as an investment, securities of any person engaged in the business of the Company or its affiliates which are publicly traded on a national or regional stock exchange or on an over-the-counter market if Executive (i) is not a controlling person of, or a member of a group which controls, such person and (ii) does not, directly or indirectly, own five percent (5%) or more of any class of securities of such person.

 

8.   CONFIDENTIALITY/TRADE SECRETS

 

Executive specifically agrees that Executive will not at any time, whether during or subsequent to the Term, in any fashion, form or manner, except in furtherance of Executive’s duties at the Company or with the specific written consent of the Company, either directly or indirectly use, divulge, disclose or communicate to any person in any manner whatsoever, any confidential information or trade secrets of any kind, nature or description concerning any matters affecting or relating to the business of the Company (the “ Proprietary Information ”), including (a) all information, design or software programs (including object codes and source codes), techniques, drawings, plans, experimental and research work, inventions, patterns, processes and know-how, whether or not patentable, and whether or not at a commercial stage related to the Company or any subsidiary thereof, (b) buying habits or practices of any of its customers or vendors, (c) the Company’s marketing methods, sales activities, promotion, credit and financial data and related information, (d) the Company’s costs or sources of materials, (e) the prices it obtains or has obtained or at which it sells or has sold its products or services, (f) lists or other written records used in the Company’s business, (g) compensation paid to employees and other terms of employment, or (h) any other confidential information of, about or concerning the business of the Company, its manner of operation, or other confidential data of any kind, nature, or description (excluding any information that is or becomes publicly known or available for use through no fault of Executive or as directed by court order). The Parties hereto stipulate that as between them, Proprietary Information constitutes trade secrets that derive independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value or cause economic harm to the Company from its disclosure or use and that Proprietary Information is the subject of efforts which are reasonable under the circumstances to maintain its secrecy and of which this Section 8 is an example, and that any breach of this Section 8 shall be a material breach of this Agreement. All Proprietary Information shall be and remain the Company’s sole property.

 

9.   INJUNCTIVE RELIEF

 

Executive acknowledges that any violation of any provision of Sections 6 through 8 hereof by Executive will cause irreparable damage to the Company, that such damages will be incapable of precise measurement and that, as a result, the Company will not have an adequate remedy at law to redress the harm which such violations will cause. Therefore, in the event of any violation or threatened violation of any provision of Sections 6 through 8 by Executive, in addition to any other rights at law or in equity, Executive agrees that the Company will be entitled to seek injunctive relief including, but not limited to, temporary and/or permanent restraining orders to restrain any violation or threatened violation of such Sections by Executive.

 

10.   BLUE PENCIL

 

It is the desire and intent of the Parties that the provisions of Section 6 through 8 hereof shall be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any portion of Sections 6 through 8 shall be adjudicated to be invalid or unenforceable, such provision shall be deemed amended either to conform to such restrictions as the court or arbitrator may allow, or to delete therefrom or reform the portion thus adjudicated to be invalid and unenforceable, such deletion or reformation to apply only with respect to the operation of such Section in the particular jurisdiction in which such adjudication is made. It is expressly agreed that any court or arbitrator shall have the authority to modify any provision of Sections 6 through 8 if necessary to render it enforceable, in such manner as to preserve as much as possible the Parties’ original intentions, as expressed therein, with respect to the scope thereof.

 

11.   COMPANY’S AND EXECUTIVE’S DUTIES ON TERMINATION

 

In the event of termination of Executive’s employment pursuant to Section 5, Executive agrees to deliver promptly to the Company all Proprietary Information which is or has been in Executive’s possession or under Executive’s control. Upon termination of Executive’s employment by the Company for any reason whatsoever and at any earlier time the Company so requests, Executive will deliver to the custody of the person designated by the Company all originals and copies of such documents and other property of the Company in Executive’s possession, under Executive’s control or to which Executive may have access.

 

12.   NON-DISPARAGEMENT

 

During the Term, for any reason, neither Executive nor his agents, on the one hand, nor the Company, or its senior executives or the Board, on the other hand, shall directly or indirectly issue or communicate any public statement, or statement likely to become public, that maligns, denigrates or disparages the other (including, in the case of communications by Executive or his agents, any of the Company’s officers, directors or employees). The foregoing shall not be violated by truthful responses to legal process or governmental inquiry or by private statements to any of the Company’s officers, directors or employees; provided , that , in the case of Executive, such statements are made in the course of carrying out his duties pursuant to this Agreement.

 

13.   INDEMNIFICATION

 

Except in the case of Executive’s bad faith or willful misconduct, the Company shall indemnify, defend and hold Executive harmless from and against any and all causes of action, claims, demands, liabilities, damages, costs and expenses of any nature whatsoever directly or indirectly arising out of or related to Executive’s discharging Executive’s duties hereunder on behalf of the Company and/or its respective subsidiaries and affiliates to the fullest extent permitted by law.

 

14.   REPRESENTATIONS AND WARRANTIES

 

14.1   Executive hereby represents and warrants to the Company, and Executive acknowledges, that the Company has relied on such representations and warranties in employing Executive and entering into this Agreement, as follows:

 

(a)   Executive has the legal capacity and right to execute and deliver this Agreement and to perform his obligations contemplated hereby, and this Agreement has been duly executed by Executive;

 

(b)   the execution, delivery and performance of this Agreement by Executive does not and will not, with or without notice or the passage of time, conflict with, breach, violate or cause a default under any agreement, contract or instrument to which Executive is a party or any judgment, order or decree to which Executive is subject;

 

(c)   Executive asserts that he can successfully perform the duties described herein at Section 3.1 without violating any employment, invention, non-disclosure, non-competition and/or non-solicitation agreement to which he may be bound;

 

(d)   upon the execution and delivery of this Agreement by the Company and Executive, this Agreement will be a legal, valid and binding obligation of Executive, enforceable in accordance with its terms;

 

(e)   Executive understands that the Company will rely upon the accuracy and truth of the representations and warranties of Executive set forth herein and Executive consents to such reliance.

 

14.2   The Company hereby represents and warrants to Executive, and the Company acknowledges that Executive has relied on such representations and warranties in entering into this Agreement, as follows:

 

(a)   the Company has all requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and this Agreement has been duly executed by the Company;

 

(b)   the execution, delivery and performance of this Agreement by the Company does not and will not, with or without notice or the passage of time, conflict with, breach, violate or cause a default under any agreement, contract or instrument to which the Company is a party or any judgment, order or decree to which the Company is subject;

 

(c)   upon the execution and delivery of this Agreement by the Company and Executive, this Agreement will be a legal, valid and binding obligation of the Company, enforceable in accordance with its terms; and

 

(d)   the Company understands that Executive will rely upon the accuracy and truth of the representations and warranties of the Company set forth herein and the Company consents to such reliance.

 

15.   ARBITRATION

 

Any controversy arising out of or relating to this Agreement, its enforcement or interpretation, or because of an alleged breach, default, or misrepresentation in connection with any of its provisions, or any other controversy arising out of Executive’s employment with the Company or the termination of Executive’s employment with the Company, including, but not limited to, any state or federal statutory claims, shall be submitted to arbitration in New York, New York, before a sole arbitrator selected from the American Arbitration Association,; provided , however , that provisional injunctive relief may, but need not, be sought by either party to this Agreement in a court of law while arbitration proceedings are pending, and any provisional injunctive relief granted by such court shall remain effective until the matter is finally determined by the arbitrator. Final resolution of any dispute through arbitration may include any remedy or relief which the arbitrator deems just and equitable, including any and all remedies provided by applicable state or federal statutes. The Company shall bear all administrative costs of any arbitration initiated under this Section 15, including any filing fees and arbitrator fees.

 

At the conclusion of the arbitration, the arbitrator shall issue a written decision that sets forth the essential findings and conclusions upon which the arbitrator's award or decision is based. Any award or relief granted by the arbitrator hereunder shall be final and binding on the Parties hereto and may be enforced by any court of competent jurisdiction. The Parties acknowledge and agree that they are hereby waiving any rights to trial by jury in any action, proceeding or counterclaim brought by either of the Parties against the other in connection with any matter whatsoever arising out of or in any way connected with this Agreement. The arbitrator shall award reasonable attorney’s fees (including reasonable disbursements) to the party that the arbitrator has determined to be the prevailing party in such arbitration. Except as may be necessary to enter judgment upon the award or to the extent required by applicable law, all claims, defenses and proceedings (including, without limiting the generality of the foregoing, the existence of the controversy and the fact that there is an arbitration proceeding) shall be treated in a confidential manner by the arbitrator, the Parties and their counsel, and each of their agents, employees and all others acting on behalf of or in concert with them. Without limiting the generality of the foregoing, no one shall divulge to any third party or person not directly involved in the arbitration the contents of the pleadings, papers, orders, hearings, trials, or awards in the arbitration, except as may be necessary to enter judgment upon an award as required by applicable law. Any court proceedings relating to the arbitration hereunder, including, without limiting the generality of the foregoing, to prevent or compel arbitration or to confirm, correct, vacate or otherwise enforce an arbitration award, shall be filed under seal with the court, to the extent permitted by law.

 

16.   GENERAL PROVISIONS

 

16.1   Assignment, Binding Effect . Neither the Company nor Executive may assign, delegate or otherwise transfer this Agreement or any of their respective rights or obligations hereunder without the prior written consent of the other party, except that the Company may assign this Agreement to its successors (including any purchaser of its assets), and affiliates, parent or subsidiary corporations. This Agreement shall be binding upon and inure to the benefit of any permitted successors or assigns of the Parties and the heirs, executors, administrators and/or personal representatives of Executive.

 

16.2   Notices .

 

(a)   All notices, requests, demands or other communications that are required or may be given under this Agreement shall be in writing and shall be given by personal delivery, by certified or registered United States mail (postage prepaid, return receipt requested), by a nationally recognized overnight delivery service for next day delivery, or by facsimile transmission, as follows (or to such other address as any party may give in a notice given in accordance with the provisions hereof):

 

If to the Company,

 

CÜR Media, Inc.

2217 New London Turnpike

South Glastonbury, CT 06073

 

If to Executive,

 

2217 New London Turnpike

 

South Glastonbury, CT 06073

 

with a copy to,

 

Gordon Mackenzie III

 

(b)   All notices, requests or other communications will be effective and deemed given only as follows: (i) if given by personal delivery, upon such personal delivery, (ii) if sent by certified or registered mail, on the fifth business day after being deposited in the United States mail, (iii) if sent for next day delivery by overnight delivery service, on the date of delivery as confirmed by written confirmation of delivery, (iv) if sent by facsimile, upon the transmitter’s confirmation of receipt of such facsimile transmission, except that if such confirmation is received after 5:00 p.m. (in the recipient’s time zone) on a business day, or is received on a day that is not a business day, then such notice, request or communication will not be deemed effective or given until the next succeeding business day. Notices, requests and other communications sent in any other manner, including by electronic mail, will not be effective.

 

16.3   Governing Law . This Agreement is governed by, and is to be construed and enforced in accordance with, the laws of Connecticut without regard to principles of conflicts of laws.

 

16.4   Amendment . No provisions of this Agreement may be amended, modified or waived unless such amendment or modification is agreed to in writing signed by Executive and by the Chief Executive Officer, and such waiver is set forth in writing and signed by the party to be charged.

 

16.5   Entire Agreement . This Agreement sets forth the entire agreement of the Parties hereto in respect of the subject matter contained herein and shall supersede all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, employee or representative of any party hereto in respect of such subject matter. Any prior agreement of the parties hereto in respect of the subject matter contained herein is hereby terminated and canceled as of the date hereof.

 

16.6   Withholding . All payments hereunder shall be subject to any required withholding of federal, state and local taxes pursuant to any applicable law or regulation.

 

16.7   Severability . The paragraphs and provisions of this Agreement are severable. If any paragraph or provision is found to be unenforceable, the remaining paragraphs and provisions will remain in full force and effect.

 

16.8   Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument.

 

16.9   Section 409A . Notwithstanding anything herein to the contrary, this Agreement is intended to be interpreted and applied so that the payment of the benefits set forth herein either shall be exempt from the requirements of Section 409A of the Code, or shall comply with the requirements of such provision. Furthermore, the Company and its respective officers, directors, employees or agents make no guarantee that this Agreement complies with, or is exempt from, the provisions of Section 409A of the Code and none of the foregoing shall have any liability for the failure of this Agreement to comply with, or be exempt from, the provisions of Code Section 409A. The parties hereto agree to make such amendments from time to time to the terms and conditions of this Agreement as are necessary to ensure that this Agreement complies with the terms of and in a manner permitted by Section 409A of the Code and any regulation or other official guidance promulgated thereunder. Each payment due hereunder shall be treated as a separate payment under Section 409A of the Code. To the extent required by Code Section 409A, “termination of employment” (or any similar terms) shall mean “separation from service” (as defined in Treasury Regulations Section 1.409A-1(h) and the default presumptions thereof). With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Code Section 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense was incurred.

 

(signature page follows)

 

IN WITNESS WHEREOF , the Parties hereto have executed this Agreement effective as of the date first written above.

 

 

EXHIBIT10.13

 

CÜR Media, Inc.

 

Non-Qualified Stock Option Agreement

Granted Under 2014 Equity Incentive Plan

 

1.            Grant of Option .

 

This agreement (this “Agreement”) evidences the grant by CÜR Media, Inc., a Delaware corporation (the “Company”), on _________, 20__ (the “Grant Date”) to ___________________, an employee, director, consultant or advisor of the Company (the “Participant”), of an option (the “Option”) to purchase, in whole or in part, on the terms provided herein and in the Company’s 2014 Equity Incentive Plan (the “Plan”) ________ shares (the “Shares”) of the Company’s common stock, $0.0001 par value per share (the “Common Stock”), at an exercise price of $_____. Unless earlier terminated, this option shall expire at 5:00 p.m., Eastern Time, on ________, 20__ (the “Final Exercise Date”).

 

It is not intended that the Option evidenced by this Agreement be an incentive stock option as defined in Section 422 of the Internal Revenue Code of 1986, as amended, and any regulations promulgated thereunder (the “Code”). Accordingly, the Option shall be treated as a non-qualified stock option.

 

Except as otherwise indicated by the context, the term “Participant”, as used in this Agreement, shall be deemed to include any person who acquires the right to exercise this option validly under its terms.

 

The Participant agrees to report sales of Shares that were issued pursuant to Option exercises to the Company within five (5) business days after such sale is concluded. The Participant also agrees to pay to the Company, within ten (10) business days after such sale is concluded, the amount necessary for the Company to satisfy its withholding requirement required by the Code in the manner specified in Section 13 of the Plan. Nothing herein is intended as a representation that the Shares may be sold without registration under state and federal securities laws or an exemption therefrom or that such registration or exemption will be available at any specified time.

 

2.            Vesting Schedule .

 

The Option will vest and become exercisable as to 25% of the original number of Shares (_______), on __________, 20__ and as to the remaining 75% of the original number of Shares, (________) pro-rata on a monthly basis for the next three years.

 

The right of exercise shall be cumulative so that to the extent the Option is not exercised in any period to the maximum extent permissible it shall continue to be exercisable, in whole or in part, with respect to all Shares for which it is vested until the earlier of the Final Exercise Date or as provided in Section 3 hereof or in the Plan.

 

 

3.            Exercise of Option .

 

(a)   (i)  Manner of Exercise . Each election to exercise the Option shall be in writing, in substantially the form of Notice of Stock Option Exercise attached hereto as Exhibit A (the “Exercise Notice”), signed by the Participant, and received by the Company at its principal office, accompanied by this Agreement, and payment in full in the manner provided herein. The Participant may purchase less than the number of Shares covered hereby, provided that no partial exercise of the Option may be for any fractional share.

 

(ii)  Manner of Payment . Payment of the exercise price may be made in cash, by certified or cashier’s check or on a cashless basis. The Participant may exercise the Option, in whole or in part, on a cashless basis determined by the following formula:

 

X = Y*(A-B) A

 

Where

X = the number of Shares to be issued to the Participant.   Y = the number of exercised Shares.   A = the Fair Value (as defined below) of one Share (determined at the date of delivery of the Exercise Notice).   B = the Exercise Price (as adjusted to the date of such calculation).

 

(iii) For the purposes of Section 3(a)(ii), Fair Value per share of Common Stock shall mean the average Closing Price (as defined below) per share of Common Stock on the five (5) trading days immediately preceding the date on which the Notice of Exercise is received by the Company. Closing Price means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on the New York Stock Exchange, the American Stock Exchange, the NASDAQ Global Select Market, the NASDAQ Global Market or the NASDAQ Capital Market or any other national securities exchange, the closing price per share of the Common Stock for such date (or the nearest preceding date) on the primary eligible market or exchange on which the Common Stock is then listed or quoted; (b) if prices for the Common Stock are then quoted on the OTC Bulletin Board or OTC Markets, the closing bid price per share of the Common Stock for such date (or the nearest preceding date) so quoted; or (c) if prices for the Common Stock are then reported in the “Pink Sheets” published by the National Quotation Bureau Incorporated (or a similar organization or agency succeeding to its functions of reporting prices), the most recent closing bid price per share of the Common Stock so reported. If the Common Stock is not publicly traded as set forth above, the Fair Value per share of Common Stock shall be reasonably and in good faith determined by the Board of Directors of the Company as of the date which the Notice of Exercise is received by the Company.

 

 

(b)   Exercise Period Upon Disability . If the Participant becomes disabled (within the meaning of Section 22(e)(3) of the Code) prior to the Final Exercise Date while he or she is an Eligible Participant, the vesting schedule of the Options shall be accelerated so that all of the Options that have not yet vested as of the date of disability shall vest immediately and the Option shall be exercisable, within the period of one year following the date of disability of the Participant, by the Participant, provided that the Option shall not be exercisable after the Final Exercise Date.

 

(c)   Exercise Period Upon Death . If the Participant dies prior to the final Exercise Date while he or she is an Eligible Participant, the vesting schedule of the Options shall be accelerated so that all of the Options that have not yet vested as of the date of the Participant’s death shall vest immediately and this Option shall be exercisable at any time through and including the Final Exercise Date by an authorized transferee.

 

4.            Tax Matters .

 

(a)   Withholding . No Shares will be issued pursuant to the exercise of the Option unless and until the Participant pays to the Company, or makes provision satisfactory to the Company for payment of, any federal, state or local withholding taxes required by law to be withheld in respect of the Option. Regardless of any action the Company or the Participant take with respect to any or all income tax (including federal, state, local and foreign tax), social insurance, payroll tax, payment on account or other tax-related items related to Participant’s participation in the Plan and legally applicable to Participant (“Tax-Related Items”), Participant acknowledges that the ultimate liability for all Tax-Related Items is and remains Participant’s responsibility and may exceed the amount actually withheld by the Company.

 

5.            Transfer Restrictions .

 

(a)   The Option may not be sold, assigned, transferred, pledged or otherwise encumbered by the Participant, either voluntarily or by operation of law, except by will or the laws of descent and distribution, and, during the lifetime of the Participant, the Option shall be exercisable only by the Participant.

 

(b)   The issuance and transfer of Shares shall be subject to compliance by the Company and Participant with all applicable requirements of federal, state, local or foreign securities laws and with all applicable requirements of any stock exchange or trading market on which the Shares may be listed at the time of such issuance or transfer.

 

 

6.            Nature of the Grant .

 

By entering into this Agreement and accepting the grant of the Option evidenced hereby, Participant acknowledges that: (i) the Plan is established voluntarily by the Company, it is discretionary in nature and it may be modified, amended, suspended or terminated by the Company at any time unless otherwise provided in the Plan and this Agreement; (ii) the grant of the Option is voluntary and occasional and does not create any contractual or other right to receive future grants of options, or benefits in lieu of options; (iii) all decisions with respect to future grants, if any, will be at the sole discretion of the Company; (iv) Participant’s participation in the Plan shall not create a right to further employment with the Company and shall not interfere with the ability of the Company to terminate Participant’s employment relationship at any time; (v) Participant’s participation in the Plan is voluntary; (vi) the future value of the underlying Shares is unknown and cannot be predicted with certainty, and if the Participant exercises the Option and obtains Shares, the value of those Shares may increase or decrease in value, even below the exercise price; and (vii) if the underlying Shares do not increase in value, the Option will have no value.

 

7.            409A Disclaimer .

 

This Agreement shall be interpreted in accordance with, and incorporate the terms and conditions required by, Section 409A of the Code. The Company reserves the right, to the extent the Company deems necessary or advisable in its sole discretion, to unilaterally amend or modify this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, as the Company determines are necessary or appropriate to ensure that the Option qualifies for exemption from, or complies with the requirements of, Code Section 409A; provided, however, that the Company makes no representation that the Option will be exempt from, or will comply with, Section 409A of the Code, and makes no undertakings to preclude Section 409A of the Code from applying to the Option or to ensure that it complies with Section 409A of the Code. For the avoidance of doubt, Participant hereby acknowledges and agrees that the Company will have no liability to Participant or any other party if the grant, vesting, exercise, issuance of shares or any other transaction under this Agreement is not exempt from, or compliant with, Code Section 409A, or for any action taken by the Company with respect thereto.

 

8.            Additional Terms .

 

The Company reserves the right to impose other requirements on Participant’s participation in the Plan, to the extent the Company determines it is necessary or advisable in order to comply with local law or facilitate the administration of the Plan, and to require Participant to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.

 

 

9.            Investment Intent .

 

By accepting the Option, the Participant represents and agrees that none of the Shares of Common Stock purchased upon exercise of the Option will be distributed in violation of applicable federal and state laws and regulations. In addition, the Company may require, as a condition of exercising the Option, that the Participant execute an undertaking, in such a form as the Company shall reasonably specify, that the Shares are being purchased only for investment and without any then-present intention to sell or distribute such shares.

 

10.          Adjustments for Stock Splits, Stock Dividends, Etc .

 

(a)   In the case of any recapitalization, reclassification, consolidation, stock split, stock dividend, subdivision or combination of shares or like change in the nature of the Common Stock covered by this Agreement, the number of Options and exercise price shall be proportionately adjusted.

 

(b)   The existence of the Options shall not affect in any way the right or power of the Company or its shareholders to make or authorize any adjustments, recapitalizations, reorganizations, or other changes in the Company’s capital structure or its business, or any merger or consolidation of the Company, or any issue of bonds, debentures, preferred or preference stocks ahead of or affecting the shares issuable upon exercise of the Options, or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise.

 

11.          Professional Advice .

 

The acceptance of the Option, exercise of the Option, and the sale of Common Stock issued following the exercise of Option may have consequences under federal and state tax and securities laws which may vary depending upon the individual circumstances of the Participant. Accordingly, the Participant acknowledges that he or she has been advised to consult his or her personal legal and tax advisor in connection with this Agreement and his or her dealings with respect to the Options. Without limiting other matters to be considered with the assistance of the Participant’s professional advisors, the Participant should consider: (a) whether upon the exercise of the Options, the Participant will file an election with the Internal Revenue Service pursuant to Section 83(b) of the Code and the implications of alternative minimum tax pursuant to the Code; (b) the merits and risks of an investment in the underlying Shares of Common Stock; and (c) any resale restrictions that might apply under applicable securities laws.

 

12.          Provisions of the Plan .

 

The terms of the Options are subject to the provisions of the Plan, as the same may from time to time be amended, and any inconsistencies between this Agreement and the Plan, as the same may be from time to time amended, shall be governed by the provisions of the Plan, a copy of which has been delivered to the Participant, and which is available for inspection at the principal offices of the Company.

 

 

13.          Miscellaneous .

 

(a)   Disputes . Any dispute or disagreement that may arise under or as a result of this Agreement, or any question as to the interpretation of this Agreement, may be determined by the Company’s Board of Directors in its absolute and uncontrolled discretion, and any such determination shall be final, binding, and conclusive on all affected persons.

 

(b)   Notices . Any notice that a party may be required or permitted to give to the other shall be in writing, and may be delivered personally, by overnight courier or by certified or registered mail, postage prepaid, addressed to the parties at their current principal addresses, or such other address as either party, by notice to the other, may designate in writing from time to time.

 

(c)   Law Governing . This Agreement shall be governed by and construed in accordance with the laws of the State of New York.

 

(d)   Agreement Binding . This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the parties hereto.

 

(e)   Further Action . The parties hereto shall execute and deliver all documents, provide all information and take or forbear from all such action as may be necessary or appropriate to achieve the purposes of the Agreement.

 

(f)   Parties of Interest . Nothing herein shall be construed to be to the benefit of any third party, nor is it intended that any provision shall be for the benefit of any third party.

 

(g)   Savings Clause . If any provision of this Agreement, or the application of such provision to any person or circumstance, shall be held invalid, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby.

 

 

IN WITNESS WHEREOF, the Company has caused this Agreement to be executed under its corporate seal by its duly authorized officer. This Agreement shall take effect as a sealed instrument.

 

 

 

PARTICIPANT’S ACCEPTANCE

 

The undersigned hereby accepts the foregoing Option and agrees to the terms and conditions thereof. The undersigned hereby acknowledges receipt of a copy of the Company’s 2014 Equity Incentive Plan.

 

 

 

 

EXHIBIT A

 

To:

 

CÜR Media, Inc.

2217 New London Turnpike

Glastonbury, CT 06073

Attention: Chief Financial Officer

 

Notice of Election to Exercise

 

This Notice of Election to Exercise shall constitute proper notice pursuant Section 3(a)(i) of that certain Non-Qualified Stock Option Agreement (the “Agreement”), dated as of __________ __, 201__, between CÜR Media, Inc. (the “Company”) and the undersigned.

 

The undersigned hereby elects to exercise Participant’s option to purchase __________ shares of common stock of the Company at a price of $______ per share, for aggregate consideration of US$__________, on the terms and conditions set forth in the Agreement and the 2014 Equity Incentive Plan.

 

Payment is to be made as follows:

 

¨   Cash

 

¨   Bank or Certified Check

 

¨   Cashless Exercise Pursuant to Section 3(a)(ii) of this Agreement, if applicable

 

The undersigned hereby directs the Company to issue, register and deliver the certificates representing the shares as follows:

 

 

DATED at _________________________ , the ____ day of _________________ , 20__.

 

 

 

 

 

9

---