EXHIBIT 3.1
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DIGITAL LOCATIONS, INC. |
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By: | /s/ William E. Beifuss Jr. | |
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Name: |
William E. Beifuss Jr. | |
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Title: | President | |
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 2, 2021
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DIGITAL LOCATIONS, INC. |
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(Exact name of registrant as specified in its charter) |
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Nevada |
000-54817 |
20-5451302 |
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(State or other jurisdiction of
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(Commission
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(IRS Employer
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3700 State Street, Suite 350
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93105 |
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(Address of Principal Executive Offices) |
(Zip Code) |
(805) 456-7000
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
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Title of each class |
Ticker symbol(s) |
Name of each exchange on which registered |
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N/A |
N/A |
N/A |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.☐
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SECTION 1. REGISTRANT’S BUSINESS AND OPERATIONS
Item 1.01. Entry into a Material Definitive Agreement.
On or about April 2, 2021, Digital Locations, Inc, a Nevada corporation (the “Company”), entered into a Securities Purchase Agreement (the “SPA”) with one accredited investor (the “Investor”), pursuant to which the Investor agreed to purchase up to 45,000 shares of the Company’s Series E Preferred Stock (the “Shares”) at a purchase price of $100 per Share. In accordance with the SPA, Investor paid for 34,900 Shares by surrendering to the Company for cancellation, $2,618,690 of principal and $872,306 of accrued interest through April 2, 2021 under various 10% interest, adjustable convertible notes held by Investor.
The Investor is also the holder of 11,515 shares of the Company’s Series B Preferred Stock, which has a face value of $100 per share and was convertible into the Company’s common stock at an adjustable conversion price (the “Series B Shares”). Pursuant to the SPA, the Company and Investor agreed to amend the Certificate of Designation for the Series B Shares to reflect a fixed conversion price equal to the effective conversion price of the Series B Shares on the date of the SPA, which was $0.0015 per share.
As an inducement for Investor entering into the SPA, the Company agreed that Investor will have the right, exercisable in its sole discretion, to purchase the remaining 10,100 of authorized Shares of Series E Preferred Stock at a purchase price of $100 per Share at any time until April 2, 2031.
Series E Preferred Stock. The holders of outstanding Shares are entitled to receive dividends pari passu with the holders of common stock, except upon a liquidation, dissolution and winding up of the Company, in which case the Shares have a preference. Such dividends will be paid equally to all outstanding Shares and common stock, on an as-if-converted basis with respect to the Shares.
In the event of any liquidation, dissolution or winding up of the Company, either voluntary or involuntary, holders of Shares shall be entitled to receive, out of the assets of the Company available for distribution to its shareholders upon such liquidation, whether such assets are capital or surplus of any nature, an amount equal to one hundred dollars ($100) for each such Share (as adjusted for any combinations, consolidations, stock distributions, stock splits or stock dividends with respect to such shares), plus all dividends, if any, declared and unpaid thereon as of the date of such distribution, after the payment of any distributions that may be required with respect to the Company’s Series B Preferred Stock, but before any payment is made or any assets distributed to the holders of common stock. After such payment, the remaining assets of the Company will be distributed to the holders of common stock.
If the assets to be distributed to holders of the Shares are insufficient to permit the receipt by such holders of the full preferential amounts, then all of such assets will be distributed among such holders ratably in accordance with the number of such shares then held by each such holder.
Each Share of Series E Preferred Stock is convertible into shares of fully paid and non-assessable shares of common stock of the Company at a fixed conversion price of $0.0015 per share.
In no event will holders of Shares be entitled to convert any Shares, such that upon conversion the sum of (1) the number of shares of common stock beneficially owned by the holder and its affiliates (other than shares of common stock which may be deemed beneficially owned through the ownership of the unconverted portion of the Series E Preferred Stock or the unexercised or unconverted portion of any other security of the Company subject to a limitation on conversion or exercise analogous to these limitations), and (2) the number of shares of common stock issuable upon the conversion of Shares, would result in beneficial ownership by the holder and its affiliates of more than 4.99% of the outstanding shares of common stock. The limitations on conversion may be waived by the Holder upon, at the election of the holder of Shares, not less than 61 days prior notice to the Company, and the provisions of the conversion limitation shall continue to apply until such 61st day (or such later date, as determined by the holder of Shares, as may be specified in such notice of waiver).
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Except as required by law, holder of Shares are not entitled to vote, as a separate class or otherwise, on any matter presented to the stockholders of the Company for their action or consideration at any meeting of stockholders of the Company, provided, however, each holder of outstanding Share will be entitled, on the same basis as holders of common stock, to receive notice of such action or meeting and so long as any Shares remain outstanding, the Company will not, without first obtaining the approval of the holders of at least a majority of the then outstanding Shares voting together as one class alter or change the rights, preferences or privileges of the Shares so as to affect materially and adversely such Shares.
The foregoing description of the SPA, Certificate of Designation for the Series E Preferred Stock, and Certificate of Amendment to Designation of Series B Preferred Stock does not purport to be complete and is qualified in its entirety by reference to the full text of the SPA, which is attached to this Report as Exhibit 10.1, and the full text of the Certificate of Designation for the Series E Preferred Stock and Certificate of Amendment to Designation of Series B Preferred Stock, which are attached as Exhibits 3.1 and 3.2, respectively.
SECTION 3. SECURITIES AND TRADING MARKETS
Item 3.02. Unregistered Sales of Equity Securities.
The information set forth in Item 1.01 is incorporated herein by reference.
Item 3.03. Material Modification to Rights of Security Holders.
The information set forth in Item 1.01 is incorporated herein by reference.
SECTION 5. CORPORATE GOVERNANCE AND MANAGEMENT
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Changes in Fiscal Year.
The information set forth in Item 1.01 is incorporated herein by reference.
SECTION 9. FINANCIAL STATEMENTS, PRO FORMA FINANCIALS & EXHIBITS
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
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Certificate of Amendment to Designation of Series B Preferred Stock. |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
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DIGITAL LOCATIONS, INC. |
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Date: April 8, 2021 |
By: |
/s/ William E. Beifuss, Jr. |
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Name: |
William E. Beifuss, Jr. |
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Title: |
President and Chief Executive Officer |
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EXHIBIT 3.1
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DIGITAL LOCATIONS, INC. |
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By: | /s/ William E. Beifuss Jr. | |
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Name: |
William E. Beifuss Jr. | |
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Title: | President | |
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EXHIBIT 3.2
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By: | /s/ William E. Beifuss, Jr. | |
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Name: |
William E. Beifuss, Jr. | |
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Title: | President | |
EXHIBIT 10.1
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (“Agreement”) is entered into as of April 2, 2021, by and between Digital Locations, Inc., a Nevada corporation (the “Company”), and Bountiful Capital, LLC, a Nevada limited liability company, (the “Investor”), with respect to the following facts:
RECITALS
A. The Company entered into various 10% interest, 5-year maturity, convertible note transactions with the Investor from 2016 to 2019 (the “Notes”). The current aggregate outstanding principal sum of the Notes is $2,617,690 and the accrued interest to date is $872,306 representing a total aggregate note balance of $3,489,996. The Notes are convertible into the Company’s common stock, par value $0.001 (the “Common Stock”), at an adjustable conversion price that is the lowest of (a) fifty percent (50%) of the lowest trade price of Common Stock recorded since the original Effective Date of the Notes, or (c) the lowest effective price per share granted to any person or entity after the Effective Date. As of the date this Agreement, the current effective conversion price of the Notes is $0.0015 per share.
B. The Company agrees to sell and the Investor agrees to purchase up to 45,000 shares of the Company’s Series E Preferred Stock (the “Shares”) for a total purchase price of up to $4,500,000 (the “Total Purchase Price”). The Series E Preferred Stock has no stated dividend, has a face value of $100 per share (the “Face Value”), and is convertible into the Company’s Common Stock at a fixed conversion price of $0.0015 per share. The terms and conditions of the Series E Preferred stock is set forth in the certification of designation attached hereto as Exhibit A.
C. The Investor agrees to tender the Notes to the Company for cancellation, as the purchase price of $3,489,996 (the “Purchase Price”) for 34,900 shares of Series E Preferred Stock(the “Initial Shares”).
D. The Investor also currently holds 11,515 shares of the Company’s Series B Preferred Stock, which has face value of $100 per share and is convertible into the Company’s Common Stock at an adjustable conversion price (the “Series B Shares”). The Investor and Company hereby agrees to amend the Series B Shares to reflect a fixed conversion price that equals the effective conversion price of the Series B Shares on the date of this Agreement. As of the date this Agreement, the current effective conversion price of Series B Shares is $0.0015 per share. The amendment to the Series B certificate of designation is hereby attached as Exhibit B.
E. As inducement to the Investor for entering into this Agreement and forego its right to receive future interest payments by holding the Notes, the Company agrees that the Investor shall have the right, at its sole discretion, to purchase up to the remaining 10,100 Shares of Series E Preferred Stock at any time until April 2, 2031 at a price per share equal to the Face Value.
The closing of the transactions contemplated by this Agreement (the “Closing”) will be deemed to have occurred upon the completion of the deliveries by each Party to this Agreement described in Section 2 of this Agreement.
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NOW, THEREFORE, for good and valuable consideration the receipt and sufficiency of which are hereby acknowledged by the parties to this Agreement, and in light of the recitals stated above, the parties to this Agreement hereby agree as follows:
Section 1. PURCHASE OF INITIAL SHARES
The Investor agrees to tender the Notes to the Company for cancellation as the Purchase Price of the Initial Shares. The Investor agrees that upon the full execution of this Agreement, the Notes shall be deemed fully paid and satisfied, null and void and no interest, fees or principal shall be due thereon. In the event the Notes are lost or destroyed, the Investor hereby warrants that the Notes are lost or destroyed and agrees to immediately surrender to the Company said Notes should it later be found and the Investor shall provide the Company with an affidavit of loss of said Notes. The Investor hereby agrees to indemnify and hold harmless the Company and its affiliates against all liability, costs, damages, claims or expenses which may be incurred by any of them as a result of any claim to ownership of the lost Notes asserted by the Investor or by anyone other than Investor. The Investor acknowledges that the Company does not currently have enough share of common stock to issue upon conversion of the Series E Preferred Stock. The Company undertakes to amend its Articles of Incorporation to increase the number of shares of common stock that it is authorized to issue within 90 days of the date hereof. Investor shall have the right, exercisable in its sole discretion, to purchase up to the remaining 10,100 Shares of Series E Preferred Stock at any time until April 2, 2031 at a price per share equal to the Face Value.
Section 2. DELIVERIES
2.1 The Company. The Company agrees and represents that upon the full execution of this Agreement, the Series E Preferred Stock is duly authorized, and the Initial Shares are considered immediately and validly issued, fully paid and nonassessable, free and clear of all liens imposed by the Company other than restrictions on transfer provided for in this Agreement or the Series E Preferred Stock certificate of designation. The Company will or will cause its transfer agent to deliver a certificate evidencing the Initial Shares issuable to the Investor within five (5) business days of this Agreement. For all intent and purposes, upon the full execution of this Agreement the Company agrees that the Investor is the immediate beneficial owners of the Initial Shares and may exercise any and all rights under the Initial Shares, regardless of when the certificates were delivered to the Investor.
2.2 The Investor. The Investor agrees that the Notes shall be immediately and automatically cancelled on the books of the Company upon the full execution of this Agreement. The Investor also agrees to deliver any other document reasonably requested by the Company that it deems necessary for the consummation of the transactions contemplated by this Agreement.
Section 3. EQUITABLE RELIEF.
3.1 Damages Inadequate. Each party acknowledges that it would be impossible to measure in money the damages to the other party if there is a failure to comply with any covenants or provisions of this Agreement, and agrees that in the event of any breach of any covenant or provision, the other party to this Agreement will not have an adequate remedy at law.
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3.2 Equitable Relief. It is therefore agreed that the other party to this Agreement who is entitled to the benefit of the covenants or provisions of this Agreement which have been breached, in addition to any other rights or remedies which they may have, shall be entitled to immediate equitable relief to enforce such covenants and provisions, and that in the event that any such action or proceeding is brought in equity to enforce them, the defaulting or breaching party will not urge a defense that there is an adequate remedy at law.
Section 4. Investor Representation and Warranty
4.1 Investor’s Representations and Warranties. As a material inducement to the Company to enter into this Agreement and consummate the exchange, Investor represents warrants and covenants with and to the Company as follows:
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Authorization and Binding Obligation. The Investor has the requisite legal capacity, power and authority to enter into, and perform under, this Agreement, including with respect to canceling the note and receiving the Shares. The execution, delivery and performance of this Agreement and performance by such Investor and the consummation by such Investor of the transactions contemplated hereby and thereby have been duly authorized by all requisite corporate, partnership or similar action on the part of such Investor and no further consent or authorization is required. This Agreement has been duly authorized, executed and delivered by the Investor. This Agreement has been duly executed and delivered by the Investor, and constitute the legal, valid and binding obligations of the Investor, enforceable against the Investor in accordance with their respective 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 applicable creditors' rights and remedies and except as rights to indemnification and to contribution may be limited by federal or state securities laws. |
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Beneficial Owner. With respect to the Note (i) the Investor owns, beneficially and of record, good and marketable title to the Note, free and clear of any taxes or encumbrances; (ii) the Note is not subject to any transfer restriction, other than the restriction that the Note not been registered under the Securities Act of 1933, as amended (the “1933 Act”) and, therefore, cannot be resold unless registered under the 1933 Act or in a transaction exempt from or not subject to the registration requirements of the 1933 Act; (iii) the Note has not entered into any agreement or understanding with any person or entity to dispose of the Note; and (iv) at the Closing, the Investor will convey to the Company good and marketable title to the Note, free and clear of any security interests, liens, adverse claims, encumbrances, taxes or encumbrances. |
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Accredited Investor. Such Investor is an accredited investor as defined in Rule 501(a) of Regulation D, as amended, under the 1933 Act. |
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Purchase Entirely for Own Account. The Shares to be received by the Investor hereunder will be acquired for such Investor’s own account, not as nominee or agent, and not with a view to the resale or distribution of any part thereof in violation of the 1933 Act, and such Investor has no present intention of selling, granting any participation in, or otherwise distributing the same in violation of the 1933 Act without prejudice, however, to such Investor’s right at all times to sell or otherwise dispose of all or any part of such Shares in compliance with applicable federal and state securities laws. Nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time. The Investor is not a broker-dealer registered with the SEC under the Securities Exchange Act of 1934, as amended (the “1934 Act”) or an entity engaged in a business that would require it to be so registered. |
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Disclosure of Information. Such Investor has had an opportunity to receive all information related to the Company requested by it and to ask questions of and receive answers from the Company regarding the Company, its business and the terms and conditions of the offering of the Shares. Such Investor acknowledges receipt of copies of the Company’s most recent Annual Report on Form 10-K for its last fiscal year and all other reports filed by the Company pursuant to the 1934 Act since the filing of the 10-K and prior to the date hereof. |
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Proceedings. No proceedings relating to the Note is pending or, to the knowledge of the Investor, threatened before any court, arbitrator or administrative or governmental body that would adversely affect the Investor’s right and ability to surrender and exchange the Note. |
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Tax Consequences. The Investor acknowledges that the contents this Agreement do not contain tax advice and Investor acknowledges that it has not relied and will not rely upon the Company with respect to any tax consequences related to the exchange of the Note and receipt of the Shares. The Investor assumes full responsibility for all such consequences and for the preparation and filing of any tax returns and elections which may or must be filed in connection with such Note and/or the exchange of the Note for the Shares. |
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Reliance on Exemptions. The Investor understands that the Shares are being offered 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 the Investor’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Investor set forth herein and in order to determine the availability of such exemptions and the eligibility of the Investor to acquire the Securities. |
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Neither the Investor nor its agent or representative has engaged any broker or finder or incurred any liability for any brokerage fees, commissions or finders’ fees in connection with the Transactions contemplated herein. |
Section 5. MISCELLANEOUS
5.1 Further Assurances. The parties to this Agreement hereby agree to execute any other documents and take any further actions which are reasonably necessary or appropriate in order to implement the transactions contemplated by this Agreement.
5.2 Counterparts. This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement.
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5.3 Governing Law. This Agreement shall be construed in accordance with, and governed in all respects by, the laws of the State of Nevada.
5.4 Successors and Assigns. This Agreement shall be binding upon the parties hereto and their respective heirs, successors and assigns, if any, and shall inure to the benefit of the parties hereto and their respective heirs, successors and assigns, if any.
5.5 Legends. The Investor understands that the Shares are characterized as “restricted securities” under the 1933 Act. The Investor further acknowledges that if the Shares are issued to the Investor in accordance with the provisions of this Agreement, such Shares may not be resold without registration under the Securities Act or the existence of an exemption therefrom. The Investor represents that it is familiar with Rule 144 promulgated under the 1933 Act, as presently in effect, and understands the resale limitations imposed thereby and by the 1933 Act. Investor acknowledges that the certificate(s) representing the Shares shall each conspicuously set forth on the face or back thereof a legend in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES.
and any legend required by the “blue sky” laws of any state to the extent such laws are applicable to the securities represented by the certificates with such legend.
5.6 Severability. The provisions of this Agreement are severable and in the event that one or more of its provisions are deemed to be unenforceable or invalid for any reason, such finding will not affect the enforceability or validity of any other provision of this Agreement, which shall remain in full force and effect.
5.7 Public Disclosure. The Company and the Investor agree not to issue any public statement with respect to the Investor’s investment or proposed investment in the Company or the terms of any agreement or covenant without the other party’s prior written consent, except such disclosures as may be required under applicable law or under any applicable order, rule or regulation. The Company agrees to reference the Investor only as “an accredited investor” and attach only a form copy this Agreement in any of the Company’s filings with the Securities and Exchange Commission or any other public filings, except such full disclosures as may be required under applicable law or under any applicable order, rule or regulation.
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5.8 Waiver. No failure or delay on the part of either party hereto in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude any other or further exercise thereof or of any other power, right or privilege.
5.09 Entire Agreement. This Agreement sets forth the entire understanding of the parties hereto and supersedes all prior agreements and understandings between the parties relating to the subject matter hereof.
5.10 Parties in Interest. None of the provisions of this Agreement or of any other document relating hereto is intended to provide any rights or remedies to any person (including, without limitation, any employees or creditors of the Company) other than the parties hereto and their respective heirs, successors and assigns, if any.
5.11 Authorized Signatures. Each party to this Agreement hereby represents that the persons signing below are duly authorized to execute this Agreement on behalf of their respective party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written.
| COMPANY: | DIGITAL LOCATIONS, INC. | ||
| By: | /s/ William E. Beifuss, Jr | ||
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William E. Beifuss, Jr., Chief Executive Officer | |
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INVESTOR: |
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BOUNTIFULCAPITAL,LLC |
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By: |
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EXHIBIT A
CERTIFICATE OF DESIGNATION
SERIES E PREFERRED STOCK
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EXHIBIT B
AMENDMENT TO CERTIFICATE OF DESIGNATION
SERIES B PREFERRED STOCK