SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of report (Date of earliest event reported): January 9, 2019
LIFELOGGER TECHNOLOGIES CORP.
(Exact name of registrant as specified in its charter)
(State or other jurisdiction of incorporation)
11380 Prosperity Farms Road, Suite 221E,
Palm Beach Gardens, Florida
|(Address of principal executive offices)||(Zip Code)|
Registrant’s telephone number, including area code: (972) 525-8546
(Former name or former address, if changed since last report.)
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:
|[ ]||Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)|
|[ ]||Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)|
|[ ]||Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))|
|[ ]||Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))|
Indicate by check mark whether the registrant is an emerging growth company as defined in 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. [ ]
Item 1.01 Entry into a Material Definitive Agreement.
On January 9, 2019, Lifelogger Technologies Corp. (the “Company”) entered into a Note Conversion Agreement (the “Conversion Agreement”) with SBI Investments LLC, 2014-1, a statutory series of Delaware limited liability corporation (“SBI”), and Old Main Capital, LLC, a Florida series limited liability corporation (“Old Main”). Pursuant to the Conversion Agreement, SBI converted $916,666.67 of principal and accrued interest owed to SBI by the Company pursuant to a promissory note into 54,000 shares (the “SBI Conversion Shares”) of the Company’s Series B Preferred Stock, par value $0.001 per share (the “Series B Preferred Stock”), in full satisfaction of such obligation. Pursuant to the Conversion Agreement, Old Main converted $733,333.33 of principal and accrued interest owed to Old Main by the Company pursuant to a promissory note into 42,429 shares (the “Old Main Conversion Shares”) of the Company’s Series B Preferred Stock in full satisfaction of such obligation. The SBI Conversion Shares and the Old Main Conversion Shares represent 100% of the Company’s outstanding shares of Series B Preferred Stock and until such time as a share of Series B Preferred Stock is converted into a share of common stock shall represent a class of non-voting securities. The issuance of the SBI Conversion Shares and the Old Main Conversion Shares will not result in a change of control of the Company.
The issuance of the SBI Conversion Shares to SBI, who is an accredited investor, and the issuance of the Old Main Conversion Shares to Old Main, who is an accredited investor, were each exempt from registration under the Securities Act of 1933, as amended, in reliance on exemptions provided by Sections 3(a)(9) and 4(a)(2) of the Securities Act of 1933, as amended.
Concurrently with the execution of the Conversion Agreement, SBI, Old Main and Capital Park Opportunities Fund LP, a Delaware limited partnership (the “Purchaser”) entered into a Voting and First Refusal Agreement, dated as of January 9, 2019 (the “Voting Agreement”), with the Company. Pursuant to the Voting Agreement, SBI and Old Main, as holders of shares of Series B Preferred Stock, have each agreed, among other things, to (a) vote to ensure that the size of the Company’s board of directors be set at, and remain at, five (5) directors and (b) vote in favor of certain director nominees, on the terms and subject to the conditions set forth in the Voting Agreement. In addition, the Voting Agreement provides that the Company will have a right of first refusal to acquire any shares of Series B Preferred Stock held by SBI and Old Main in connection with any transfer of such shares, on the terms and subject to the conditions set forth in the Voting Agreement.
The foregoing description of the terms and conditions of the Conversion Agreement and the Voting Agreement are qualified in their entirety by reference to the applicable document, copies of which are filed as Exhibit 10.1 and Exhibit 10.2, respectively, to this report and incorporated herein by reference.
Item 3.02 Unregistered Sales of Equity Securities.
The information set forth in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 3.02.
Item 5.01 Changes in Control of Registrant.
On January 9, 2019, the Purchaser acquired 335,183 shares (the “Common Shares”) of common stock, par value $0.001 per share (“Common Stock”), of the Company and 1,000 shares (the “Preferred Shares” and together with the Common Shares, the “Shares”) of the Company’s Series A Preferred Stock, par value $0.001 per share (“Series A Preferred Stock”), for an aggregate purchase price of $336.18 (the “Purchase Price”) from SBI, Old Main, and Stewart Garner, in his capacity as a holder of securities. The Shares represent 84.4% of the voting power of the Company’s voting stock. The Purchaser used its working capital as the source of funds for the Purchase Price.
The Company and the Purchaser, as the Company’s new controlling shareholder, will continue to pursue and expand upon the Company’s current business operations.
Except as described in Item 1.01, there were no arrangements or understandings among members of both the former control group and the new control group and their respective associates with respect to the election of directors or other matters.
As required to be disclosed by Regulation S-K Item 403(c), there are no arrangements, known to the Company, including any pledge by any person of securities of the Company or any of its parents, the operation of which may at a subsequent date result in a change in control of the Company.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Concurrently with the closing of the purchase of the Shares on January 9, 2019: (a) Eric Blue, 39, was appointed as a member of the Company’s board of directors to hold office until the next annual meeting of shareholders and until his successor is duly elected and qualified or until his resignation or removal, (b) Stewart Garner resigned as the Company’s Chief Executive Officer, Chief Financial Officer and Director, and (c) Eric Blue was appointed as the Company’s Chairman of the Board, Chief Executive Officer and Chief Investment Officer.
Mr. Stewart’s resignations are not the result of any disagreement with the Company on any matter relating to its operation, policies (including accounting or financial policies) or practices.
There is no arrangement or understanding among Mr. Blue, as a new director, on the one hand, or any other person, on the other hand, pursuant to which Mr. Blue was appointed as a director. Mr. Blue has no direct or indirect material interest in any transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K. Mr. Blue did not receive any compensation in connection with his appointment as a director.
At this time, the Company does not have any written employment agreement or other formal compensation agreement with Mr. Blue. Compensation arrangements are the subject of ongoing developments and the Company will make appropriate additional disclosures as they are further developed and formalized.
Mr. Blue brings to the Company over 15 years of private equity, advisory and legal experience and will be responsible for driving the Company’s overall strategy. Prior to joining the Company, Mr. Blue was the founder and managing partner of Capital Park Management Company, a middle market focused private investing platform that focused on control and non-control transactions. In addition to his direct investing experience and prior to founding Capital Park Management Company, Mr. Blue served as an M&A and capital markets attorney as well as an industrials’ focused corporate finance and M&A investment banker. Mr. Blue graduated summa cum laude from Xavier University of Louisiana with a B.S. in finance and graduated with honors from The University of Texas School of Law.
The Company’s board of directors appointed Mr. Blue in recognition of the importance of his abilities to assist the Company in expanding its business and the contributions he can make to its strategic direction.
The Company has not entered into any compensation arrangements with Mr. Blue.
Item 5.03. Amendments to Articles of Incorporation or Bylaws.
On January 9, 2019, the Company filed a certificate of designation, preferences and rights of Series B Preferred Stock (the “Certificate of Designation”) with the Secretary of State of the State of Nevada to designate 96,428 shares of its previously authorized preferred stock as Series B Preferred Stock. The Certificate of Designation and its filing were approved by the Company’s board of directors on January 9, 2019, without shareholder approval as provided for in the Company’s articles of incorporation and under Nevada law.
The holders of shares of Series B Preferred Stock, in preference to the holders of shares of Common Stock and other stock of the Company, will be entitled to receive cash dividends at a rate of 3.0% of the original issue price per annum of the Series B Preferred Stock, which shall initially be $14.00 per share (subject to certain adjustments). Such dividends shall be cumulative and will be payable only (a) as and when declared by the Company’s board of directors or (b) upon the occurrence of certain liquidation events involving the Company. Upon any such liquidation event, the holders of the Series B Preferred Stock would be entitled to receive a liquidation preference on their shares of Series B Preferred Stock prior to the Company making any distributions to the Company’s other stockholders.
The holders of shares of Series B Preferred Stock have the following voting rights:
● Each share of Series B Preferred Stock entitles the holder to one (1) vote on all matters submitted to a vote of the Company’s stockholders.
● Except as otherwise provided in the Certificate of Designation, the holders of Series B Preferred Stock, the holders of Series A Preferred Stock, the holders of Common Stock and the holders of shares of any other Company capital stock having general voting rights shall vote together as one class on all matters submitted to a vote of the Company’s stockholders.
● So long as any shares of Series B Preferred Stock are outstanding, the Company will not, without the written consent of holders of at least 66 2/3% of the Series B Preferred Stock, either directly or by amendment, merger, consolidation, or otherwise: (a) liquidate, dissolve or wind-up the affairs of the Company; (b) amend, alter, or repeal any provision of the Company’s articles of incorporation in any manner adverse to the Series B Preferred Stock; (c) create or authorize the creation of or issue any other security convertible into or exercisable for any equity security, having rights, preferences or privileges senior to or on parity with the Series B Preferred Stock, or increase the authorized number of shares of Series B Preferred Stock; or (d) purchase or redeem or pay any dividend on any capital stock prior to the Series B Preferred Stock.
Beginning on March 10, 2019, the shares of Series B Preferred Stock will be convertible into shares of the Common Stock pursuant to the conversion ratio set forth in the Certificate of Designation. Beginning on November 23, 2019, upon the request of holders of at least 66 2/3% of the Series B Preferred Stock, the share of Series B Preferred Stock shall be redeemed by the Company upon payment in cash of the applicable liquidation preference. In addition, the Company shall have the right at any time to redeem the Series B Preferred Stock upon payment in cash of the applicable liquidation price.
The foregoing description of the Certificate of Designation is qualified in its entirety by reference to the Certificate of Designation, which is filed as Exhibit 3.1 hereto and incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
|3.1||Certificate of Designation of Series B Preferred Stock, filed on January 9, 2019.|
|10.1||Note Conversion Agreement, dated January 9, 2019, among Lifelogger Technologies Corp., Capital Park Opportunities Fund LP, SBI Investments LLC, 2014-1 and Old Main Capital, LLC.|
|10.2||Voting and First Refusal Agreement, dated January 9, 2019, among Lifelogger Technologies Corp., Capital Park Opportunities Fund LP, SBI Investments LLC, 2014-1 and Old Main Capital, LLC.|
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 hereunto duly authorized.
|LIFELOGGER TECHNOLOGIES CORP.|
|Date: January 15, 2019||By:||/s/ Eric Blue|
|Chief Executive Officer|
NOTE CONVERSION AGREEMENT
This Note Conversion Agreement is entered into the 9th day of January, 2019 by and between LifeLogger Technologies Corp., a Nevada corporation (“ LifeLogger ”) and each of Old Main Capital, LLC (“ Old Main Capital ”) and SBI Investments LLC, 2014-1 (“ SBI Investments ”). Each of Old Main Capital and SBI Investments are referred to herein individually as a “ Noteholder ” and collectively as the “ Noteholders ”. LifeLogger and the Noteholders are sometimes hereinafter referred to herein as the “ Parties ”, and each, a “ Party ”.
WHEREAS, Old Main Capital holds promissory notes issued by LifeLogger in the principal amount of $916,666.67 a copy of which is attached hereto as Exhibit A (the “ Old Main Capital Promissory Notes ”), and SBI Investments holds a promissory note issued in the principal amount of $733,333.33, a copy of which is attached hereto as Exhibit B (the “ SBI Investments Promissory Notes ”; the SBI Investments Promissory Note, together with the Old Main Capital Promissory Note, the “ Promissory Notes ”, and each, a “ Promissory Note ”); and
WHEREAS, the Noteholders wish to convert the Promissory Notes into Series B Participating Convertible Preferred Stock, par value of $0.001 per share (the “ Series B Preferred ”), in LifeLogger, on the terms and subject to the conditions herein.
NOW, THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. Conversion of Promissory Notes . The Parties hereby agree that, in full and complete satisfaction of LifeLogger’s obligations for all amounts of principal and accrued but unpaid interest due under the Promissory Notes, LifeLogger hereby issues (a) to Old Main Capital 54,000 shares of Series B Preferred (the “ Old Main Shares ”), and (b) to SBI Investments 42,429 shares of Series B Preferred (the “ SBI Investments Shares ”; the SBI Investments Shares, together with the SBI Investments Shares, the “ Noteholder Shares ”), and the Promissory Notes shall be cancelled and terminated in all respects. Concurrently with the execution and delivery of this Agreement, the Noteholders shall have delivered their Promissory Notes for LifeLogger to mark as cancelled upon the issuance of the Noteholder Shares. Prior to or concurrent with the execution and delivery of this Agreement, LifeLogger shall cause to be filed the Certificate of Designation to its Articles of Incorporation in the form attached hereto as Exhibit C , pursuant to which the Series B Preferred Stock is designated, and shall provide the Noteholders with evidence of corporate authorizations required for such filing.
2. Release . In consideration for the issuance of the Noteholder Shares, each Noteholder hereby releases and forever discharges LifeLogger, its affiliates, stockholders, predecessors, subsidiaries, officers, directors, employees and agents, and each of their successors and assigns (collectively, the “ Releasees ”), from and against any and all actions, suits, dues, reckonings, controversies, damages, judgments, rights, claims, debts, demands, liabilities, fees, costs, expenses, covenants, bonds and causes of action, whether known or unknown, pending or potential, accrued or unaccrued, of any kind or nature, in law or in equity existing from the beginning of the world to the date hereof, and hereafter, that Investor had, now has or may in the future have, against LifeLogger and/or the Releasees arising out of or related to the Promisorry Notes (other than the right to receive the Noteholder Shares), and the Promissory Notes shall be terminated and shall be of no force and effect upon the issuance of the Noteholder Shares as provided in Section 1 hereof.
3. Representations and Warranties . Each Noteholder hereby represents and warrants to LifeLogger as follows:
(a) Authorization; Enforceability . Such Noteholder has full power and authority to enter into this Agreement. All action necessary for the authorization, execution and delivery of this Agreement by such Noteholder have been taken. This Agreement constitutes a valid and legally binding obligation of such Noteholder, enforceable against such Noteholder in accordance with its terms. The execution, delivery and performance of this Agreement by such Noteholder do not conflict with or cause a breach of or default under any of its governing documents or any contract to which it is a party;
(b) Acquisition Entirely for Own Account . Such Noteholder is acquiring its Noteholder Shares for his own account, for investment purposes and not with a view to the resale or distribution of any part thereof. Such Noteholder further represents that it does not presently have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participation to such person or to any third person, with respect to any of its Noteholder Shares;
(c) Investment Experience . Such Noteholder is an “accredited investor” as defined in Rule 501(a) of Regulation D promulgated under the Securities Act of 1933, as amended (the “ Securities Act ”). Such Noteholder (i) has experience as an investor in securities of companies of the type of LifeLogger and acknowledges that it can bear the economic risk of its investment in its Noteholder Shares and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of this investment in its Noteholder Shares and protecting its own interests in connection with this investment, and (ii) has a pre-existing personal or business relationship with LifeLogger and certain of its officers, directors or controlling persons of a nature and duration that enables it to be aware of the character, business acumen and financial circumstances of such persons;
(d) No Public Market . Such Noteholder understands that no public market now exists for the Noteholder Shares, and that LifeLogger has made no assurances that a public market will ever exist for the Noteholder Shares. Such Noteholder has no need for liquidity in this investment, has the ability to bear the economic risk of this investment, and at the present time and in the foreseeable future can afford a complete loss of its investment in its Noteholder Shares; and
(f) No General Solicitation . Such Noteholder has not engaged the services of a broker, investment banker or finder to contact any potential investor nor has such Noteholder agreed to pay any commission, fee or other remuneration to any third party to solicit or contact any potential investor. Such Noteholder acknowledges that it is not acquiring its Noteholder Shares pursuant to any general solicitation.
4. Covenant . Each Noteholder agrees and acknowledges on behalf of itself and its successors and permitted assigns that upon any conversion of the Series B Preferred into LifeLogger common stock (“ Common Stock ”), such Noteholder shall not, during any trading session, sell Common Stock in excess of the greater of (a) fifteen percent (15%) of the total dollar volume of Common Stock in any one trading day or (b) $10,000.00.
5. Heading; References . All headings used herein are used for convenience only and shall not be used to construe or interpret this Agreement. Except where otherwise indicated, all references herein to Sections refer to Sections hereof.
6. Notices . Any notices, demands or other communications to LifeLogger or the Noteholders hereunder shall be in writing and shall be deemed to have been duly given if delivered (a) by courier or otherwise in personal, (b) by an overnight or next business day delivery service, or (c) by United States mail, postage prepaid, and shall be deemed given when actually received by the intended recipient at its notice address which shall be as set forth below (or such other notice address as LifeLogger and/or the Noteholders may from time to time designate in writing to the other parties hereto by written notice delivered in accordance with this Section):
If to LifeLogger:
LifeLogger Technologies Corp.
11380 Prosperity Farms Road, Suite 221E
Palm Beach Gardens, Florida 33410
Attention: Stewart Garner
If to Old Main Capital:
Old Main Capital, LLC
411 Dorado Beach East
Dorado, PR 00646
Attn: Adam Long
If to SBI Investments:
SBI Investments LLC, 2014-1
107 Grand Street, 7 th Floor
New York, NY 10013
Attention: Jonathan Juchno
7. Governing Law . This Agreement shall be enforced, governed and construed in all respects in accordance with the laws of the State of Nevada, without regard to conflict of laws provisions that would require the application of the laws of another jurisdiction.
8. Miscellaneous . This Agreement contains the entire agreement between the parties with respect to the subject matter hereof, and supersedes every course of dealing, other conduct, oral agreement or representation previously made by the Parties. In the event that any court of competent jurisdiction shall determine that any provision, or portion thereof, contained in this Agreement shall be unenforceable in any respect, then such provision shall be deemed limited to the extent that such court deems it enforceable, and the remaining provisions of this Agreement shall nevertheless remain in full force and effect. The Recitals form an integral part of this Agreement and are hereby incorporated by reference. This Agreement may be executed in counterparts (including electronically and PDF), each of which when so executed shall be deemed an original, but all of which when taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Note Conversion Agreement as of the date first set forth above.
|LIFELOGGER TECHNOLOGIES CORP.|
|By:||/s/ Stewart Garner|
|OLD MAIN CAPITAL, LLC|
|By:||/s/ Adam R. Long|
|Name:||Adam R. Long|
|SBI INVESTMENTS LLC, 2014-1|
|By:||/s/ Jonathan Juchno|
VOTING AND FIRST REFUSAL AGREEMENT
This VOTING AND FIRST REFUSAL AGREEMENT (the “ Agreement ”) is made and entered into as of January 9, 2019, by and among LifeLogger Technologies Corp., a Nevada corporation (the “ Company ”), Capital Park Opportunities Fund LP (“ Capital Park ”), SBI Investments LLC, 2014-1 (“ SBI Investments ”) and Old Main Capital, LLC (“ Old Main Capital ” and together with SBI Investments each, a “ Series B Stockholder ” and collectively, the “ Series B Stockholders ” and, together with the Company, the “ Parties ”). The Company’s Board of Directors is referred to herein as the “ Board .”
WHEREAS , the Series B Stockholders hold in the aggregate all of the outstanding shares of Company’s Series B Preferred Stock, par value $0.001 per share (the “ Series B Preferred Stock ”), in the originally issued amounts set forth on Exhibit A attached hereto (as adjusted for stock splits, combinations or other similar recapitalization; and
WHEREAS , the Parties hereto wish to agree on certain matters as set forth in more detail herein.
NOW, THEREFORE , in consideration of the mutual promises and covenants set forth herein, and certain other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Agreement to Vote . Each Series B Stockholder, as a holder of Series B Preferred Stock, hereby agrees on behalf of itself and any transferee or assignee of any such shares of Series B Preferred Stock, to hold all of the shares of Series B Preferred Stock registered in its name and any other securities of the Company currently owned or subsequently acquired by such Series B Stockholder in the future (and any securities of the Company issued with respect to, upon conversion of, or in exchange or substitution for such shares or other securities) (hereinafter collectively referred to as the “ Shares ”), subject to, and to vote such shares at a regular or special meeting of stockholders (or by written consent) in accordance with, the provisions of this Agreement.
2. Voting Provisions Relating to the Board .
2.1. Board Size . Each of the Series B Stockholders shall vote, or cause to be voted, at a regular or special meeting of stockholders (or by written consent) all Shares owned by such Series B Stockholder (or as to which such Series B Stockholder has voting power) to ensure that the size of the Board shall be set and remain at five (5) directors, unless otherwise agreed by the majority of the holders of the Company’s common stock, par value $0.001 per share (“ Common Stock ”).
2.2. Election of Directors .
2.2.1. In any election of directors of the Company to elect Directors, the Series B Stockholders shall vote as follows: to elect the Class B Directors, the Series B Stockholders shall each vote at any regular or special meeting of stockholders (or by written consent) all shares of Shares then owned by them (or as to which they then have voting power) to elect to the Board as Class B Directors each nominee to the Board put forth as a nominee of Capital Park (each such nominee, a “ Capital Park Class B Director ”).
2.2.2. In the absence of any nomination from the persons with the right to nominate a director as specified above, the director or directors previously nominated by such persons and then serving shall be reelected if still eligible to serve as provided herein.
2.3. Removal; Vacancies . Any director of the Company may be removed from the Board in the manner allowed by law and the Articles of Incorporation and Bylaws, but with respect to any director nominated pursuant to Subsections 2.2.1 or Section 2.2.2 above, only upon the vote or written consent of the holders of a majority of the Class B Common Stock (as defined in the Certificate of Incorporation). Any vacancy created by the resignation, removal or death of a director elected pursuant to Section 2.2 above shall be filled pursuant to the provisions of Section 2 .
3. First Refusal Right .
3.1. Notice of Transfer . In the event any Series B Stockholder wishes to sell, assign or otherwise transfer its Shares (the “ Offered Shares ”), such Series B Stockholder (the “ Transferor ”) shall provide written notice (the “ Transfer Notice ”) to the Company. The Transfer Notice shall include (i) the purchase price and form of consideration proposed to be paid for the Offered Shares (which shall be no less than all of the Shares held by the Transferor), (ii) the name and address of the prospective transferee (the “ Prospective Transferee ”), and (iii) the other material terms and conditions upon which the proposed transfer is to be made, including the intended date of the proposed transfer.
3.2. Right of First Refusal . The Company shall have an option for a period of thirty (30) days from delivery of the Transfer Notice to elect to purchase the Offered Shares at the same price and subject to the same material terms and conditions as described in the Transfer Notice. The Company may exercise such purchase option and purchase all (but not less than all) of the Offered Shares by notifying the Transferor in writing before expiration of such thirty (30) day period of its election to purchase the Offered Shares. If the Company gives the Transferor notice that it desires to purchase such shares, then payment for the Offered Shares shall be made by check or wire transfer against delivery of the Offered Shares to be purchased at a time and place agreed upon between the Transferor and the Company, which time shall be no later than sixty (60) days after delivery to the Company of the Transfer Notice, unless the Transfer Notice contemplated a later closing.
3.3. Conversion and Sale Upon Failure to Exercise Purchase Option . If the Company fails to purchase all of the Offered Shares by exercising the option granted in Section 3.3 within the period provided therein, then the Transferor shall be free to sell all, but not less than all, of the Offered Shares to the Prospective Transferee on terms and conditions substantially similar to (and in no event more favorable to the Prospective Transferee than) the terms and conditions set forth in the Transfer Notice; provided, that such sale shall be consummated within ninety (90) days after receipt of the Transfer Notice by the Company and, if such sale is not consummated within such ninety (90) day period, such sale (and any sale of the Shares) shall again become subject to the right of first refusal on the terms set forth in this Section 3 .
4. Legend on Share Certificates . Each certificate representing any Shares shall be endorsed by the Company with a legend reading substantially as follows:
“THE SHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING AND FIRST REFUSAL AGREEMENT, AS MAY BE AMENDED FROM TIME TO TIME (A COPY OF WHICH MAY BE OBTAINED UPON WRITTEN REQUEST FROM THE ISSUER), AND BY ACCEPTING ANY INTEREST IN SUCH SHARES THE PERSON ACCEPTING SUCH INTEREST SHALL BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF SAID VOTING AND FIRST REFUSAL AGREEMENT.”
5. No Liability for Election of Recommended Directors . Neither any Party to this Agreement, nor any officer, director, stockholder, partner, employee or agent of any such Party, makes any representation or warranty as to the fitness or competence of the nominee of any Party hereunder to serve on the Board by virtue of such Party’s execution of this Agreement or by the act of such Party in voting for such nominee pursuant to this Agreement.
6. Remedies .
6.1. Grant of Proxy and Power of Attorney; No Conflicting Agreements . Each Series B Stockholder hereby constitutes and appoints as the proxies of such Series B Stockholder, and hereby grants a power of attorney, to (a) the President of the Company and (b) a stockholder or other person designated by the Board, and each of them, with full power and substitution, with respect to the matters set forth herein, and hereby authorizes each of them to take any action necessary to give effect to the provisions contained in Sections 2 and 3 hereof. Each of the proxy and power of attorney granted in this Section 6.1 is given in consideration of the agreements and covenants of the Parties in connection with the transactions contemplated by this Agreement and, as such, each is coupled with an interest and shall be irrevocable until this Agreement terminates pursuant to its terms or this Section 6 is amended to remove such grant of proxy and power of attorney in accordance with Section 8.5 hereof. Each Series B Stockholder hereby revokes any and all previous proxies or powers of attorney with respect to such Series B Stockholder’s Shares and shall not hereafter, until this Agreement terminates pursuant to its terms or this Section 6 is amended to remove this provision in accordance with Section 8.5 hereof, grant, or purport to grant, any other proxy or power of attorney with respect to such Shares, deposit any of such Shares into a voting trust or enter into any agreement (other than this Agreement), arrangement or understanding with any person, directly or indirectly, to vote, grant any proxy or power of attorney or give instructions with respect to the voting of any of such Shares, in each case, with respect to any of the matters set forth in this Agreement.
6.2. Specific Enforcement . It is agreed and understood that monetary damages would not adequately compensate an injured Party for the breach of this Agreement by any other Party, that this Agreement shall be specifically enforceable in any action instituted in any court of the United States or any state having subject matter jurisdiction, and that any breach or threatened breach of this Agreement shall be the proper subject of a temporary or permanent injunction or restraining order. Further, each Party hereto waives any claim or defense that there is an adequate remedy at law for such breach or threatened breach.
6.3. Remedies Cumulative . All remedies, either under this Agreement or by law or otherwise afforded to any Party, shall be cumulative and not alternative.
7. Execution by the Company . The Company, by its execution in the space provided below, agrees that it will cause the certificates evidencing the Shares issued after the date hereof to bear the legend required by Section 4 hereof, and it shall supply, free of charge, a copy of this Agreement to any holder of a certificate evidencing shares of capital stock of the Company upon written request from such holder to the Company at its principal office. The Parties hereto do hereby agree that the failure to cause the certificates evidencing the Shares to bear the legend required by Section 4 hereof and/or failure of the Company to supply, free of charge, a copy of this Agreement, as provided under this Section 7 , shall not affect the validity or enforcement of this Agreement.
8. Miscellaneous .
8.1. Titles and Subtitles . The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
8.2. Notices . All notices and other communications given or made pursuant hereto shall be in writing and shall be deemed effectively given upon the earlier to occur of actual receipt or: (a) upon personal delivery to the Party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient; or if not, then on the next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent to the respective Parties at the addresses set forth on the signature pages attached hereto (or at such other addresses as shall be specified by notice given in accordance with this Section 8.2 ).
8.3. Term . This Agreement shall terminate and be of no further force or effect upon the consummation of a Deemed Liquidation Event (as defined in the Company’s Amended and Restated Articles of Incorporation (as may be amended).
8.4. Manner of Voting . The voting of shares pursuant to this Agreement may be effected in person, by proxy, by written consent or in any other manner permitted by applicable law.
8.5. Amendments and Waivers . Any term hereof may be amended and the observance of any term hereof may be waived (either generally or in a particular instance and either retroactively or prospectively) only with the written consent of the holder of a majority of the Common Stock. Notwithstanding the foregoing, any provision hereof may be waived by the waiving Party on such Party’s behalf, without the written consent of any other Party.
8.6. Stock Splits, Stock Dividends, etc . In the event of any issuance of shares of the Company’s voting securities hereafter to any of the Parties hereto (including, without limitation, in connection with any stock split, stock dividend, recapitalization, reorganization or the like), such shares shall become subject to this Agreement and shall be endorsed with the legend set forth in Section 6 .
8.7. Severability . Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
8.8. Governing Law . This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, without regard to conflicts of law principles thereof.
8.9. Entire Agreement . This Agreement (including any Exhibits hereto) constitutes the full and entire understanding and agreement among the Parties with respect to the subject matter hereof and thereof, and supersedes all other agreements of the Parties relating to the subject matter hereof and thereof.
8.10. Counterparts . This Agreement may be executed and delivered by electronic or facsimile signature and in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
8.11. Delays or Omissions . No delay or omission to exercise any right, power or remedy accruing to any Party under this Agreement, upon any breach or default of any other Party under this Agreement, shall impair any such right, power or remedy of such non-breaching or non-defaulting Party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence thereto, or of any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default previously or thereafter occurring.
Any waiver, permit, consent or approval of any kind or character on the part of any Party of any breach or default under this Agreement, or any waiver on the part of any Party of any provision or condition of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing.
8.12. Further Assurances . At any time or from time to time after the date hereof, the Parties agree to cooperate with each other, and at the request of any other Party, to execute and deliver any further instruments or documents and to take all such further action as the other Party may reasonably request in order to evidence or effectuate the consummation of the transactions contemplated hereby and to otherwise carry out the intent of the Parties hereunder.
8.13. Aggregation . All Shares held or acquired by a stockholder and/or its affiliates shall be aggregated together for the purpose of determining the availability of any rights under this Agreement, and such affiliated persons may apportion such rights as among themselves in any manner they deem appropriate.
8.14. Dispute Resolution . Any legal suit, action, proceeding, or dispute arising out of or related to this Agreement, or the transactions contemplated hereby may be instituted in the federal courts of the United States of America or the courts of the State of Nevada, in each case located in Las Vegas, Nevada, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, proceeding, or dispute.
The prevailing party shall be entitled to reasonable attorney’s fees, costs, and necessary disbursements in addition to any other relief to which such party may be entitled. Each of the parties to this Agreement consents to personal jurisdiction for any equitable action sought in any court having subject matter jurisdiction.
8.15. Series B Stockholder Acknowledgements . Each Series B Stockholder acknowledges that it: (i) has read this Agreement; (ii) has been represented in the preparation, negotiation, and execution of this Agreement by legal counsel of such Series B Stockholder’s own choice or has voluntarily declined to seek such counsel; (iii) understands the terms and consequences of this Agreement; and (iv) is fully aware of the legal and binding effect of this Agreement.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF , the parties have executed this Voting and First Refusal Agreement as of the date first above written.
|LIFELOGGER TECHNOLOGIES CORP.|
|By:||/s/ Stewart Garner|
|Address: 11380 Prosperity Farms Road, Suite 221E, Palm Beach Gardens, Florida|
|CAPITAL PARK OPPORTUNITIES FUND LP|
|By: Capital Park Consolidated Holdings GP LLC, its general partner|
|By:||/s/ Eric C. Blue|
|Name:||Eric C. Blue|
|Address: 1900 Pearl Street, Suite 1750, Dallas, Texas 75201|
|OLD MAIN CAPITAL, LLC|
|By:||/s/ Adam R. Long|
|Name:||Adam R. Long|
|Address: 411 Dorado Beach East, Dorado, PR 00646|
|SBI INVESTMENTS LLC, 2014-1|
|By:||/s/ Jonathan Juchno|
|Address: 107 Grand Street, 7 th Floor, New York, NY 10013|
|Series B Stockholder||Shares of Series B Preferred Stock|
|Old Main Capital, LLC||54,000|
|SBI Investments LLC, 2014-1||42,429|