Exhibit
4.4
COMMON
STOCK PURCHASE WARRANT
THE
SECURITIES EVIDENCED BY THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES
LAWS AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR OTHERWISE DISPOSED OF WITHOUT (i) EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO, (ii) AN OPINION OF COUNSEL OR OTHER EVIDENCE, REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION
IS NOT REQUIRED, OR (iii) RECEIPT OF NO-ACTION LETTERS FROM THE APPROPRIATE GOVERNMENTAL AUTHORITIES.
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March
7, 2019
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No.
W-2019-1
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BROWNIE’S
MARINE GROUP, INC.
FORM
OF COMMON STOCK PURCHASE WARRANT
This
certifies that, for good and valuable consideration, receipt of which is hereby acknowledged,
CHARLES F. HYATT
(“
Holder
”)
is entitled to purchase, subject to the terms and conditions of this Warrant, from Brownie’s Marine Group, Inc., a Florida
corporation (the “
Company
”), Fifty Million (50,000,000) fully paid and nonassessable shares of the Company’s
common stock, par value $0.0001 per share (“
Common Stock
”). Holder shall be entitled to purchase the
shares of Common Stock in accordance with
Section 2
at any time subsequent to the date of this Warrant set forth above
and prior to the Expiration Date (as defined below). The shares of Common Stock of the Company for which this Warrant is exercisable,
as adjusted from time to time pursuant to the terms hereof, are hereinafter referred to as the “
Shares
.”
This Warrant is one of a series of Warrants included in the Unit issued and sold pursuant to the terms and conditions of the Company’s
Subscription Agreement dated March 7, 2019 (the “
Purchase Agreement
”).
1.
Exercise Period; Price
.
1.1
Exercise Period
. This Warrant shall be immediately exercisable and the exercise period (“
Exercise Period
”)
shall terminate at 5:00 p.m. Eastern Standard time on September 7, 2020 (the “
Expiration Date
”).
1.2
Exercise Price
. The initial purchase price for each of the Shares shall be $0.01 per share. Such price shall be
subject to adjustment pursuant to the terms hereof (such price, as adjusted from time to time, is hereinafter referred to as the
“
Exercise Price
”).
2.
Exercise and Payment
. At any time after the date of this Warrant, this Warrant may be exercised, in whole or in part,
from time to time by the Holder, during the term hereof, by surrender of this Warrant and the Notice of Exercise attached hereto
as
Annex I
, duly completed and executed by the Holder, to the Company at the principal executive offices of the Company,
together with payment in the amount obtained by multiplying the Exercise Price then in effect by the number of Shares thereby
purchased, as designated in the Notice of Exercise. Payment may be in cash, wire transfer or by check payable to the order of
the Company in immediately available funds. If not exercised in full, this Warrant must be exercised for a whole number of Shares.
3.
Reservation of Shares
. The Company hereby agrees that at all times there shall be reserved for issuance and delivery
upon exercise of this Warrant such number of Shares or other shares of capital stock of the Company from time to time issuable
upon exercise of this Warrant. All such Shares shall be duly authorized, and when issued upon such exercise, shall be validly
issued, fully paid and non-assessable, free and clear of all liens, security interests, charges and other encumbrances or restrictions
on sale and free and clear of all preemptive rights.
4.
Delivery of Stock Certificates
. Within three (3) trading days after exercise, in whole or in part, of this Warrant,
the Company shall issue in the name of and deliver to the Holder a certificate or certificates for the number of fully paid and
nonassessable Shares which the Holder shall have requested in the Notice of Exercise. If this Warrant is exercised in part, the
Company shall deliver to the Holder a new Warrant (dated the date hereof and of like tenor) for the unexercised portion of this
Warrant at the time of delivery of such stock certificate or certificates.
5.
No Fractional Shares
. This Warrant must be exercised for a whole number of Shares. No fractional shares or scrip representing
fractional Shares will be issued upon exercise of this Warrant. Any fractional Share which otherwise might be issuable on the
exercise of this Warrant as a result of the adjustment provisions
Section 9
hereof will be rounded up to the nearest whole
Share.
6.
Charges, Taxes and Expenses
. The Company shall pay all transfer taxes or other incidental charges, if any, in connection
with the transfer of the Shares purchased pursuant to the exercise hereof from the Company to the Holder.
7.
Loss, Theft, Destruction or Mutilation of Warrant
. Upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Warrant, and in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to the Company, and upon reimbursement to the Company of all reasonable expenses incidental thereto,
and upon surrender and cancellation of this Warrant, if mutilated, the Company will make and deliver a new Warrant of like tenor
and dated as of such cancellation, in lieu of this Warrant.
8.
Saturdays, Sundays, Holidays, Etc
. If the last or appointed day for the taking of any action or the expiration of any
right required or granted herein shall be a Saturday or a Sunday or shall be a legal holiday, then such action may be taken or
such right may be exercised on the next succeeding weekday which is not a legal holiday.
9.
Adjustment of Exercise Price and Number of Shares
. The Exercise Price and the number of and kind of securities purchasable
upon exercise of this Warrant shall be subject to adjustment from time to time as follows:
9.1
Subdivisions, Combinations and Other Issuances
. If the Company shall at any time after the date hereof but prior
to the expiration of this Warrant subdivide its outstanding securities as to which purchase rights under this Warrant exist, by
split-up or otherwise, or combine its outstanding securities as to which purchase rights under this Warrant exist, the number
of Shares as to which this Warrant is exercisable as of the date of such subdivision, split-up or combination shall forthwith
be proportionately increased in the case of a subdivision, or proportionately decreased in the case of a combination. Appropriate
adjustments shall also be made to the Exercise Price, but the aggregate purchase price payable for the total number of Shares
purchasable under this Warrant as of such date shall remain the same.
9.2
Stock Dividend
. If at any time after the date hereof the Company declares a dividend or other distribution on its
Common Stock payable in Common Stock or other securities or rights convertible into Common Stock (“
Common Stock Equivalents
”)
without payment of any consideration by such holder for the additional shares of Common Stock or the Common Stock Equivalents
(including the additional shares of Common Stock issuable upon exercise or conversion thereof), then the number of Shares for
which this Warrant may be exercised shall be increased as of the record date (or the date of such dividend distribution if no
record date is set) for determining which holders of Common Stock shall be entitled to receive such dividend, in proportion to
the increase in the number of outstanding shares (and shares of Common Stock issuable upon conversion of all such securities convertible
into Common Stock) of Common Stock as a result of such dividend, and the Exercise Price shall be adjusted so that the aggregate
amount payable for the purchase of all the Shares issuable hereunder immediately after the record date (or on the date of such
distribution, if applicable), for such dividend shall equal the aggregate amount so payable immediately before such record date
(or on the date of such distribution, if applicable).
9.3
Other Distributions
. If at any time after the date hereof the Company distributes to holders of its Common Stock,
other than as part of its dissolution or liquidation or the winding up of its affairs, any shares of its capital stock, any evidence
of indebtedness or any of its assets (other than cash, Common Stock or Common Stock Equivalents), then the Company may, at its
option, either (i) decrease the Exercise Price of this Warrant by an appropriate amount based upon the value distributed on each
share of Common Stock as determined in good faith by the Company’s Board of Directors, or (ii) provide by resolution of
the Company’s Board of Directors that on exercise of this Warrant, the Holder hereof shall thereafter be entitled to receive,
in addition to the shares of Common Stock otherwise receivable on exercise hereof, the number of shares or other securities or
property which would have been received had this Warrant at the time been exercised.
9.4
Effect of Consolidation, Merger or Sale
. In case of any reclassification, capital reorganization, or change of securities
of the class issuable upon exercise of this Warrant (other than a change in par value, or from par value to no par value, or from
no par value to par value, or as a result of any subdivision, combination, stock dividend or other distribution provided for in
Sections 9.1
,
9.2
and
9.3
above), or in case of any consolidation or merger of the Company with or into any
corporation (other than a consolidation or merger with another corporation in which the Company is the acquiring and the surviving
corporation and which does not result in any reclassification or change of outstanding securities issuable upon exercise of this
Warrant), or in case of any sale of all or substantially all of the assets of the Company, the Company, or such successor or purchasing
corporation, as the case may be, shall duly execute and deliver to the holder of this Warrant a new Warrant (in form and substance
satisfactory to the holder of this Warrant), or the Company shall make appropriate provision without the issuance of a new Warrant,
so that the holder of this Warrant shall have the right to receive, at a total purchase price not to exceed that payable upon
the exercise of the unexercised portion of this Warrant, and in lieu of the Shares theretofore issuable upon exercise of this
Warrant, the kind and amount of shares of stock, other securities, money and property receivable upon such reclassification, capital
reorganization, change, merger or sale by a holder of the number of Shares then purchasable under this Warrant. In any such case,
appropriate provisions shall be made with respect to the rights and interest of Holder so that the provisions hereof shall thereafter
be applicable to any shares of stock or other securities and property deliverable upon exercise hereof, or to any new Warrant
delivered pursuant to this
Section 9.4
, and appropriate adjustments shall be made to the Exercise Price per share payable
hereunder, provided, that the aggregate Exercise Price shall remain the same. The provisions of this
Section 9.4
shall
similarly apply to successive reclassifications, capital reorganizations, changes, mergers and transfers.
10.
Notice of Adjustments; Notices
. Whenever the Exercise Price or number of Shares purchasable hereunder shall be adjusted
pursuant to
Section 9
hereof, the Company shall execute and deliver to the Holder a certificate setting forth, in reasonable
detail, the event requiring the adjustment, the amount of the adjustment, the method by which such adjustment was calculated and
the Exercise Price and number of and kind of securities purchasable hereunder after giving effect to such adjustment, and shall
cause a copy of such certificate to be mailed (by first class mail, postage prepaid) to the Holder.
11.
Rights As Shareholder; Notice to Holders
. Nothing contained in this Warrant shall be construed as conferring upon the
Holder or his or its transferees the right to vote or to receive dividends or to consent or to receive notice as a shareholder
in respect of any meeting of shareholders for the election of directors of the Company or of any other matter, or any rights whatsoever
as shareholders of the Company. The Company shall give notice to the Holder by registered mail if at any time prior to the expiration
or exercise in full of the Warrants, any of the following events shall occur:
(i)
a dissolution, liquidation or winding up of the Company shall be proposed;
(ii)
a capital reorganization or reclassification of the Common Stock (other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of any subdivision, combination, stock dividend or other distribution)
or any consolidation or merger of the Company with or into another corporation (other than a consolidation or merger with another
corporation in which the Company is the acquiring and the surviving corporation and which does not result in any reclassification
or change of outstanding securities issuable upon exercise of this Warrant), or in case of any sale of all or substantially all
of the assets of the Company; or
(iii)
a taking by the Company of a record of the holders of any class of securities for the purpose of determining the holders thereof
who are entitled to receive any dividend (other than a cash dividend) for other distribution, any right to subscribe for, purchase
or otherwise acquire any shares of stock of any class or any other securities or property, or to receive any other rights.
Such
giving of notice shall be simultaneous with (or in any event, no later than) the giving of notice to holders of Common Stock.
Such notice shall specify the record date or the date of closing the stock transfer books, as the case may be. Failure to provide
such notice shall not affect the validity of any action contemplated in this
Section 11
.
12.
Restricted Securities
. The Holder understands that this Warrant and the Shares purchasable hereunder constitute “restricted
securities” under the federal securities laws inasmuch as they are, or will be, acquired from the Company in transactions
not involving a public offering and accordingly may not, under such laws and applicable regulations, be resold or transferred
without registration under the Act, or an applicable exemption from such registration. The Holder further acknowledges that a
securities legend to the foregoing effect shall be placed on any Shares issued to the Holder upon exercise of this Warrant.
13.
Disposition of Shares; Transferability
.
13.1
Transfer
. This Warrant shall be transferable only on the books of the Company, upon delivery thereof duly endorsed
by the Holder or by its duly authorized attorney or representative, accompanied by proper evidence of succession, assignment or
authority to transfer. Upon any registration of transfer, the Company shall execute and deliver new Warrants to the person entitled
thereto.
13.2
Rights, Preferences and Privileges of Common Stock
. The powers, preferences, rights, restrictions and other matters
relating to the shares of Common Stock will be as determined in the Company’s Articles of Incorporation, as amended, as
then in effect.
14.
Miscellaneous
.
14.1
Binding Effect
. This Warrant and the various rights and obligations arising hereunder shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and assigns.
14.2
Entire Agreement
. This Warrant and the Purchase Agreement of even date herewith constitute the entire agreement
between the parties with respect to the subject matter hereof and supersede all prior and contemporaneous agreements, whether
oral or written, between the parties hereto with respect to the subject matter hereof.
14.3
Amendment and Waiver
. Any term of this Warrant 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), with the written consent of the Company
and the Holders representing a majority-in-interest of the shares of Common Stock underlying the Warrants pursuant to the Purchase
Agreement. Any waiver or amendment effected in accordance with this Section 14.3 shall be binding upon the Holder and the Company.
14.4
Governing Law
. This Agreement shall be governed by and construed under the laws of the State of Florida without
reference to the conflicts of law principles thereof. The exclusive jurisdiction for any legal suit, action or proceeding arising
out of or related to this Warrant shall be either the Florida State Supreme Court, County of Broward, or in the United States
District Court for the Southern District of Florida.
14.5
Headings
. The headings in this Agreement are for convenience only and shall not alter or otherwise affect the meaning
hereof.
14.6
Severability
. If one or more provisions of this Warrant are held to be unenforceable under applicable law, such
provision shall be excluded from this Warrant and the balance of the Warrant shall be interpreted as if such provision were so
excluded and the balance shall be enforceable in accordance with its terms.
14.7
Notices
. Unless otherwise provided, any notice required or permitted under this Warrant shall be given in the same
manner as provided in the Agreement.
IN
WITNESS WHEREOF
, the parties hereto have executed and delivered this Warrant as of the date appearing on the first page of
this Warrant.
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THE
COMPANY:
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BROWNIE’S
MARINE GROUP, INC.
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By:
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/s/
Robert M. Carmichael
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Name:
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Robert
M. Carmichael
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Its:
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CEO
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ANNEX
I
NOTICE
OF EXERCISE
To:
Brownie’s Marine Group, Inc.
1.
The undersigned Holder hereby elects to purchase _____________ shares of Common Stock, $0.0001 par value per share (the “
Shares
”)
of Brownie’s Marine Group, Inc., a Florida corporation (the “
Company
”), pursuant to the terms
of the attached Warrant. The Holder shall make payment of the Exercise Price by delivering the sum of $____________, in lawful
money of the United States, to the Company in accordance with the terms of the Warrant.
2.
Please issue and deliver certificates representing the Warrant Shares purchased hereunder to Holder: ____________________________, Address:
in the following denominations: ____________________________.
Taxpayer
ID No.: __________________________________
3.
Please issue a new Warrant for the unexercised portion of the attached Warrant, if any, in the name of the undersigned.
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Holder:
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Dated:
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By:
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Its:
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Address:
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4.
The undersigned is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933,
as amended.
[SIGNATURE
OF HOLDER]
Name
of Investing Entity: ___________________________________________________________________________
Signature
of Authorized Signatory of Investing Entity: _
____________________________________________________
Name
of Authorized Signatory:
_______________________________________________________________________
Title
of Authorized Signatory:
________________________________________________________________________
Date:
___________________________________________________________________________________________
Exhibit
10.13
NAME
OF SUBSCRIBER: _________________
Brownie’s
Marine Group, Inc.
SUBSCRIPTION
AGREEMENT
This
Subscription Agreement (this “
Agreement
”) is being delivered to you in connection with your subscription
for a unit of the securities of Brownie’s Marine Group, Inc., a Florida corporation (the “
Company
”),
with the unit (the “
Unit
”) consisting of 50,000,000 shares of common stock, par value $0.0001 per share
(the “
Shares
”); 50,000,000 eighteen month common stock purchase warrants exercisable at $0.01 (the “
Warrants
”).
The form of Warrants is attached as
Exhibit A
to this Agreement and is incorporated herein by such reference. The Company
is conducting a private placement (the “
Private Placement
”) of the Unit at a purchase price of $500,000
per Unit in reliance on an exemption from registration under the Securities Act of 1933, as amended (the “
Securities
Act
”) pursuant to Section 4(a)(2) and/or Rule 506(b) of Regulation D under the terms of this Agreement. All subscription
proceeds will be directly paid to the Company. The proceeds from this offering shall be used for research, development and production
of the Company’s BLU3 products and administrative expenses related thereto, and general working capital at the discretion
of the management of the Company.
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1.
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SUBSCRIPTION
AND PURCHASE PRICE.
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(a)
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Subscription
.
The undersigned hereby irrevocably subscribes for and agrees to purchase the Unit as indicated on page 9 hereof on the terms
and conditions described herein.
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(b)
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Purchase
of Securities
. The undersigned understands and acknowledges that the purchase price to be remitted to the Company
in exchange for the Unit shall be $500,000 (the “
Purchase Price
”). Payment of the Purchase Price
shall be made by the undersigned, by: (1) certified or bank check made payable to “Brownie’s Marine Group, Inc.”
or (2) wire transfer of immediately available funds, contemporaneously with the execution and delivery of the Subscription
Agreement, to “Brownie’s Marine Group, Inc.,” pursuant to the wire instructions attached hereto, or (3)
a combination of (1) and (2) above.
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2.
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ACCEPTANCE
AND CLOSING PROCEDURES.
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(a)
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Acceptance
or Rejection
. The undersigned understands and agrees that this subscription may be accepted or rejected by the Company,
in whole or in part, in its sole and absolute discretion, and if accepted, the Unit, including the Shares and Warrants purchased
pursuant hereto, will be issued only in the name of the undersigned as specified on the signature page of this Agreement.
In the event of rejection of the Agreement by the Company, this Agreement shall thereafter have no force or effect, and the
Company shall promptly return or cause to be returned to the undersigned the purchase price, without interest thereon or deduction
therefrom.
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(b)
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Closing
.
Closing shall occur upon the acceptance by the Company of the Agreement and payment of the Purchase Price.
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3.
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INVESTOR’S
REPRESENTATIONS AND WARRANTIES.
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The
undersigned makes the following agreements, representations, declarations, acknowledgments and warranties to the Company in making
the sale of the Unit with the intent that they be relied upon in determining the undersigned’s suitability as a purchaser
of the Unit:
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(a)
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The
undersigned has full power and authority to enter into this Agreement, the execution and delivery of which has been duly authorized,
if applicable, and this Agreement constitutes a valid and legally binding obligation of the undersigned.
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(b)
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The
undersigned acknowledges that the offering and sale of the Unit is intended to be exempt from registration under the Securities
Act by virtue of Section 4(a)(2) of the Securities Act and the provisions of Regulation D and/or Rule 506(b) promulgated thereunder.
In furtherance thereof, the undersigned represents and warrants as follows:
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(i)
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The
undersigned realizes that the basis for the exemption from registration may not be available if, notwithstanding the undersigned’s
representations contained herein, the undersigned is merely acquiring the Unit for a fixed or determinable period in the future,
or for a market rise, or for sale if the market does not rise. The undersigned does not have any such intention;
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(ii)
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The
undersigned is acquiring the Unit solely for the undersigned’s own beneficial account, for investment purposes, and
not with a view to, or resale in connection with, any distribution of the Unit;
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(iii)
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The
undersigned has no contract, undertaking, agreement or arrangement with any person to sell, transfer or pledge all or any
part of the Unit for which the undersigned hereby subscribes, and the undersigned has no present plans or intentions to enter
into any such contract, undertaking or arrangement;
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(iv)
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The
undersigned has the financial ability to bear the economic risk of the undersigned’s investment, has adequate means
for providing for the undersigned’s current needs and contingencies, and has no need for liquidity with respect to the
undersigned’s investment in the Company; and
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(v)
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The
undersigned has such knowledge and experience in financial and business matters as to be capable of evaluating the merits
and risks of the prospective investment in the Unit Securities (as defined below). If other than an individual, the undersigned
also represents it has not been organized for the purpose of acquiring the Unit.
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(c)
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The
undersigned is an “accredited investor,” as that term is defined in Rule 501(a) of Regulation D.
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(d)
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The
undersigned has been provided access via the Securities and Exchange Commission (the “
Commission
”)
public website at
www.sec.gov
with access to copies of the Company’s Annual Report on Form 10-K for the period
ended December 31, 2017, the Company’s Quarterly Report for the period ended September 30, 2018 and the Company’s
other filings with the Commission (collectively, the “
SEC Reports
”), and represents and warrants
that it has read and reviewed these reports (including the “Risk Factors” contained therein), together with the
Company’s other filings with the Commission. The undersigned acknowledges that the Company has made available to the
undersigned or provided the undersigned the opportunity to review all SEC Reports and this Agreement, and has allowed the
undersigned an opportunity to ask questions and receive answers thereto and to verify and clarify any information contained
in the SEC Reports and this Agreement. The undersigned further acknowledges that the undersigned has received all information
concerning the Company, the Company’s business, and all other information necessary for the undersigned to invest in
the Company.
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(e)
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The
undersigned is not relying on the Company with respect to economic considerations involved in this investment. The undersigned
is capable of evaluating the merits and risks of an investment in the Unit as such are described in the SEC Reports.
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(f)
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The
undersigned represents, warrants and agrees that he will not sell or otherwise transfer the Unit, including the Shares, the
Warrants and the shares of common stock issuable upon the exercise of the Warrants (collectively, the “
Unit Securities
”),
without registration under the Securities Act or an exemption therefrom, and fully understands and agrees that the undersigned
must bear the economic risk of the purchase of Unit because, among other reasons, the Unit Securities have not been registered
under the Securities Act or under the securities laws of any state and, therefore, cannot be resold, pledged, assigned or
otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities
laws of such states, or an exemption from such registration is available. In particular, the undersigned is aware that Unit
Securities are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act
(“
Rule 144
”), and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule
144 are met. The undersigned also understands that the Company is under no obligation to register the Unit Securities on the
undersigned’s behalf or to assist the undersigned in complying with any exemption from registration under the Securities
Act or applicable state securities laws. The undersigned understands that any sales or transfers of Unit Securities are further
restricted by state securities laws and the provisions of this Agreement.
The undersigned further acknowledges that on
the Closing the undersigned shall be an “affiliate” of the Company, as such term is defined under the Securities
Act, which shall subject the undersigned to insider trading restrictions
.
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(g)
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No
representations or warranties have been made to the undersigned by the Company or any of its officers, employees, agents,
affiliates or subsidiaries, other than any representations contained herein and in the SEC Reports, and in subscribing for
the Unit the undersigned is not relying upon any representations other than any contained herein or in the SEC Reports.
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(h)
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The
undersigned understands and acknowledges that the undersigned’s purchase of the Unit is a speculative investment that
involves a high degree of risk and the potential loss of the undersigned’s entire investment in the Unit and has reviewed
the “risk factors” contained in the SEC Reports. The undersigned is able to bear the loss of the undersigned’s
entire investment in the Unit. The undersigned further acknowledges that (i) there is currently a limited public market for
the Shares and that there are no assurances an active public market for the Shares will ever be developed, and (ii) there
is no public market for the Warrants and there is no expectation one will ever be developed.
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(i)
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The
undersigned’s overall commitment to investments that are not readily marketable is not disproportionate to the undersigned’s
net worth, and an investment in the Unit will not cause such overall commitment to become excessive.
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(j)
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The
undersigned should check the Office of Foreign Assets Control (“
OFAC
”) website at <http://www.treas.gov/ofac>
before making the following representations
. The undersigned represents that the amounts invested by it in the Company
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.
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(k)
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To
the best of the undersigned’s knowledge, none of: (1) the undersigned; (2) any person controlling or controlled by the
undersigned; (3) if the undersigned is a privately-held entity, any person having a beneficial interest in the undersigned;
or (4) any person for whom the undersigned 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
representations set forth in the preceding paragraph. The undersigned agrees to promptly notify the Company should the undersigned
become aware of any change in the information set forth in these representations. The undersigned understands and acknowledges
that, by law, the Company may be obligated to “freeze the account” of the undersigned, either by prohibiting additional
subscriptions from the undersigned and/or segregating the assets in the account in compliance with governmental regulations.
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(l)
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To
the best of the undersigned’s knowledge, none of: (1) the undersigned; (2) any person controlling or controlled by the
undersigned; (3) if the undersigned is a privately-held entity, any person having a beneficial interest in the undersigned;
or (4) any person for whom the undersigned 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.
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(m)
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If
the undersigned is affiliated with a non-U.S. banking institution (a “
Foreign Bank
”), or if the
undersigned receives deposits from, makes payments on behalf of, or handles other financial transactions related to a Foreign
Bank, the undersigned 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.
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1
These individuals include specially designated nationals, specially designated narcotics traffickers and other parties subject
to OFAC sanctions and embargo programs.
2
A “senior foreign political figure” is defined as a senior official in the executive, legislative, administrative,
military or judicial branches of a foreign government (whether elected or not), a senior official of a major foreign political
party, or a senior executive of a foreign government owned corporation. In addition, a “senior foreign political figure”
includes any corporation, business or other entity that has been formed by, or for the benefit of, a senior foreign political
figure.
3
“Immediate family” of a senior foreign political figure typically includes the figure’s parents, siblings,
spouse, children and in-laws.
4
A “close associate” of a senior foreign political figure is a person who is widely and publicly known to maintain
an unusually close relationship with the senior foreign political figure, and includes a person who is in a position to conduct
substantial domestic and international financial transactions on behalf of the senior foreign political figure.
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(n)
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(
For
ERISA plans only
) The fiduciary of the ERISA plan represents that such fiduciary has been informed of and understands
the plan’s investment objectives, policies and strategies, and that the decision to invest “plan assets”
(as such term is defined in ERISA) in the Company’s is consistent with the provisions of ERISA that require diversification
of plan assets and impose other fiduciary responsibilities. The undersigned 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 undersigned fiduciary or plan has not relied primarily on any advice or recommendation
of the Company or any of its affiliates.
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(o)
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The
undersigned understands and agrees that the certificates for the Unit Securities shall bear substantially the following legend
until (i) such securities shall have been registered under the Securities Act and effectively disposed of in accordance with
a registration statement that has been declared effective, or (ii) in the opinion of counsel for the Company, such securities
may be sold without registration under the Securities Act as well as any applicable “blue sky” or state securities
laws:
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THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “
SECURITIES
ACT
”), OR ANY APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES AND MAY
NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FILED BY THE ISSUER WITH THE SECURITIES AND EXCHANGE COMMISSION COVERING SUCH SECURITIES UNDER THE SECURITIES ACT
OR AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED.
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(p)
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The
undersigned is unaware of, is in no way relying on, and did not become aware of the offering of the Unit directly or indirectly
through or as a result of, any form of general solicitation or general advertising including, without limitation, any press
release, article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast
over television, radio or the internet (including without limitation, internet “blogs,” bulletin boards, discussion
groups or social networking sites) in connection with the offering and sale of the Unit and is not subscribing for the Unit
and did not become aware of the offering of the Unit through or as a result of any seminar or meeting to which the undersigned
was invited by, or any solicitation of a subscription by, a person not previously known to the undersigned in connection with
investments in securities generally.
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(q)
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The
undersigned: (i) if a natural person, represents on its behalf; or (ii) if a corporation, partnership, or limited liability
company or partnership, or association, joint stock corporation or other entity, represents on its behalf and the behalf of
its officers, directors and principal stockholders, connected with the undersigned at the time of this Agreement, that it
is not subject to any “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities
Act (a “
Disqualifying Event
”), except for a Disqualifying Event covered by Rule 506(d)(2) or (d)(3).
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(r)
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The
undersigned acknowledges and agrees that the Company’s common stock is publicly quoted on the OTC Pink Sheets and that
by accepting this Agreement the Undersigned agrees with the Company to maintain in strict confidence all non-public information,
including, but not limited to, the existence of the offering and any other non-public information regarding the Company obtained
from this Agreement and any other transaction document and/or from the Company and/or it authorized agents. The Company has
caused these materials to be delivered to the Undersigned in reliance upon such agreement and upon Rule 100(b)(2)(ii) of Regulation
FD as promulgated by the Commission.
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(s)
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The
undersigned has had the opportunity to review the Agreement and Warrants with its own legal counsel and tax advisors. The
undersigned is not relying on any statements or representations of the Company or its agents for legal or tax advice with
respect to this Agreement or the Warrants.
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(t)
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The
foregoing representations, warranties, and agreements shall survive the acceptance of this Agreement by the Company. The foregoing
representations and warranties are true and accurate as of the date hereof, shall be true and accurate as of the date of delivery
of this Agreement and accompanying documents to the Company and shall survive such delivery.
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4.
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THE
COMPANY’S REPRESENTATIONS AND WARRANTIES.
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The
Company hereby acknowledges, agrees with and represents and warrants to the undersigned, as follows:
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(a)
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The
Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder.
This Agreement has been duly authorized, executed and delivered by the Company and is valid, binding and enforceable against
the Company in accordance with its terms.
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(b)
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The
Shares and Warrants, when issued and delivered in accordance with the terms of this Agreement, will be duly and validly issued
and will be fully paid and nonassessable.
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(c)
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Neither
the execution and delivery nor the performance of this Agreement by the Company will conflict with the Company’s Articles
of Incorporation or Bylaws, or result in a breach of any terms or provisions of, or constitute a default under, any material
contract, agreement or instrument to which the Company is a party or by which the Company is bound.
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(d)
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The
SEC Reports have been made available to the Purchaser via
www.sec.gov.
Since January 1, 2016 none of the SEC Reports,
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 materially misleading. Except with respect to the material terms and conditions of the transactions
contemplated by the this Agreement, the Company confirms that neither it nor, to its knowledge, any other person acting on
its behalf has provided the Purchaser or its agents or counsel with any information that it believes constitutes or might
constitute material, non-public information.
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The
undersigned agrees to indemnify and hold harmless the Company and its officers and directors, employees and affiliates and each
other person, if any, who controls any of the foregoing, against any loss, liability, claim, damage and expense whatsoever (including,
but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation
commenced or threatened or any claim whatsoever) arising out of or based upon any false representation or warranty by the undersigned,
or the undersigned’s breach of, or failure to comply with, any covenant or agreement made by the undersigned herein or in
any other document furnished by the undersigned to the Company, its officers and directors, employees and its affiliates and each
other person, if any, who controls any of the foregoing in connection with this transaction.
FOR
ALL INVESTORS
:
IN
MAKING AN INVESTMENT DECISION INVESTORS MUST RELY ON THEIR OWN EXAMINATION OF THE COMPANY AND THE TERMS OF THE OFFERING, INCLUDING
THE MERITS AND RISKS INVOLVED. THE UNITS HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES COMMISSION OR REGULATORY
AUTHORITY. FURTHERMORE, THE FOREGOING AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THIS AGREEMENT
OR ANY OTHER DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE
UNIT SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED
UNDER THE SECURITIES ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS
SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
FOR
FLORIDA RESIDENTS ONLY
:
EACH
FLORIDA RESIDENT WHO SUBSCRIBES FOR THE PURCHASE OF UNITS HEREIN HAS THE RIGHT, PURSUANT TO SECTION 517.061(11)(A)(5) OF THE FLORIDA
SECURITIES ACT, TO WITHDRAW HIS SUBSCRIPTION FOR THE PURCHASE AND RECEIVE A FULL REFUND OF ALL MONIES PAID WITHIN THREE BUSINESS
DAYS AFTER THE EXECUTION OF THE SUBSCRIPTION AGREEMENT OR PAYMENT FOR THE PURCHASE HAS BEEN MADE, WHICHEVER IS LATER. WITHDRAWAL
WILL BE WITHOUT ANY FURTHER LIABILITY TO ANY PERSON. TO ACCOMPLISH THIS WITHDRAWAL, A SUBSCRIBER NEED ONLY SEND A LETTER OR TELEGRAM
TO THE COMPANY AT THE ADDRESS SET FORTH IN THIS AGREEMENT INDICATING HIS INTENTION TO WITHDRAW.
SUCH
LETTER OR TELEGRAM SHOULD BE SENT AND POSTMARKED PRIOR TO THE END OF THE AFOREMENTIONED THIRD BUSINESS DAY. IT IS ADVISABLE TO
SEND SUCH LETTER BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO ENSURE THAT IT IS RECEIVED AND ALSO TO EVIDENCE THE TIME IT WAS
MAILED. IF THE REQUEST IS MADE ORALLY, IN PERSON OR BY TELEPHONE TO AN OFFICER OF THE COMPANY, A WRITTEN CONFIRMATION THAT THE
REQUEST HAS BEEN RECEIVED SHOULD BE REQUESTED.
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7.
|
MISCELLANEOUS
PROVISIONS.
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(a)
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Modification
.
Neither this Agreement nor any provisions hereof, shall be waived, modified, discharged or terminated except by an instrument
in writing signed by the party against whom any waiver, modification, discharge or termination is sought.
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(b)
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Brokers
and Finders
. Each party acknowledges it has not engaged any brokers, finders or agents in connection with the Unit
Securities and the Company has not incurred nor will incur, directly or indirectly, as a result of the sale of the Unit Securities,
any liability for brokerage or finders’ fees or agents’ commissions or any similar charges in connection with
the Unit Securities.
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(c)
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Notices
.
Any party may send any notice, request, demand, claim or other communication hereunder to the intended recipient at the address
set forth below using any other means (including personal delivery, expedited courier, messenger service, fax or ordinary
mail), but no such notice, request, demand, claim or other communication will be deemed to have been duly given unless and
until it actually is received by the intended recipient:
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If
to the Company:
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3001
NW 25th Avenue, Suite 1
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Pompano
Beach, FL 33069
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Attention:
Robert Carmichael, Chief Executive Officer
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Telecopier:
(954) 462-5570
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Email:
Robert@browniesmarinegroup.com
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If
to the subscriber:
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To
the address set forth below.
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Any
party may change the address to which notices, requests, demands, claims and other communications hereunder are to be delivered
by giving the other parties notice in the manner herein set forth.
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(d)
|
Counterparts
.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
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(e)
|
Binding
Effect
. Except as otherwise provided herein, this Agreement shall be binding upon, and inure to the benefit of, the
parties to this Agreement and their heirs, executors, administrators, successors, legal representatives and assigns. If the
undersigned is more than one person or entity, the obligation of the undersigned shall be joint and several and the agreements,
representations, warranties and acknowledgments contained herein shall be deemed to be made by, and be binding upon, each
such person or entity and his or its heirs, executors, administrators, successors, legal representatives and assigns.
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(f)
|
Assignability
.
This Agreement is not transferable or assignable by the undersigned. This Agreement shall be transferable or assignable
by the Company.
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(g)
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Enforcement
.
This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without giving effect
to conflicts of law principles. Any action with respect to the subject matter of this Agreement otherwise related to the undersigned’s
investment in or ownership of the Company shall be litigated in the state or federal courts situated in Broward County, Florida,
to which jurisdiction and venue all parties consent; any such action shall be by bench trial, with each party waiving its
right to trial by jury to adjudicate the matter.
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[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
ALL
SUBSCRIBERS MUST COMPLETE THIS PAGE
The
undersigned hereby subscribes for the Unit in the amount indicated below, and agrees to be bound by the terms of the Subscription
Agreement to which this signature page is a part.
The
undersigned desires to purchase the Unit for the Purchase Price of $500,000. The undersigned will pay the Purchase Price of the
Unit by (
check one):
|
[ ]
|
delivering
a certified or bank check payable to Brownie’s Marine Group, Inc., together with this Agreement.
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[ ]
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sending
by wire transfer to Brownie’s Marine Group, Inc., the purchase price of the Units contemporaneously with signing and
delivering this Agreement.
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[ ]
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a
combination of those listed above. If the undersigned checks this method of payment, please describe below, the methods elected:
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Manner
in which title to the Unit is to be held
(check one)
:
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[ ]
Individual
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[ ]
Partnership
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[ ]
Tenants by the Entireties*
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[ ]
Limited Liability Partnership
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[ ]
Joint Tenants with Rights of Survivorship*
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[ ]
Corporation
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[ ]
Community Property*
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[ ]
Uniform Gift to Minors Act
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State:
__________________________________
Custodian’s
Name:
________________________
Minor’s
Name: _______________________
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[ ]
Tenants in Common*
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[ ]
Trust/Date of Trust_______________________
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[ ]
Individual Retirement Account(IRA)*
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[ ]
Limited Liability Company
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[ ]
Keogh Plan
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[ ]
Pension Plan/Name:
______________________
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*
Two signatures required
.
INDIVIDUAL
SUBSCRIBERS MUST COMPLETE
PAGE 11
.
SUBSCRIBERS
THAT ARE ENTITIES MUST COMPLETE
PAGE 12
.
SIGNATURE
PAGE FOR INDIVIDUAL SUBSCRIBERS
This
Subscription Agreement is dated as of this
6
day of
March
, 2019 at
Singer Island
,
Florida.
|
Charles
F. Hyatt
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Exact
Name in Which Title is to be Held (Please Print)
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Name
(Please Print)
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Name
of Additional Purchaser
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Address
of Principal Residence
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Address
of Additional Purchaser
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City,
State and Zip Code
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City,
State and Zip Code
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Country
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Country
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Social
Security Number
|
|
Social
Security Number
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Telephone
Number
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|
Telephone
Number
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Fax
Number (if available)
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Fax
Number (if available)
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E-Mail
(if available)
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E-Mail
(if available)
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(Signature)
|
|
(Signature
of Additional Purchaser)
|
acceptance
This
Subscription Agreement is accepted as of this 7
th
day of March 2019 for the purchase of the Unit.
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BROWNIE’S
MARINE GROUP, INC.
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By:
|
/s/
Robert M. Carmichael
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Its:
|
Chief
Executive Officer
|
SIGNATURE
PAGE FOR SUBSCRIBERS THAT ARE ENTITIES
(Corporation,
Partnership, Trust, Etc.)
This
Subscription Agreement is dated as of this _________ day of _______________, 2019 at (city) _____________________, (state) _______________.
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Name
of Entity in Which Title is to be Held (Please Print)
|
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Date
of Incorporation or Organization:
|
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State
of Principal Office:
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Federal
Taxpayer Identification Number:
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Principal
Address
|
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City,
State and Zip Code
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Country
|
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Telephone
Number
|
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Fax
Number (if available)
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E-Mail
(if available)
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Attest:
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(If Entity is a Corporation)
|
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|
|
acceptance
This
Subscription Agreement is accepted as of this __________ day of _________________, 2019 for the purchase of the Unit.
|
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BROWNIE’S
MARINE GROUP, INC.
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By:
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Its:
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WIRE
INSTRUCTIONS
|
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Wire
Funds To:
|
Brownies
Marine Group, Inc.
|
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3001
NW, 25
th
Avenue
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Suite
1
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Pompano
Beach, FL, 33069
|
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ABA
#:
|
267090594
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For
Credit to:
|
Brownies
Marine Group, Inc.
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Bank
Name:
|
Bank
United
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900
SE 3
rd
Avenue
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Fort
Lauderdale, FL 33316
|
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Account
#:
|
9852999356
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SWIFT
CODE:
|
BUFBUS3M
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For
Benefit of:
|
Brownie’s
Marine Group, Inc.
|
Exhibit
A
FORM
OF WARRANT
