As
filed with the Securities and Exchange Commission on August 10, 2020
Registration
No. 333-______
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
VERB
TECHNOLOGY COMPANY, INC.
(Exact
name of registrant as specified in its charter)
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Nevada
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7200
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90-1118043
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(State
or other jurisdiction of
incorporation or organization)
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(Primary
Standard Industrial
Classification Code No.)
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(I.R.S.
Employer
Identification No.)
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2210
Newport Boulevard, Suite 200
Newport
Beach, California 92663
(855)
250-2300
(Address,
including zip code, and telephone number, including area code,
of registrant’s principal executive offices)
Rory
J. Cutaia
Chairman of the Board, Chief Executive Officer, President and Secretary
Verb Technology Company, Inc.
2210 Newport Boulevard, Suite 200
Newport
Beach, California 92663
(855) 250-2300
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
of all correspondence to:
Larry A. Cerutti, Esq.
Troutman
Pepper Hamilton Sanders LLP
5 Park Plaza, Suite 1400
Irvine, California 92614
(949) 622-2700 / (949) 622-2739 (fax)
Approximate
date of commencement of proposed sale to the public: From time to time after this registration becomes effective.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please
check the following box. [ ]
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check
the following box. [X]
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration number of the earlier effective registration statement for the
same offering. [ ]
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
[ ]
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. [ ]
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following
box. [ ]
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting
company, or an emerging growth company. See definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large
accelerated filer[ ]
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Accelerated
filer [ ]
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Non-accelerated
filer[X]
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Smaller
reporting company [X]
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Emerging
growth company [ ]
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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 7(a)(2)(B) of the Securities Act.
[ ]
Calculation of Registration Fee
Title of Each Class of
Securities to be Registered
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Amount to be
Registered(1)(2)
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Proposed Maximum
Offering Price
per Share (2)
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Proposed Maximum
Aggregate Offering
Price
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Amount of
Registration Fee
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Common Stock, $0.0001 par value per share
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3,338,141
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$
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1.23
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$
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4,105,913.43
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$
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532.95
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(1)
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Consists
of 3,338,141 shares of the Registrant’s common stock issuable upon exercise of common stock purchase warrants.
In accordance with Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), the Registrant
is also registering hereunder an indeterminate number of shares of common stock that may be issued and resold resulting from
stock splits, stock dividends or similar transactions.
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(2)
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Estimated
solely for the purpose of calculating the registration fee pursuant to Rule 457(c) of the Securities Act based upon the price
of $1.23, which was the average of the high and low prices for the Registrant’s common stock on The Nasdaq Capital Market
on August 6, 2020.
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The
Registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until
the Registrant shall file a further amendment which specifically states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement becomes effective
on such date as the Commission, acting under Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. The selling security holders may not sell these securities
until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer
to sell and is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED AUGUST 10, 2020
PRELIMINARY
PROSPECTUS
VERB
TECHNOLOGY COMPANY, INC.
3,338,141
Shares of Common Stock Underlying Common Stock Purchase
Warrants
This
prospectus relates to the proposed resale by the selling security holders named in this prospectus or their permitted assigns
of up to 3,338,141 shares of our common stock, $0.0001 par value per share, or common stock, issuable upon exercise of
common stock purchase warrants, or the Warrants, held by the selling security holders, which amount consists of up to (i) an aggregate
of 1,319,351 shares of common stock issuable upon exercise of common stock purchase warrants, or Waiver Warrants, issued
in connection with an Omnibus Waiver and Acknowledgment Agreement, or Waiver Agreement, (ii) an aggregate of 1,910,594 shares
of common stock issuable upon exercise of common stock purchase warrants, or Settlement Warrants, issued in connection with Settlement
and Release Agreements, or Settlement Agreements, and (iii) an aggregate of 108,196 shares of common stock issuable upon exercise
of common stock purchase warrants issued to Meridian Newcastle Group, Inc., or the Meridian Warrants.
We
are not selling any shares of common stock under this prospectus and will not receive any proceeds from the sale of shares of
common stock by the selling security holders. To the extent the Warrants are exercised for cash, if at all, we will receive the
exercise price of such Warrants; however, we cannot predict when or if the Warrants will be exercised and it is possible that
the Warrants may expire and never be exercised, in which case we would not receive any cash proceeds. The selling security holders
will bear all commissions and discounts, if any, attributable to the sale of the shares of common stock. We will bear all costs,
expenses and fees in connection with the registration of the shares of common stock and the shares of common stock issuable to
the selling security holders upon the exercise of the Warrants.
The
shares of common stock may be sold by the selling security holders to or through underwriters or dealers, directly to purchasers
or through agents designated from time to time. For additional information regarding the methods of sale you should refer to the
section of this prospectus entitled “Plan of Distribution” on page 15. For a list of the selling security holders
you should refer to the section of this prospectus entitled “Selling Security Holders” on page 10.
We
may amend or supplement this prospectus from time to time by filing amendments or supplements as required. You should read the
entire prospectus and any amendments or supplements carefully before you make your investment decision.
Our
common stock is listed on The Nasdaq Capital Market under the symbol “VERB.” The last reported price of our common
stock on August 6, 2020, was $1.22 per share.
Investing
in our shares of common stock involves a high degree of risk. See “Risk Factors” beginning on page 6 of this prospectus.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The
date of this prospectus is , 2020.
TABLE
OF CONTENTS
You
should rely only on the information contained in this prospectus or a supplement to this prospectus. We have not authorized anyone
to provide you with different information. The information in this prospectus is accurate only as of the date of this prospectus
or the date of any supplement to this prospectus, regardless of the time of delivery of this prospectus or any supplement to this
prospectus or any sale of our shares of common stock. We are not making an offer to sell the shares of common stock, and we are
not soliciting an offer to buy the shares of common stock, in any jurisdiction where the offer is not permitted.
ABOUT
THIS PROSPECTUS
This
prospectus relates to the resale by the selling security holders of up to 3,338,141 shares of common stock, as described
below under “Selling Security Holders.” We are not selling any shares of common stock under this prospectus and will
not receive any proceeds from the sale of shares of common stock by the selling security holders. To the extent the Warrants are
exercised for cash, if at all, we will receive the exercise price of such Warrants; however, we cannot predict when or if the
Warrants will be exercised and it is possible that the Warrants may expire and never be exercised, in which case we would not
receive any cash proceeds.
This
prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or the SEC.
It omits some of the information contained in the registration statement and reference is made to the registration statement for
further information with regard to us and the securities being offered by the selling security holders. You should review the
information and exhibits in the registration statement for further information about us and the securities being offered hereby.
Statements in this prospectus concerning any document we filed as an exhibit to the registration statement or that we otherwise
filed with the SEC are not intended to be comprehensive and are qualified by reference to the filings. You should review the complete
document to evaluate these statements.
You
should read this prospectus, any documents that we incorporate by reference in this prospectus and the additional information
described below under “Where You Can Find Additional Information” and “Incorporation of Certain Information
By Reference” before making an investment decision. You should rely only on the information contained or incorporated by
reference in this prospectus. We have not authorized any other person to provide you with different information. If anyone provides
you with additional, different or inconsistent information, you should not rely on it. This prospectus is not an offer to sell
these securities and it is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not
permitted.
You
should not assume that the information in this prospectus or any documents we incorporate by reference herein is accurate as of
any date other than the date on the front of such document. Our business, financial condition, results of operations and prospects
may have changed since those dates.
PROSPECTUS
SUMMARY
This
summary highlights selected information included elsewhere in this prospectus and does not contain all of the information you
should consider before buying the shares of our common stock. You should read the entire prospectus carefully, especially the
“Risk Factors” section and financial statements and the related notes appearing at the end of this prospectus, before
deciding to invest in the shares of our common stock. Some of the statements in this prospectus constitute forward-looking statements.
See “Cautionary Note Regarding Forward-Looking Statements.” In this prospectus, the words “we,” “us,”
“our” and similar terms refer to Verb Technology Company, Inc., a Nevada corporation, unless the context provides
otherwise.
Our
Business
Overview
We
are a Software-as-a-Service, or SaaS, applications platform developer. Our platform is comprised of a suite of sales enablement
business software products marketed on a subscription basis. Our applications, available in both mobile and desktop versions,
are offered as a fully integrated suite, as well as on a standalone basis, and include verbCRM, our Customer Relationship Management
application; verbLEARN, our Learning Management System application; and verbLIVE, our Live Broadcast Video Webinar application.
Our
Technology
Our
suite of applications can be distinguished from other sales enablement applications because our applications utilize our proprietary
interactive video technology as the primary means of communication between sales and marketing professionals and their customers
and prospects. Moreover, the proprietary data collection and analytics capabilities of our applications inform our users in real
time, on their devices, when and for how long their prospects have watched a video, how many times such prospects watched it,
and what they clicked-on, which allows our users to focus their time and efforts on ‘hot leads’ or interested prospects
rather than on those that have not seen such video or otherwise expressed interest in such content. Users can create their hot
lead lists by using familiar, intuitive ‘swipe left/swipe right’ on-screen navigation. Our clients report that these
capabilities provide for a much more efficient and effective sales process resulting in increased sales conversion rates. We developed
the proprietary patent-pending interactive video technology, as well as several other patent-issued and patent-pending technologies
that serve as the unique foundation for all of our platform applications.
Our
Products
verbCRM
combines the capabilities of customer relationship management, or CRM, lead-generation, content management, and in-video e-commerce
capabilities in an intuitive, yet powerful tool for both inexperienced as well as highly skilled sales professionals. verbCRM
allows users to quickly and easily create, distribute, and post videos to which they can add a choice of on-screen clickable icons
which, when clicked, allow viewers to respond to the user’s call-to-action in real-time, in the video, while the video is
playing, without leaving or stopping the video. For example, our technology allows a prospect or customer to click on a product
they see featured in a video and impulse buy it, or to click on a calendar icon in the video to make an appointment with a salesperson,
which are among the many novel features and functionalities designed to eliminate or reduce friction from the sales process for
our users. The verbCRM app is designed to be easy to use and navigate, and takes little time and training for a user to begin
using the app effectively. It usually takes less than four minutes for a novice user to create an interactive video from our app.
Users can add interactive icons to pre-existing videos, as well as to newly created videos shot with practically any mobile device.
verbCRM interactive videos can be distributed via email, text messaging, chat app, or posted to popular social media directly
and easily from our app. No software download is required to view Verb interactive videos on virtually any mobile or desktop device,
including smart TVs.
verbLEARN
is an interactive video-based learning management system that incorporates all of the clickable in-video technology featured
in our verbCRM application, however adapted for use by educators for video-based education. verbLEARN is used by enterprises seeking
to educate a large sales team or a customer base about new products, or elicit feedback about existing products. It also incorporates
Verb’s proprietary data collection and analytics capabilities that inform users in real time, when and for how long the
viewers watched the video, how many times they watched it, and what they clicked-on.
verbLIVE
builds on popular video-based platforms such as Facebook Live, Zoom, WebEx, and Go2Meeting, among others, by adding Verb’s
proprietary interactive in-video ecommerce capabilities – including an in-video Shopify shopping cart integrated for Shopify
account holders - to our own live stream video broadcasting application. verbLIVE is a next-generation webinar platform that allows
webinar hosts to utilize a variety of novel sales-driving features, including placing interactive icons on-screen that appear
on the screens of all viewers, providing in-video click-to-purchase capabilities for products or services featured in the live
video broadcast, in real-time, driving friction-free selling. verbLIVE also provides the host with real-time viewer engagement
data and interaction analytics. verbLIVE is entirely browser-based, allowing it to function easily and effectively on all devices
without requiring the host or the viewers to download software, and is secured through end-to-end encryption. verbLIVE is currently
in pre-sales, accepting customer deposits, and is expected to launch commercially in summer 2020.
The
Verb In-App Eco-System
To
more effectively and efficiently monetize our current large user base, we have developed and have begun to deploy in-app purchase
capabilities for all verbCRM users. This feature is currently being distributed and deployed as an automatic software update to
enterprise client users whose monthly subscription fees and use of the application are paid by their corporate employer, sponsor,
or principal. The in-app purchase capability will allow these users to pay for subscriptions directly in the app with their own
credit card in order to access upgraded or unlocked verbCRM features and additional functionality within the app.
In
addition, these users will have in-app access to our forthcoming “app store” where users can subscribe for third-party
apps that are complimentary to verbCRM user demographics, such as specialized expense tracking applications, tax software, among
other third-party apps offered directly to our user base on a revenue share basis with the third-party developers. In addition,
we are expecting to introduce during 2020 an “Open API” architecture, allowing third-party developers to create specialized
apps with features and functionality that integrate seamlessly into our verbCRM application. These will be offered directly to
our user base through our verbCRM app store on a revenue-sharing basis.
Verb
Partnerships and Integrations
We
have completed the integration of verbCRM into systems offered by 17 of the most popular direct sales back-office system providers,
such as Direct Scale, Exigo, By Design, Thatcher, Multisoft, Xennsoft, and Party Plan. Direct sales back-office systems provide
many of the support functions required for direct sales operations, including payroll, customer genealogy management, statistics,
rankings, and earnings, among other direct sales financial tracking capabilities. The integration into these back-office providers,
facilitated through our own API development, allows single sign-on convenience for users, as well as enhanced data analytics and
reporting capabilities for all users. We believe that our integration into these back-end platforms accelerates the adoption of
verbCRM by large direct sales enterprises that rely on these systems and as such, we believe this represents a competitive advantage.
We
are also in various stages of development, testing and deployment for the integration of our latest generation interactive video
and enhanced analytics and reporting technology, and more recently, a core package that includes verbLIVE, into popular CRM providers,
including Salesforce, Microsoft, Oracle/NetSuite, and Adobe/Marketo, among others with whom we have executed partnership agreements.
Each of these agreements provides for revenue share arrangements resulting from sales of our product to their respective clients.
The integrations for Salesforce and Microsoft represent new build integrations, while those for Oracle/NetSuite and Adobe/Marketo
represent replacement integrations. We have intentionally, though temporarily, delayed further action on and deployment of these
integrations in order to allocate design, engineering and development resources to those initiatives that we believe will become
revenue producing opportunities sooner, especially those that we believe will likely produce greater market demand due to the
current and anticipated continued effects of the COVID-19 pandemic. We expect to resume action on and deployment of these integrations
in the summer of 2020.
Non-Digital
Products and Services
Historically,
we have also provided certain non-digital services to some of our enterprise clients such as printing and fulfillment services.
We designed and printed welcome kits and starter kits for their marketing needs and provided fulfillment services, which consisted
of managing the preparation, handling and shipping of our client’s custom-branded merchandise they use for marketing purposes
at conferences and other events. We also managed the fulfillment of our clients’ product sample packs that verbCRM users
order through the app for automated delivery and tracking to their customers and prospects.
However,
on May 20, 2020, we executed a contract with Range Printing, a company in the business of providing enterprise class printing,
sample assembly, warehousing, packaging, shipping, and fulfillment services. Pursuant to the contract, through an automated process
we have established for this purpose, Range will receive orders for samples and merchandise from us as and when we receive them
from our clients and users, and print, assemble, store, package and ship such samples and merchandise on our behalf. The Range
contract provides for a revenue share arrangement based upon the specific services to be provided by Range that is designed to
maintain our relationship with our clients by continuing to service their non-digital needs, while eliminating the labor and overhead
costs associated with the provision of such services by us. The transition to Range Printing is in progress.
Our
Market
Our
client base consists primarily of multi-national direct sales enterprises to whom we provide white-labeled, client-branded versions
of our products. Our clients also include large professional associations, educational institutions, including school districts,
auto sales, auto leasing, insurance, real estate, home security, not-for-profits, as well as clients in the health care industry,
and the burgeoning CBD industry, among other business sectors. Currently, we provide subscription-based application services to
approximately 100 enterprise clients for use in over 60 countries, in over 48 languages, which collectively account for a user
base generated through more than 1.6 million downloads of our verbCRM application. Among the new business sectors targeted for
this year are pharmaceutical sales, government institutions, and political parties and candidates.
In
April 2020, we commenced local language sales, sales support, customer support, and marketing operations in Japan. In order to
ensure compliance with Japan’s laws, rules and regulations, our operations were established pursuant to, and in accordance
with, an exclusive reseller agreement with an existing Tokyo-based Japanese corporation operated by a team with over 30-years’
experience in the Japan direct sales industry. They operate and market our applications in Japan under the Verb brand.
Revenue
Generation
We
generate revenue from the following sources:
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recurring
subscription fees paid by enterprise users and affiliates;
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recurring
subscription fees paid by non-enterprise, small business, and individual users;
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recurring
subscription fees paid by users who access in-app purchases of various premium services, features, functionality, and upgrades;
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recurring
subscription fees paid by users who access in-app purchases of third-party software provider apps in our forthcoming app store;
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recurring
subscription fees paid by users of Salesforce, Microsoft, Oracle/NetSuite, and Adobe/Marketo, among others with whom we have
executed partnership agreements, for access to our applications that we intend to integrate into these platforms, including
recurring subscription fees paid by users who subscribe to bundled service offerings from these partners and/or their respective
value-added resellers;
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recurring
subscription fees paid by users for all of the foregoing products and services generated through our recently launched Japan
operations;
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recurring
subscription fees paid by users generated through our forthcoming reseller and affiliate distribution programs; and
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fees
paid by enterprise clients for non-digital products and services through our Range Printing venture.
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Corporate
Information
We
are a Nevada corporation that was incorporated in February 2005. Our principal executive offices are located at 2210 Newport Boulevard,
Suite 200, Newport Beach, California 92663, and our telephone number is (855) 250-2300. Our Internet website is https://www.verb.tech/.
The content of our Internet website does not constitute a part of this prospectus.
The
Offering
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Securities
offered by the selling security holders
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3,338,141
shares of common stock upon exercise of outstanding Warrants.
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Common
stock outstanding prior to this offering
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43,913,670
shares, as of August 5, 2020.
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Common
stock to be outstanding after this offering
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47,251,811
shares, which gives effect to the shares of common stock
offered under this prospectus.
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The
Nasdaq Capital Market symbol
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VERB
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Use
of Proceeds
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We
will not receive any of the proceeds from the sale of the shares of common stock being offered under this prospectus. We will
receive proceeds upon cash exercises, if any, of the Warrants. See “Use of Proceeds.”
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Risk
Factors
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There
are many risks related to our business, this offering and ownership of the shares of common stock that you should consider
before you decide to buy the shares of common stock in this offering. You should read the “Risk Factors” section
beginning on page 6, as well as other cautionary statements throughout this prospectus, before investing the shares of common
stock.
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The
number of shares of common stock that will be outstanding upon the completion of this offering is based on the 43,913,670 shares
outstanding as of August 5, 2020, and excludes the following:
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●
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4,692,271
shares of common stock issuable upon the exercise of outstanding stock options as of August 5, 2020, with a weighted-average
exercise price of $1.71 per share;
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●
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2,671,852
shares of common stock issuable under restricted stock awards as of August 5, 2020, with a weighted-average exercise price
of $1.22 per share;
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●
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330,912
shares of common stock reserved for future issuance under our 2019 Omnibus Incentive Plan, or Incentive Plan;
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13,509,038
shares of common stock issuable upon exercise of warrants to purchase common stock outstanding as of August 5, 2020, with
a weighted-average exercise price of $2.49 per share;
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●
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1,849,036
shares of common stock issuable upon conversion of our Series A Convertible Preferred Stock, or Series A Preferred Stock;
and
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●
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any
additional shares of common stock we may issue from time to time after that date.
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Unless
otherwise indicated, all information in this prospectus assumes the following:
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●
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no exercise of outstanding options and warrants (including
the Warrants); and
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●
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no conversion of outstanding shares of our Series A
Preferred Stock, or our convertible notes.
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RISK
FACTORS
Before
you invest in our securities, in addition to the other information, documents or reports incorporated by reference in this prospectus
and any prospectus supplement or other offering materials, you should carefully consider the risk factors in the section entitled
“Risk Factors” in any prospectus supplement, as well as our most recent Annual Report on Form 10-K, our most recent
Amendment to Annual Report on Form 10-K/A, our most recent Quarterly Report on Form 10-Q, and our most recent Amendment to Quarterly
Report on Form 10-Q/A filed with the SEC. Each of the risks described in these sections and documents could materially and adversely
affect our business, financial condition, results of operations and prospects, and could result in a partial or complete loss
of your investment.
Our bylaws
contain an exclusive forum provision, which could limit our stockholders’ ability to obtain a favorable judicial forum for
disputes with us or our directors, officers, employees or agents.
Our bylaws provide
that, unless we consent in writing to the selection of an alternative forum, the state and federal courts in the State of Nevada
shall be the exclusive forum for any litigation relating to our internal affairs, including, without limitation: (i) any derivative
action brought on behalf of us, (ii) any action asserting a claim for breach of fiduciary duty to us or our stockholders by any
current or former officer, director, employee, or agent of us, or (iii) any action against us or any current or former officer,
director, employee, or agent of us arising pursuant to any provision of the Nevada Revised Statutes, or NRS, the articles of incorporation,
or the bylaws.
For the avoidance
of doubt, the exclusive forum provision described above does not apply to any claims arising under the Securities Act of 1933,
as amended, or Securities Act, or the Securities Exchange Act of 1934, as amended, or Exchange Act. Section 27 of the Exchange
Act creates exclusive federal jurisdiction over all suits brought to enforce any duty or liability created by the Exchange Act
or the rules and regulations thereunder, and Section 22 of the Securities Act creates concurrent jurisdiction for federal and
state courts over all suits brought to enforce any duty or liability created by the Securities Act or the rules and regulations
thereunder.
The choice of forum
provision in our bylaws may limit our stockholders’ ability to bring a claim in a judicial forum that they find favorable
for disputes with us or our directors, officers, employees or agents, which may discourage such lawsuits against us and our directors,
officers, employees and agents even though an action, if successful, might benefit our stockholders. The applicable courts may
also reach different judgments or results than would other courts, including courts where a stockholder considering an action
may be located or would otherwise choose to bring the action, and such judgments or results may be more favorable to us than to
our stockholders. With respect to the provision making the state and federal courts in the State of Nevada the sole and exclusive
forum for certain types of actions, stockholders who do bring a claim in the state and federal courts in the State of Nevada could
face additional litigation costs in pursuing any such claim, particularly if they do not reside in or near Nevada. Finally, if
a court were to find this provision of our bylaws inapplicable to, or unenforceable in respect of, one or more of the specified
types of actions or proceedings, we may incur additional costs associated with resolving such matters in other jurisdictions,
which could have a material adverse effect on us.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus contains forward-looking statements within the meaning of the federal securities laws, which statements involve substantial
risks and uncertainties. All statements, other than statements of historical facts, included in this prospectus regarding our
strategy, future events, future operations, future financial position, future revenue, projected costs, prospects, plans, objectives
of management and expected market growth, among others, are forward-looking statements. The words “anticipate,” “believe,”
“estimate,” “expect,” “intend,” “may,” “might,” “plan,”
“predict,” “project,” “would,” “will,” “should,” “could,”
“objective,” “target,” “ongoing,” “contemplate,” “potential” or “continue”
or the negative of these terms and similar expressions are intended to identify forward-looking statements, although not all forward-looking
statements contain these identifying words.
We
may not actually achieve the plans, intentions or expectations disclosed in our forward-looking statements, and you should not
place undue reliance on our forward-looking statements. Actual results or events could differ materially from the plans, intentions
and expectations disclosed in our forward-looking statements. We have included important factors in the cautionary statements
included in this prospectus, particularly in the “Risk Factors” section, which could cause actual results or events
to differ materially from such forward-looking statements. Any forward-looking statement speaks only as of the date on which it
is made, and we do not undertake any obligation to update any forward-looking statements, whether as a result of new information,
future events or otherwise, except as required by law.
USE
OF PROCEEDS
All
of the shares of our common stock offered by this prospectus are being registered for the account of the selling security holders.
We will not receive any of the proceeds from the sale of these shares. We have agreed to pay all costs, expenses and fees relating
to the registration of the shares of our common stock covered by this prospectus. The selling security holders will bear all commissions
and discounts, if any, attributable to the sale of the shares.
We
may, however, receive cash proceeds equal to the exercise price of the Warrants that a stockholder may exercise, to the extent
any such Warrants are exercised for cash. We expect to use any proceeds received by us from the cash exercise of these Warrants
for general corporate purposes.
We
cannot predict when or if these Warrants will be exercised, and it is possible that these Warrants may expire and never be exercised.
The Warrants are exercisable under certain circumstances on a cashless basis and if the Warrants be exercised on a cashless basis
we will not receive any proceeds from the exercise of the Warrants. As a result, we may never receive meaningful, or any, cash
proceeds from the exercise of these Warrants, and we cannot plan on any specific uses of any proceeds we may receive beyond the
purposes described herein.
DIVIDEND
POLICY
We
have never paid cash dividends on our common stock and do not intend to pay cash dividends on our common stock in the foreseeable
future. We anticipate that we will retain any earnings for use in the continued development of our business.
We
cannot, without the affirmative vote of the holders of a majority of the then-outstanding shares of Series A Preferred Stock authorize
or create any class of stock ranking as to dividends, redemption, or distribution of assets upon a liquidation senior to, or otherwise
pari passu with, the Series A Preferred Stock. Moreover, as long as any shares of Series A Preferred Stock are outstanding, unless
the holders of at least 75% in stated value of the then-outstanding shares of Series A Preferred Stock have otherwise given prior
written consent, we cannot, directly or indirectly, pay cash dividends or distributions on our common stock.
MARKET
INFORMATION FOR OUR COMMON STOCK
Our
common stock is listed on The Nasdaq Capital Market under the symbol “VERB.” As of August 6, 2020, we had 172 holders
of record of our common stock, based on information provided by our transfer agent. These holders of record include depositories
that hold shares of stock for brokerage firms which, in turn, hold shares of stock for numerous beneficial owners. On August 6,
2020, the last reported price of our common stock on The Nasdaq Capital Market was $1.22 per share.
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The
following table sets forth information regarding beneficial ownership of our common stock as of August 5, 2020 by:
|
|
●
|
each
person, or group of affiliated persons, known by us to beneficially own more than 5% of our shares of common stock;
|
|
|
|
|
|
|
●
|
each
of our directors;
|
|
|
|
|
|
|
●
|
each
of our named executive officers; and
|
|
|
|
|
|
|
●
|
all
of our directors and executive officers as a group.
|
The
table is based on information provided to us by our directors, executive officers and principal stockholders. Beneficial ownership
is determined in accordance with the rules of the SEC, and generally means that a person has beneficial ownership of a security
if he, she or it possesses sole or shared voting or investment power of that security, including stock options and warrants that
are exercisable within 60 days of August 5, 2020. To our knowledge, except as indicated by footnote, and subject to community
property laws where applicable, the persons named in the table below have sole voting and investment power with respect to all
shares of common stock shown as beneficially owned by them. Shares of common stock underlying derivative securities, if any, that
are currently exercisable or exercisable within 60 days after August 5, 2020 are deemed to be outstanding in calculating the percentage
ownership of the applicable person or group, but are not deemed to be outstanding as to any other person or group. Percentage
of beneficial ownership is based on 43,913,670 shares of common stock outstanding as of the date of the table.
Unless
otherwise indicated, the address of each beneficial owner listed in the table below is c/o Verb Technology Company, Inc., 2210
Newport Boulevard, Suite 200, Newport Beach, California 92663.
|
Name and Address of Beneficial Owner(1)
|
|
Title of
Class
|
|
Amount and
Nature
of
Beneficial
Ownership(2)
|
|
|
Percent
of
Class(3)
|
|
|
Rory J. Cutaia
|
|
Common
|
|
|
4,156,701
|
(4)
|
|
|
9.3
|
%
|
|
James P. Geiskopf
|
|
Common
|
|
|
781,733
|
(5)
|
|
|
1.8
|
%
|
|
Jeffrey R. Clayborne
|
|
Common
|
|
|
494,343
|
(6)
|
|
|
1.1
|
%
|
|
Philip J. Bond
|
|
Common
|
|
|
36,058
|
(7)
|
|
|
*
|
|
|
Kenneth S. Cragun
|
|
Common
|
|
|
36,058
|
(7)
|
|
|
*
|
|
|
Nancy Heinen
|
|
Common
|
|
|
4,891
|
(8)
|
|
|
*
|
|
|
Judith Hammerschmidt
|
|
Common
|
|
|
4,891
|
(8)
|
|
|
*
|
|
|
Chad J. Thomas
|
|
Common
|
|
|
182,249
|
(9)
|
|
|
*
|
|
|
All directors and executive officers as a group (8 persons)
|
|
Common
|
|
|
5,696,924
|
|
|
|
12.6
|
%
|
|
(1)
|
Messrs.
Cutaia, Geiskopf, Bond and Cragun and Mses. Heinen and Hammerschmidt are the directors of our company. Messrs. Cutaia, Thomas
and Clayborne are the named executive officers of our company.
|
|
|
|
|
(2)
|
Except
as otherwise indicated, we believe that the beneficial owners of the shares of our common stock listed above, based on information
furnished by such owners, have sole investment and voting power with respect to such shares, subject to community property
laws, where applicable. Beneficial ownership is determined in accordance with the rules of the SEC and generally includes
voting or investment power with respect to securities. Shares of our common stock subject to options or warrants currently
exercisable or exercisable within 60 days are deemed outstanding for purposes of computing the percentage ownership of the
person holding such option or warrants, but are not deemed outstanding for purposes of computing the percentage ownership
of any other person.
|
|
|
|
|
(3)
|
Percentage
of common stock is based on 43,913,670 shares of our common stock issued and outstanding as of August 5, 2020.
|
|
|
|
|
(4)
|
Consists
of 3,250,934 shares of our common stock held directly, 240,240 shares of our common stock held by Cutaia Media Group Holdings,
LLC (an entity over which Mr. Cutaia has dispositive and voting authority), 54,006 shares of our common stock held by Mr.
Cutaia’s spouse (as to which shares, he disclaims beneficial ownership), and 4,500 shares of our common stock held jointly
by Mr. Cutaia and his spouse. Also includes 283,333 shares of our common stock underlying stock options held directly and
20,000 shares of our common stock underlying stock options held by Mr. Cutaia’s spouse that are exercisable within 60
days of the date of the record date (as to which underlying shares, he disclaims beneficial ownership). The total also includes
303,688 shares of our common stock underlying warrants granted to Mr. Cutaia, which warrants are exercisable within 60 days
of the record date. Excludes 974,525 restricted stock awards that will not vest within 60 days of the record date. The total
also excludes 665,460 shares of our common stock underlying stock options not exercisable within 60 days of the record date.
|
|
(5)
|
Includes
593,067 shares of our common stock held directly and 5,333 shares of our common stock held by Mr. Geiskopf’s children.
Also includes 183,333 shares of our common stock underlying stock options exercisable within 60 days of the record date. Excludes
292,073 restricted stock awards that will not vest within 60 days of the record date.
|
|
|
|
|
(6)
|
Includes
214,801 shares of our common stock held directly. Also, includes 279,542 shares of our common stock underlying stock options
that are exercisable within 60 days of the record date. Excludes 622,639 restricted stock awards that will not vest within
60 days of the record date. The total also excludes 253,343 shares of our common stock underlying stock options not exercisable
within 60 days of the record date.
|
|
|
|
|
(7)
|
Includes
9,391 shares of our common stock held directly. Also includes 26,667 shares of our common stock underlying stock options exercisable
within 60 days of the record date. Excludes 146,037 restricted stock awards that will not vest within 60 days of the record
date. The total also excludes 40,000 shares of our common stock underlying stock options not exercisable within 60 days of
the record date.
|
|
|
|
|
(8)
|
Includes
4,891 shares of our common stock held directly. Excludes 234,244 restricted stock awards that will not vest within 60 days
of the record date.
|
|
|
|
|
(9)
|
Includes
137,805 shares of our common stock held directly. Also includes 44,444 shares of our common stock underlying stock options
exercisable within 60 days of the record date. Excludes 88,889 shares of our common stock underlying stock options not exercisable
within 60 days of the record date.
|
Equity
Compensation Plan Information
The
following table provides information about our common stock that may be issued upon the exercise of options, warrants and rights
under all our existing equity compensation plans as of December 31, 2019.
|
Plan category
|
|
Number of
securities to be
issued upon
exercise
of outstanding
restricted stock
awards,
options,
warrants
and rights
(a)
|
|
|
Weighted-
average
exercise price of
outstanding
restricted stock
awards, options,
warrants and
rights (b)
|
|
|
Number of
securities
remaining
available for
future issuance
under equity
compensation
plans
(excluding
securities
reflected in
column (a))
(c)
|
|
|
Equity compensation plans approved by security holders
|
|
|
2,594,522
|
|
|
|
1.52
|
|
|
|
5,662,145
|
|
|
Equity compensation plans not approved by security holders
|
|
|
2,858,462
|
|
|
$
|
1.79
|
|
|
|
-
|
|
|
Total
|
|
|
5,452,984
|
|
|
$
|
1.66
|
|
|
|
5,662,145
|
|
SELLING
SECURITY HOLDERS
This prospectus covers
the sale by the selling security holders of up to an aggregate of 3,338,141 shares of common stock issuable upon exercise
of Warrants, which amount consists of up to (i) an aggregate of 1,319,351 shares of common stock issuable upon exercise
of the Waiver Warrants issued in connection with the Waiver Agreement, (ii) an aggregate of 1,910,594 shares of common stock issuable
upon exercise of the Settlement Warrants issued in connection with the Settlement Agreements, and (iii) an aggregate of 108,196
shares of common stock issuable upon exercise of the Meridian Warrants issued to Meridian Newcastle Group, Inc.
Omnibus
Waiver and Acknowledgment Agreement
General
On
August 8, 2019, we entered into a Securities Purchase Agreement, or the Securities Purchase Agreement, with certain purchasers
named therein, pursuant to which we agreed to issue and sell to the purchasers up to an aggregate of 6,000 shares of our Series
A Preferred Stock and warrants, or August Warrants, to purchase an aggregate of up to 3.87 million shares of our common stock.
We closed the offering on August 14, 2019 and issued 5,030 shares of Series A Preferred Stock and granted August Warrants to purchase
up to 3,245,156 shares of common stock in connection therewith resulting in aggregate proceeds of $5,030,000.
On
February 5, 2020, we initiated a private placement for the sale and issuance of up to five million shares of our common stock
at $1.20 per share pursuant to an exemption from the registration requirements of the Securities Act provided in Section 4(a)(2) thereof and/or Rule 506 of Regulation D promulgated thereunder. On February 25, 2020, we had
an initial closing of our private placement, and on March 20, 2020, we had a second closing. By virtue of the initial closing
and the second closing, we issued 3,267,833 shares of our common stock and received total gross proceeds of $3,921,400.
On
February 7, 2020, in connection with our private placement, all of the purchasers under the Securities Purchase Agreement who,
as of February 7, 2020, continued to own shares of our Series A Preferred Stock entered into the Waiver Agreement whereby they
(i) waived their respective rights to participate in our private placement and (ii) declined to accept the price protection rights
to which they otherwise were entitled as holders of shares of our Series A Preferred Stock. In connection with the Waiver Agreement,
we granted to each of the purchasers under the Securities Purchase Agreement who continued to own shares of our Series A preferred
Stock as of February 7, 2020 the Waiver Warrants, the terms of which are described below.
The
Waiver Warrants
The
Waiver Warrants are exercisable from and after six months after the date of issuance and at any time for the five-year period
from the date of issuance for shares of common stock with an original exercise price of $1.55 per share, which was subsequently
reduced to the current exercise price of $1.10 per share as a result of our public offering in July 2020, subject to adjustment
as provided therein, and terminate five years after issuance. A holder of Waiver Warrants will not have the right to exercise
any portion of its Waiver Warrants if the holder, together with its affiliates, would beneficially own over 4.99%; provided, however,
that upon prior notice to us, the holder may decrease or may increase its ownership limitation, provided that in no event will
the ownership limitation exceed 9.99%.
The
exercise price of our common stock issuable upon exercising the Waiver Warrants will be subject to adjustment in the event of
any stock dividends and splits, reverse stock split, recapitalization, reorganization or similar transaction, as described therein.
If we or any subsidiary, at any time while the Waiver Warrants are outstanding, sell or grant any option to purchase, or sell
or grant any right to reprice or otherwise dispose of or issue any common stock or common stock equivalents at an effective price
less than the exercise price then in effect, then the exercise price shall be reduced to the lower exercise price then in effect,
subject to adjustment for reverse and forward stock splits, recapitalizations, and similar transactions and subject to certain
exceptions. The Waiver Warrants impose penalties on us for failure to timely deliver the shares of common stock.
The
Waiver Warrants may be exercised on a cashless basis if at the time of exercise there is no effective registration statement registering
the shares of common stock.
If
we, at any time while the Waiver Warrants are outstanding, issue rights, options, or warrants to all holders of common stock entitling
them to subscribe for or purchase shares of common stock at a price per share less than the volume weighted average price on the
record date mentioned below, then the exercise price shall be multiplied by a fraction, of which the denominator shall be the
number of shares of common stock outstanding on the date of issuance of such rights, options, or warrants plus the number of additional
shares of common stock offered for subscription or purchase, and of which the numerator shall be the number of shares of common
stock outstanding on the date of issuance of such rights, options, or warrants plus the number of shares that the aggregate offering
price of the total number of shares so offered (assuming receipt by us in full of all consideration payable upon exercise of such
rights, options or warrants) would purchase at such volume weighted average price. Such adjustment shall be made whenever such
rights, options, or warrants are issued, and shall become effective immediately after the record date for the determination of
stockholders entitled to receive such rights, options, or warrants. If we make a distribution of our assets to all holders of
shares of our common stock, each holder of a Waiver Warrant will have the right to acquire the same assets as if it had exercised
its Waiver Warrant.
The
Waiver Warrants contain provisions prohibiting us from entering into certain transactions involving a change of control, unless
the successor assumes in writing all of our obligations under the Waiver Warrants. In the event of a fundamental transaction,
we or any successor entity shall, at the holder’s option, exercisable at any time concurrently with, or within 30 days after,
the consummation of the fundamental transaction (or, if later, the date of the public announcement of the applicable fundamental
transaction), purchase the Waiver Warrant from the holder by paying to the holder an amount of cash equal to the Black Scholes
Value (as defined below) of the remaining unexercised portion of the Waiver Warrant on the date of the consummation of such fundamental
transaction. “Black Scholes Value” means the value of the Waiver Warrant based on the Black-Scholes Option Pricing
Model obtained from the “OV” function on Bloomberg, L.P., or Bloomberg, determined as of the day of consummation of
the applicable fundamental transaction for pricing purposes and reflecting (A) a risk-free interest rate corresponding to the
U.S. Treasury rate for a period equal to the time between the date of the public announcement of the applicable fundamental transaction
and the termination date, (B) an expected volatility equal to the 100-day volatility obtained from the HVT function on Bloomberg
(determined utilizing a 365-day annualization factor) as of the trading day immediately following the public announcement of the
applicable fundamental transaction (but in no event shall such expected volatility be greater than one hundred percent (100%)),
(C) the underlying price per share used in such calculation shall be the greater of (i) the sum of the price per share being offered
in cash, if any, plus the value of any non-cash consideration, if any, being offered in such fundamental transaction and (ii)
the greater of (x) the last volume weighted average price immediately prior to the public announcement of such fundamental transaction
and (y) the last volume weighted average price immediately prior to the consummation of such fundamental transaction, and (D)
a remaining option time equal to the time between the date of the public announcement of the applicable fundamental transaction
and the termination date and (E) a zero cost of borrow. The payment of the Black Scholes Value will be made by wire transfer of
immediately available funds within five business days of the holder’s election (or, if later, on the effective date of the
fundamental transaction).
Registration
Rights
Although
we have not entered into any registration rights agreement or granted any registration rights in connection with the issuance
and sale of the Waiver Warrants under the terms of the Waiver Agreement, we have elected to register for resale the shares of
common stock issuable upon exercise of the Waiver Warrants.
Settlement
and Release Agreements
General
On
August 5, 2020, we entered into a Settlement Agreement with Iroquois Capital Investment Group LLC and Iroquois Master Fund Ltd.,
which we refer to collectively as Iroquois, and on August 6, 2020, we entered into a Settlement Agreement with Kingsbrook
Opportunities Master Fund LP, or Kingsbrook, pursuant to which we agreed to issue up to an aggregate (i) 1,870,594 shares of common
stock issuable upon exercise of the Settlement Warrants in favor of Iroquois and (ii) 40,000 shares of common stock issuable upon
exercise of the Settlement Warrant in favor of Kingsbrook in an effort to resolve any claims, and without admission of wrongdoing
or failures by us, Iroquois or Kingsbrook, of Iroquois’ right to participate in our public offering in July 2020 and Kingsbrook’s
right to participate in our private placement in February 2020.
The
Settlement Warrants
The
Settlement Warrants are exercisable from and after the date of issuance and at any time, in the case of the Settlement Warrants
issued to Iroquois, for the ten-trading-day period from the date this registration statement is declared effective by the SEC,
and in the case of the Settlement Warrant issued to Kingsbrook, for the three-year period from the date of issuance, for shares
of common stock with an exercise price of $1.10 per share. The Settlement Warrants issued to Iroquois terminate ten trading days
after this registration statement is declared effective by the SEC, and the Settlement Warrant issued to Kingsbrook terminates
three years after issuance.
The
exercise price and number of the shares of our common stock issuable upon exercising the Settlement Warrants will be subject to
adjustment in the event of any stock dividends and splits, reverse stock split, recapitalization, reorganization or similar transaction,
as described therein.
In
addition, the Settlement Warrants issued to Kingsbrook may be exercised on a cashless basis if at any time after six-months of
issuance there is no effective registration statement registering the Settlement Warrants issued to Kingsbrook. The Settlement
Warrants issued to Kingsbrook also impose penalties on us for failure to timely deliver the shares of common stock underlying
the Settlement Warrants issued to Kingsbrook.
Registration
Rights
In
connection with the issuance and sale of 1,910,594 shares of common stock under the terms of the Settlement Agreements, we granted
registration rights to Iroquois and Kingsbrook pursuant to which we agreed to file a registration statement with the SEC within
ten days after the execution and delivery of the Settlement Agreements for the resale by Iroquois and Kingsbrook of up to 1,910,594
shares of common stock. We are required to use reasonable best efforts to have such registration statement declared effective
by the SEC as soon as practicable after the filing thereof.
We
are obligated to keep a registration statement we file in compliance with our obligations under the Settlement Agreements effective
for resale by Iroquois and Kingsbrook at all times until the earlier of (i) the date on which all 1,910,594 shares of common stock
underlying the Settlement Warrants covered by the registration statement may be sold without restriction pursuant to Rule 144
of the Securities Act or (ii) the date on which Iroquois and Kingsbrook have sold all 1,910,594 shares of common stock underlying
the Settlement Warrants covered by the registration statement.
The
Settlement Agreements contain various indemnification provisions in connection with the registration of the 1,910,594 shares of
common stock.
Meridian
Warrants
General
On
July 10, 2019, we issued an aggregate of 108,196 shares of common stock issuable upon exercise of the Meridian Warrants to Meridian
Newcastle Group, Inc.
Meridian
Warrants
The
Meridian Warrants are exercisable from and after the date of issuance and at any time for the five-year period from the date of
issuance for shares of common stock with an exercise price of $3.44 per share, subject to adjustment as provided therein, and
terminate five years after issuance. Meridian Newcastle Group, Inc. will not have the right to exercise any portion of its Meridian
Warrants if it, together with its affiliates, would beneficially own over 4.99%.
The
exercise price and number of the shares of our common stock issuable upon exercising the Meridian Warrants will be subject to
adjustment in the event of any stock dividends and splits, reverse stock split, recapitalization, reorganization or similar transaction,
as described therein.
If
we make a distribution of our assets to all holders of shares of our common stock, Meridian Newcastle Group, Inc. will have the
right to acquire the same assets as if it had exercised its Meridian Warrants.
The
Meridian Warrants contain provisions prohibiting us from entering into certain transactions involving a change of control, unless
the successor assumes in writing all of our obligations under the Meridian Warrants.
Registration
Rights
Although
we have not entered into any registration rights agreement or granted any registration rights in connection with the issuance
and sale of the Meridian Warrants, we have elected to register for resale the shares of common stock issuable upon exercise of
the Meridian Warrants.
Selling
Security Holder Table
This
prospectus covers the sale by the selling security holders of up to an aggregate of 3,338,141 shares of common stock. We
are registering the shares of common stock in order to permit the selling security holders to offer the shares for resale from
time to time. The selling security holders have not had any material relationship with us within the past three years.
The
table below lists the selling security holders and other information regarding the beneficial ownership of the shares of common
stock held by each of the selling security holders. The second column lists the number of shares of common stock beneficially
owned by the selling security holders, based on their respective ownership of shares of common stock and Warrants as of August
10, 2020.
The
third column lists the shares of common stock being offered by this prospectus by the selling security holders and does not take
into account the limitation on exercisability of the Warrants in connection with any exercise resulting in a selling security
holder beneficially owning in excess of 4.99% of our issued and outstanding common stock (which limit may be decreased upon prior
notice to us or may be increased to an amount not in excess of 9.99% upon 61-days’ prior notice to us). The selling security
holders may sell all, some or none of their shares in this offering. See “Plan of Distribution.”
The
fourth column assumes the sale of all of the shares of common stock offered by the selling security holders under this prospectus.
The number of shares in the fourth column does not take into account any limitations on the exercise of any Warrants held by the
selling security holders.
Except
as disclosed in the footnotes to the table below, each of the selling security holders has represented to us that it is not a
broker-dealer, or affiliated with or associated with a broker-dealer, registered with the SEC or designated as a member of the
Financial Industry Regulatory Authority. The shares of common stock being offered under this prospectus may be offered for sale
from time to time during the period the registration statement of which this prospectus is a part remains effective, by or for
the accounts of the selling security holders listed below.
Beneficial
ownership is determined in accordance with the rules of the SEC, and includes voting or investment power with respect to the securities.
To our knowledge, except as indicated by footnote, and subject to community property laws where applicable, the persons named
in the table below have sole voting and investment power with respect to all shares of common stock shown as beneficially owned
by them. Except as indicated by footnote, all shares of common stock underlying derivative securities, if any, that are currently
exercisable or convertible or are scheduled to become exercisable or convertible for or into shares of common stock within 60
days after the date of the table are deemed to be outstanding for the purpose of calculating the percentage ownership of each
listed person or group but are not deemed to be outstanding as to any other person or group.
|
Name of
|
|
Shares of
Common Stock
Beneficially
Owned
|
|
|
Maximum
Number of shares
of Common Stock
to be Sold
Pursuant to this
|
|
|
Shares of
Common Stock
Beneficially Owned
After Offering(1)
|
|
Beneficial Owner
|
|
Prior to Offering
|
|
|
Prospectus
|
|
|
Number
|
|
|
Percentage
|
|
Amin Somani
|
|
|
610,000
|
|
|
|
112,903
|
|
|
|
497,097
|
|
|
1.1%
|
|
BRIO Capital Master Fund Ltd.
|
|
|
583,354
|
|
|
|
90,322
|
|
|
|
493,032
|
|
|
1.0%
|
|
Donald Isbell
|
|
|
25,807
|
|
|
|
12,903
|
|
|
|
12,904
|
|
|
*
|
|
Iroquois Capital Investment Group LLC
|
|
|
1,993,313
|
|
|
|
1,419,167
|
|
|
|
574,146
|
|
|
1.2%
|
|
Iroquois Master Fund Ltd.
|
|
|
2,069,965
|
|
|
|
1,419,167
|
|
|
|
650,798
|
|
|
1.4%
|
|
Richard Molinsky
|
|
|
64,516
|
|
|
|
32,258
|
|
|
|
32,258
|
|
|
*
|
|
Wade Madden
|
|
|
292,549
|
|
|
|
32,258
|
|
|
|
260,291
|
|
|
*
|
|
Kingsbrook Opportunities Master Fund LP
|
|
|
201,290
|
|
|
|
40,000
|
|
|
|
161,290
|
|
|
*
|
|
Meridian Newcastle Group, Inc.
|
|
|
340,000
|
|
|
|
108,196
|
|
|
|
231,804
|
|
|
*
|
|
Global Capital Group LLC
|
|
|
648,217
|
|
|
|
70,967
|
|
|
|
577,250
|
|
|
1.2%
|
|
(*)
|
Indicates
beneficial ownership of less than 1%.
|
|
(1)
|
Assumes all shares being
offered under this prospectus are sold. The percentage of beneficial ownership after the offering
is based on 47,251,811 shares of common stock, consisting of 43,913,670 shares of common stock
outstanding as of August 5, 2020 and the 3,338,141 shares of common stock offered under this
prospectus.
|
PLAN
OF DISTRIBUTION
We
are registering the shares of common stock issued to the selling security holders to permit the resale of these shares of common
stock by the selling security holders from time to time after the date of this prospectus. We will not receive any of the proceeds
from the sale by the selling security holders of the shares of common stock. We may, however, receive cash proceeds equal to the
exercise price of the Warrants that a stockholder may exercise, to the extent any such Warrants are exercised for cash. We will
bear all fees and expenses incident to our obligation to register the shares of common stock.
The
selling security holders may sell all or a portion of the shares of common stock held by them and offered hereby from time to
time directly or through one or more underwriters, broker-dealers or agents. If the shares of common stock are sold through underwriters
or broker-dealers, the selling security holders will be responsible for underwriting discounts or commissions or agent’s
commissions. The shares of common stock may be sold in one or more transactions at fixed prices, at prevailing market prices at
the time of the sale, at varying prices determined at the time of sale or at negotiated prices. These sales may be effected in
transactions, which may involve crosses or block transactions, pursuant to one or more of the following methods:
|
|
●
|
on
any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale;
|
|
|
|
|
|
|
●
|
in
the over-the-counter market;
|
|
|
|
|
|
|
●
|
in
transactions otherwise than on these exchanges or systems or in the over-the-counter market;
|
|
|
|
|
|
|
●
|
through
the writing or settlement of options, whether such options are listed on an options exchange or otherwise;
|
|
|
|
|
|
|
●
|
ordinary
brokerage transactions and transactions in which the broker-dealer solicits purchasers;
|
|
|
|
|
|
|
●
|
block
trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block
as principal to facilitate the transaction;
|
|
|
|
|
|
|
●
|
purchases
by a broker-dealer as principal and resale by the broker-dealer for its account;
|
|
|
|
|
|
|
●
|
an
exchange distribution in accordance with the rules of the applicable exchange;
|
|
|
|
|
|
|
●
|
privately
negotiated transactions;
|
|
|
|
|
|
|
●
|
short
sales made after the date the Registration Statement is declared effective by the SEC;
|
|
|
|
|
|
|
●
|
broker-dealers
may agree with the selling security holders to sell a specified number of such shares at a stipulated price per share;
|
|
|
|
|
|
|
●
|
a
combination of any such methods of sale; and
|
|
|
|
|
|
|
●
|
any
other method permitted pursuant to applicable law.
|
The
selling security holders may also sell the shares of common stock under Rule 144 promulgated under the Securities Act or any other
exemption under the Securities Act, if available, rather than under this prospectus. In addition, the selling security holders
may transfer the shares of common stock by other means not described in this prospectus. If the selling security holders effect
such transactions by selling shares of common stock to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers
or agents may receive commissions in the form of discounts, concessions or commissions from the selling security holders or commissions
from purchasers of the shares of common stock for whom they may act as agent or to whom they may sell as principal (which discounts,
concessions or commissions as to particular underwriters, broker-dealers or agents may be in excess of those customary in the
types of transactions involved). In connection with sales of the shares of common stock or otherwise, the selling security holders
may enter into hedging transactions with broker-dealers, which may in turn engage in short sales of the shares of common stock
in the course of hedging in positions they assume. The selling security holders may also sell the shares of common stock short
and deliver the shares of common stock covered by this prospectus to close out short positions and to return borrowed shares in
connection with such short sales. The selling security holders may also loan or pledge the shares of common stock to broker-dealers
that in turn may sell such shares.
The
selling security holders may pledge or grant a security interest in some or all of the shares of common stock owned by them and,
if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares
of common stock from time to time pursuant to this prospectus or any amendment to this prospectus under Rule 424(b)(3) or other
applicable provision of the Securities Act amending, if necessary, the list of selling security holders to include the pledgee,
transferee or other successors in interest as selling security holders under this prospectus. The selling security holders also
may transfer and donate the shares of common stock in other circumstances in which case the transferees, donees, pledgees or other
successors in interest will be the selling beneficial owners for purposes of this prospectus.
To
the extent required by the Securities Act and the rules and regulations thereunder, the selling security holders and any broker-dealer
participating in the distribution of the shares of common stock may be deemed to be “underwriters” within the meaning
of the Securities Act, and any commission paid, or any discounts or concessions allowed to, any such broker-dealer may be deemed
to be underwriting commissions or discounts under the Securities Act. At the time a particular offering of the shares of common
stock is made, a prospectus supplement, if required, will be distributed, which will set forth the aggregate amount of shares
of common stock being offered and the terms of the offering, including the name or names of any broker-dealers or agents, any
discounts, commissions and other terms constituting compensation from the selling security holders and any discounts, commissions
or concessions allowed or re-allowed or paid to broker-dealers.
Under
the securities laws of some states, the shares of common stock may be sold in such states only through registered or licensed
brokers or dealers. In addition, in some states the shares of common stock may not be sold unless such shares have been registered
or qualified for sale in such state or an exemption from registration or qualification is available and is complied with.
There
can be no assurance that any selling security holder will sell any or all of the shares of common stock registered pursuant to
the registration statement, of which this prospectus forms a part.
The
selling security holders and any other person participating in such distribution will be subject to applicable provisions of the
Securities Exchange Act of 1934, as amended, or the Exchange Act, and the rules and regulations thereunder, including, without
limitation, to the extent applicable, Regulation M of the Exchange Act, which may limit the timing of purchases and sales of any
of the shares of common stock by the selling security holders and any other participating person. To the extent applicable, Regulation
M may also restrict the ability of any person engaged in the distribution of the shares of common stock to engage in market-making
activities with respect to the shares of common stock. All of the foregoing may affect the marketability of the shares of common
stock and the ability of any person or entity to engage in market-making activities with respect to the shares of common stock.
Once
sold under the registration statement, of which this prospectus forms a part, the shares of common stock will be freely tradable
in the hands of persons other than our affiliates.
DISCLOSURE
OF COMMISSION POSITION ON INDEMNIFICATION
FOR SECURITIES ACT LIABILITIES
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the
SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.
LEGAL
MATTERS
The
validity of the shares of common stock offered under this prospectus will be passed upon by Troutman Pepper Hamilton Sanders LLP,
Irvine, California.
EXPERTS
The
financial statements of Verb Technology Company, Inc. as of and for the years ended December 31, 2019 and 2018 appearing in Verb
Technology Company, Inc.’s Annual Report on Form 10-K, as amended by Amendment No. 1 to Annual Report on Form 10-K/A, have
been audited by Weinberg & Company, P.A., an independent registered public accounting firm, as stated in their report thereon,
included therein, and are incorporated by reference in reliance upon such report and upon the authority of such firm as experts
in accounting and auditing.
WHERE
YOU CAN FIND ADDITIONAL INFORMATION
We
have filed with the SEC a registration statement on Form S-3 under the Securities Act, and the rules and regulations promulgated
under the Securities Act, with respect to the shares of common stock offered under this prospectus. This prospectus, which constitutes
a part of the registration statement, does not contain all of the information contained in the registration statement and the
exhibits and schedules to the registration statement. Many of the contracts and documents described in this prospectus are filed
as exhibits to the registration statements and you may review the full text of these contracts and documents by referring to these
exhibits.
For
further information with respect to us and the shares of common stock offered under this prospectus, reference is made to the
registration statement and its exhibits and schedules. We file reports, including annual reports on Form 10-K, quarterly reports
on Form 10-Q and current reports on Form 8-K with the SEC.
The
SEC maintains an Internet web site that contains reports, prospectus and information statements and other information regarding
issuers, including Verb Technology Company, Inc., that file electronically with the SEC. The SEC’s Internet website address
is http://www.sec.gov. Our Internet website address is https://www.verb.tech/.
We
do not anticipate that we will send an annual report to our stockholders until and unless we are required to do so by the rules
of the SEC.
All
trademarks or trade names referred to in this prospectus are the property of their respective owners.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
SEC allows us to “incorporate by reference” into this prospectus much of the information we file with the SEC, which
means that we can disclose important information to you by referring you to those publicly available documents. The information
that we incorporate by reference into this prospectus is considered to be part of this prospectus. These documents may include
Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as well as proxy statements. You
should read the information incorporated by reference because it is an important part of this prospectus.
This
prospectus incorporates by reference the documents listed below, other than those documents or the portions of those documents
deemed to be furnished and not filed in accordance with SEC rules:
|
|
●
|
our
Annual Report on Form 10-K for the fiscal year ended December 31, 2019, filed with the SEC on May 14, 2020;
|
|
|
|
|
|
|
●
|
our
Amendment No. 1 to our Annual Report on Form 10-K/A for the fiscal year ended December 31, 2019, filed with the SEC on June
4, 2020;
|
|
|
|
|
|
|
●
|
our
Quarterly Report on Form 10-Q for the quarter ended March 31, 2020, filed with the SEC on May 15, 2020;
|
|
|
|
|
|
|
●
|
our
Amendment No. 1 to our Quarterly Report on Form 10-Q/A for the quarter ended March 31, 2020, filed with the SEC on June 4,
2020;
|
|
|
|
|
|
|
●
|
our
Current Reports on Form 8-K filed with the SEC on February 25, 2020, March 23, 2020, March 27, 2020, May 4, 2020, May 14,
2020, July 24, 2020, July 30, 2020 and July 31, 2020; and
|
|
|
|
|
|
|
●
|
the
description of our securities contained in Exhibit 4.17 of our Annual Report on Form 10-K for the fiscal year ended December
31, 2019, filed with the SEC on May 14, 2020, including any amendment or report filed for the purpose of updating such description.
|
We
also incorporate by reference any future filings (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K
and exhibits filed on such form that are related to such items unless such Form 8-K expressly provides to the contrary) made with
the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, including those made after the date of the initial
filing of the registration statement of which this prospectus forms a part and prior to effectiveness of such registration statement,
until we file a post-effective amendment that indicates the termination of the offering of the shares of common stock made by
this prospectus and such future filings will become a part of this prospectus from the respective dates that such documents are
filed with the SEC. Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes hereof or of the related prospectus supplement to the extent that a
statement contained herein or in any other subsequently filed document which is also incorporated or deemed to be incorporated
herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this prospectus.
You
may obtain copies of the documents incorporated by reference in this prospectus from us free of charge by requesting them in writing
or by telephone at the following address:
Verb
Technology Company, Inc.
2210
Newport Boulevard, Suite 200
Newport
Beach, California 92663
Attn:
Investor Relations
Telephone:
(855) 250-2300
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following table sets forth all expenses to be paid by us in connection with this offering. All amounts shown are estimates except
for the SEC registration fee.
|
SEC Registration Fee
|
|
$
|
532.95
|
|
|
Accounting Fees and Expenses
|
|
|
*
|
|
|
Legal Fees and Expenses
|
|
|
*
|
|
|
Printing Costs
|
|
|
—
|
|
|
Miscellaneous
|
|
|
*
|
|
|
Total
|
|
$
|
*
|
|
|
*To
be filed by amendment
|
|
|
|
|
Item
15. Indemnification of Directors and Officers.
We
are a Nevada corporation governed by the NRS.
Section
78.138 of the NRS provides that, unless the corporation’s articles of incorporation provide otherwise, a director or officer
will not be individually liable unless it is proven that (i) the director’s or officer’s acts or omissions constituted
a breach of his or her fiduciary duties, and (ii) such breach involved intentional misconduct, fraud, or a knowing violation of
the law.
Section
78.7502 of the NRS permits a company to indemnify its directors and officers against expenses, judgments, fines, and amounts paid
in settlement actually and reasonably incurred in connection with a threatened, pending, or completed action, suit, or proceeding,
if the officer or director (i) is not liable pursuant to Section 78.138 of the NRS, or (ii) acted in good faith and in a manner
the officer or director reasonably believed to be in or not opposed to the best interests of the corporation and, if a criminal
action or proceeding, had no reasonable cause to believe the conduct of the officer or director was unlawful. Section 78.7502
of the NRS also precludes indemnification by the corporation if the officer or director has been adjudged by a court of competent
jurisdiction, after exhaustion of all appeals, to be liable to the corporation or for amounts paid in settlement to the corporation,
unless and only to the extent that the court determines that in view of all the circumstances, the person is fairly and reasonably
entitled to indemnity for such expenses and requires a corporation to indemnify its officers and directors if they have been successful
on the merits or otherwise in defense of any claim, issue, or matter resulting from their service as a director or officer.
Section
78.751 of the NRS permits a Nevada corporation to indemnify its officers and directors against expenses incurred by them in defending
a civil or criminal action, suit, or proceeding as they are incurred and in advance of a final disposition thereof, upon determination
by the stockholders, the disinterested board members, or by independent legal counsel. Section 78.751 of the NRS provides that
the articles of incorporation, the bylaws, or an agreement may require a corporation to advance expenses as incurred upon receipt
of an undertaking by or on behalf of the officer or director to repay the amount if it is ultimately determined by a court of
competent jurisdiction that such officer or director is not entitled to be indemnified by the corporation if so provided in the
corporation’s articles of incorporation, bylaws, or other agreement. Section 78.751 of the NRS further permits the corporation
to grant its directors and officers additional rights of indemnification under its articles of incorporation, bylaws, or other
agreement.
Section
78.752 of the NRS provides that a Nevada corporation may purchase and maintain insurance or make other financial arrangements
on behalf of any person who is or was a director, officer, employee, or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee, or agent of another company, partnership, joint venture, trust, or
other enterprise, for any liability asserted against him and liability and expenses incurred by him in his capacity as a director,
officer, employee, or agent, or arising out of his status as such, whether or not the corporation has the authority to indemnify
him against such liability and expenses. We have obtained insurance policies insuring our directors and officers against certain
liabilities they may incur in their capacity as directors and officers. Under such policies, the insurer, on our behalf, may also
pay amounts for which we have granted indemnification to the directors or officers.
The
foregoing discussion of indemnification merely summarizes certain aspects of indemnification provisions and is limited by reference
to the above discussed sections of the NRS.
Our
articles of incorporation provide that, except in some specified instances, our directors and officers shall not be personally
liable to us or our stockholders for monetary damages for breach of their fiduciary duty as directors and officers, except liability
for the following:
|
|
●
|
acts or omissions which involve intentional
misconduct, fraud or knowing violation of law; or
|
|
|
●
|
the payment of distributions in violation of
NRS 78.300, as amended.
|
In
addition, our articles of incorporation and bylaws provide that we must indemnify our directors and officers and may indemnify
our employees and other agents to the fullest extent permitted by the NRS. Our bylaws also authorize us to purchase and maintain
insurance on behalf of any of our directors or officers against any liability asserted against that person in that capacity, whether
or not we would have the power to indemnify that person against such liability and expenses. We have entered and expect to continue
to enter into agreements to indemnify our directors and executive officers as determined by our board of directors. In general,
the indemnification agreements provide that we will, to the fullest extent permitted by Nevada law and subject to certain limitations,
indemnify the indemnitee against certain expenses (including attorneys’ fees), judgments, fines, penalties, and settlement
amounts that may be incurred in connection with the defense or settlement of any claim, criminal, civil, or administrative action
or proceeding to which the indemnitee becomes subject in connection with his or her services as an executive officer, director,
or both. We believe that these bylaw provisions and indemnification agreements are necessary to attract and retain qualified persons
as directors and executive officers.
The
limitation of liability and indemnification provisions in our articles of incorporation and bylaws may discourage stockholders
from bringing a lawsuit against our directors for breach of their fiduciary duty. They may also reduce the likelihood of derivative
litigation against our directors and officers, even though an action, if successful, might benefit us and other stockholders.
Furthermore, a stockholder’s investment may be adversely affected to the extent that we pay the costs of settlement and
damage awards against directors and officers as required by these indemnification provisions.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers and controlling
persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by us of expenses incurred or paid by our director, officer, or controlling person
in the successful defense of any action, suit, or proceeding) is asserted by such director, officer, or controlling person in
connection with the securities being registered, we will, unless in the opinion of our counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
Reference
is made to the following documents filed as exhibits to this registration statement regarding relevant indemnification provisions
described above and elsewhere in this registration statement.
|
Document
|
|
Exhibit
Number
|
|
Articles of Incorporation
|
|
3.1
|
|
Amended and Restated
Bylaws
|
|
3.2
|
|
Form of Indemnity
Agreement between Verb Technology Company, Inc. and each of its Executive Officers and Directors
|
|
10.43
|
Item
16. Exhibits.
(a) Exhibits.
The
exhibits listed below are filed as part of or incorporated by reference into this registration statement on Form S-3. Where certain
exhibits are incorporated by reference from a previous filing, the exhibit numbers and previous filings are identified.
INDEX
TO EXHIBITS
|
|
|
|
|
Where
Located
|
|
Exhibit
Number
|
|
Description*
|
|
Form
|
|
File
Number
|
|
Exhibit
Number
|
|
Filing
Date
|
|
Filed
Herewith
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1.1
|
|
Underwriting Agreement dated as of July 21, 2020 by and between Verb Technology Company, Inc. and Ladenburg Thalmann & CO., Inc.
|
|
8-K
|
|
001-38834
|
|
1.1
|
|
07/24/2020
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3.1
|
|
Articles
of Incorporation as filed with the Secretary of State of the State of Nevada on November 27, 2012
|
|
S-1
|
|
333-187782
|
|
3.1
|
|
04/08/2013
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3.2
|
|
Amended
and Restated Bylaws of Verb Technology Company, Inc.
|
|
8-K
|
|
001-38834
|
|
3.12
|
|
11/01/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3.3
|
|
Certificate
of Change as filed with the Secretary of State of the State of Nevada on October 6, 2014
|
|
8-K
|
|
001-38834
|
|
3.3
|
|
10/22/2014
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3.4
|
|
Articles
of Merger as filed with the Secretary of State of the State of Nevada on October 6, 2014
|
|
8-K
|
|
001-38834
|
|
3.4
|
|
10/22/2014
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3.5
|
|
Articles
of Merger as filed with the Secretary of State of the State of Nevada on April 4, 2017
|
|
8-K
|
|
001-38834
|
|
3.5
|
|
04/24/2017
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3.6
|
|
Certificate
of Correction as filed with the Secretary of State of the State of Nevada on April 17, 2017
|
|
8-K
|
|
001-38834
|
|
3.6
|
|
04/24/2017
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3.7
|
|
Certificate
of Change as filed with the Secretary of State of the State of Nevada on February 1, 2019
|
|
10-K
|
|
001-38834
|
|
3.7
|
|
02/07/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3.8
|
|
Articles
of Merger as filed with the Secretary of State of the State of Nevada on January 31, 2019
|
|
10-K
|
|
001-38834
|
|
3.8
|
|
02/07/2019
|
|
|
|
3.9
|
|
Certificate
of Correction as filed with the Secretary of State of the State of Nevada on February 22, 2019
|
|
S-1/A
|
|
333-226840
|
|
3.9
|
|
03/14/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3.10
|
|
Articles
of Merger of Sound Concepts, Inc. with and into NF Merger Sub, Inc. as filed with the Utah Division of Corporations and Commercial
Code on April 12, 2019
|
|
10-Q
|
|
001-38834
|
|
3.10
|
|
05/15/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3.11
|
|
Statement
of Merger of Verb Direct, Inc. with and into NF Acquisition Company, LLC as filed with the Utah Division of Corporations and
Commercial Code on April 12, 2019
|
|
10-Q
|
|
001-38834
|
|
3.11
|
|
05/15/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3.12
|
|
Certificate
of Withdrawal of Certificate of Designation of Series A Convertible Preferred Stock as filed with the Secretary of State of
the State of Nevada on August 10, 2018
|
|
S-1
|
|
333-226840
|
|
4.28
|
|
08/14/2018
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3.13
|
|
Certificate
of Designation of Rights, Preferences, and Restrictions of Series A Convertible Preferred Stock as filed with the Secretary
of State of the State of Nevada on August 12, 2019
|
|
10-Q
|
|
001-38334
|
|
3.12
|
|
08/14/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.1
|
|
Common
Stock Purchase Warrant (First Warrant) dated September 15, 2017, issued to Kodiak Capital Group, LLC
|
|
8-K
|
|
001-38834
|
|
4.1
|
|
10/02/2017
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.2
|
|
Common
Stock Purchase Warrant (Second Warrant) dated September 15, 2017, issued to Kodiak Capital Group, LLC
|
|
8-K
|
|
001-38834
|
|
4.2
|
|
10/02/2017
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.3
|
|
Common
Stock Purchase Warrant (Third Warrant) dated September 15, 2017, issued to Kodiak Capital Group, LLC
|
|
8-K
|
|
001-38834
|
|
4.3
|
|
10/02/2017
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.4
|
|
Common
Stock Purchase Warrant dated December 5, 2017 issued to EMA Financial, LLC
|
|
8-K
|
|
001-38834
|
|
10.3
|
|
12/14/2017
|
|
|
|
4.19
|
|
Common Stock Purchase Warrant in favor of Iroquois Master Fund Ltd.
|
|
|
|
|
|
|
|
|
|
X
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.20
|
|
Common Stock Purchase Warrant in favor of Kingsbrook Opportunities Master Fund LP
|
|
|
|
|
|
|
|
|
|
X
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.21
|
|
Common Stock Purchase Warrant in favor of Meridian Newcastle Group, Inc.
|
|
|
|
|
|
|
|
|
|
X
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.22
|
|
Common Stock Purchase Warrant in favor of Meridian Newcastle Group, Inc.
|
|
|
|
|
|
|
|
|
|
X
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5.1
|
|
Opinion
of Troutman Pepper Hamilton Sanders LLP
|
|
|
|
|
|
|
|
|
|
X
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.1
|
|
2014
Stock Option Plan#
|
|
8-K
|
|
001-38834
|
|
10.1
|
|
10/22/2014
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.2
|
|
Executive
Employment Agreement dated December 20, 2019 by and between the Company and Rory J. Cutaia#
|
|
10-K
|
|
001-38834
|
|
10.2
|
|
05/14/2020
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.3
|
|
Settlement
and Release Agreement dated February 6, 2015, by and among Songstagram, Inc., Jeff Franklin, and the Company
|
|
8-K
|
|
001-38834
|
|
10.1
|
|
03/09/2015
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.4
|
|
Form
of Option Agreement for Messrs. Geiskopf and Cutaia#
|
|
8-K
|
|
001-38834
|
|
10.2
|
|
05/19/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.5
|
|
Form
of Stock Option Agreement between Jeffrey R. Clayborne and the Company#
|
|
8-K
|
|
001-38834
|
|
10.2
|
|
05/19/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.6
|
|
Securities
Purchase Agreement dated February 13, 2017, by and between the Company and certain purchasers named therein
|
|
8-K
|
|
001-38834
|
|
10.1
|
|
02/21/2017
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.7
|
|
Equity
Purchase Agreement, as corrected, dated September 15, 2017, by and between the Company and Kodiak Capital Group, LLC
|
|
8-K/A
|
|
001-38834
|
|
10.1
|
|
10/27/2017
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.8
|
|
Registration
Rights Agreement dated September 15, 2017, by and between the Company and Kodiak Capital Group, LLC
|
|
8-K
|
|
001-38834
|
|
10.2
|
|
10/02/2017
|
|
|
|
10.9
|
|
Securities
Purchase Agreement dated December 5, 2017, by and between the Company and EMA Financial, LLC
|
|
8-K
|
|
001-38834
|
|
10.1
|
|
12/14/2017
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.10
|
|
Securities
Purchase Agreement, dated December 5, 2017, by and between the Company and Auctus Fund, LLC
|
|
8-K
|
|
001-38834
|
|
10.4
|
|
12/14/2017
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.11
|
|
Securities
Purchase Agreement dated December 13, 2017, by and between the Company and PowerUp Lending Group, LTD
|
|
8-K
|
|
001-38834
|
|
10.7
|
|
12/14/2017
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.12
|
|
Securities
Purchase Agreement dated January 11, 2018, by and between the Company and EMA Financial, LLC
|
|
8-K
|
|
001-38834
|
|
10.1
|
|
01/26/2018
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.13
|
|
Securities
Purchase Agreement, dated January 10, 2018, by and between the Company and Auctus Fund, LLC
|
|
8-K
|
|
001-38834
|
|
10.4
|
|
01/26/2018
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.14
|
|
SuiteCloud
Developer Network Agreement, dated January 2, 2018, by and between the Company and Oracle
|
|
8-K
|
|
001-38834
|
|
10.1
|
|
04/23/2018
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.15
|
|
Lease
Agreement, dated June 22, 2017, by and between La Park La Brea B LLC and the Company
|
|
S-1
|
|
333-226840
|
|
10.33
|
|
08/14/2018
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.16
|
|
Renewal
Amendment of Lease Agreement, dated May 1, 2018, by and between La Park La Brea B LLC and the Company
|
|
S-1
|
|
333-226840
|
|
10.34
|
|
08/14/2018
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.17
|
|
Adobe
Marketo LaunchPoint Accelerate Program Agreement, dated April 1, 2018, by and between the Company and Adobe Marketo
|
|
S-1
|
|
333-226840
|
|
10.35
|
|
08/14/2018
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.18
|
|
Securities
Purchase Agreement dated October 19, 2018
|
|
8-K
|
|
001-38834
|
|
10.36
|
|
10/25/2018
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.19
|
|
Agreement
and Plan of Merger, dated November 8, 2018, by and among the Company, Sound Concepts, Inc., NF Merger Sub, Inc., NF Acquisition
Company, LLC, the shareholders of Sound Concepts, Inc., and the shareholders’ representative
|
|
8-K
|
|
001-38834
|
|
10.1
|
|
11/14/2018
|
|
|
|
10.20
|
|
Letter
Agreement dated November 8, 2018, by and among the Company, Sound Concepts, Inc., NF Merger Sub, Inc., NF Acquisition Company,
LLC, the shareholders of Sound Concepts, Inc., and the shareholders’ representative
|
|
8-K
|
|
001-38834
|
|
10.2
|
|
11/14/2018
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.21
|
|
Letter
Agreement dated November 12, 2018, by and among the Company, Sound Concepts, Inc., NF Merger Sub, Inc., NF Acquisition Company,
LLC, the shareholders of Sound Concepts, Inc., and the shareholders’ representative
|
|
8-K
|
|
001-38834
|
|
10.3
|
|
11/14/2018
|
|
|
|
10.22
|
|
Securities
Purchase Agreement dated February 1, 2019 by and between the Company and Bellridge
|
|
10-K
|
|
001-38834
|
|
10.40
|
|
02/07/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.23
|
|
Lock-Up
Agreement dated October 30, 2018, by and between the Company and Ira Gaines.
|
|
10-K
|
|
001-38834
|
|
10.41
|
|
02/07/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.24
|
|
Lock-Up
Agreement dated October 30, 2018, by and between the Company and Gina Trippiedi
|
|
10-K
|
|
001-38834
|
|
10.42
|
|
02/07/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.25
|
|
Partner
Application Distribution Agreement dated February 4, 2019, by and between the Company and Salesforce.com, Inc.
|
|
10-K
|
|
001-38834
|
|
10.43
|
|
02/07/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.26
|
|
Service
Agreement dated December 21, 2018, by and between the Company and Major Tom Agency Inc.
|
|
10-K
|
|
001-38834
|
|
10.44
|
|
02/07/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.27
|
|
Lease
Agreement dated February 5, 2019 by and between the Company and NPBeach Marina LLC
|
|
S-1/A
|
|
333-226840
|
|
10.45
|
|
02/19/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.28
|
|
Warrant
Agent Agreement dated April 4, 2019 by and between the Company and VStock Transfer, LLC
|
|
8-K
|
|
001-38834
|
|
10.1
|
|
04/05/2019
|
|
|
|
10.32
|
|
Short-Term
Demand Promissory Note of the company in favor of Amin Somani dated March 29, 2019
|
|
10-Q
|
|
001-38834
|
|
10.50
|
|
08/14/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.33
|
|
Amendment
to Short-Term Promissory Note of the Company in favor of Amin Somani dated July 10, 2019
|
|
10-Q
|
|
001-38834
|
|
10.51
|
|
08/14/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.34
|
|
Amendment
to Short-Term Demand Promissory Note of the Company in favor of Amin Somani dated July 10, 2019
|
|
10-Q
|
|
001-38834
|
|
10.52
|
|
08/14/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.35
|
|
Amendment
to Short-Term Demand Promissory Note of the Company in favor of Adam Wolfson dated July 29, 2019
|
|
10-Q
|
|
001-38834
|
|
10.53
|
|
08/14/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.36
|
|
First
Amendment to Lease dated June 2, 2019 by and between the Company and NPBeach Marina LLC
|
|
10-Q
|
|
001-38834
|
|
10.54
|
|
08/14/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.37
|
|
Extension
Letter from the Company to NPBeach Marina LLC dated March 26, 2019
|
|
10-Q
|
|
001-38834
|
|
10.55
|
|
08/14/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.38
|
|
Securities
Purchase Agreement dated August 14, 2019 between the Company and certain purchasers identified therein
|
|
10-Q
|
|
001-38834
|
|
10.56
|
|
08/14/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.39
|
|
Form
of Omnibus Waiver and Acknowledgment Agreement, entered into as of February 7, 2020, by and between the Company and certain
purchasers of the Company’s Series A convertible Preferred Stock and grantees of the Company’s common stock purchase
warrants in August 2019
|
|
8-K
|
|
001-38834
|
|
10.58
|
|
02/25/2020
|
|
|
|
|
(#)
|
A contract, compensatory
plan or arrangement to which a director or executive officer is a party or in which one or more directors or executive officers
are eligible to participate.
|
|
(*)
|
Certain of the agreements
filed as exhibits contain representations and warranties made by the parties thereto. The assertions embodied in such representations
and warranties are not necessarily assertions of fact, but a mechanism for the parties to allocate risk. Accordingly, investors
should not rely on the representations and warranties as characterizations of the actual state of facts or for any other purpose
at the time they were made or otherwise.
|
(b)
Financial Statement Schedules.
No
financial statement schedules are provided because the information called for is not required or is shown either in the financial
statements or notes.
Item
17. Undertakings.
The
undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration
statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the
information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set forth in the “Calculation of Registration fee” table
in the effective registration statement; and
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold
at the termination of the offering.
(4)
The undersigned Registrant hereby undertakes that for the purpose of determining liability under the Securities Act to any
purchaser, if the Registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration
statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed
in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first
used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is
part of the registration statement or made in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of
contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in any such document immediately prior to such date of first
use.
(5)
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised
that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by the final adjudication of such
issue.
(6)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of
1933, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to
section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(7)
The undersigned hereby further undertakes that:
(i) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus
filed by the registrant pursuant to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall be deemed to be part of
this registration statement as of the time it was declared effective.
(ii)
For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form
of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona fide offering thereof.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Newport Beach, State of California, on this 10th day of August,
2020.
|
|
Verb
Technology Company, Inc.,
|
|
|
a
Nevada corporation
|
|
|
|
|
|
|
By:
|
/s/
RORY J. CUTAIA
|
|
|
|
Rory
J. Cutaia
|
|
|
|
President,
Chief Executive Officer, Secretary and Director
|
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Rory J. Cutaia his attorney-in-fact
and agent, with the power of substitution and resubstitution, for him and in his name, place or stead, in any and all capacities,
to sign any amendment to this registration statement on Form S-3, and to file such amendments, together with exhibits and other
documents in connection therewith, with the SEC, granting to such attorney-in-fact and agent, full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and about the premises, as fully as he might or could
do in person, and ratifying and confirming all that the attorney-in-fact and agent, or his substitute or substitutes, may do or
cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
/s/
RORY J. CUTAIA
|
|
President,
Chief Executive Officer
|
|
August
10, 2020
|
|
Rory
J. Cutaia
|
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(principal
executive officer), Secretary
and
Director
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/s/
JAMES P. GEISKOPF
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Lead
Director
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August
10, 2020
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James
P. Geiskopf
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/s/
JEFFREY CLAYBORNE
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Chief
Financial Officer
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August
10, 2020
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Jeffrey
Clayborne
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(principal
financial and accounting officer) and
Treasurer
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/s/
PHILIP J. BOND
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Director
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August
10, 2020
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Philip
J. Bond
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/s/
KENNETH S. CRAGUN
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Director
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August
10, 2020
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Kenneth
S. Cragun
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/s/
NANCY HEINEN
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Director
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August
10, 2020
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Nancy
Heinen
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/s/
JUDITH HAMMERSCHMIDT
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Director
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August
10, 2020
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Judith
Hammerschmidt
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Exhibit
4.18
NEITHER
THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND
THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN
SECURED BY SUCH SECURITIES.
COMMON
STOCK PURCHASE WARRANT
Verb
technology company, Inc.
|
Warrant
Shares: 935,297
|
Issue
Date: August 5, 2020
|
THIS
COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received, Iroquois Capital Investment
Group LLC or its assigns (the “Holder”), is entitled, upon the terms and subject to the limitations on exercise
and the conditions hereinafter set forth, at any time on or after the Issue Date and on or prior to 5:00 p.m. (New York City time)
on the tenth (10th) Trading Day after the Effectiveness Date (the “Termination Date”) but not thereafter,
to subscribe for and purchase from Verb Technology Company, Inc., a Nevada corporation (the “Company”), up
to 935,297 shares (as subject to adjustment hereunder, the “Warrant Shares”) of Common Stock. The purchase
price of one share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
Section
1. Definitions. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that
certain Securities Purchase Agreement, dated August 14, 2019, entered into by the Holder and the Company (the “Purchase
Agreement”), or in that certain Settlement and Release Agreement, dated August 5, 2020, entered into by the Holder and
the Company (the “Warrant Agreement”).
Section
2. Exercise.
a)
Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any
time or times on or after the Issue Date and on or before the Termination Date by delivery to the Company of a duly executed
facsimile copy or PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto
(the “Notice of Exercise”). Within the two (2) Trading Days following the date of exercise as aforesaid,
the Holder shall deliver the aggregate Exercise Price for the shares specified in the applicable Notice of Exercise by wire
transfer or cashier’s check drawn on a United States bank. No ink-original Notice of Exercise shall be required, nor
shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required.
Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the
Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in
full, in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of
the date on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in
purchases of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the
outstanding number of Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares
purchased. The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the date of
such purchases. The Company shall deliver any objection to any Notice of Exercise within one (1) Business Day of receipt of
such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the
provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number of Warrant
Shares available for purchase hereunder at any given time may be less than the amount stated on the face
hereof.
b) Exercise
Price. The exercise price per share of Common Stock under this Warrant shall be $1.10, subject to adjustment hereunder
(the “Exercise Price”).
Section
3. Certain Adjustments.
a) Stock
Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise
makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable
in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon
exercise of this Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including
by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification
of shares of the Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied
by a fraction, of which the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding
immediately before such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately
after such event, and the number of shares issuable upon exercise of this Warrant shall be proportionately adjusted such that
the aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment made pursuant to this Section 3(a)
shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend
or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.
b) Notice
to Holder.
i. Adjustment
to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company
shall promptly deliver to the Holder by facsimile or e-mail a notice setting forth the Exercise Price after such adjustment and
any resulting adjustment to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii. Notice
to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the
Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the
Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares
of capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection
with any reclassification of the Common Stock, any consolidation or merger to which the Company is a party, any sale or transfer
of all or substantially all of the assets of the Company, or any compulsory share exchange whereby the Common Stock is converted
into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation
or winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by facsimile or e-mail
to the Holder at its last facsimile number or e-mail address as it shall appear upon the Warrant Register of the Company, at least
20 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which
a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not
to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption,
rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer
or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common
Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable
upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such
notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified
in such notice. To the extent that any notice provided in this Warrant constitutes, or contains, material, non-public information
regarding the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant
to a Current Report on Form 8-K. The Holder shall remain entitled to exercise this Warrant during the period commencing on the
date of such notice to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
c) Voluntary
Adjustment By Company. Subject to the rules and regulations of the Trading Market, the Company may at any time during the
term of this Warrant, subject to the prior written consent of the Holder, reduce the then current Exercise Price to any amount
and for any period of time deemed appropriate by the board of directors of the Company.
Section
4. Transfer of Warrant.
a) Transferability.
Subject to compliance with any applicable securities laws and the conditions set forth in Section 4(d) and to the provisions
of Section 4.1 of the Purchase Agreement (which are hereby extended to effect this Warrant), this Warrant and all rights hereunder
(including, without limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant
at the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially
in the form attached hereto, duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes
payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver
a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified
in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so
assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not
be required to surrender this Warrant to the Company physically unless the Holder has assigned this Warrant in full, in which
case, the Holder shall surrender this Warrant to the Company within two (2) Trading Days of the date on which the Holder delivers
an assignment form to the Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may
be exercised by a new holder for the purchase of Warrant Shares without having a new Warrant issued.
b) New
Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of
the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed
by the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer that may be involved
in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or
Warrants to be divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated
the original Issue Date and shall be identical to this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c) Warrant
Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant
Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered
Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder,
and for all other purposes, absent actual notice to the contrary.
d) Transfer
Restrictions. If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant, the transfer
of this Warrant shall not be either (i) registered pursuant to an effective registration statement under the Securities Act and
under applicable state securities or blue sky laws or (ii) eligible for resale without volume or manner-of-sale restrictions or
current public information requirements pursuant to Rule 144, the Company may require, as a condition of allowing such transfer,
that the Holder or transferee of this Warrant, as the case may be, comply with the provisions of Section 5.7 of the Purchase Agreement
(which are hereby extended to effect this Warrant).
e) Representation
by the Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant and, upon any
exercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to or for
distributing or reselling such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securities
law, except pursuant to sales registered or exempted under the Securities Act.
Section
5. Miscellaneous.
a) No
Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights,
dividends, or other rights as a stockholder of the Company prior to the exercise hereof, except as expressly set forth in Section
3. In no event shall the Company be required to net cash settle an exercise of this Warrant.
b) Loss,
Theft, Destruction, or Mutilation of Warrant. The Company covenants that, upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction, or mutilation of this Warrant or any stock certificate relating to the Warrant
Shares, and in case of loss, theft, or destruction, of indemnity or security reasonably satisfactory to it (which, in the case
of the Warrant, shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate,
if mutilated, the Company will make and deliver a new warrant or stock certificate of like tenor and dated as of such cancellation,
in lieu of such Warrant or stock certificate.
c) Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required
or granted herein shall not be a Business Day, then, such action may be taken or such right may be exercised on the next succeeding
Business Day.
d) Authorized
Shares.
The
Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common
Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights
under this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers
who are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant.
The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided
herein without violation of any applicable law or regulation, or of any requirements of the Trading Market upon which the Common
Stock may be listed. The Company covenants that all Warrant Shares that may be issued upon the exercise of the purchase rights
represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant
Shares in accordance herewith, be duly authorized, validly issued, fully paid, and nonassessable and free from all taxes, liens,
and charges created by the Company in respect of the issuance thereof (other than taxes in respect of any transfer occurring contemporaneously
with such issuance).
Except
and to the extent waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending
its Articles of Incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issuance
or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms
of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such
actions as may be reasonably necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment.
Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any Warrant Shares above
the amount payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action as may
be reasonably necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant
Shares upon the exercise of this Warrant, and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions,
or consents from any public regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform
its obligations under this Warrant.
Before
taking any action that would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or
in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be
necessary from any public regulatory body or bodies having jurisdiction thereof.
e) Jurisdiction.
All questions concerning the construction, validity, enforcement, and interpretation of this Warrant shall be determined in accordance
with the provisions of the Purchase Agreement.
f) Restrictions.
The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, will have restrictions
upon resale imposed by state and federal securities laws.
g) Nonwaiver
and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate
as a waiver of such right or otherwise prejudice the Holder’s rights, powers, or remedies. Without limiting any other provision
of this Warrant or the Warrant Agreement, if the Company willfully, knowingly, and wrongfully fails to comply with any provision
of this Warrant, which results in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall
be sufficient to cover any costs and expenses, including, but not limited to, reasonable attorneys’ fees, including those
of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of
its rights, powers or remedies hereunder.
h) Notices.
Any notice, request or other document required or permitted to be given or delivered to the Holder by the Company shall be delivered
in accordance with the notice provisions of the Warrant Agreement.
i) Limitation
of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase
Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder
for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company
or by creditors of the Company.
j) Remedies.
The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled
to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation
for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert
the defense in any action for specific performance that a remedy at law would be adequate.
k) Successors
and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure
to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns
of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and
shall be enforceable by the Holder or holder of Warrant Shares.
l) Amendment.
This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company and the Holder.
m) Severability.
Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective
to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions
of this Warrant.
n) Headings.
The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of
this Warrant.
********************
(Signature
Page Follows)
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first
above indicated.
|
|
verb
technology company, inc.
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|
|
|
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By:
|
/s/
Rory J. Cutaia
|
|
|
|
RORY
J. CUTAIA
|
|
|
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Chief
Executive Officer
|
NOTICE
OF EXERCISE
|
To:
|
Verb
technology company, inc.
|
(1) The
undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only
if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes,
if any.
(2) Payment
shall take the form of lawful money of the United States; or
(3) Please
issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
|
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______________________________________
|
|
The
Warrant Shares shall be delivered to the following DWAC Account Number:
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______________________________________
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______________________________________
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______________________________________
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(4) Accredited
Investor. 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:
__________________________________________________________________________________
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to:
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Name:
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(Please Print)
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Address:
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(Please Print)
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Phone Number:
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E-mail Address:
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Dated: _______________
__, ______
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Holder’s Signature:
______________________
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Holder’s
Address: _______________________
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|
Exhibit
4.19
NEITHER
THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND
THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN
SECURED BY SUCH SECURITIES.
COMMON
STOCK PURCHASE WARRANT
Verb
technology company, Inc.
|
Warrant
Shares: 935,297
|
Issue
Date: August 5, 2020
|
THIS
COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received, Iroquois Master Fund Ltd.
or its assigns (the “Holder”), is entitled, upon the terms and subject to the limitations on exercise and the
conditions hereinafter set forth, at any time on or after the Issue Date and on or prior to 5:00 p.m. (New York City time) on
the tenth (10th) Trading Day after the Effectiveness Date (the “Termination Date”) but not thereafter,
to subscribe for and purchase from Verb Technology Company, Inc., a Nevada corporation (the “Company”), up
to 935,297 shares (as subject to adjustment hereunder, the “Warrant Shares”) of Common Stock. The purchase
price of one share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
Section
1. Definitions. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain
Securities Purchase Agreement, dated August 14, 2019, entered into by the Holder and the Company (the “Purchase Agreement”),
or in that certain Settlement and Release Agreement, dated August 5, 2020, entered into by the Holder and the Company (the “Warrant
Agreement”).
Section
2. Exercise.
a)
Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any
time or times on or after the Issue Date and on or before the Termination Date by delivery to the Company of a duly executed facsimile
copy or PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice
of Exercise”). Within the two (2) Trading Days following the date of exercise as aforesaid, the Holder shall deliver
the aggregate Exercise Price for the shares specified in the applicable Notice of Exercise by wire transfer or cashier’s
check drawn on a United States bank. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or
other type of guarantee or notarization) of any Notice of Exercise be required. Notwithstanding anything herein to the contrary,
the Holder shall not be required to physically surrender this Warrant to the Company until the Holder has purchased all of the
Warrant Shares available hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender this
Warrant to the Company for cancellation within three (3) Trading Days of the date on which the final Notice of Exercise is delivered
to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares available
hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal
to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number of
Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise within
one (1) Business Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge and
agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder,
the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face
hereof.
b)
Exercise Price. The exercise price per share of Common Stock under this Warrant shall be $1.10, subject to adjustment
hereunder (the “Exercise Price”).
Section
3. Certain Adjustments.
a)
Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or
otherwise makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities
payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company
upon exercise of this Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines
(including by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by
reclassification of shares of the Common Stock any shares of capital stock of the Company, then in each case the Exercise Price
shall be multiplied by a fraction, of which the numerator shall be the number of shares of Common Stock (excluding treasury shares,
if any) outstanding immediately before such event and of which the denominator shall be the number of shares of Common Stock outstanding
immediately after such event, and the number of shares issuable upon exercise of this Warrant shall be proportionately adjusted
such that the aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment made pursuant to this Section
3(a) shall become effective immediately after the record date for the determination of stockholders entitled to receive such
dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination
or re-classification.
b)
Notice to Holder.
i.
Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3,
the Company shall promptly deliver to the Holder by facsimile or e-mail a notice setting forth the Exercise Price after such adjustment
and any resulting adjustment to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii.
Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever
form) on the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common
Stock, (C) the Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or
purchase any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall
be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Company is a
party, any sale or transfer of all or substantially all of the assets of the Company, or any compulsory share exchange whereby
the Common Stock is converted into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary
dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered
by facsimile or e-mail to the Holder at its last facsimile number or e-mail address as it shall appear upon the Warrant Register
of the Company, at least 20 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating
(x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants,
or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend,
distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation,
merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that
holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure
to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action
required to be specified in such notice. To the extent that any notice provided in this Warrant constitutes, or contains, material,
non-public information regarding the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with
the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled to exercise this Warrant during the
period commencing on the date of such notice to the effective date of the event triggering such notice except as may otherwise
be expressly set forth herein.
c)
Voluntary Adjustment By Company. Subject to the rules and regulations of the Trading Market, the Company may at any time
during the term of this Warrant, subject to the prior written consent of the Holder, reduce the then current Exercise Price to
any amount and for any period of time deemed appropriate by the board of directors of the Company.
Section
4. Transfer of Warrant.
a)
Transferability. Subject to compliance with any applicable securities laws and the conditions set forth in Section 4(d)
and to the provisions of Section 4.1 of the Purchase Agreement (which are hereby extended to effect this Warrant), this Warrant
and all rights hereunder (including, without limitation, any registration rights) are transferable, in whole or in part, upon
surrender of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of
this Warrant substantially in the form attached hereto, duly executed by the Holder or its agent or attorney and funds sufficient
to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company
shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination
or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion
of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary,
the Holder shall not be required to surrender this Warrant to the Company physically unless the Holder has assigned this Warrant
in full, in which case, the Holder shall surrender this Warrant to the Company within two (2) Trading Days of the date on which
the Holder delivers an assignment form to the Company assigning this Warrant in full. The Warrant, if properly assigned in accordance
herewith, may be exercised by a new holder for the purchase of Warrant Shares without having a new Warrant issued.
b)
New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office
of the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued,
signed by the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer that may be
involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the
Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall
be dated the original Issue Date and shall be identical to this Warrant except as to the number of Warrant Shares issuable pursuant
thereto.
c)
Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose
(the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and
treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution
to the Holder, and for all other purposes, absent actual notice to the contrary.
d)
Transfer Restrictions. If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant,
the transfer of this Warrant shall not be either (i) registered pursuant to an effective registration statement under the Securities
Act and under applicable state securities or blue sky laws or (ii) eligible for resale without volume or manner-of-sale restrictions
or current public information requirements pursuant to Rule 144, the Company may require, as a condition of allowing such transfer,
that the Holder or transferee of this Warrant, as the case may be, comply with the provisions of Section 5.7 of the Purchase Agreement
(which are hereby extended to effect this Warrant).
e)
Representation by the Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant
and, upon any exercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a
view to or for distributing or reselling such Warrant Shares or any part thereof in violation of the Securities Act or any applicable
state securities law, except pursuant to sales registered or exempted under the Securities Act.
Section
5. Miscellaneous.
a)
No Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting
rights, dividends, or other rights as a stockholder of the Company prior to the exercise hereof, except as expressly set forth
in Section 3. In no event shall the Company be required to net cash settle an exercise of this Warrant.
b)
Loss, Theft, Destruction, or Mutilation of Warrant. The Company covenants that, upon receipt by the Company of evidence
reasonably satisfactory to it of the loss, theft, destruction, or mutilation of this Warrant or any stock certificate relating
to the Warrant Shares, and in case of loss, theft, or destruction, of indemnity or security reasonably satisfactory to it (which,
in the case of the Warrant, shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or
stock certificate, if mutilated, the Company will make and deliver a new warrant or stock certificate of like tenor and dated
as of such cancellation, in lieu of such Warrant or stock certificate.
c)
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right
required or granted herein shall not be a Business Day, then, such action may be taken or such right may be exercised on the next
succeeding Business Day.
d)
Authorized Shares.
The
Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common
Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights
under this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers
who are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant.
The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided
herein without violation of any applicable law or regulation, or of any requirements of the Trading Market upon which the Common
Stock may be listed. The Company covenants that all Warrant Shares that may be issued upon the exercise of the purchase rights
represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant
Shares in accordance herewith, be duly authorized, validly issued, fully paid, and nonassessable and free from all taxes, liens,
and charges created by the Company in respect of the issuance thereof (other than taxes in respect of any transfer occurring contemporaneously
with such issuance).
Except
and to the extent waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending
its Articles of Incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issuance
or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms
of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such
actions as may be reasonably necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment.
Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any Warrant Shares above
the amount payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action as may
be reasonably necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant
Shares upon the exercise of this Warrant, and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions,
or consents from any public regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform
its obligations under this Warrant.
Before
taking any action that would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or
in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be
necessary from any public regulatory body or bodies having jurisdiction thereof.
e)
Jurisdiction. All questions concerning the construction, validity, enforcement, and interpretation of this Warrant shall
be determined in accordance with the provisions of the Purchase Agreement.
f)
Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered,
will have restrictions upon resale imposed by state and federal securities laws.
g)
Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder
shall operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers, or remedies. Without limiting
any other provision of this Warrant or the Warrant Agreement, if the Company willfully, knowingly, and wrongfully fails to comply
with any provision of this Warrant, which results in any material damages to the Holder, the Company shall pay to the Holder such
amounts as shall be sufficient to cover any costs and expenses, including, but not limited to, reasonable attorneys’ fees,
including those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise
enforcing any of its rights, powers or remedies hereunder.
h)
Notices. Any notice, request or other document required or permitted to be given or delivered to the Holder by the Company
shall be delivered in accordance with the notice provisions of the Warrant Agreement.
i)
Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant
to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability
of the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted
by the Company or by creditors of the Company.
j)
Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees
to waive and not to assert the defense in any action for specific performance that a remedy at law would be adequate.
k)
Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby
shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted
assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant
and shall be enforceable by the Holder or holder of Warrant Shares.
l)
Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company
and the Holder.
m)
Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions
or the remaining provisions of this Warrant.
n)
Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be
deemed a part of this Warrant.
********************
(Signature
Page Follows)
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first
above indicated.
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technology company, inc.
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By:
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/s/
Rory J. Cutaia
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RORY
J. CUTAIA
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Chief
Executive Officer
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NOTICE
OF EXERCISE
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To:
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Verb
technology company, inc.
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(1)
The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant
(only if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer
taxes, if any.
(2)
Payment shall take the form of lawful money of the United States; or
(3)
Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The
Warrant Shares shall be delivered to the following DWAC Account Number:
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______________________________________
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______________________________________
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(4)
Accredited Investor. 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:
__________________________________________________________________________________
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to:
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Name:
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(Please Print)
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Address:
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(Please Print)
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Phone Number:
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E-mail Address:
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Dated: _______________
__, ______
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Holder’s Signature:
______________________
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Holder’s
Address: _______________________
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Exhibit
4.20
NEITHER
THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND
THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN
SECURED BY SUCH SECURITIES.
COMMON
STOCK PURCHASE WARRANT
Verb
technology company, Inc.
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Warrant
Shares: 40,000
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Issue
Date: August 6, 2020
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THIS
COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received, Kingsbrook Opportunities
Master Fund LP or its assigns (the “Holder”), is entitled, upon the terms and subject to the limitations on
exercise and the conditions hereinafter set forth, at any time on or after the Issue Date and on or prior to 5:00 p.m. (New York
City time) on the third (3rd) anniversary of the Issue Date (the “Termination Date”) but not thereafter,
to subscribe for and purchase from Verb Technology Company, Inc., a Nevada corporation (the “Company”), up
to 40,000 shares (as subject to adjustment hereunder, the “Warrant Shares”) of Common Stock. The purchase price
of one share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
Section
1. Definitions. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain
Securities Purchase Agreement, dated August 14, 2019, entered into by the Holder and the Company (the “Purchase Agreement”),
or in that certain Settlement and Release Agreement, dated August 6, 2020, entered into by the Holder and the Company (the “Release
Agreement”).
Section
2. Exercise.
a)
Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any
time or times on or after the Issue Date and on or before the Termination Date by delivery to the Company of a duly executed facsimile
copy or PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice
of Exercise”). Within the two (2) Trading Days following the date of exercise as aforesaid, the Holder shall deliver
the aggregate Exercise Price for the shares specified in the applicable Notice of Exercise by wire transfer or cashier’s
check drawn on a United States bank. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or
other type of guarantee or notarization) of any Notice of Exercise be required. Notwithstanding anything herein to the contrary,
the Holder shall not be required to physically surrender this Warrant to the Company until the Holder has purchased all of the
Warrant Shares available hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender this
Warrant to the Company for cancellation within three (3) Trading Days of the date on which the final Notice of Exercise is delivered
to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares available
hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal
to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number of
Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise within
one (1) Business Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge and
agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder,
the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face
hereof.
b)
Exercise Price. The exercise price per share of Common Stock under this Warrant shall be $1.10, subject to adjustment
hereunder (the “Exercise Price”).
c)
Cashless Exercise. If at any time after the six (6)-month anniversary of the Closing Date, there is no effective Registration
Statement registering, or no current prospectus available for, the resale of the Warrant Shares by the Holder, then this Warrant
may also be exercised, in whole or in part, at such time by means of a “cashless exercise” in which the Holder shall
be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
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(A)
=
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as applicable: (i) the VWAP on the Trading Day immediately
preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant
to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 2(a) hereof on
a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b)(64) of Regulation NMS promulgated
under the federal securities laws) on such Trading Day, (ii) at the option of the Holder, either (y) the VWAP on the Trading Day
immediately preceding the date of the applicable Notice of Exercise or (z) the Bid Price of the Common Stock on the principal
Trading Market as reported by Bloomberg L.P. as of the time of the Holder’s execution of the applicable Notice of Exercise
if such Notice of Exercise is executed during “regular trading hours” on a Trading Day and is delivered within two
(2) hours thereafter (including until two (2) hours after the close of “regular trading hours” on a Trading Day) pursuant
to Section 2(a) hereof or (iii) the VWAP on the date of the applicable Notice of Exercise if the date of such Notice of Exercise
is a Trading Day and such Notice of Exercise is both executed and delivered pursuant to Section 2(a) hereof after the close of
“regular trading hours” on such Trading Day;
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(B)
=
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the Exercise Price of this Warrant, as adjusted hereunder;
and
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(X) =
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the number of Warrant
Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were
by means of a cash exercise rather than a cashless exercise.
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If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9)
of the Securities Act, the Warrant Shares shall take on the characteristics of the Warrants being exercised, and the holding period
of the Warrant Shares being issued may be tacked on to the holding period of this Warrant. The Company agrees not to take any
position contrary to this Section 2(c). For the avoidance of doubt, so long as there is an effective Registration Statement registering,
or current prospectus available for, the resale of the Warrant Shares by the Holder, then this Warrant may not be exercised by
means of a “cashless exercise”.
“Bid
Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common
Stock is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest
preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based
on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB® or OTCQX® is not
a Trading Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB®
or OTCQX®, as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB® or OTCQX® and
if prices for the Common Stock are then reported in the “Pink Sheets” published by OTC Markets Group Inc. (or a similar
organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock
so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser
selected in good faith by the Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable
to the Company, the fees and expenses of which shall be paid by the Company.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then
listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest
preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based
on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if the Common Stock is not then listed
or quoted for trading on OTCQB® or OTCQX® and if prices for the Common Stock are then reported in the Pink Sheets®
published by OTC Markets Group Inc. (or a similar organization or agency succeeding to its functions of reporting prices), the
most recent bid price per share of the Common Stock so reported, or (c) in all other cases, the fair market value of a share of
Common Stock as determined by an independent appraiser selected in good faith by the Purchasers of a majority-in-interest of the
Securities then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
Notwithstanding
anything herein to the contrary, on the Termination Date, this Warrant shall be automatically exercised via cashless exercise
pursuant to this Section 2(c).
d)
Mechanics of Exercise.
i.
Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted
by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with
The Depository Trust Company (“DTC”) through its Deposit and Withdrawal at Custodian service (“DWAC”)
if the Company is then a participant in such service and either (A) there is an effective registration statement permitting the
issuance of the Warrant Shares to or resale of the Warrant Shares by the Holder or (B) the Warrant Shares are eligible for resale
by the Holder without volume or manner-of-sale limitations pursuant to Rule 144 (assuming cashless exercise of the Warrants),
and otherwise by physical delivery of a certificate, registered in the Company’s share register in the name of the Holder
or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified
by the Holder in the Notice of Exercise by the date that is the earliest of (i) two (2) Trading Days after the delivery to the
Company of the Notice of Exercise, (ii) one (1) Trading Day after delivery of the aggregate Exercise Price to the Company, and
(iii) the number of Trading Days comprising the Standard Settlement Period after the delivery to the Company of the Notice of
Exercise (such date, the “Warrant Share Delivery Date”). Upon delivery of the Notice of Exercise and the Exercise
Price (other than in the case of a cashless exercise), the Holder shall be deemed for all corporate purposes to have become the
holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery
of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is
received within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement
Period following delivery of the Notice of Exercise. If the Company fails for any reason to deliver to the Holder the Warrant
Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated
damages and not as a penalty, for each $1,000.00 of Warrant Shares subject to such exercise (based on the VWAP of the Common Stock
on the date of the applicable Notice of Exercise), $10.00 per Trading Day (increasing to $20.00 per Trading Day on the fifth (5th)
Trading Day after such liquidated damages begin to accrue) for each Trading Day after such Warrant Share Delivery Date until such
Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant
in DTC’s FAST Automated Securities Transfer Program so long as this Warrant remains outstanding and exercisable. As used
herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading
Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the
Notice of Exercise.
ii.
Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request
of a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder
a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which
new Warrant shall in all other respects be identical with this Warrant.
iii.
Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant
to Section 2(d)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv.
Compensation for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available
to the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with
the provisions of Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such
date the Holder is required by its broker to purchase (in an open market transaction or otherwise), or the Holder’s brokerage
firm otherwise purchases, shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares that
the Holder anticipated receiving upon such exercise (a “Buy-In”), then the Company shall (A) pay in cash to
the Holder the amount, if any, by which (x) the Holder’s total purchase price (including brokerage commissions, if any)
for the shares of Common Stock so purchased exceeds (y) the amount obtained by multiplying (1) the number of Warrant Shares that
the Company was required to deliver to the Holder in connection with the exercise at issue by (2) the price at which the sell
order giving rise to such purchase obligation was executed and (B) at the option of the Holder, either reinstate the portion of
the Warrant and equivalent number of Warrant Shares for which such exercise was not honored timely or at all (in which case such
exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock that would have been issued
had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases Common
Stock having a total purchase price of $11,000.00 to cover a Buy-In with respect to an attempted exercise of shares of Common
Stock with an aggregate sale price giving rise to such purchase obligation of $10,000.00, under clause (A) of the immediately
preceding sentence, the Company shall be required to pay the Holder $1,000.00. The Holder shall provide the Company written notice
indicating the amounts payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount
of such loss. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law
or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s
failure to deliver shares of Common Stock timely upon exercise of the Warrant as required pursuant to the terms hereof.
v.
No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise
of this Warrant. As to any fraction of a share that the Holder would otherwise be entitled to purchase upon such exercise, the
Company shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction
multiplied by the Exercise Price or round up to the next whole share.
vi.
Charges, Taxes, and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer
tax or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid
by the Company, and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed
by the Holder; provided, however, that, in the event that Warrant Shares are to be issued in a name other than the name of the
Holder, this Warrant, when surrendered for exercise, shall be accompanied by the Assignment Form attached hereto duly executed
by the Holder and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer
tax incidental thereto. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise
and all fees to DTC (or another established clearing corporation performing similar functions) required for same-day electronic
delivery of the Warrant Shares.
vii.
Closing of Books. The Company will not close its stockholder books or records in any manner that prevents the timely exercise
of this Warrant, pursuant to the terms hereof.
Section
3. Certain Adjustments.
a)
Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or
otherwise makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities
payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company
upon exercise of this Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines
(including by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by
reclassification of shares of the Common Stock any shares of capital stock of the Company, then in each case the Exercise Price
shall be multiplied by a fraction, of which the numerator shall be the number of shares of Common Stock (excluding treasury shares,
if any) outstanding immediately before such event and of which the denominator shall be the number of shares of Common Stock outstanding
immediately after such event, and the number of shares issuable upon exercise of this Warrant shall be proportionately adjusted
such that the aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment made pursuant to this Section
3(a) shall become effective immediately after the record date for the determination of stockholders entitled to receive such
dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination
or re-classification.
b)
Notice to Holder.
i.
Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3,
the Company shall promptly deliver to the Holder by facsimile or e-mail a notice setting forth the Exercise Price after such adjustment
and any resulting adjustment to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii.
Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever
form) on the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common
Stock, (C) the Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or
purchase any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall
be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Company is a
party, any sale or transfer of all or substantially all of the assets of the Company, or any compulsory share exchange whereby
the Common Stock is converted into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary
dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered
by facsimile or e-mail to the Holder at its last facsimile number or e-mail address as it shall appear upon the Warrant Register
of the Company, at least 20 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating
(x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants,
or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend,
distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation,
merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that
holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure
to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action
required to be specified in such notice. To the extent that any notice provided in this Warrant constitutes, or contains, material,
non-public information regarding the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with
the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled to exercise this Warrant during the
period commencing on the date of such notice to the effective date of the event triggering such notice except as may otherwise
be expressly set forth herein.
c)
Voluntary Adjustment By Company. Subject to the rules and regulations of the Trading Market, the Company may at any time
during the term of this Warrant, subject to the prior written consent of the Holder, reduce the then current Exercise Price to
any amount and for any period of time deemed appropriate by the board of directors of the Company.
Section
4. Transfer of Warrant.
a)
Transferability. Subject to compliance with any applicable securities laws and the conditions set forth in Section 4(d)
and to the provisions of Section 4.1 of the Purchase Agreement (which are hereby extended to effect this Warrant), this Warrant
and all rights hereunder (including, without limitation, any registration rights) are transferable, in whole or in part, upon
surrender of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of
this Warrant substantially in the form attached hereto, duly executed by the Holder or its agent or attorney and funds sufficient
to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company
shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination
or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion
of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary,
the Holder shall not be required to surrender this Warrant to the Company physically unless the Holder has assigned this Warrant
in full, in which case, the Holder shall surrender this Warrant to the Company within two (2) Trading Days of the date on which
the Holder delivers an assignment form to the Company assigning this Warrant in full. The Warrant, if properly assigned in accordance
herewith, may be exercised by a new holder for the purchase of Warrant Shares without having a new Warrant issued.
b)
New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office
of the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued,
signed by the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer that may be
involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the
Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall
be dated the original Issue Date and shall be identical to this Warrant except as to the number of Warrant Shares issuable pursuant
thereto.
c)
Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose
(the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and
treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution
to the Holder, and for all other purposes, absent actual notice to the contrary.
d)
Transfer Restrictions. If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant,
the transfer of this Warrant shall not be either (i) registered pursuant to an effective registration statement under the Securities
Act and under applicable state securities or blue sky laws or (ii) eligible for resale without volume or manner-of-sale restrictions
or current public information requirements pursuant to Rule 144, the Company may require, as a condition of allowing such transfer,
that the Holder or transferee of this Warrant, as the case may be, comply with the provisions of Section 5.7 of the Purchase Agreement
(which are hereby extended to effect this Warrant).
e)
Representation by the Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant
and, upon any exercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a
view to or for distributing or reselling such Warrant Shares or any part thereof in violation of the Securities Act or any applicable
state securities law, except pursuant to sales registered or exempted under the Securities Act.
Section
5. Miscellaneous.
a)
No Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting
rights, dividends, or other rights as a stockholder of the Company prior to the exercise hereof, except as expressly set forth
in Section 3. In no event shall the Company be required to net cash settle an exercise of this Warrant.
b)
Loss, Theft, Destruction, or Mutilation of Warrant. The Company covenants that, upon receipt by the Company of evidence
reasonably satisfactory to it of the loss, theft, destruction, or mutilation of this Warrant or any stock certificate relating
to the Warrant Shares, and in case of loss, theft, or destruction, of indemnity or security reasonably satisfactory to it (which,
in the case of the Warrant, shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or
stock certificate, if mutilated, the Company will make and deliver a new warrant or stock certificate of like tenor and dated
as of such cancellation, in lieu of such Warrant or stock certificate.
c)
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right
required or granted herein shall not be a Business Day, then, such action may be taken or such right may be exercised on the next
succeeding Business Day.
d)
Authorized Shares.
The
Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common
Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights
under this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers
who are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant.
The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided
herein without violation of any applicable law or regulation, or of any requirements of the Trading Market upon which the Common
Stock may be listed. The Company covenants that all Warrant Shares that may be issued upon the exercise of the purchase rights
represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant
Shares in accordance herewith, be duly authorized, validly issued, fully paid, and nonassessable and free from all taxes, liens,
and charges created by the Company in respect of the issuance thereof (other than taxes in respect of any transfer occurring contemporaneously
with such issuance).
Except
and to the extent waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending
its Articles of Incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issuance
or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms
of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such
actions as may be reasonably necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment.
Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any Warrant Shares above
the amount payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action as may
be reasonably necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant
Shares upon the exercise of this Warrant, and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions,
or consents from any public regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform
its obligations under this Warrant.
Before
taking any action that would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or
in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be
necessary from any public regulatory body or bodies having jurisdiction thereof.
e)
Jurisdiction. All questions concerning the construction, validity, enforcement, and interpretation of this Warrant shall
be determined in accordance with the provisions of the Purchase Agreement.
f)
Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered,
will have restrictions upon resale imposed by state and federal securities laws.
g)
Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder
shall operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers, or remedies. Without limiting
any other provision of this Warrant or the Release Agreement, if the Company willfully, knowingly, and wrongfully fails to comply
with any provision of this Warrant, which results in any material damages to the Holder, the Company shall pay to the Holder such
amounts as shall be sufficient to cover any costs and expenses, including, but not limited to, reasonable attorneys’ fees,
including those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise
enforcing any of its rights, powers or remedies hereunder.
h)
Notices. Any notice, request or other document required or permitted to be given or delivered to the Holder by the Company
shall be delivered in accordance with the notice provisions of the Release Agreement.
i)
Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant
to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability
of the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted
by the Company or by creditors of the Company.
j)
Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees
to waive and not to assert the defense in any action for specific performance that a remedy at law would be adequate.
k)
Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby
shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted
assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant
and shall be enforceable by the Holder or holder of Warrant Shares.
l)
Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company
and the Holder.
m)
Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions
or the remaining provisions of this Warrant.
n)
Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be
deemed a part of this Warrant.
********************
(Signature
Page Follows)
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first
above indicated.
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verb
technology company, inc.
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By:
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/s/
Jeffrey R. Clayborne
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Jeffrey
R. Clayborne
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Chief
Financial Officer
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NOTICE
OF EXERCISE
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To:
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Verb
technology company, inc.
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(1)
The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant
(only if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer
taxes, if any.
(2)
Payment shall take the form of lawful money of the United States; or
(3)
Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The
Warrant Shares shall be delivered to the following DWAC Account Number:
_______________________________
_______________________________
_______________________________
(4)
Accredited Investor. 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:
___________________________________________________________________________________________
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to:
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Name:
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(Please
Print)
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Address:
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(Please
Print)
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Phone
Number:
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E-mail
Address:
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Dated:
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_______________ __, ______
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Holder’s Signature:
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Holder’s Address:
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Exhibit
4.21
THIS
WARRANT AND THE UNDERLYING SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”),
OR UNDER THE SECURITIES LAWS OF ANY STATE. THESE SECURITIES MAY NOT BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED, PLEDGED, OR HYPOTHECATED
EXCEPT AS PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS IN ACCORDANCE WITH APPLICABLE REGISTRATION REQUIREMENTS
OR AN EXEMPTION THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT SUCH
OFFER, SALE, TRANSFER, PLEDGE, OR HYPOTHECATION OTHERWISE COMPLIES WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS. This
warrant must be surrendered to the ISSUER or its transfer agent as a condition precedent to the sale, transfer, pledge or hypothecation
of any interest in any of the securities represented hereby.
COMMON
STOCK PURCHASE WARRANT
VERB
TECHNOLOGY COMPANY, INC.
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Warrant
Shares: 27,018
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Original
Issuance Date: July 10, 2019
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This
COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received, Meridian Newcastle
Group, Inc or [his][her][its] assigns (the “Holder”) is entitled, upon the terms and subject to the limitations
on exercise and the conditions hereinafter set forth, at any time on or after July 10, 2019 (the “Original Issuance Date”)
and on or prior to the Expiration Date (as defined in Section 2(a)(ii), below) but not thereafter, to subscribe for and
purchase from VERB TECHNOLOGY COMPANY, INC., a Nevada corporation (the “Company”), up to 27,018 shares (as
subject to adjustment hereunder, the “Warrant Shares”) of Common Stock. The purchase price of one share of
Common Stock under this Warrant shall be equal to the Exercise Price (as defined in Section 2(a)(i), below).
Section
1. Definitions. In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated
in this Section 1:
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common
control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Business
Day” means any day except any Saturday, any Sunday, any day that is a federal legal holiday in the United States of
America or any day on which banking institutions in the State of California are authorized or required by law or other governmental
action to close.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the common stock, par value $0.0001 per share, of the Company.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof), or other entity of any kind.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Trading
Day” means a day on which the principal Trading Market is open for trading.
“Trading
Market” means The Nasdaq Capital Market.
“Transfer
Agent” means VStock Transfer, LLC, the current transfer agent of the Company, with a mailing address of 18 Lafayette
Place, Woodmere, New York 11598, and any successor transfer agent of the Company.
Section
2. Terms and Exercise of this Warrant.
(a)
Exercise Price and Duration.
(i)
Exercise Price. This Warrant shall entitle the Holder thereof, subject to the provisions herein, to purchase from the Company
the number of shares of Common Stock stated therein, at the price of $3.44 per whole share, subject to the subsequent adjustments
provided in Section 3 hereof. The term “Exercise Price” as used in this Warrant refers to the price
per share at which Common Stock may be purchased at the time this Warrant is exercised.
(ii)
Duration of Warrant. This Warrant may be exercised only during the period (the “Exercise Period”) commencing
on the Original Issuance Date and terminating at 5:00 P.M., Pacific time (the “close of business”) on July
9, 2024 (the “Expiration Date”). If this Warrant is not exercised on or before the Expiration Date it shall
become void, and all rights hereunder shall cease at the close of business on the Expiration Date.
(b)
Exercise of Warrant and Payment. Subject to the provisions of this Warrant, the Holder may exercise this Warrant by delivering,
not later than 5:00 P.M., Pacific time, on any Business Day during the Exercise Period (the “Exercise Date”)
to the Company at its office designated for such purpose (or such other office or agency of the Company as it may designate by
notice in writing to the Holder at the address of the Holder appearing on the books of the Company) of a duly executed facsimile
copy (or .pdf copy via e-mail attachment) of the Notice of Exercise in the form annexed hereto as Exhibit A (the “Notice
of Exercise”). Within the three (3) Trading Days following the date of exercise as aforesaid, the Holder shall deliver
the unpaid portion of the aggregate Exercise Price for the Warrant Shares specified in the applicable Notice of Exercise by wire
transfer or cashier’s check drawn on a federally chartered United States bank. No ink-original Notice of Exercise shall
be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required.
Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the
Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full,
in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date
on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of
a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of
Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the
Company shall maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall
deliver any objection to any Notice of Exercise within one (1) Business Day of receipt of such notice. The Holder and any assignee,
by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase
of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time
may be less than the amount stated on the face hereof.
If
any of (A) the Warrant, (B) the executed Notice of Exercise, or (C) the Exercise Price therefor, and all applicable taxes and
charges due in connection therewith, is received by the Company after 5:00 P.M., Pacific time, on any date, or on a date that
is not a Business Day, the Warrant with respect thereto will be deemed to have been received and exercised on the Business Day
next succeeding such date. For the avoidance of doubt, the “Exercise Date” will be the date the materials in the foregoing
sentence are received by the Company (if by 5:00 P.M., Pacific time), or the following Business Day (if after 5:00 P.M., Pacific
time), regardless of any earlier date written on the materials. If the Warrant is received or deemed to be received after the
Expiration Date, the exercise thereof will be null and void and any funds delivered to the Company will be returned to the Holder
as soon as practicable. In no event will interest accrue on any funds delivered to the Company in respect of an exercise or attempted
exercise of Warrants. The validity of any exercise of any Warrant will be determined by the Company in its sole discretion and
such determination will be final and binding upon the Holder. The Company shall not have any obligation to inform a Holder of
the invalidity of any exercise of Warrants.
(c)
Mechanics of Exercise.
(i)
Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted
by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with
The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company
is then a participant in such system and there is an effective registration statement permitting the issuance of the Warrant Shares
to or resale of the Warrant Shares by Holder, and otherwise by physical delivery of a certificate, registered in the Company’s
share register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant
to such exercise to the address specified by the Holder in the Notice of Exercise within three (3) Trading Days after the delivery
to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”). Notwithstanding the
foregoing, with respect to any Notice(s) of Exercise delivered by 12:00 noon (Pacific time) on an Exercise Date, the Company agrees
to deliver the Warrant Shares subject to such notice(s) by 4:00 p.m. (Pacific time) on the second Trading Day thereafter. Upon
delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record
of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant
Shares, provided that payment of the aggregate Exercise Price is received within the three (3) Trading Days following delivery
of the Notice of Exercise. Notwithstanding the foregoing, with respect to any Notice(s) of Exercise delivered by 12:00 noon (Pacific
time) on the Original Issuance Date, the Company agrees to deliver the Warrant Shares subject to such notice(s) by 4:00 p.m. (Pacific
time) on the Original Issuance Date.
(ii)
Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request
of a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder
a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which
new Warrant shall in all other respects be identical with this Warrant.
(iii)
Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant
to Section 2(c)(i), above, by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
(iv)
Valid Issuance. All shares of Common Stock issued by the Company through the Transfer Agent upon the proper exercise of
this Warrant in conformity with this Warrant shall be validly issued, fully paid, and non-assessable.
(v)
No Fractional Exercise. This Warrant may be exercised only in whole numbers of Warrant Shares. No fractional Warrant Shares
are to be issued upon the exercise of the Warrant, but rather the number of Warrant Shares to be issued shall be rounded up or
down, as applicable, to the nearest whole number. If fewer than all of the Warrants evidenced by this Warrant are exercised, a
notation shall be made to the records maintained by the Company evidencing the balance of the Warrants remaining after such exercise.
(vi)
No Transfer Taxes. The Company shall not be required to pay any stamp or other tax or charge required to be paid in connection
with any transfer involved in the issue of the Warrant Shares upon the exercise of Warrants; and in the event that any such transfer
is involved, the Company shall not be required to issue or deliver any Warrant Shares until such tax or other charge shall have
been paid or it has been established to the Company’s satisfaction that no such tax or other charge is due.
(vii)
Date of Issuance. Each person in whose name any such shares of Common Stock is issued shall for all purposes be deemed
to have become the Holder of record of such shares on the date on which the Warrant was validly exercised and payment of the Exercise
Price was made, irrespective of the date of delivery of such Notice of Exercise, except that, if the date of such Notice of Exercise
and payment is a date when the stock transfer books of the Company are closed, such person shall be deemed to have become the
Holder of such shares at the close of business on the next succeeding date on which the stock transfer books are open.
Section
3. Adjustments.
(a)
Adjustment upon Subdivision or Combination of Common Stock. If the Company at any time after the Original Issuance Date
subdivides (by any stock split, stock dividend, recapitalization, reorganization, scheme, arrangement or otherwise) its outstanding
shares of Common Stock into a greater number of shares, the Exercise Price in effect immediately prior to such subdivision will
be proportionately reduced and the number of Warrant Shares will be proportionately increased. If the Company at any time after
the Original Issuance Date combines (by any stock split, stock dividend, recapitalization, reorganization, scheme, arrangement,
or otherwise) its outstanding shares of Common Stock into a smaller number of shares, the Exercise Price in effect immediately
prior to such combination will be proportionately increased and the number of Warrant Shares will be proportionately decreased.
Any adjustment under this Section 3(a) shall become effective at the close of business on the date the subdivision or combination
becomes effective.
(b)
Adjustment for Other Distributions. In the event the Company shall fix a record date for the making of a dividend or distribution
to all holders of Common Stock of any evidences of indebtedness or assets or subscription rights or warrants (excluding those
referred to in Section 3(a), above, or other dividends paid out of retained earnings), then in each such case the Holder
will, upon the exercise of this Warrant, be entitled to receive, in addition to the number of shares of Common Stock issuable
thereupon, and without payment of any additional consideration therefor, the amount of such dividend or distribution, as applicable,
which such Holder would hold on the date of such exercise had such Holder been the holder of record of such Common Stock as of
the date on which holders of Common Stock received or became entitled to receive such dividend or distribution. Such adjustment
shall be made whenever any such distribution is made and shall become effective immediately after the record date mentioned above.
(c)
Reclassification, Consolidation, Purchase, Combination, Sale, or Conveyance. If, at any time while this Warrant is outstanding,
(i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company
with or into another person, (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer,
conveyance, or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any,
direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another person) is completed pursuant
to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property
and has been accepted by the holders of 50% or more of the outstanding Common Stock, (iv) the Company, directly or indirectly,
in one or more related transactions effects any reclassification, reorganization, or recapitalization of the Common Stock or any
compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities,
cash, or property, (v) the Company, directly or indirectly, in one or more related transactions consummates a stock, or share
purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off
or scheme of arrangement) with another person whereby such other person acquires more than 50% of the outstanding shares of Common
Stock (not including any shares of Common Stock held by the other person or other persons making or party to, or associated or
affiliated with the other persons making or party to, such stock or share purchase agreement or other business combination) (each,
a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the
right to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence
of such Fundamental Transaction, the number of shares of Common Stock, if any, of the successor or acquiring corporation or of
the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”)
receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Warrant
is exercisable immediately prior to such Fundamental Transaction. For purposes of any such exercise, the determination of the
Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration
issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise
Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the
Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash, or property to be received
in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon
any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental
Transaction in which the Company is not the survivor (the “Successor Entity”) and for which stockholders received
any equity securities of the Successor Entity, to assume in writing all of the obligations of the Company under this Warrant Agreement
in accordance with the provisions of this Section 4(c) pursuant to written agreements and shall, upon the written request
of the Holder of this Warrant, deliver to the Holder in exchange for this Warrant created by this Warrant Agreement a security
of the Successor Entity evidenced by a written instrument substantially similar in form and substance to the Warrant that is exercisable
for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity), if any, plus any Alternate
Consideration, receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for
which the Warrant is exercisable immediately prior to such Fundamental Transaction, and with an exercise price that applies the
Exercise Price hereunder to such shares of capital stock, if any, plus any Alternate Consideration (but taking into account the
relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital
stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of
such Warrant immediately prior to the consummation of such Fundamental Transaction). Upon the occurrence of any such Fundamental
Transaction the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental
Transaction, the provisions of this Warrant Agreement and the Warrant referring to the “Company” shall refer instead
to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the
Company under this Warrant Agreement and the Warrant with the same effect as if such Successor Entity had been named as the Company
herein.
Any
supplemented or amended agreement entered by the successor corporation or transferee shall provide for adjustments, which shall
be as nearly equivalent as may be practicable to the adjustments provided for in Section 3. The provisions of this Section
3(c) shall similarly apply to successive reclassifications, changes, consolidations, mergers, sales, and conveyances of the
kind described above.
(d)
Other Events. If any event occurs of the type contemplated by the provisions of Section 3(a), 3(b), or 3(c),
above, but not expressly provided for by such provisions (including, without limitation, the granting of stock appreciation rights,
phantom stock rights, or other rights with equity features to all holders of Common Stock for no consideration), then the Company’s
Board of Directors will, at its discretion and in good faith, make an adjustment in the Exercise Price and the number of Warrant
Shares or designate such additional consideration to be deemed issuable upon exercise of this Warrant, so as to protect the rights
of the Holder.
(e)
Notices of Changes in Warrant. Upon every adjustment of the Exercise Price or the number of shares issuable upon exercise
of this Warrant, the Company shall give written notice thereof to the Holder, at the last address set forth for such holder in
the Warrant Register, of the record date or the effective date of the event. Failure to give such notice, or any defect therein,
shall not affect the legality or validity of such event.
(f)
Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever
form) on the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common
Stock, (C) the Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or
purchase any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall
be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Company is a
party, any sale or transfer of all or substantially all of the assets of the Company, or any compulsory share exchange whereby
the Common Stock is converted into other securities, cash, or property, or (E) the Company shall authorize the voluntary or involuntary
dissolution, liquidation, or winding up of the affairs of the Company, then, in each case, the Company shall cause to be mailed
to the Holder at its last address as it shall appear upon the Warrant Register of the Company, at least 10 calendar days prior
to the applicable record or effective date hereinafter specified, a notice stating (i) the date on which a record is to be taken
for the purpose of such dividend, distribution, redemption, rights, or warrants, or if a record is not to be taken, the date as
of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights, or warrants
are to be determined or (ii) the date on which such reclassification, consolidation, merger, sale, transfer, or share exchange
is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall
be entitled to exchange their shares of the Common Stock for securities, cash, or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, or share exchange; provided, that the failure to mail such notice or any defect
therein or in the mailing thereof shall not affect the validity of the corporate action required to be specified in such notice.
To the extent that any notice provided hereunder constitutes, or contains, material, non-public information regarding the Company
or any of its subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report
on Form 8-K. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of such notice
to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
Section
4. Transfer of Warrant.
(a)
Transferability. This Warrant and all rights hereunder are transferable, in whole or in part, upon surrender of this Warrant
at the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially
in the form annexed hereto as Exhibit B duly executed by the Holder or its agent or attorney-in-fact and funds sufficient
to pay any transfer taxes payable upon the making of such transfer, accompanied by reasonable evidence of authority of the party
making such request that may be required by the Company, including, but not limited to, the signature guarantee of a guarantor
institution that is a participant in a signature guarantee program approved by the Securities Transfer Association. Upon such
surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee
or assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment, and shall issue
to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled.
Notwithstanding anything herein to the contrary, the Holder shall be required to surrender this Warrant to the Company physically
in order to assign or transfer any portion of this Warrant. The Holder shall surrender this Warrant to the Company within two
(2) Trading Days of the date on which the Holder delivers an assignment form to the Company assigning this Warrant in full. This
Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant Shares without
having a new Warrant issued.
(b)
New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office
of the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued,
signed by the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer that may be
involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the
Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall
be dated the Original Issuance Date of this Warrant and shall be identical with this Warrant except as to the number of Warrant
Shares issuable pursuant thereto.
(c)
Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose
(the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and
treat the Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the
Holder, and for all other purposes, absent actual notice to the contrary.
(d)
Fractional Warrants. The Company shall not be required to effect any registration of transfer or exchange that will result
in the issuance of a Warrant for a fraction of this Warrant.
Section
5. Limitations on Exercise. The Company shall not effect any exercise of this Warrant, and a Holder shall not have
the right to exercise any portion of this Warrant, to the extent that after giving effect to the issuance of shares of Common
Stock after exercise as set forth on the applicable Notice of Exercise, the Holder (together with such Holder’s Affiliates
(as defined in Rule 405 under the Securities Act), and any other persons acting as a group together with the Holder or any of
the Holder’s Affiliates), would beneficially own in excess of 4.99% of the Common Stock (the percentage limitation, the
“Beneficial Ownership Limitation”). For purposes of the foregoing sentence, the number of shares of Common
Stock beneficially owned by the Holder and its Affiliates shall include the number of shares of Common Stock issuable upon exercise
of the Warrant with respect to which such determination is being made, but shall exclude the number of shares of Common Stock
that would be issuable upon exercise of the remaining, non-exercised portion of any Warrant beneficially owned by the Holder or
any of its Affiliates. Except as set forth in the preceding sentence, for purposes of this Section 5, beneficial ownership
shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder,
it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance
with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance
therewith. To the extent that the limitation contained in this Section 5 applies, the determination of whether this Warrant
is exercisable (in relation to other securities owned by the Holder together with any Affiliates) and of which portion of this
Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed
to be the Holder’s determination of whether such Warrant is exercisable (in relation to other securities owned by the Holder
together with any Affiliates) and of which portion of this Warrant is exercisable, and the Company shall not have any obligation
to verify or confirm the accuracy of such determination and neither of them shall have any liability for any error made by the
Holder. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section
13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 5 , in determining
the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected
in (A) the Company’s most recent periodic or annual report filed with the Securities and Exchange Commission, as the case
may be, (B) a more recent public announcement by the Company, or (C) a more recent written notice by the Company or the Company’s
transfer agent setting forth the number of shares of Common Stock outstanding. The provisions of this Section 5 shall be
construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 5 to correct this
subsection (or any portion hereof) that may be defective or inconsistent with the intended beneficial ownership limitation herein
contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The Holder, upon
not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions
of this Section 5. In the event of a Holder’s election to increase the Beneficial Ownership Limitation, such increase
will not be effective until the 61st day after such notice is delivered to the Company. The limitations contained in this Section
5 shall apply to a successor holder of this Warrant.
Section
6. Miscellaneous.
(a)
No Rights as Stockholder. Except as otherwise specifically provided herein, a Holder, solely in its capacity as a holder
of this Warrant, shall not be entitled to vote or receive dividends or be deemed the holder of share capital of the Company for
any purpose, nor shall anything contained in this Warrant be construed to confer upon a registered holder, solely in its capacity
as the Holder of this Warrant, any of the rights of a stockholder of the Company or any right to vote, give or withhold consent
to any corporate action (whether any reorganization, issue of stock, reclassification of stock, consolidation, merger, conveyance,
or otherwise), receive notice of meetings, receive dividends or subscription rights, or otherwise, prior to the issuance to the
Holder of the Warrant Shares that it is then entitled to receive upon the due exercise of this Warrant. This Warrant does not
entitle the registered holder thereof to any of the rights of a stockholder of the Company.
(b)
Reservation of Common Stock. The Company shall always reserve and keep available out of its authorized but unissued shares
of Common Stock that number of shares that will be sufficient to permit the exercise in full of this Warrant.
(c)
Loss, Theft, Destruction, or Mutilation of Warrant. The Company covenants that, upon receipt by the Company of evidence
reasonably satisfactory to it of the loss, theft, destruction, or mutilation of this Warrant or any stock certificate relating
to the Warrant Shares and, in case of loss, theft, or destruction, of indemnity or security reasonably satisfactory to it (that,
in the case of the Warrant, shall include the posting of a bond), and upon surrender and cancellation of such Warrant or stock
certificate, if mutilated, the Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of
such cancellation, in lieu of such Warrant or stock certificate.
(d)
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right
required or granted herein shall not be a Business Day, then, such action may be taken or such right may be exercised on the next
succeeding Business Day.
(e)
Jurisdiction. All questions concerning the construction, validity, enforcement, and interpretation of this Warrant shall
be governed by and construed and enforced in accordance with the internal laws of the State of Nevada, without regard to the principles
of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense
of the transactions contemplated by this Warrant (whether brought against a party hereto or their respective affiliates, directors,
officers, stockholders, partners, members, employees, or agents) shall be commenced exclusively in the state and federal courts
sitting in Orange County, California. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal
courts sitting in Orange County, California, for the adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action,
or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action, or proceeding
is improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process
and consents to process being served in any such suit, action, or proceeding by mailing a copy thereof via registered or certified
mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement
and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If either party shall commence
an action, suit or proceeding to enforce any provisions of this Warrant, the prevailing party in such action, suit, or proceeding
shall be reimbursed by the other party for their reasonable attorneys’ fees and other costs and expenses incurred with the
investigation, preparation and prosecution of such action or proceeding.
(f)
Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered,
will have restrictions upon resale imposed by state and federal securities laws.
(g)
Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder
shall operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers, or remedies. Without limiting
any other provision of this Warrant, if the Company willfully and knowingly fails to comply with any provision of this Warrant,
which results in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to
cover any costs and expenses including, but not limited to, reasonable attorneys’ fees, including those of appellate proceedings,
incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers, or remedies
hereunder.
(h)
Notices. Any notices, consents, waivers, or other document or communications required or permitted to be given or delivered
under the terms of this Warrant must be in writing and will be deemed to have been delivered: (i) upon receipt, if delivered personally;
(ii) when sent, if sent by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept
on file by the sending party); (iii) if sent by overnight courier service, one (1) Trading Day after deposit with an overnight
courier service with next day delivery specified, and (iv) if sent by certified mail or private courier service within five (5)
Trading Days after deposit of such notice, in each case, properly addressed to the party to receive the same. The addresses and
facsimile numbers for such communications shall be:
If
to the Company:
Verb
Technology Company, Inc.
344
South Hauser Blvd., Suite 414
Los
Angeles, California 90036
Attn:
Rory J. Cutaia, President and Chief Executive Officer
Fax
No.: 714-966-8802
with
a copy (which shall not constitute notice) to:
Baker
& Hostetler LLP
600
Anton Blvd., Suite 900
Costa
Mesa, California 92626
Attn:
Randolf W. Katz, Esq.
Fax
No: 714-966-8802
If
to a Holder, to its address, facsimile number, or e-mail address set forth herein or on the books and records of the Company.
(i)
Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant
to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability
of the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted
by the Company or by creditors of the Company.
(j)
Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees
to waive and not to assert the defense in any action for specific performance that a remedy at law would be adequate.
(k)
Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby
shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted
assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant
and shall be enforceable by the Holder or holder of Warrant Shares.
(l)
Amendment. This Warrant may be modified or amended, including any amendment to increase the Exercise Price or shorten the
Exercise Period, and the provisions hereof may be waived, in each case with the written consent of the Company and Holder.
(m)
Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions
or the remaining provisions of this Warrant.
(n)
Effect of Headings. The Section headings herein are for convenience only and are not part of this Warrant and shall not
affect the interpretation thereof.
********************
(Signature
Page Follows)
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first
above indicated.
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VERB
TECHNOLOGY COMPANY, INC.
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By:
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/s/
Jeffrey R. Clayborne
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Jeffrey
R. Clayborne, Chief Financial Officer
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Exhibit
A
NOTICE
OF EXERCISE
TO:
VERB TECHNOLOGY COMPANY, INC.
(1)
The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant
and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2)
Payment shall take the form of in lawful money of the United States by wire transfer or cashier’s check drawn on a United
States bank
(3)
Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
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The
Warrant Shares shall be delivered to the following DWAC Account Number:
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or
by physical delivery of a certificate to:
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[SIGNATURE
OF HOLDER]
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Name
of Investing Entity:
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Signature
of Authorized Signatory of Investing Entity:
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Name
of Authorized Signatory:
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Title
of Authorized Signatory:
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Exhibit
B
ASSIGNMENT
FORM
(To
assign the attached Warrant, execute this form and supply required information.
Do
not use this form to exercise the Warrant.)
FOR
VALUE RECEIVED, [____] all of or [_______] shares of the attached Warrant and all rights evidenced thereby are hereby assigned
to:
_______________________________________________,
whose address is
_______________________________________________________________
_______________________________________________________________
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Date:
______________, _______
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Holder’s
Signature:
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Holder’s
Address:
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NOTE:
The signature to this Assignment Form must correspond with the name as it appears on the face of the Warrant, without alteration
or enlargement or any change whatsoever. Officers of corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing Warrant.
Exhibit
4.22
THIS
WARRANT AND THE UNDERLYING SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”),
OR UNDER THE SECURITIES LAWS OF ANY STATE. THESE SECURITIES MAY NOT BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED, PLEDGED, OR HYPOTHECATED
EXCEPT AS PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS IN ACCORDANCE WITH APPLICABLE REGISTRATION REQUIREMENTS
OR AN EXEMPTION THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT SUCH
OFFER, SALE, TRANSFER, PLEDGE, OR HYPOTHECATION OTHERWISE COMPLIES WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS. This
warrant must be surrendered to the ISSUER or its transfer agent as a condition precedent to the sale, transfer, pledge or hypothecation
of any interest in any of the securities represented hereby.
COMMON
STOCK PURCHASE WARRANT
VERB
TECHNOLOGY COMPANY, INC.
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Warrant
Shares: 81,178
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Original
Issuance Date: July 10, 2019
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This
COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received, Meridian Newcastle
Group, Inc. or [his][her][its] assigns (the “Holder”) is entitled, upon the terms and subject to the limitations
on exercise and the conditions hereinafter set forth, at any time on or after July 10, 2019 (the “Original Issuance Date”)
and on or prior to the Expiration Date (as defined in Section 2(a)(ii), below) but not thereafter, to subscribe for and
purchase from VERB TECHNOLOGY COMPANY, INC., a Nevada corporation (the “Company”), up to 81,178 shares (as
subject to adjustment hereunder, the “Warrant Shares”) of Common Stock. The purchase price of one share of
Common Stock under this Warrant shall be equal to the Exercise Price (as defined in Section 2(a)(i), below).
Section
1. Definitions. In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated
in this Section 1:
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common
control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Business
Day” means any day except any Saturday, any Sunday, any day that is a federal legal holiday in the United States of
America or any day on which banking institutions in the State of California are authorized or required by law or other governmental
action to close.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the common stock, par value $0.0001 per share, of the Company.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof), or other entity of any kind.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Trading
Day” means a day on which the principal Trading Market is open for trading.
“Trading
Market” means The Nasdaq Capital Market.
“Transfer
Agent” means VStock Transfer, LLC, the current transfer agent of the Company, with a mailing address of 18 Lafayette
Place, Woodmere, New York 11598, and any successor transfer agent of the Company.
Section
2. Terms and Exercise of this Warrant.
(a)
Exercise Price and Duration.
(i)
Exercise Price. This Warrant shall entitle the Holder thereof, subject to the provisions herein, to purchase from the Company
the number of shares of Common Stock stated therein, at the price of $3.44 per whole share, subject to the subsequent adjustments
provided in Section 3 hereof. The term “Exercise Price” as used in this Warrant refers to the price
per share at which Common Stock may be purchased at the time this Warrant is exercised.
(ii)
Duration of Warrant. This Warrant may be exercised only during the period (the “Exercise Period”) commencing
on the Original Issuance Date and terminating at 5:00 P.M., Pacific time (the “close of business”) on July
9, 2024 (the “Expiration Date”). If this Warrant is not exercised on or before the Expiration Date it shall
become void, and all rights hereunder shall cease at the close of business on the Expiration Date.
(b)
Exercise of Warrant and Payment. Subject to the provisions of this Warrant, the Holder may exercise this Warrant by delivering,
not later than 5:00 P.M., Pacific time, on any Business Day during the Exercise Period (the “Exercise Date”)
to the Company at its office designated for such purpose (or such other office or agency of the Company as it may designate by
notice in writing to the Holder at the address of the Holder appearing on the books of the Company) of a duly executed facsimile
copy (or .pdf copy via e-mail attachment) of the Notice of Exercise in the form annexed hereto as Exhibit A (the “Notice
of Exercise”). Within the three (3) Trading Days following the date of exercise as aforesaid, the Holder shall deliver
the unpaid portion of the aggregate Exercise Price for the Warrant Shares specified in the applicable Notice of Exercise by wire
transfer or cashier’s check drawn on a federally chartered United States bank. No ink-original Notice of Exercise shall
be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required.
Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the
Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full,
in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date
on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of
a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of
Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the
Company shall maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall
deliver any objection to any Notice of Exercise within one (1) Business Day of receipt of such notice. The Holder and any assignee,
by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase
of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time
may be less than the amount stated on the face hereof.
If
any of (A) the Warrant, (B) the executed Notice of Exercise, or (C) the Exercise Price therefor, and all applicable taxes and
charges due in connection therewith, is received by the Company after 5:00 P.M., Pacific time, on any date, or on a date that
is not a Business Day, the Warrant with respect thereto will be deemed to have been received and exercised on the Business Day
next succeeding such date. For the avoidance of doubt, the “Exercise Date” will be the date the materials in the foregoing
sentence are received by the Company (if by 5:00 P.M., Pacific time), or the following Business Day (if after 5:00 P.M., Pacific
time), regardless of any earlier date written on the materials. If the Warrant is received or deemed to be received after the
Expiration Date, the exercise thereof will be null and void and any funds delivered to the Company will be returned to the Holder
as soon as practicable. In no event will interest accrue on any funds delivered to the Company in respect of an exercise or attempted
exercise of Warrants. The validity of any exercise of any Warrant will be determined by the Company in its sole discretion and
such determination will be final and binding upon the Holder. The Company shall not have any obligation to inform a Holder of
the invalidity of any exercise of Warrants.
(c)
Mechanics of Exercise.
(i)
Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted
by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with
The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company
is then a participant in such system and there is an effective registration statement permitting the issuance of the Warrant Shares
to or resale of the Warrant Shares by Holder, and otherwise by physical delivery of a certificate, registered in the Company’s
share register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant
to such exercise to the address specified by the Holder in the Notice of Exercise within three (3) Trading Days after the delivery
to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”). Notwithstanding the
foregoing, with respect to any Notice(s) of Exercise delivered by 12:00 noon (Pacific time) on an Exercise Date, the Company agrees
to deliver the Warrant Shares subject to such notice(s) by 4:00 p.m. (Pacific time) on the second Trading Day thereafter. Upon
delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record
of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant
Shares, provided that payment of the aggregate Exercise Price is received within the three (3) Trading Days following delivery
of the Notice of Exercise. Notwithstanding the foregoing, with respect to any Notice(s) of Exercise delivered by 12:00 noon (Pacific
time) on the Original Issuance Date, the Company agrees to deliver the Warrant Shares subject to such notice(s) by 4:00 p.m. (Pacific
time) on the Original Issuance Date.
(ii)
Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request
of a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder
a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which
new Warrant shall in all other respects be identical with this Warrant.
(iii)
Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant
to Section 2(c)(i), above, by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
(iv)
Valid Issuance. All shares of Common Stock issued by the Company through the Transfer Agent upon the proper exercise of
this Warrant in conformity with this Warrant shall be validly issued, fully paid, and non-assessable.
(v)
No Fractional Exercise. This Warrant may be exercised only in whole numbers of Warrant Shares. No fractional Warrant Shares
are to be issued upon the exercise of the Warrant, but rather the number of Warrant Shares to be issued shall be rounded up or
down, as applicable, to the nearest whole number. If fewer than all of the Warrants evidenced by this Warrant are exercised, a
notation shall be made to the records maintained by the Company evidencing the balance of the Warrants remaining after such exercise.
(vi)
No Transfer Taxes. The Company shall not be required to pay any stamp or other tax or charge required to be paid in connection
with any transfer involved in the issue of the Warrant Shares upon the exercise of Warrants; and in the event that any such transfer
is involved, the Company shall not be required to issue or deliver any Warrant Shares until such tax or other charge shall have
been paid or it has been established to the Company’s satisfaction that no such tax or other charge is due.
(vii)
Date of Issuance. Each person in whose name any such shares of Common Stock is issued shall for all purposes be deemed
to have become the Holder of record of such shares on the date on which the Warrant was validly exercised and payment of the Exercise
Price was made, irrespective of the date of delivery of such Notice of Exercise, except that, if the date of such Notice of Exercise
and payment is a date when the stock transfer books of the Company are closed, such person shall be deemed to have become the
Holder of such shares at the close of business on the next succeeding date on which the stock transfer books are open.
Section
3. Adjustments.
(a)
Adjustment upon Subdivision or Combination of Common Stock. If the Company at any time after the Original Issuance Date
subdivides (by any stock split, stock dividend, recapitalization, reorganization, scheme, arrangement or otherwise) its outstanding
shares of Common Stock into a greater number of shares, the Exercise Price in effect immediately prior to such subdivision will
be proportionately reduced and the number of Warrant Shares will be proportionately increased. If the Company at any time after
the Original Issuance Date combines (by any stock split, stock dividend, recapitalization, reorganization, scheme, arrangement,
or otherwise) its outstanding shares of Common Stock into a smaller number of shares, the Exercise Price in effect immediately
prior to such combination will be proportionately increased and the number of Warrant Shares will be proportionately decreased.
Any adjustment under this Section 3(a) shall become effective at the close of business on the date the subdivision or combination
becomes effective.
(b)
Adjustment for Other Distributions. In the event the Company shall fix a record date for the making of a dividend or distribution
to all holders of Common Stock of any evidences of indebtedness or assets or subscription rights or warrants (excluding those
referred to in Section 3(a), above, or other dividends paid out of retained earnings), then in each such case the Holder
will, upon the exercise of this Warrant, be entitled to receive, in addition to the number of shares of Common Stock issuable
thereupon, and without payment of any additional consideration therefor, the amount of such dividend or distribution, as applicable,
which such Holder would hold on the date of such exercise had such Holder been the holder of record of such Common Stock as of
the date on which holders of Common Stock received or became entitled to receive such dividend or distribution. Such adjustment
shall be made whenever any such distribution is made and shall become effective immediately after the record date mentioned above.
(c)
Reclassification, Consolidation, Purchase, Combination, Sale, or Conveyance. If, at any time while this Warrant is outstanding,
(i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company
with or into another person, (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer,
conveyance, or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any,
direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another person) is completed pursuant
to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property
and has been accepted by the holders of 50% or more of the outstanding Common Stock, (iv) the Company, directly or indirectly,
in one or more related transactions effects any reclassification, reorganization, or recapitalization of the Common Stock or any
compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities,
cash, or property, (v) the Company, directly or indirectly, in one or more related transactions consummates a stock, or share
purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off
or scheme of arrangement) with another person whereby such other person acquires more than 50% of the outstanding shares of Common
Stock (not including any shares of Common Stock held by the other person or other persons making or party to, or associated or
affiliated with the other persons making or party to, such stock or share purchase agreement or other business combination) (each,
a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the
right to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence
of such Fundamental Transaction, the number of shares of Common Stock, if any, of the successor or acquiring corporation or of
the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”)
receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Warrant
is exercisable immediately prior to such Fundamental Transaction. For purposes of any such exercise, the determination of the
Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration
issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise
Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the
Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash, or property to be received
in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon
any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental
Transaction in which the Company is not the survivor (the “Successor Entity”) and for which stockholders received
any equity securities of the Successor Entity, to assume in writing all of the obligations of the Company under this Warrant Agreement
in accordance with the provisions of this Section 4(c) pursuant to written agreements and shall, upon the written request
of the Holder of this Warrant, deliver to the Holder in exchange for this Warrant created by this Warrant Agreement a security
of the Successor Entity evidenced by a written instrument substantially similar in form and substance to the Warrant that is exercisable
for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity), if any, plus any Alternate
Consideration, receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for
which the Warrant is exercisable immediately prior to such Fundamental Transaction, and with an exercise price that applies the
Exercise Price hereunder to such shares of capital stock, if any, plus any Alternate Consideration (but taking into account the
relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital
stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of
such Warrant immediately prior to the consummation of such Fundamental Transaction). Upon the occurrence of any such Fundamental
Transaction the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental
Transaction, the provisions of this Warrant Agreement and the Warrant referring to the “Company” shall refer instead
to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the
Company under this Warrant Agreement and the Warrant with the same effect as if such Successor Entity had been named as the Company
herein.
Any
supplemented or amended agreement entered by the successor corporation or transferee shall provide for adjustments, which shall
be as nearly equivalent as may be practicable to the adjustments provided for in Section 3. The provisions of this Section
3(c) shall similarly apply to successive reclassifications, changes, consolidations, mergers, sales, and conveyances of the
kind described above.
(d)
Other Events. If any event occurs of the type contemplated by the provisions of Section 3(a), 3(b), or 3(c),
above, but not expressly provided for by such provisions (including, without limitation, the granting of stock appreciation rights,
phantom stock rights, or other rights with equity features to all holders of Common Stock for no consideration), then the Company’s
Board of Directors will, at its discretion and in good faith, make an adjustment in the Exercise Price and the number of Warrant
Shares or designate such additional consideration to be deemed issuable upon exercise of this Warrant, so as to protect the rights
of the Holder.
(e)
Notices of Changes in Warrant. Upon every adjustment of the Exercise Price or the number of shares issuable upon exercise
of this Warrant, the Company shall give written notice thereof to the Holder, at the last address set forth for such holder in
the Warrant Register, of the record date or the effective date of the event. Failure to give such notice, or any defect therein,
shall not affect the legality or validity of such event.
(f)
Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever
form) on the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common
Stock, (C) the Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or
purchase any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall
be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Company is a
party, any sale or transfer of all or substantially all of the assets of the Company, or any compulsory share exchange whereby
the Common Stock is converted into other securities, cash, or property, or (E) the Company shall authorize the voluntary or involuntary
dissolution, liquidation, or winding up of the affairs of the Company, then, in each case, the Company shall cause to be mailed
to the Holder at its last address as it shall appear upon the Warrant Register of the Company, at least 10 calendar days prior
to the applicable record or effective date hereinafter specified, a notice stating (i) the date on which a record is to be taken
for the purpose of such dividend, distribution, redemption, rights, or warrants, or if a record is not to be taken, the date as
of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights, or warrants
are to be determined or (ii) the date on which such reclassification, consolidation, merger, sale, transfer, or share exchange
is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall
be entitled to exchange their shares of the Common Stock for securities, cash, or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, or share exchange; provided, that the failure to mail such notice or any defect
therein or in the mailing thereof shall not affect the validity of the corporate action required to be specified in such notice.
To the extent that any notice provided hereunder constitutes, or contains, material, non-public information regarding the Company
or any of its subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report
on Form 8-K. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of such notice
to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
Section
4. Transfer of Warrant.
(a)
Transferability. This Warrant and all rights hereunder are transferable, in whole or in part, upon surrender of this Warrant
at the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially
in the form annexed hereto as Exhibit B duly executed by the Holder or its agent or attorney-in-fact and funds sufficient
to pay any transfer taxes payable upon the making of such transfer, accompanied by reasonable evidence of authority of the party
making such request that may be required by the Company, including, but not limited to, the signature guarantee of a guarantor
institution that is a participant in a signature guarantee program approved by the Securities Transfer Association. Upon such
surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee
or assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment, and shall issue
to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled.
Notwithstanding anything herein to the contrary, the Holder shall be required to surrender this Warrant to the Company physically
in order to assign or transfer any portion of this Warrant. The Holder shall surrender this Warrant to the Company within two
(2) Trading Days of the date on which the Holder delivers an assignment form to the Company assigning this Warrant in full. This
Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant Shares without
having a new Warrant issued.
(b)
New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office
of the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued,
signed by the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer that may be
involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the
Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall
be dated the Original Issuance Date of this Warrant and shall be identical with this Warrant except as to the number of Warrant
Shares issuable pursuant thereto.
(c)
Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose
(the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and
treat the Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the
Holder, and for all other purposes, absent actual notice to the contrary.
(d)
Fractional Warrants. The Company shall not be required to effect any registration of transfer or exchange that will result
in the issuance of a Warrant for a fraction of this Warrant.
Section
5. Limitations on Exercise. The Company shall not effect any exercise of this Warrant, and a Holder shall not have
the right to exercise any portion of this Warrant, to the extent that after giving effect to the issuance of shares of Common
Stock after exercise as set forth on the applicable Notice of Exercise, the Holder (together with such Holder’s Affiliates
(as defined in Rule 405 under the Securities Act), and any other persons acting as a group together with the Holder or any of
the Holder’s Affiliates), would beneficially own in excess of 4.99% of the Common Stock (the percentage limitation, the
“Beneficial Ownership Limitation”). For purposes of the foregoing sentence, the number of shares of Common
Stock beneficially owned by the Holder and its Affiliates shall include the number of shares of Common Stock issuable upon exercise
of the Warrant with respect to which such determination is being made, but shall exclude the number of shares of Common Stock
that would be issuable upon exercise of the remaining, non-exercised portion of any Warrant beneficially owned by the Holder or
any of its Affiliates. Except as set forth in the preceding sentence, for purposes of this Section 5, beneficial ownership
shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder,
it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance
with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance
therewith. To the extent that the limitation contained in this Section 5 applies, the determination of whether this Warrant
is exercisable (in relation to other securities owned by the Holder together with any Affiliates) and of which portion of this
Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed
to be the Holder’s determination of whether such Warrant is exercisable (in relation to other securities owned by the Holder
together with any Affiliates) and of which portion of this Warrant is exercisable, and the Company shall not have any obligation
to verify or confirm the accuracy of such determination and neither of them shall have any liability for any error made by the
Holder. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section
13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 5 , in determining
the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected
in (A) the Company’s most recent periodic or annual report filed with the Securities and Exchange Commission, as the case
may be, (B) a more recent public announcement by the Company, or (C) a more recent written notice by the Company or the Company’s
transfer agent setting forth the number of shares of Common Stock outstanding. The provisions of this Section 5 shall be
construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 5 to correct this
subsection (or any portion hereof) that may be defective or inconsistent with the intended beneficial ownership limitation herein
contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The Holder, upon
not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions
of this Section 5. In the event of a Holder’s election to increase the Beneficial Ownership Limitation, such increase
will not be effective until the 61st day after such notice is delivered to the Company. The limitations contained in this Section
5 shall apply to a successor holder of this Warrant.
Section
6. Miscellaneous.
(a)
No Rights as Stockholder. Except as otherwise specifically provided herein, a Holder, solely in its capacity as a holder
of this Warrant, shall not be entitled to vote or receive dividends or be deemed the holder of share capital of the Company for
any purpose, nor shall anything contained in this Warrant be construed to confer upon a registered holder, solely in its capacity
as the Holder of this Warrant, any of the rights of a stockholder of the Company or any right to vote, give or withhold consent
to any corporate action (whether any reorganization, issue of stock, reclassification of stock, consolidation, merger, conveyance,
or otherwise), receive notice of meetings, receive dividends or subscription rights, or otherwise, prior to the issuance to the
Holder of the Warrant Shares that it is then entitled to receive upon the due exercise of this Warrant. This Warrant does not
entitle the registered holder thereof to any of the rights of a stockholder of the Company.
(b)
Reservation of Common Stock. The Company shall always reserve and keep available out of its authorized but unissued shares
of Common Stock that number of shares that will be sufficient to permit the exercise in full of this Warrant.
(c)
Loss, Theft, Destruction, or Mutilation of Warrant. The Company covenants that, upon receipt by the Company of evidence
reasonably satisfactory to it of the loss, theft, destruction, or mutilation of this Warrant or any stock certificate relating
to the Warrant Shares and, in case of loss, theft, or destruction, of indemnity or security reasonably satisfactory to it (that,
in the case of the Warrant, shall include the posting of a bond), and upon surrender and cancellation of such Warrant or stock
certificate, if mutilated, the Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of
such cancellation, in lieu of such Warrant or stock certificate.
(d)
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right
required or granted herein shall not be a Business Day, then, such action may be taken or such right may be exercised on the next
succeeding Business Day.
(e)
Jurisdiction. All questions concerning the construction, validity, enforcement, and interpretation of this Warrant shall
be governed by and construed and enforced in accordance with the internal laws of the State of Nevada, without regard to the principles
of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense
of the transactions contemplated by this Warrant (whether brought against a party hereto or their respective affiliates, directors,
officers, stockholders, partners, members, employees, or agents) shall be commenced exclusively in the state and federal courts
sitting in Orange County, California. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal
courts sitting in Orange County, California, for the adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action,
or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action, or proceeding
is improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process
and consents to process being served in any such suit, action, or proceeding by mailing a copy thereof via registered or certified
mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement
and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If either party shall commence
an action, suit or proceeding to enforce any provisions of this Warrant, the prevailing party in such action, suit, or proceeding
shall be reimbursed by the other party for their reasonable attorneys’ fees and other costs and expenses incurred with the
investigation, preparation and prosecution of such action or proceeding.
(f)
Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered,
will have restrictions upon resale imposed by state and federal securities laws.
(g)
Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder
shall operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers, or remedies. Without limiting
any other provision of this Warrant, if the Company willfully and knowingly fails to comply with any provision of this Warrant,
which results in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to
cover any costs and expenses including, but not limited to, reasonable attorneys’ fees, including those of appellate proceedings,
incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers, or remedies
hereunder.
(h)
Notices. Any notices, consents, waivers, or other document or communications required or permitted to be given or delivered
under the terms of this Warrant must be in writing and will be deemed to have been delivered: (i) upon receipt, if delivered personally;
(ii) when sent, if sent by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept
on file by the sending party); (iii) if sent by overnight courier service, one (1) Trading Day after deposit with an overnight
courier service with next day delivery specified, and (iv) if sent by certified mail or private courier service within five (5)
Trading Days after deposit of such notice, in each case, properly addressed to the party to receive the same. The addresses and
facsimile numbers for such communications shall be:
If
to the Company:
Verb
Technology Company, Inc.
344
South Hauser Blvd., Suite 414
Los
Angeles, California 90036
Attn:
Rory J. Cutaia, President and Chief Executive Officer
Fax
No.: 714-966-8802
with
a copy (which shall not constitute notice) to:
Baker
& Hostetler LLP
600
Anton Blvd., Suite 900
Costa
Mesa, California 92626
Attn:
Randolf W. Katz, Esq.
Fax
No: 714-966-8802
If
to a Holder, to its address, facsimile number, or e-mail address set forth herein or on the books and records of the Company.
(i)
Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant
to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability
of the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted
by the Company or by creditors of the Company.
(j)
Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees
to waive and not to assert the defense in any action for specific performance that a remedy at law would be adequate.
(k)
Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby
shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted
assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant
and shall be enforceable by the Holder or holder of Warrant Shares.
(l)
Amendment. This Warrant may be modified or amended, including any amendment to increase the Exercise Price or shorten the
Exercise Period, and the provisions hereof may be waived, in each case with the written consent of the Company and Holder.
(m)
Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions
or the remaining provisions of this Warrant.
(n)
Effect of Headings. The Section headings herein are for convenience only and are not part of this Warrant and shall not
affect the interpretation thereof.
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(Signature
Page Follows)
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first
above indicated.
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VERB
TECHNOLOGY COMPANY, INC.
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By:
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/s/
Jeffrey R. Clayborne
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Jeffrey
R. Clayborne, Chief Financial Officer
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Exhibit
A
NOTICE
OF EXERCISE
TO:
VERB TECHNOLOGY COMPANY, INC.
(1)
The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant
and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2)
Payment shall take the form of in lawful money of the United States by wire transfer or cashier’s check drawn on a United
States bank
(3)
Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
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The
Warrant Shares shall be delivered to the following DWAC Account Number:
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or
by physical delivery of a certificate to:
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[SIGNATURE
OF HOLDER]
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Name
of Investing Entity:
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Signature
of Authorized Signatory of Investing Entity:
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Name
of Authorized Signatory:
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Title
of Authorized Signatory:
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Exhibit
B
ASSIGNMENT
FORM
(To
assign the attached Warrant, execute this form and supply required information.
Do
not use this form to exercise the Warrant.)
FOR
VALUE RECEIVED, [____] all of or [_______] shares of the attached Warrant and all rights evidenced thereby are hereby assigned
to:
_______________________________________________,
whose address is
_______________________________________________________________
_______________________________________________________________
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Date:
______________, _______
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Holder’s
Signature:
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Holder’s
Address:
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NOTE:
The signature to this Assignment Form must correspond with the name as it appears on the face of the Warrant, without alteration
or enlargement or any change whatsoever. Officers of corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing Warrant.
Exhibit
5.1
[TROUTMAN
PEPPER HAMILTON SANDERS LLP LETTERHEAD]
August
10, 2020
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Verb
Technology Company, Inc.
2210
Newport Boulevard, Suite 200
Newport
Beach, California 92663
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Re:
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Registration
Statement on Form S-3
Registering 3,338,141 Shares of Common Stock
Underlying Warrants
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Ladies
and Gentlemen:
We
have acted as counsel to Verb Technology Company, Inc., a Nevada corporation (the “Company”), in connection
with the registration statement on Form S-3 to which this opinion is an exhibit (the “Registration Statement”)
with respect to the offer and sale by the persons and entities named in the Registration Statement (the “Selling Security
Holders”) of up to an aggregate of 3,338,141 shares of the Company’s common stock, $0.0001 par value per
share (the “Shares”), issuable upon exercise of warrants to purchase common stock (the “Warrants”)
issued on July 10, 2019, February 7, 2020, February 25, 2020, August 5, 2020 and August 6, 2020.
This
opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of
1933, as amended (the “Securities Act”), and no opinion is expressed herein as to any matter pertaining to
the contents of the Registration Statement or prospectus forming a part of the Registration Statement, other than as to the validity
of the Shares.
We
are familiar with the corporate actions taken and proposed to be taken by the Company in connection with the authorization, issuance
and sale of the Shares and have made such other legal and factual inquiries as we deem necessary for purposes of rendering this
opinion. We have relied upon certificates and other assurances of officers of the Company and others as to factual matters; we
have not independently verified such matters. We have assumed the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all documents submitted to us as copies and the authenticity
of the originals of such copied documents. We have also assumed that the Shares are and will be evidenced by appropriate certificates
that have been properly executed and delivered.
Based
on the foregoing and in reliance thereon, and subject to the qualifications and limitations set forth below, we are of the opinion
that the Shares, when issued upon exercise of each of the Warrants in accordance with their respective terms, will be validly
issued, fully paid and non-assessable.
You
have informed us that the Selling Security Holders may sell the Shares from time to time on a delayed or continuous basis. This
opinion is limited to the Nevada Revised Statutes (“NRS”), including the statutory provisions of the NRS, all applicable
provisions of the Constitution of the State of Nevada and all reported judicial decisions interpreting these laws, and federal
law, exclusive of state securities and blue sky laws, rules and regulations.
We
hereby consent to the use of our name under the caption “Legal Matters” in the prospectus forming a part of the Registration
Statement and to the filing of this opinion as Exhibit 5.1 to the Registration Statement. In giving this consent, we do not admit
that we are within the category of persons whose consent is required under Section 7 of the Securities Act, or the General Rules
and Regulations of the SEC.
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Respectfully
submitted,
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/s/
Troutman Pepper Hamilton Sanders LLP
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Exhibit
10.44
SETTLEMENT
AND RELEASE AGREEMENT
THIS
SETTLEMENT AND RELEASE AGREEMENT (“Agreement”) is made and entered into as of August 5, 2020 (the “Effective
Date”) by and among Verb Technology Company, Inc., a Nevada corporation (the “Company”), Iroquois
Capital Investment Group LLC (“Iroquois Capital”) and Iroquois Master Fund Ltd. (“Iroquois Master”
and together with Iroquois Capital, “Iroquois”). The foregoing parties are each referred to individually as
a “Party” and collectively as the “Parties” herein. Capitalized terms used and not otherwise
defined herein have the meanings given to such terms in that certain Securities Purchase Agreement dated as of August 8, 2019
by and among the Parties and the other purchasers party thereto (the “Securities Purchase Agreement”).
RECITALS:
WHEREAS,
on August 8, 2019, the Parties and the other purchasers party thereto entered into the Securities Purchase Agreement under which
the Company granted to each purchaser the right to participate in a Subsequent Financing on a pro-rata basis up to an amount equal
to fifty percent (50%) of the Subsequent Financing on the same terms, conditions and price provided for in the Subsequent Financing.
WHEREAS,
in connection with the Securities Purchase Agreement, on August 15, 2019, the Company issued common stock purchase warrants (the
“Iroquois August Warrants”) to (1) Iroquois Capital exercisable for up to 483,871 shares of the Company’s
common stock, par value $0.0001 per share (the “Common Stock”) and (2) Iroquois Master exercisable for up to
483,871 shares of the Company’s Common Stock.
WHEREAS,
on February 7, 2020, the Parties and the other signatories party thereto entered into that certain Omnibus Waiver and Acknowledgment
Agreement under which the Company agreed, among other things, to issue common stock purchase warrants (the “Iroquois
February 7 Warrants”) to (1) Iroquois Capital exercisable for up to 161,290 shares of the Company’s Common Stock
and (2) Iroquois Master exercisable for up to 161,290 shares of the Company’s Common Stock, and on February 25, 2020, the
Company issued additional common stock purchase warrants (collectively, with the Iroquois February 7 warrants, the “Iroquois
Waiver Warrants”) to (A) Iroquois Capital exercisable for up to 322,580 shares of the Company’s Common Stock and
(B) Iroquois Master for up to 322,580 shares of the Company’s Common Stock as consideration for waiving their right to participate
in the Company’s private placement of up to five million shares of the Company’s Common Stock.
WHEREAS,
on July 24, 2020, the Company closed a registered underwritten public offering pursuant to which the Company issued and sold 12,545,453
shares of the Company’s Common Stock (the “Public Offering”).
WHEREAS,
without any admission of wrongdoing or failures by the Company or Iroquois, the Company did not issue Iroquois 1,870,594 shares
of Common Stock in the Public Offering requested by Iroquois pursuant to certain participation rights set forth in the Securities
Purchase Agreement (the “Unsatisfied Participation Request”).
WHEREAS,
in an effort to resolve any claims with respect to such Unsatisfied Participation Request and to provide Iroquois with the number
of shares of Common Stock it would have been able to purchase in the Public Offering had Iroquois been allocated its participation
amount in accordance with the participation rights in the Securities Purchase Agreement, the Parties have agreed that, in exchange
for a full release of all claims with arising under, or related to, the Unsatisfied Participation Request, the Company will: (1)
issue a common stock purchase warrant to (A) Iroquois Capital to subscribe for and purchase up to 935,297 shares of the Company’s
Common Stock exercisable at $1.10 per share (the “Iroquois Capital New Warrant”), and (B) Iroquois Master to
subscribe for and purchase up to 935,297 shares of the Company’s Common Stock exercisable at $1.10 per share (the “Iroquois
Master New Warrant,” and collectively with the Iroquois Capital New Warrant, the “New Warrants”);
and (3) grant certain registration rights to Iroquois in respect of the shares of Common Stock issuable upon exercise of the New
Warrants (collectively, the “Warrant Shares”). The “New Warrants” and the “Warrant Shares”
are collectively referred to herein as the “Securities.”
AGREEMENT:
NOW,
THEREFORE, in consideration of the foregoing recitals, the mutual covenants and agreements and the terms and conditions set forth
herein and other valuable consideration, the Parties agree as follows:
1.
Issuance of New Warrants. Simultaneous with the execution and delivery of this Agreement by the Parties, the Company shall
issue to (i) Iroquois Capital the Iroquois Capital Warrant, and (ii) Iroquois Master, the Iroquois Master Warrant, each in the
form attached hereto as Exhibit A.
2.
Registration Rights.
A.
The Company agrees that, within ten (10) calendar days after the execution and delivery of this Agreement by the Parties (the
“Filing Date”), the Company (or its successor) will file with the Commission (at the Company’s sole cost
and expense) a resale registration statement on Form S-3 (the “Registration Statement”) with respect to the
Warrant Shares, and the Company shall use its reasonable best efforts to have the Registration Statement declared effective as
soon as practicable after the filing thereof (such date of effectiveness, the “Effectiveness Date”). The Company
agrees that it will cause such Registration Statement or another registration statement to remain continuously effective for a
period of the earlier to occur of (x) such date as Iroquois shall have resold all the Warrant Shares pursuant to such Registration
Statement and (y) such date all the Warrant Shares are initially eligible to be resold by Iroquois pursuant to Rule 144. The Company’s
obligations to include the Warrant Shares in the Registration Statement are contingent upon the undersigned furnishing in writing
to the Company such information regarding the undersigned, the securities of the Company held by the undersigned, and the intended
method of disposition of the Warrant Shares as shall be reasonably requested by the Company to effect the registration of the
Warrant Shares, and shall execute such documents in connection with such registration as the Company may reasonably request that
are customary of a selling stockholder in similar situations. The Company may suspend the use of any such registration statement
if it determines in the opinion of counsel for the Company that, in order for the registration statement to not contain a material
misstatement or omission, an amendment thereto would be needed to include information that would at that time not otherwise be
required in a current, quarterly, or annual report under the Exchange Act; provided, however, that the Company shall use
reasonable best efforts to make such registration statement available for the sale by the undersigned of such securities as soon
as practicable thereafter. The Company shall use commercially reasonably best efforts to register or qualify the Warrant Shares
covered by the Registration Statement under the securities or “blue sky” laws of such jurisdictions as Iroquois shall
reasonably request in writing; provided, however, that the Company shall not for any such purpose be required to qualify
generally to transact business as a foreign corporation in any jurisdiction where it is not so qualified or to consent to general
service of process in any such jurisdiction. The Company agrees that it will comply, and continue to comply during the effectiveness
period, with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all of the Warrant Shares
covered by the Registration Statement in accordance with Iroquois’ intended method of disposition set forth in the Registration
Statement for such period.
B.
After the filing of a Registration Statement, the Company shall promptly, and in no event more than two (2) Business Days after
such filing, notify Iroquois of such filing, and shall further notify Iroquois promptly and confirm such advice in writing in
all events within two (2) Business Days of the occurrence of any of the following: (i) when such Registration Statement becomes
effective; (ii) when any post-effective amendment to such Registration Statement becomes effective; (iii) the issuance or threatened
issuance by the Commission of any stop order (and the Company shall take all actions required to prevent the entry of such stop
order or to remove it, if entered); and (iv) any request by the Commission for any amendment or supplement to such Registration
Statement or any prospectus relating thereto or for additional information or of the occurrence of an event requiring the preparation
of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of the securities covered by
such Registration Statement, such prospectus will not contain an untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein not misleading, and promptly make available to
the holders of registrable securities included in such Registration Statement any such supplement or amendment.
C.
In connection with such registration, the Company will indemnify and hold harmless Iroquois, each officer and/or director of Iroquois,
and each other person, if any, who controls Iroquois within the meaning of the Securities Act, against any losses, claims, damages,
or liabilities, joint or several, to which Iroquois or such controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement under which the
Warrant Shares were registered under the Securities Act, any or final prospectus contained therein, or any amendment or supplement
thereof, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will reimburse Iroquois and each such controlling person
for any legal or other expenses reasonably incurred by it in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company will not be liable in any such case, if and to the extent
that any such loss, claim, damage, or liability arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission so made in conformity with information furnished by Iroquois or any such controlling person in
writing specifically for use in such Registration Statement or prospectus.
3.
Representations and Warranties of the Company. The Company hereby makes the following representations and warranties to
Iroquois as follows:
A.
Organization and Qualification. The Company and each of the subsidiaries is an entity duly incorporated or otherwise organized,
validly existing, and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite
power and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the
Company nor any subsidiary of the Company is in violation nor default of any of the provisions of its respective certificate or
articles of incorporation, bylaws or other organizational or charter documents. Each of the Company and the subsidiaries is duly
qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the
nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so
qualified or in good standing, as the case may be, could not have or reasonably be expected to result in: (i) a material adverse
effect on the legality, validity, or enforceability of this Agreement or the Securities, (ii) a material adverse effect on the
results of operations, assets, business, prospects, or condition (financial or otherwise) of the Company and its subsidiaries,
taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform in any material respect on a timely
basis its obligations under this Agreement and the Securities (any of (i), (ii), or (iii), a “Material Adverse Effect”)
and no proceeding has been instituted in any such jurisdiction revoking, limiting, or curtailing or seeking to revoke, limit or
curtail such power and authority or qualification.
B.
Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate
the transactions contemplated by this Agreement and the Securities and otherwise to carry out its obligations hereunder and thereunder.
The execution and delivery of this Agreement and the Securities by the Company and the consummation by it of the transactions
contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company and no further action
is required by the Company, the Board of Directors of the Company, or the Company’s stockholders in connection herewith
or therewith other than the approval of Nasdaq with respect to the Company’s Listing of Additional Shares application. This
Agreement and the Securities have been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance
with the terms hereof and thereof, will constitute the valid and binding obligation of the Company enforceable against the Company
in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization,
moratorium, and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited
by laws relating to the availability of specific performance, injunctive relief or other equitable remedies, and (iii) insofar
as indemnification and contribution provisions may be limited by applicable law.
C.
No Conflicts. The execution, delivery, and performance by the Company of this Agreement and the Securities, the issuance
of the Securities, and the consummation by it of the transactions contemplated hereby and thereby do not and will not (i) conflict
with or violate any provision of the Company’s or any of the Company’s subsidiary’s certificate or articles
of incorporation, bylaws, or other organizational or charter documents or (ii) conflict with, or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, result in the creation of any lien upon any of the properties
or assets of the Company or any subsidiary of the Company, or give to others any rights of termination, amendment, anti-dilution,
or similar adjustments, acceleration, or cancellation (with or without notice, lapse of time, or both) of, any agreement, credit
facility, debt, or other instrument (evidencing a Company or subsidiary debt or otherwise) or other understanding to which the
Company or any subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound or affected,
or (iii) subject to the Nasdaq’s approval of the Company’s Listing of Additional Shares application, conflict with
or result in a violation of any law, rule, regulation, order, judgment, injunction, decree, or other restriction of any court
or governmental authority to which the Company or a subsidiary is subject (including federal and state securities laws and regulations),
or by which any property or asset of the Company or a subsidiary is bound or affected; except in the case of each of clauses (ii)
and (iii), such as could not have or reasonably be expected to result in a Material Adverse Effect.
D.
Issuance of the Securities. The New Warrants are duly authorized and, when issued in accordance with this Agreement, will
be duly and validly issued, fully paid, and nonassessable, free and clear of all liens imposed by the Company other than restrictions
on transfer provided for in the in the Warrants. The Warrant Shares, when issued in accordance with the terms of the New Warrants,
will be validly issued, fully paid and nonassessable, free and clear of all liens imposed by the Company other than restrictions
on transfer provided for in the in the New Warrants. The Company has reserved from its duly authorized capital stock a number
of shares of Common Stock for issuance of the Warrant Shares.
4.
Representations and Warranties of Iroquois. Each of Iroquois Capital and Iroquois Master, severally and not jointly, hereby
represent and warrant to the Company as follows:
A.
Organization; Authority. Each of Iroquois Capital and Iroquois Master is an entity duly incorporated or formed, validly
existing, and in good standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate,
partnership, limited liability company, or similar power and authority to enter into and to consummate the transactions contemplated
by this Agreement and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of this Agreement
and performance by each of Iroquois Capital and Iroquois Master of the transactions contemplated by this Agreement have been duly
authorized by all necessary corporate, partnership, limited liability company, or similar action, as applicable, on the part of
each of Iroquois Capital and Iroquois Master. This Agreement has been duly executed by each of Iroquois Capital and Iroquois Master
`and, when delivered by each such party in accordance with the terms hereof, will constitute the valid and legally binding obligation
of each of Iroquois Capital and Iroquois Master, enforceable against it in accordance with its terms, except (i) as limited by
general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies, and (iii) insofar as indemnification and contribution provisions may be limited
by applicable law.
B.
Own Account. Each of Iroquois Capital and Iroquois Master understands that the Securities are “restricted securities”
and have not been registered under the Securities Act of 1933, as amended (the “Securities Act”) or any applicable
state securities law and is acquiring the Securities as principal for its own account and not with a view to or for distributing
or reselling such Securities or any part thereof in violation of the Securities Act or any applicable state securities law, has
no present intention of distributing any of such Securities in violation of the Securities Act or any applicable state securities
law, and has no direct or indirect arrangement or understandings with any other persons to distribute or regarding the distribution
of such Securities in violation of the Securities Act or any applicable state securities law (this representation and warranty
not limiting each of Iroquois Capital’s and Iroquois Master’s right to sell the Securities pursuant to the Registration
Statement or otherwise in compliance with applicable federal and state securities laws). Each of Iroquois Capital and Iroquois
Master is acquiring the Securities hereunder in the ordinary course of its business.
C.
Status. At the time each of Iroquois Capital and Iroquois Master was offered the Securities, it was, and as of the date
hereof it is, and on each date on which it exercises any New Warrants, it will be either: (i) an “accredited investor”
as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7), or (a)(8) under the Securities Act or (ii) a “qualified institutional
buyer” as defined in Rule 144A(a) under the Securities Act.
D.
Experience of Each of Iroquois Capital and Iroquois Master. Each of Iroquois Capital and Iroquois Master, either alone
or together, with its representatives, has such knowledge, sophistication, and experience in business and financial matters so
as to be capable of evaluating the merits and risks of the prospective investment in the Securities, and has so evaluated the
merits and risks of such investment. Each of Iroquois Capital and Iroquois Master is able to bear the economic risk of an investment
in the Securities and, at the present time, is able to afford a complete loss of such investment.
5.
Release. To the fullest extent permitted by law (the following is collectively referred to as the “Release”):
A.
Iroquois Capital and Iroquois Master, severally and not jointly, hereby release and forever discharge the Company and its respective
successors, assigns, employees, officers, members, shareholders, owners, directors, agents, attorneys, managers, members, representatives,
insurers, subsidiaries, divisions and affiliated organizations (collectively, “Related Parties” and together
with the Company, the “Released Company Parties”) from any and all claims, demands, causes of action, damages,
attorneys’ fees, costs, liabilities and obligations of any nature whatsoever, whether or not now known, suspected or claimed
(collectively, “Claims”), that Iroquois Capital or Iroquois Master or any of their respective Related Parties
ever had, has, or may claim to have, in each case as of the Effective Date, against the Released Company Parties, or any of them,
arising out of or related to the Unsatisfied Participation Request (other than any rights of Iroquois Capital or Iroquois Master
arising pursuant to this Agreement, including any claim that the waiver referred to in Section 7 below does not conform
to the requirements of Section 1542 of the California Civil Code. Iroquois Capital and Iroquois Master each represent and warrant
to the Company that:
(1)
its Claims subject to the Release by it are free and clear of any lien, claim, encumbrance, limitation or restriction and may
freely be released by it under this Agreement pursuant to the terms of the Release, including Sections 6, 7, 8 and 9 below;
and
(2)
it has not assigned or otherwise transferred to any third party any claim or other matter that, absent such an assignment or transfer,
would otherwise fall within the scope of the foregoing Release.
6.
Nature of Release. The Release is a general releases of all claims, demands, causes of action, obligations, damages, attorneys’
fees, costs and liabilities arising out of or related to the Unsatisfied Participation Request of any nature whatsoever within
the scope of the Release and is intended to encompass all known and unknown, foreseen and unforeseen Claims arising out of or
related to the Unsatisfied Participation Request that Iroquois Capital or Iroquois Master or any of their respective Related Parties
may have against the Released Company Parties, or any of them, within the scope of the Release, and except for any Claims that
may arise from the terms of this Agreement, the Securities or any other securities of the Company held by Iroquois Capital or
Iroquois Master. Iroquois Capital and Iroquois Master, including for and on behalf of their respective Related Parties, covenant
and agree never to commence, aid in any way, prosecute or cause to be commenced or prosecuted any action or other proceeding based
upon any Claims arising out of or related to the Unsatisfied Participation Request.
7.
Waiver of Section 1542 Rights. Iroquois Capital and Iroquois Master, including for and on behalf of their respective Related
Parties, expressly waive and relinquish all rights and benefits they may have under Section 1542 of the California Civil Code
with respect to releases in Section 5 above. Section 1542 is intended to protect against an inadvertent release of unknown
or unsuspected claims arising out of or related to the Unsatisfied Participation Request that would be material to this Agreement.
This Agreement provides that Iroquois Capital and Iroquois Master, including for and on behalf of their respective Related Parties,
also are releasing any such unknown or unsuspected claims arising out of or related to the Unsatisfied Participation Request.
Section 1542 reads as follows:
“A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH THE DEBTOR OR RELEASED PARTY.”
8.
Non-Admission of Liability. The Parties acknowledge and agree that this Agreement is a settlement agreement and shall not
in any way be construed as an admission by any Party of any wrongful act against, or any liability to, the other Party or its
or their respective Related Parties or any other person.
9.
Risk of New or Different Information. Each of the Parties acknowledges that it may discover new information different from
or inconsistent with facts presently believed to be true, including those that may be relevant to the release of any claims hereunder,
and expressly agrees to assume the risk of such new or different information.
10.
Section 4.14 of the Securities Purchase Agreement. Each the Parties acknowledges and agrees that the issuance of New Warrants
to Iroquois pursuant to this Agreement are solely in exchange for the release of claims pursuant to the Unsatisfied Participation
Request and not additional consideration subject to the provisions contained in Section 4.14 of the Securities Purchase Agreement.
11.
Further Assurances. Upon a Party’s reasonable request, the other Party will execute and deliver such instruments,
documents or other writings and take such actions as may be reasonably necessary or desirable to confirm and carry out and to
effectuate fully the intent and purposes of this Agreement.
12.
Acknowledgment of Being Advised to Consult Legal Counsel. This Agreement is an important legal document. Each of the Parties
acknowledges that it has been advised in writing to consult with an attorney of its own choice prior to signing this Agreement,
and that it has had the opportunity to consult with an attorney to the extent it so desires.
13.
Attorneys’ Fees, Costs, and Expenses. In any action, proceeding, or dispute arising out of this Agreement or the
transactions contemplated hereby, the successful Party therein (regardless of whether the matter is pursued to judgment or is
voluntarily dismissed) shall be entitled to recover from the other Party thereto the reasonable attorneys’ and paralegals’
fees, court costs, filing fees and all other expenses incurred by the successful Party in connection therewith, at trial and all
appellate proceedings, and in all bankruptcy, administrative, and similar proceedings.
14.
Ambiguities; Interpretation. The Parties agree that the general rule that ambiguities shall be construed against the drafting
party shall not apply to any interpretation of this Agreement. Any use of the term “including” shall be read to mean
“including, without limitation” in this Agreement.
15.
Entire Agreement. No Party is relying, and has not relied, on any representation or statement by any other Party or their
respective Related Parties with regard to the subject matter or terms of this Agreement, except to the extent set forth in this
Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement,
and supersedes any and all other agreements, understandings or discussions between the Parties and their respective Related Parties
with respect to the subject matter of this Agreement.
16.
Expenses. At the Closing, the Company shall reimburse Kelley Drye & Warren LLP a non-accountable amount of up to $2,500
for any legal expenses in connection with the drafting and negotiation of this Agreement. The Company will bear its own costs
and expenses (including legal fees and expenses) incurred in connection with this Agreement and the transactions contemplated
hereby.
17.
Modification. This Agreement cannot be modified or terminated, except by a writing signed by the Party against whom enforcement
of the modification or termination is sought.
18.
Execution in Counterparts. This Agreement may be executed in any multiple counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same instrument.
19.
Governing Law. This Agreement and all rights, duties and remedies hereunder shall be governed by, construed and enforced
in accordance with the laws of the State of New York. The Parties hereby irrevocably submit to and acknowledge and recognize the
exclusive jurisdiction and venue of the state and federal courts located in the City of New York, Borough of Manhattan over any
suit, action or other proceeding arising out of, under, or in connection with this Agreement or the subject matter hereof.
20.
Successors and Assigns. This Agreement shall inure to the benefit of and be binding on the Parties and their respective
successors and assigns. No person shall be a third-party beneficiary of this Agreement except as specifically provided herein.
[Signature
Pages Follow]
IN
WITNESS WHEREOF, the Parties hereto have executed this Warrant Issuance and Amendment Agreement as of the Effective Date.
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The
Company:
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VERB
TECHNOLOGY COMPANY, INC.
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By:
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/s/
Rory J. Cutaia
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Name:
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Rory
J. Cutaia
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Title:
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President,
Chief Executive Officer, Secretary and Director
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Iroquois:
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IROQUOIS
CAPITAL INVESTMENT GROUP LLC
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By:
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/s/
Richard Abbe
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Name:
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Richard
Abbe
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Title:
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Managing
Member
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IROQUOIS
MASTER FUND LTD.
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By:
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/s/
Richard Abbe
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Name:
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Richard
Abbe
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Title:
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Managing
Member
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Exhibit
A
Form
of Common Stock Purchase Warrant
(see
attached)
Exhibit
10.45
SETTLEMENT
AND RELEASE AGREEMENT
THIS SETTLEMENT AND RELEASE
AGREEMENT (“Agreement”) is made and entered into as of August 6, 2020 (the “Effective Date”)
by and among Verb Technology Company, Inc., a Nevada corporation (the “Company”), and Kingsbrook Opportunities
Master Fund LP (“Kingsbrook”). The foregoing parties are each referred to individually as a “Party”
and collectively as the “Parties” herein. Capitalized terms used and not otherwise defined herein have the meanings
given to such terms in that certain Securities Purchase Agreement dated as of August 8, 2019 by and among the Parties and the other
purchasers party thereto (the “Securities Purchase Agreement”).
RECITALS:
WHEREAS, on August 8, 2019,
the Parties and the other purchasers party thereto entered into the Securities Purchase Agreement under which the Company granted
to each purchaser, including Kingsbrook, the right to participate in a Subsequent Financing on a pro-rata basis up to an amount
equal to fifty percent (50%) of the Subsequent Financing on the same terms, conditions and price provided for in the Subsequent
Financing.
WHEREAS, on February 5,
2020, the Company commenced a private offering of the Company’s Common Stock at a purchase price per share of $1.20 (the
“February 2020 Private Placement”), which February 2020 Private Placement was completed pursuant to a closing
held on February 25, 2020 and a second closing that was held on March 20, 2020.
WHEREAS, without any admission
of wrongdoing or failures by the Company or Kingsbrook, the Company did not provide certain participation rights set forth in the
Securities Purchase Agreement (the “Unsatisfied Participation Request”) in connection with the February 2020
Private Placement.
WHEREAS, in an effort to
resolve any claims with respect to such Unsatisfied Participation Request, the Parties have agreed that, in exchange for a full
release of all claims with arising under, or related to, the Unsatisfied Participation Request, the Company will: issue a common
stock purchase warrant to Kingsbrook to subscribe for and purchase up to 40,000 shares of the Company’s Common Stock exercisable
at $1.10 per share (the “Kingsbrook New Warrant”); and grant certain registration rights to Kingsbrook in respect
of the shares of Common Stock issuable upon exercise of the New Warrants (collectively, the “Warrant Shares”).
The “New Warrants” and the “Warrant Shares” are collectively referred to herein as the “Securities.”
AGREEMENT:
NOW, THEREFORE, in consideration
of the foregoing recitals, the mutual covenants and agreements and the terms and conditions set forth herein and other valuable
consideration, the Parties agree as follows:
1. Issuance of New
Warrants. Simultaneous with the execution and delivery of this Agreement by the Parties, the Company shall issue to Kingsbrook
the Kingsbrook New Warrant in the form attached hereto as Exhibit A.
2. Registration Rights.
A. The Company
agrees that, within ten (10) calendar days after the execution and delivery of this Agreement
by the Parties (the “Filing Date”), the Company (or its successor) will file with the Commission (at the Company’s
sole cost and expense) a resale registration statement on Form S-3 (the “Registration Statement”) with respect
to the Warrant Shares, and the Company shall use its reasonable best efforts to have the Registration Statement declared effective
as soon as practicable after the filing thereof (such date of effectiveness, the “Effectiveness Date”). The
Company agrees that it will cause such Registration Statement or another registration statement to remain continuously effective
for a period of the earlier to occur of (x) such date as Kingsbrook shall have resold all the Warrant Shares pursuant to such Registration
Statement and (y) such date all the Warrant Shares are initially eligible to be resold by Kingsbrook pursuant to Rule 144. The
Company’s obligations to include the Warrant Shares in the Registration Statement are contingent upon the undersigned furnishing
in writing to the Company such information regarding the undersigned, the securities of the Company held by the undersigned, and
the intended method of disposition of the Warrant Shares as shall be reasonably requested by the Company to effect the registration
of the Warrant Shares, and shall execute such documents in connection with such registration as the Company may reasonably request
that are customary of a selling stockholder in similar situations. The Company may suspend the use of any such registration statement
if it determines in the opinion of counsel for the Company that, in order for the registration statement to not contain
a material misstatement or omission, an amendment thereto would be needed to include information that would at that time not otherwise
be required in a current, quarterly, or annual report under the Exchange Act; provided, however, that the Company shall
use reasonable best efforts to make such registration statement available for the sale by the undersigned of such securities as
soon as practicable thereafter. The Company shall use commercially reasonably best efforts to register or qualify the Warrant Shares
covered by the Registration Statement under the securities or “blue sky” laws of such jurisdictions as Kingsbrook shall
reasonably request in writing; provided, however, that the Company shall not for any such purpose be required to qualify
generally to transact business as a foreign corporation in any jurisdiction where it is not so qualified or to consent to general
service of process in any such jurisdiction. The Company agrees that it will comply, and continue to comply during the effectiveness
period, with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all of the Warrant Shares
covered by the Registration Statement in accordance with Kingsbrook’ intended method of disposition set forth in the Registration
Statement for such period.
B. After
the filing of a Registration Statement, the Company shall promptly, and in no event more than two (2) Business Days after such
filing, notify Kingsbrook of such filing, and shall further notify Kingsbrook promptly and confirm such advice in writing in all
events within two (2) Business Days of the occurrence of any of the following: (i) when such Registration Statement becomes effective;
(ii) when any post-effective amendment to such Registration Statement becomes effective; (iii) the issuance or threatened issuance
by the Commission of any stop order (and the Company shall take all actions required to prevent the entry of such stop order or
to remove it, if entered); and (iv) any request by the Commission for any amendment or supplement to such Registration Statement
or any prospectus relating thereto or for additional information or of the occurrence of an event requiring the preparation of
a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of the securities covered by such
Registration Statement, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not misleading, and promptly make available to the holders
of registrable securities included in such Registration Statement any such supplement or amendment. Notwithstanding anything
contained herein to the contrary, the failure of the Company to provide any of the notices to Kingsbrook contemplated herein shall
not be deemed a default under this agreement and Kingsbrook agrees that such notices are for convenience and courtesy only.
C. In
connection with such registration, the Company will indemnify and hold harmless Kingsbrook, each officer and/or director of Kingsbrook,
and each other person, if any, who controls Kingsbrook within the meaning of the Securities Act, against any losses, claims, damages,
or liabilities, joint or several, to which Kingsbrook or such controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement under which the Warrant
Shares were registered under the Securities Act, any or final prospectus contained therein, or any amendment or supplement thereof,
or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse Kingsbrook and each such controlling person for
any legal or other expenses reasonably incurred by it in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in any such case, if and to the extent that
any such loss, claim, damage, or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission so made in conformity with information furnished by Kingsbrook or any such controlling person in writing specifically
for use in such Registration Statement or prospectus.
3. Representations and
Warranties of the Company. The Company hereby makes the following representations and warranties to Kingsbrook as follows:
A. Organization
and Qualification. The Company and each of the subsidiaries is an entity duly incorporated or otherwise organized, validly
existing, and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power
and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company
nor any subsidiary of the Company is in violation nor default of any of the provisions of its respective certificate or articles
of incorporation, bylaws or other organizational or charter documents. Each of the Company and the subsidiaries is duly qualified
to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of
the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified
or in good standing, as the case may be, could not have or reasonably be expected to result in: (i) a material adverse effect on
the legality, validity, or enforceability of this Agreement or the Securities, (ii) a material adverse effect on the results of
operations, assets, business, prospects, or condition (financial or otherwise) of the Company and its subsidiaries, taken as a
whole, or (iii) a material adverse effect on the Company’s ability to perform in any material respect on a timely basis its
obligations under this Agreement and the Securities (any of (i), (ii), or (iii), a “Material Adverse Effect”)
and no proceeding has been instituted in any such jurisdiction revoking, limiting, or curtailing or seeking to revoke, limit or
curtail such power and authority or qualification.
B. Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
by this Agreement and the Securities and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery
of this Agreement and the Securities by the Company and the consummation by it of the transactions contemplated hereby and thereby
have been duly authorized by all necessary action on the part of the Company and no further action is required by the Company,
the Board of Directors of the Company, or the Company’s stockholders in connection herewith or therewith other than the approval
of Nasdaq with respect to the Company’s Listing of Additional Shares application. This Agreement and the Securities have
been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof and
thereof, will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its
terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium,
and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating
to the availability of specific performance, injunctive relief or other equitable remedies, and (iii) insofar as indemnification
and contribution provisions may be limited by applicable law.
C. No Conflicts.
The execution, delivery, and performance by the Company of this Agreement and the Securities, the issuance of the Securities, and
the consummation by it of the transactions contemplated hereby and thereby do not and will not (i) conflict with or violate any
provision of the Company’s or any of the Company’s subsidiary’s certificate or articles of incorporation, bylaws,
or other organizational or charter documents or (ii) conflict with, or constitute a default (or an event that with notice or lapse
of time or both would become a default) under, result in the creation of any lien upon any of the properties or assets of the Company
or any subsidiary of the Company, or give to others any rights of termination, amendment, anti-dilution, or similar adjustments,
acceleration, or cancellation (with or without notice, lapse of time, or both) of, any agreement, credit facility, debt, or other
instrument (evidencing a Company or subsidiary debt or otherwise) or other understanding to which the Company or any subsidiary
is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Nasdaq’s
approval of the Company’s Listing of Additional Shares application, conflict with or result in a violation of any law, rule,
regulation, order, judgment, injunction, decree, or other restriction of any court or governmental authority to which the Company
or a subsidiary is subject (including federal and state securities laws and regulations), or by which any property or asset of
the Company or a subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not have
or reasonably be expected to result in a Material Adverse Effect.
D. Issuance
of the Securities. The New Warrants are duly authorized and, when issued in accordance with this Agreement, will be duly and
validly issued, fully paid, and nonassessable, free and clear of all liens imposed by the Company other than restrictions on transfer
provided for in the in the Warrants. The Warrant Shares, when issued in accordance with the terms of the New Warrants, will be
validly issued, fully paid and nonassessable, free and clear of all liens imposed by the Company other than restrictions on transfer
provided for in the in the New Warrants. The Company has reserved from its duly authorized capital stock a number of shares of
Common Stock for issuance of the Warrant Shares.
4. Representations and
Warranties of Kingsbrook. Kingsbrook hereby represents and warrants to the Company as follows:
A. Organization;
Authority. Kingsbrook is an entity duly incorporated or formed, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company, or similar power
and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations
hereunder and thereunder. The execution and delivery of this Agreement and performance by Kingsbrook of the transactions contemplated
by this Agreement have been duly authorized by all necessary corporate, partnership, limited liability company, or similar action,
as applicable, on the part of Kingsbrook. This Agreement has been duly executed by Kingsbrook `and, when delivered by Kingsbrook
in accordance with the terms hereof, will constitute the valid and legally binding obligation of Kingsbrook, enforceable against
it in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization,
moratorium, and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by
laws relating to the availability of specific performance, injunctive relief, or other equitable remedies, and (iii) insofar as
indemnification and contribution provisions may be limited by applicable law.
B. Own Account.
Kingsbrook understands that the Securities are “restricted securities” and have not been registered under the Securities
Act of 1933, as amended (the “Securities Act”) or any applicable state securities law and is acquiring the Securities
as principal for its own account and not with a view to or for distributing or reselling such Securities or any part thereof in
violation of the Securities Act or any applicable state securities law, has no present intention of distributing any of such Securities
in violation of the Securities Act or any applicable state securities law, and has no direct or indirect arrangement or understandings
with any other persons to distribute or regarding the distribution of such Securities in violation of the Securities Act or any
applicable state securities law (this representation and warranty not limiting Kingsbrook’s right to sell the Securities
pursuant to the Registration Statement or otherwise in compliance with applicable federal and state securities laws). Kingsbrook
is acquiring the Securities hereunder in the ordinary course of its business.
C. Status.
At the time Kingsbrook was offered the Securities, it was, and as of the date hereof it is, and on each date on which it exercises
any New Warrants, it will be either: (i) an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7),
or (a)(8) under the Securities Act or (ii) a “qualified institutional buyer” as defined in Rule 144A(a) under the Securities
Act.
D. Experience
of Kingsbrook. Kingsbrook, either alone or with its representatives, has such knowledge, sophistication, and experience in
business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Securities,
and has so evaluated the merits and risks of such investment. Kingsbrook is able to bear the economic risk of an investment in
the Securities and, at the present time, is able to afford a complete loss of such investment.
5. Release. To the
fullest extent permitted by law (the following is collectively referred to as the “Release”):
A. Kingsbrook
hereby releases and forever discharges the Company and its respective successors, assigns, employees, officers, members, shareholders,
owners, directors, agents, attorneys, managers, members, representatives, insurers, subsidiaries, divisions and affiliated organizations
(collectively, “Related Parties” and together with the Company, the “Released Company Parties”)
from any and all claims, demands, causes of action, damages, attorneys’ fees, costs, liabilities and obligations of any nature
whatsoever, whether or not now known, suspected or claimed (collectively, “Claims”), that Kingsbrook or any
of its Related Parties ever had, has, or may claim to have, in each case as of the Effective Date, against the Released Company
Parties, or any of them, arising out of or related to the Unsatisfied Participation Request (other than any rights of Kingsbrook
arising pursuant to this Agreement, including any claim that the waiver referred to in Section 7 below does not conform
to the requirements of Section 1542 of the California Civil Code). Kingsbrook represents and warrants to the Company that:
(1) its Claims
subject to the Release by it are free and clear of any lien, claim, encumbrance, limitation or restriction and may freely be released
by it under this Agreement pursuant to the terms of the Release, including Sections 6, 7, 8 and 9 below; and
(2) it has not
assigned or otherwise transferred to any third party any claim or other matter that, absent such an assignment or transfer, would
otherwise fall within the scope of the foregoing Release.
6. Nature of Release.
The Release is a general releases of all claims, demands, causes of action, obligations, damages, attorneys’ fees, costs
and liabilities arising out of or related to the Unsatisfied Participation Request of any nature whatsoever within the scope of
the Release and is intended to encompass all known and unknown, foreseen and unforeseen Claims arising out of or related to the
Unsatisfied Participation Request that Kingsbrook or any of its Related Parties may have against the Released Company Parties,
or any of them, within the scope of the Release, and except for any Claims that may arise from the terms of this Agreement, the
Securities or any other securities of the Company held by Kingsbrook. Kingsbrook, including for and on behalf of its Related Parties,
covenants and agrees never to commence, aid in any way, prosecute or cause to be commenced or prosecuted any action or other proceeding
based upon any Claims arising out of or related to the Unsatisfied Participation Request.
7. Waiver of Section
1542 Rights. Kingsbrook, including for and on behalf of its Related Parties, expressly waive and relinquish all rights and
benefits it and they may have under Section 1542 of the California Civil Code with respect to releases in Section 5 above.
Section 1542 is intended to protect against an inadvertent release of unknown or unsuspected claims arising out of or related to
the Unsatisfied Participation Request that would be material to this Agreement. This Agreement provides that Kingsbrook, including
for and on behalf of its Related Parties, also are releasing any such unknown or unsuspected claims arising out of or related to
the Unsatisfied Participation Request. Section 1542 reads as follows:
“A GENERAL RELEASE DOES
NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR
RELEASED PARTY.”
8. Non-Admission of
Liability. The Parties acknowledge and agree that this Agreement is a settlement agreement and shall not in any way be construed
as an admission by any Party of any wrongful act against, or any liability to, the other Party or its or their respective Related
Parties or any other person.
9. Risk of New or Different
Information. Each of the Parties acknowledges that it may discover new information different from or inconsistent with facts
presently believed to be true, including those that may be relevant to the release of any claims hereunder, and expressly agrees
to assume the risk of such new or different information.
10. Section 4.14 of
the Securities Purchase Agreement. Each the Parties acknowledges and agrees that the issuance of New Warrants to Kingsbrook
pursuant to this Agreement are solely in exchange for the release of claims pursuant to the Unsatisfied Participation Request and
not additional consideration subject to the provisions contained in Section 4.14 of the Securities Purchase Agreement.
11. Further Assurances.
Upon a Party’s reasonable request, the other Party will execute and deliver such instruments, documents or other writings
and take such actions as may be reasonably necessary or desirable to confirm and carry out and to effectuate fully the intent and
purposes of this Agreement.
12. Acknowledgment of
Being Advised to Consult Legal Counsel. This Agreement is an important legal document. Each of the Parties acknowledges that
it has been advised in writing to consult with an attorney of its own choice prior to signing this Agreement, and that it has had
the opportunity to consult with an attorney to the extent it so desires.
13. Attorneys’
Fees, Costs, and Expenses. In any action, proceeding, or dispute arising out of this Agreement or the transactions contemplated
hereby, the successful Party therein (regardless of whether the matter is pursued to judgment or is voluntarily dismissed) shall
be entitled to recover from the other Party thereto the reasonable attorneys’ and paralegals’ fees, court costs, filing
fees and all other expenses incurred by the successful Party in connection therewith, at trial and all appellate proceedings, and
in all bankruptcy, administrative, and similar proceedings.
14. Ambiguities; Interpretation.
The Parties agree that the general rule that ambiguities shall be construed against the drafting party shall not apply to any interpretation
of this Agreement. Any use of the term “including” shall be read to mean “including, without limitation”
in this Agreement.
15. Entire Agreement.
No Party is relying, and has not relied, on any representation or statement by any other Party or their respective Related Parties
with regard to the subject matter or terms of this Agreement, except to the extent set forth in this Agreement. This Agreement
constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement, and supersedes any and
all other agreements, understandings or discussions between the Parties and their respective Related Parties with respect to the
subject matter of this Agreement.
16. Modification.
This Agreement cannot be modified or terminated, except by a writing signed by the Party against whom enforcement of the modification
or termination is sought.
17. Execution in Counterparts.
This Agreement may be executed in any multiple counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
18. Governing Law.
This Agreement and all rights, duties and remedies hereunder shall be governed by, construed and enforced in accordance with the
laws of the State of New York. The Parties hereby irrevocably submit to and acknowledge and recognize the exclusive jurisdiction
and venue of the state and federal courts located in the City of New York, Borough of Manhattan over any suit, action or other
proceeding arising out of, under, or in connection with this Agreement or the subject matter hereof.
19. Successors and Assigns.
This Agreement shall inure to the benefit of and be binding on the Parties and their respective successors and assigns. No person
shall be a third-party beneficiary of this Agreement except as specifically provided herein.
[Signature Pages Follow]
IN WITNESS WHEREOF, the
Parties hereto have executed this Warrant Issuance and Amendment Agreement as of the Effective Date.
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The
Company:
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VERB
TECHNOLOGY COMPANY, INC.
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By:
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/s/
Rory J. Cutaia
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Name:
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Rory
J. Cutaia
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Title:
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President,
Chief Executive Officer, Secretary and Director
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Kingsbrook:
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KINGSBROOK
OPPORTUNITIES MASTER FUND LP
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By:
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Kingsbrook
Opportunities GP LLC, its general partner
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By:
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/s/
Scott M. Wallace
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Name:
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Scott
M. Wallace
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Title:
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Managing
Member
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Exhibit A
Form of Common Stock Purchase
Warrant
(see attached)
Exhibit
23.2
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the incorporation by reference in this Registration Statement on Form S-3 of Verb Technology Company, Inc. of our report
dated May 14, 2020, relating to the financial statements of Verb Technology Company, Inc. (the “Company”), (which
report expresses an unqualified opinion on the financial statements for the year ended December 31, 2019 modified for uncertainty
relating to the substantial doubt about the Company’s ability to continue as a going concern as described in Note 1 to the
financial statements) appearing in the Annual Report on Form 10-K of Verb Technology Company, Inc. for the year ended December
31, 2019 and Amendment No. 1 to Annual Report on Form 10-K/A for the fiscal year ended December 31, 2019.
We
also consent to the reference to our firm under the caption “Experts” in such Prospectus.
/s/
WEINBERG & COMPANY, P.A.
Los
Angeles, California
August
10, 2020