UNITED STATES  

SECURITIES AND EXCHANGE COMMISSION  

Washington, DC 20549

 

FORM 8-K

 

CURRENT REPORT 

Pursuant to Section 13 OR 15(d) of the Securities and Exchange Act of 1934

 

Date of Report (Date of earliest event reported): September 4, 2018

 

Commission File Number 000-54530

 

GOPHER PROTOCOL INC. 

(Exact name of small business issuer as specified in its charter)

 

Nevada 27-0603137
(State or other jurisdiction of incorporation or
organization)
(I.R.S. Employer Identification No.)

 

2500 Broadway, Suite F-125, Santa Monica, CA 90404  

(Address of principal executive offices)

 

424-238-4589  

(Issuer’s telephone number)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instructions A.2. below):

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Indicate by check mark whether the registrant is an emerging growth company as defined in as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company ☐

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

 

 

 

 

Item 1.01

Entry Into a Material Definitive Agreement.

Item 3.02 Unregistered Sales of Equity Securities.

 

On September 4, 2018, Gopher Protocol Inc. (the “Company”) and Mobiquity Technologies, Inc., a New York corporation (OTCQB: MOBQ”) (“Mobiquity”) entered an Agreement (the “MOBQ Agreement”) pursuant to which the parties exchanged equity interest in each of the companies. In accordance with the Agreement, the Company will receive 1,000 shares of Mobiquity’s restricted Series AAAA Preferred Stock (the “Mobiquity Preferred Stock”) in consideration of Company’s concurrent sale and issuance to Mobiquity of 10,000,000 shares of Company’s restricted Common Stock (the “Gopher Common Stock”). The shares of Mobiquity Preferred Stock are convertible into an aggregate of up to 100,000,000 shares of Mobiquity common stock (the “Mobiquity Common Stock”) and 150,000,000 common stock purchase warrants (the “Mobiquity Warrants”). The Mobiquity Warrants shall have a term of 5-years from the date of grant and shall be exercisable at a price of $0.12 per share and the shares of Mobiquity Preferred Stock shall not be convertible into shares of Mobiquity Common Stock and the Mobiquity Warrants shall not be contemporaneously granted until after Mobiquity’s Board of Directors and stockholders shall have increased the authorized number of shares of Mobiquity’s common stock to a number sufficient to accommodate a reserve in the Company’s favor of 250,000,000 shares of Mobiquity’s common stock. The Mobiquity Preferred Stock shall have immediate voting rights equal to the number of shares of Mobiquity Common Stock into which they may be converted, not including the shares of Mobiquity’s common stock underlying the Mobiquity Warrants (the “Mobiquity Warrant Shares”). The closing occurred on September 4, 2018.

 

Mobiquity agreed that for a period beginning immediately upon the six (6)-month anniversary of the date hereof and ending on the twenty-four (24)-month anniversary of the date hereof (the “Leak-Out Period”), Mobiquity shall have the right to sell or otherwise transfer into the public markets on any given day up to 20,000 shares of Gopher Common Stock. Mobiquity may transfer all or a portion of the shares of Gopher Common Stock otherwise at any time, so long as the receiving party adheres to the above Leak-Out Period.

 

CONSUL GROUP RE 2021, SRL (“Consul”), a-third party controlled by Mauricio Lara Esq. has been engaged by the Company as consultant to provide services in connection with the Company’s investment in Mobiquity. Consul will provide analysis, interaction with related professional and other services as requested by the Company. The Company has agreed to pay Consul 1,000,000 shares of common stock of the Company for services rendered to the Company. In addition, Mobiquity paid a finder’s fee to Consul of 10,000,000 restricted shares of common stock of Mobiquity and 15,000,000 Mobiquity Warrants. The Mobiquity Warrants shall have a term of 5-years from the date of grant and shall be exercisable at a price of $0.12 per share.

 

The above offer and sale of the Gopher Common Stock was made under the exemption contained in Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”). No advertising or general solicitation was employed in offerings the securities. The offers and sales were made to accredited investors and transfer of the securities was restricted by the Company in accordance with the requirements of the Securities Act.

 

The foregoing information is a summary of each of the agreements involved in the transactions described above, is not complete, and is qualified in its entirety by reference to the full text of those agreements, each of which is attached an exhibit to this Current Report on Form 8-K. Readers should review those agreements for a complete understanding of the terms and conditions associated with this transaction.

 

 

 

 

Item 9.01 Financial Statements and Exhibits.

 

(d) Exhibits.

 

Exhibit No. Description
10-1 Agreement between Gopher Protocol Inc. and Mobiquity Technologies, Inc. dated September 4, 2018
10-2 Consulting Agreement between Gopher Protocol Inc. and Consul Group RE 2021, SRL dated September 5, 2018

 

 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

    GOPHER PROTOCOL INC.  
         
    By: /s/ Douglas Davis  
    Name:  Douglas Davis  
    Title: Interim Chief Executive Officer  
         
Date:  September 5, 2018      
   Santa Monica, California      

 

 

Exhibit 10.1

 

AGREEMENT

 

Mobiquity Technologies, Inc.

35 Torrington Lane

Shoreham, NY 11786

 

Ladies and Gentlemen:

 

Mobiquity Technologies, Inc., a New York corporation (“Mobiquity”), is hereby (i) selling and issuing (the “Offering”) to Gopher Protocol Inc., a Nevada corporation (“Gopher”) located at 2500 Broadway , Suite F-125 , Santa Monica, CA 90404 , 1,000 shares of Mobiquity’s restricted Series AAAA Preferred Stock (the “Mobiquity Preferred Stock”) in consideration of Gopher’s concurrent sale and issuance to Mobiquity of 10,000,000 shares of Gopher’s restricted Common Stock (the “Gopher Common Stock”). The shares of Mobiquity Preferred Stock are convertible into an aggregate of up to 100,000,000 shares of Mobiquity common stock (the “Mobiquity Common Stock”) and 150,000,000 common stock purchase warrants (the “Mobiquity Warrants”). The Mobiquity Warrants shall have a term of 5-years from the date of grant and shall be exercisable at a price of $0.12 per share. The shares of Mobiquity Preferred Stock shall not be convertible into shares of Mobiquity Common Stock and the Mobiquity Warrants shall not be contemporaneously granted until after Mobiquity’s Board of Directors and stockholders shall have increased the authorized number of shares of Mobiquity’s common stock to a number sufficient to accommodate a reserve in Gopher’s favor of 250,000,000 shares of Mobiquity’s common stock. The Mobiquity Preferred Stock shall have immediate voting rights equal to the number of shares of Mobiquity Common Stock into which they may be converted, not including the shares of Mobiquity’s common stock underlying the Mobiquity Warrants (the “Mobiquity Warrant Shares”). For avoidance of doubt, the shares of Mobiquity Preferred Stock have voting rights equal to an aggregate of 100,000,000 shares of Mobiquity’s common stock. The shares of Mobiquity Preferred Stock shall be sold and issued in their entirety upon delivery to Mobiquity of the shares of Gopher Common Stock. Mobiquity and Gopher are collectively referred to as the “Parties”.

 

This Offering to Gopher is being made under Section 4(a)(2) under the Securities Act of 1933, as amended (the “Securities Act”). This Offering is being made through Mobiquity’s officers and directors without a placement agent.

 

Each Party to this Subscription Agreement covenants to assist the other in providing any broker-dealers where the shares of Mobiquity Preferred Stock may be deposited with documentation and/or certifications requested.

 

1.          Subscription . Gopher hereby subscribes for and agrees to purchase from Mobiquity the Mobiquity Preferred Stock, subject to acceptance by Mobiquity of the shares of Gopher Common Stock, in its sole and absolute discretion.

 

2.          Purchase Procedure . Gopher acknowledges that, in order to subscribe for the shares of Mobiquity Preferred Stock, it must, and does hereby, deliver to Mobiquity an executed counterpart of the Signature Page attached to this Agreement,

 

On the date hereof, Mobiquity will issue to Gopher the shares of Mobiquity Preferred Stock and Gopher will issue the shares of Gopher Common Stock to Mobiquity.

 

3.          Representations of Gopher . By executing this Agreement, Gopher represents, warrants, acknowledges, and agrees as follows:

 

3.1       Gopher acknowledges that it has received, carefully read, and understands in their entirety (i) this Agreement; (ii) Mobiquity’s recent filings under the Securities Exchange Act of 1934 ,as amended (the “Exchange Act”), including, without limitation, Mobiquity’s Annual Report on Form 10-K for its fiscal year ended December 31, 2017 and Quarterly Report on Form 10-Q for the quarter ended June 30, 2018; (iii) all information necessary to verify the accuracy and completeness of Mobiquity’s representations, warranties, and covenants made herein, inclusive of the information filed under the Exchange Act; and (iv) written (or verbal) answers to all questions Gopher submitted to Mobiquity regarding an investment in Mobiquity; and Gopher has relied on the information contained therein and has not been furnished with any other documents, offering literature, memorandum, or prospectus.

 

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3.2       Gopher understands that (i) the shares of Mobiquity Preferred Stock being purchased hereunder have not been registered under the Securities Act and any applicable state securities laws, or the laws of any foreign jurisdiction; (ii) Gopher cannot sell the shares of Mobiquity Preferred Stock, the shares of Mobiquity Common Stock, and the Mobiquity Warrant Shares (collectively, the “Mobiquity Equity Securities”) unless they have been registered under the Securities Act and any applicable state securities laws or unless exemptions from such registration requirements are available; (iii) a legend will be placed on any certificate or certificates evidencing the Mobiquity Equity Securities and the Mobiquity Warrants, stating that such securities have not been registered under the Securities Act and setting forth or referring to the restrictions on transferability and sales of the shares of Mobiquity Preferred Stock; (iv) Mobiquity will place stop transfer instructions against the Mobiquity Equity Securities and the Mobiquity Warrants and the certificates representing the same to restrict the transfer thereof; and (v) Mobiquity has no obligations to register any of the Mobiquity Equity Securities or assist Gopher in obtaining an exemption from the various registration requirements except as set forth herein. Gopher agrees not to resell any of the Mobiquity Equity Securities without compliance with the terms of this Agreement, the Securities Act, and any applicable state or foreign securities laws.

 

3.3       Gopher (i) is acquiring the shares of Mobiquity Preferred Stock solely for Gopher’s own account for investment purposes only and not with a view toward resale or distribution, either in whole or in part; (ii) has no contract, undertaking, agreement, or other arrangement, in existence or contemplated, to sell, pledge, assign, or otherwise transfer the Mobiquity Equity Securities to any other person; and (iii) agrees not to sell or otherwise transfer any of the Mobiquity Equity Securities unless and until they are subsequently registered under the Securities Act and any applicable state securities laws or unless an exemption from any such registration is available.

 

3.4       Gopher understands that an investment in the shares of Mobiquity Preferred Stock involves substantial risks, and Gopher recognizes and understands the risks relating to the purchase of the shares of Mobiquity Preferred Stock, including the fact that Gopher could lose the entire amount of its investment in the shares of Mobiquity Preferred Stock.

 

3.5       Gopher’s directors, management, and consultants have substantial investment expertise in private placements, venture capital offerings, and start-up businesses, are collectively familiar with Mobiquity’s business, as outlined in its Annual Report on Form 10-K for its fiscal year ended December 31, 2017, and Quarterly Report on Form 10-Q for the quarter ended June 30, 2018, and are knowledgeable about the risks associated with the business in which Mobiquity is engaged and have such knowledge and experience in financial and business matters that Gopher is capable of evaluating the merits and risks of an investment in Mobiquity.

 

3.6        Intentionally left blank.

 

3.7       Gopher’s investment in Mobiquity is reasonable in relation to its net worth and financial needs and it is able to bear the economic risk of losing its entire investment in the shares of Mobiquity Preferred Stock without substantially affecting its current or planned business operations.

 

3.8       Gopher understands that (i) the Offering contemplated hereby has not been reviewed by any federal, state, or other governmental body or agency; (ii) if required by the laws or regulations of said state(s) the Offering contemplated hereby will be submitted to the appropriate authorities of such state(s) for registration or exemption therefrom; and (iii) documents used in connection with this Offering have not been reviewed or approved by any regulatory agency or government department, nor has any such agency or government department made any finding or determination as to the fairness of the shares of Mobiquity Preferred Stock for investment.

 

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3.9       Gopher is aware that none of the Mobiquity Equity Securities and the Mobiquity Warrants have been registered under the Securities Act and that, except for a limited public market in Mobiquity’s common stock, no established public market currently exists for any of the Mobiquity’s Equity Securities and there can be no assurance that an established market will develop therefor. Gopher has adequate means of providing for its current needs and business contingencies, has no need for liquidity in the investment contemplated hereby, and is able to bear the risk of loss of its entire investment.

 

3.10     Gopher shall not sell, assign, encumber, or transfer all or any part of the shares of Mobiquity Preferred Stock being acquired hereby unless Mobiquity has determined, upon the advice of its counsel, that no applicable federal or state securities laws will be violated as a result of such transfer.

 

3.11       Gopher represents that Mobiquity has made available all information that Gopher deemed material to making an informed investment decision in connection with his purchase of the shares of Mobiquity Preferred Stock; that Gopher, or its directors, management, or consultants, is in a position regarding Mobiquity, which, based upon business relationship or economic bargaining power, enabled and enables Gopher to obtain information from Mobiquity in order to evaluate the merits and risks of this investment; and that Gopher has been advised concerning the risks and merits of this investment. Further, Gopher acknowledges that Mobiquity has made available to Gopher the opportunity to ask questions of, and receive answers from Mobiquity, its officers, directors, and other persons acting on its behalf, including Dean L. Julia, Chief Executive Officer of Mobiquity, and Sean McDonnell, Chief Financial Officer of Mobiquity, concerning the terms and conditions of its purchase and to obtain any additional information Gopher, to the extent Mobiquity possesses such information or can acquire it without unreasonable effort or expense, necessary to verify the accuracy of the information disclosed to Gopher. Further, Gopher represents that no statement, printed material, or inducement was given or made by Mobiquity or anyone on its behalf that is contrary to the information disclosed to Gopher. Gopher is familiar with the nature and extent of the risks inherent in investments in unregistered securities and in the business in which Mobiquity is engaged.

 

3.12      The certificates evidencing the shares of Mobiquity Equity Securities and the Mobiquity Warrants will contain a legend substantially as follows:

 

THE SECURITIES THAT ARE REPRESENTED HEREBY HAVE NOT BEEN THE SUBJECT OF REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED, OR OTHERWISE DISPOSED OF UNTIL A REGISTRATION STATEMENT WITH RESPECT THERETO IS DECLARED AND REMAINS EFFECTIVE UNDER SUCH ACT, OR MOBIQUITY RECEIVES AN OPINION OF COUNSEL FOR MOBIQUITY OR GOPHER THAT AN EXEMPTION FROM REGISTRATION REQUIREMENTS OF SUCH ACT IS AVAILABLE.

 

3.13     Mobiquity has not paid any dividends on its common stock since inception and, by reason of its present financial status and its contemplated financial requirements, does not contemplate or anticipate paying any dividends upon its common stock in the foreseeable future.

 

3.14     Gopher expressly acknowledges and understands that, in connection with the offer and sale of the shares of Mobiquity Preferred Stock described herein to Gopher, Mobiquity is relying upon Gopher's representations and warranties as contained in this Agreement.

 

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4.           Representations of Mobiquity . By executing this Agreement, Mobiquity represents, warrants, acknowledges, and agrees as follows:

 

4.1       Mobiquity acknowledges that it has received, carefully read and understands in their entirety (i) this Agreement; (ii) Gopher’s recent filings under the Exchange Act, including, without limitation, Mobiquity’s Annual Report on Form 10-K for its fiscal year ended December 31, 2017 and Annual Report on Form 10-Q for the quarter ended June 30, 2018; (iii) all information necessary to verify the accuracy and completeness of Gopher’s representations, warranties and covenants made herein, inclusive of the information filed under the Exchange Act; and (iv) written (or verbal) answers to all questions Mobiquity submitted to Gopher regarding an investment in Gopher; and Mobiquity has relied on the information contained therein and has not been furnished with any other documents, offering literature, memorandum or prospectus.

 

4.2       Mobiquity understands that (i) the shares of Gopher Common Stock have not been registered under the Securities Act, and any applicable state securities laws, or the laws of any foreign jurisdiction; (ii) Mobiquity cannot sell the shares of Gopher Common Stock unless they are registered under the Securities Act and any applicable state securities laws or unless exemptions from such registration requirements are available; (iii) a legend will be placed on any certificate or certificates evidencing the shares of Gopher Common Stock, stating that such shares have not been registered under the Securities Act and setting forth or referring to the restrictions on transferability and sales of the shares of Gopher Common Stock; (iv) Gopher will place stop transfer instructions against the shares of Gopher Common Stock and the certificates therefor to restrict the transfer thereof; and (v) Gopher has no obligations to register the shares of Gopher Common Stock or assist Mobiquity in obtaining an exemption from the various registration requirements. Mobiquity agrees not to resell the shares of Gopher Common Stock without compliance with the terms of this Agreement, the Securities Act and any applicable state or foreign securities laws.

 

4.3        Mobiquity (i) is acquiring the shares of Gopher Common Stock solely for Mobiquity’s own account for investment purposes only and not with a view toward resale or distribution, either in whole or in part; (ii) has no contract, undertaking, agreement or other arrangement, in existence or contemplated, to sell, pledge, assign, or otherwise transfer the shares of Gopher Common Stock to any other person; and (iii) agrees not to sell or otherwise transfer the shares of Gopher Common Stock unless and until they are subsequently registered under the Securities Act and any applicable state securities laws or unless an exemption from any such registration is available.

 

4.4       Mobiquity understands that an investment in the shares of Gopher Common Stock involves substantial risks, and Mobiquity recognizes and understands the risks relating to the purchase of the shares of Gopher Common Stock, including the fact that Mobiquity could lose the entire amount of Mobiquity’s investment in the shares of Gopher Common Stock.

 

4.5       Mobiquity’s directors, management, and consultants have substantial investment expertise in private placements, venture capital offerings, and start-up businesses, are collectively familiar with Gopher’s business as outlined in its Annual Report on Form 10-K for its fiscal year ended December 31, 2017, and Quarterly Report on Form 10-Q for the quarter ended June 30, 2018, and are knowledgeable about the risks associated with the business in which Gopher is engaged and have such knowledge and experience in financial and business matters that Mobiquity is capable of evaluating the merits and risks of an investment in the shares of Gopher Common Stock.

 

4.6        Intentionally left blank.

 

4.7       Mobiquity’s investment in the shares of Gopher Common Stock is reasonable in relation to its net worth and financial needs and it is able to bear the economic risk of losing its entire investment in the shares of Gopher Common Stock without substantially affecting its current or planned business operations.

 

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4.8       Mobiquity understands that (i) the sale and issuance of the shares of Gopher Common Stock contemplated hereby have not been reviewed by any federal, state, or other governmental body or agency; (ii) if required by the laws or regulations of said state(s), the sale and issuance of the shares of Gopher Common Stock contemplated hereby will be submitted to the appropriate authorities of such state(s) for registration or exemption therefrom; and (iii) documents used in connection with this Agreement have not been reviewed or approved by any regulatory agency or government department, nor has any such agency or government department made any finding or determination as to the fairness of the shares of Gopher Common Stock for investment.

 

4.9      Mobiquity is aware that the shares of Gopher Common Stock have not been registered under the Securities Act and that, except for a recently established public market in Gopher’s common stock, there can be no assurance that an established market will therefor will be maintained. Mobiquity has adequate means of providing for its current needs and business contingencies, has no need for liquidity in the investment contemplated hereby, and is able to bear the risk of loss of its entire investment.

 

4.10       Intentionally left blank.

 

4.11     Mobiquity represents that it is in a position to evaluate the merits and risks of the acquisition of the shares of Gopher Common Stock; and that Company has been advised concerning the risks and merits of this investment. Further, Mobiquity represents that no statement, printed material, or inducement was given or made by Gopher or anyone on its behalf which is contrary to the information disclosed to Mobiquity. Mobiquity is familiar with the nature and extent of the risks inherent in investments in unregistered securities and in the business in which Gopher is engaged.

 

4.12       The certificates evidencing the shares of Gopher Common Stock will contain a legend substantially as follows:

 

THE SHARES OF GOPHER COMMON STOCK THAT ARE REPRESENTED HEREBY HAVE NOT BEEN THE SUBJECT OF REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED, OR OTHERWISE DISPOSED OF UNTIL A REGISTRATION STATEMENT WITH RESPECT THERETO IS DECLARED AND REMAINS EFFECTIVE UNDER SUCH ACT, OR GOPHER RECEIVES AN OPINION OF COUNSEL FOR GOPHER OR MOBIQUITY THAT AN EXEMPTION FROM REGISTRATION REQUIREMENTS OF SUCH ACT IS AVAILABLE.

 

4.13     Gopher has not paid any dividends on its common stock since its inception and, Gopher has been informed that, by reason of Gopher’s present financial status and its contemplated financial requirements, does not contemplate, or anticipate paying any dividends upon its common stock in the foreseeable future.

 

4.14     Mobility expressly acknowledges and understands that, in connection with the offer and sale of the shares of Gopher Common Stock described herein to Mobiquity, Gopher is relying upon Mobility’s representations and warranties as contained in this Agreement.

 

5.           Indemnification . Each of the Parties hereby agrees to indemnify and hold harmless the other party and its officers, directors, employees, agents, counsel, consultants, and affiliates from and against any and all damages, losses, costs, liabilities, and expenses (including, without limitation, reasonable attorneys’ fees) that they, or any of them, may incur by reason of the Party’s failure to fulfill any of the terms and conditions of this Agreement or by reason of the Party’s breach of any of his representations and warranties contained herein. This Agreement and the representations and warranties contained herein shall be binding upon the Parties’ successors and assigns.

 

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6.          Mobiquity’s Covenants . Mobiquity agrees that, for a period beginning immediately upon the six (6)-month anniversary of the date hereof and ending on the twenty-four (24)-month anniversary of the date hereof (the “Leak-Out Period”), Mobiquity shall have the right to sell or otherwise transfer into the public markets on any given day up to 20,000 shares of Gopher Common Stock. Mobiquity may transfer all or a portion of the shares of Gopher Common Stock otherwise at any time, so long as the receiving party adheres to the above Leak-Out Period. Mobiquity also agrees to pay a 10% finder’s fee to: CONSUL GROUP RE 2021, SRL
(Costa Rica CERTIFICATION NUMBER: RNPDIGITAL-9014897-2018 ). Finder’s fee is equal to 10,000,000 restricted shares of Mobiquity Technologies, Inc. Common Stock and 15,000,000 Mobiquity Warrants. The Mobiquity Warrants shall have a term of 5-years from the date of grant and shall be exercisable at a price of $0.12 per share.

 

7.          Jurisdiction; Applicable Law . The Parties has expressly submitted to the jurisdiction of the State of New York and United States Federal courts sitting in the City of New York, NY, for the purpose of any suit, action, or proceedings arising out of this Agreement. This Agreement shall be construed in accordance with and governed by the laws applicable to contracts made and wholly performed in the State of New York.

 

8.           Execution in Counterparts . This Agreement may be executed in one or more counterparts, each of which shall constitute one and the same instrument.

 

9.           Persons Bound . This Agreement shall, except as otherwise provided herein, inure to the benefit of and be binding on each Party and its respective successors and assigns.

 

10.        Entire Agreement . This Agreement, when accepted by Mobiquity, will constitute the entire agreement between the Parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings, inducements, or conditions, express or implied, oral or written, except as herein contained. This Agreement may not be modified, changed, waived, or terminated other than by a writing executed by all the parties hereto. No course of conduct or dealing shall be construed to modify, amend, or otherwise affect any of the provisions hereof.

 

11.        Assignability . The Parties acknowledge that each may not assign any of its rights to or interest in or under this Agreement without the prior written consent of the other Party, and any attempted assignment without such consent shall be void and without force or effect.

 

12.        Notices . Any notice or other communication required or permitted hereunder shall be in writing and shall be delivered personally, sent by facsimile transmission or sent by certified, registered, or express mail, postage prepaid, to the address of each Party set forth herein. Any such notice shall be deemed given when delivered personally, e-mailed, or sent by facsimile transmission or, if mailed, three days after the date of deposit in the United States mails.

 

13.         Interpretation .

 

13.1     When the context in which words are used in this Agreement indicates that such is the intent, singular words shall include the plural, and vice versa, and masculine words shall include the feminine and neuter genders, and vice versa.

 

13.2     Captions are inserted for convenience only, are not a part of this Agreement, and shall not be used in the interpretation of this Agreement.

 

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14 .       Notwithstanding anything herein to the contrary, the Parties agree that each Party (and each employee, representative, and other agent of such Party) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the transaction and all materials of any kind (including opinions or other tax analyses) that are provided to such Party or such person relating to such tax treatment and tax structure, except to the extent necessary to comply with any applicable federal or state securities laws. This authorization is not intended to permit disclosure of any other information including (without limitation) (i) any portion of any materials to the extent not related to the tax treatment or tax structure of the Offering, (ii) the identities of participants or potential participants in the Offering, (iii) the existence or status of any negotiations, (iv) any pricing or financial information (except to the extent such pricing or financial information is related to the tax treatment or tax structure of the Offering), or (v) any other term or detail not relevant to the tax treatment or the tax structure of the Offering.

 

15.       CERTIFICATION . EACH PARTY CERTIFIES THAT EACH HAS READ THIS ENTIRE SUBSCRIPTION AGREEMENT AND THAT EVERY STATEMENT MADE BY SUCH PARTY HEREIN IS TRUE AND COMPLETE.

 

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GOPHER SIGNATURE PAGE

 

The undersigned, desiring to subscribe for the purchase of 1,000 shares of Mobiquity Technologies, Inc. Series AAAA Preferred Stock, as set forth below, acknowledges that it has received and understands the terms and conditions of this Subscription Agreement.

 

IN WITNESS WHEREOF, the undersigned has hereby executed this Subscription Agreement as of the date written below.

 

Total Number of shares of Gopher Common Stock: 10,000,000 shares of Gopher Protocol Inc. restricted Common Stock

Date of Investment: August 29, 2018

Tax ID#:

 

  GOPHER PROTOCOL INC.
     
  By: /s/ Douglas Davis
    Douglas Davis, Chief Executive Officer

 

The subscription set forth herein is accepted by Mobiquity Technologies, Inc. based upon the terms set forth herein as of this 29 th day of August 2018.

 

  MOBIQUITY TECHNOLOGIES, INC.
     
  By: /s/ Dean L. Julia
    Dean L. Julia, Chief Executive Officer

 

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Exhibit 10.2

 

GOPHER PROTOCOL INC. & CONSUL GROUP RE 2021

 

Consulting Agreement

 

This Consulting Agreement, dated effective September 1, 2018 (this “Agreement”), is made and entered into by and among GOPHER PROTOCOL INC. (the “Company”) and CONSUL GROUP RE 2021 (the “Consultant”).

 

ARTICLE 1
SCOPE OF WORK

 

1.1        Services. The Company has engaged Consultant to provide services in connection with the Company’s investment in MOBIQUITY INC. Consultant will provide analysis, interaction with related professional and other services as requested by the Company (collectively, the “consulting services”).

 

1.2        Time and Availability. Consultant will devote the hours per month necessary in performing the services for the Company as stated herein. Consultant shall have discretion in selecting the dates and times it performs such consulting services throughout the month giving due regard to the needs of the Company’s business.

 

1.3        Confidentiality. In order for Consultant to perform the consulting services, it may be necessary for the Company to provide Consultant with Confidential Information (as defined below) regarding the Company’s business and products. The Company will rely heavily upon Consultant’s integrity and prudent judgment to use this information only in the best interests of the Company.

 

1.4        Standard of Conduct. In rendering consulting services under this Agreement, Consultant shall conform to high professional standards of work and business ethics. Consultant shall not use time, materials, or equipment of the Company without the prior written consent of the Company. In no event shall Consultant take any action or accept any assistance or engage in any activity that would result in any university, governmental body, research institute or other person, entity, or organization acquiring any rights of any nature in the results of work performed by or for the Company.

 

1.5        Outside Services. Consultant shall not use the service of any other person, entity, or organization in the performance of Consultant’s duties without the prior written consent of an officer of the Company. Should the Company consent to the use by Consultant of the services of any other person, entity, or organization, no information regarding the services to be performed under this Agreement shall be disclosed to that person, entity, or organization until such person, entity, or organization has executed an agreement to protect the confidentiality of the Company’s Confidential Information (as defined in Article 5) and the Company’s absolute and complete ownership of all right, title, and interest in the work performed under this Agreement.

 

1.6        Reports. Consultant shall periodically provide the Company with written reports of his or her observations and conclusions regarding the consulting services. Upon the termination of this Agreement, Consultant shall, upon the request of Company, prepare a final report of Consultant’s activities.

 

ARTICLE 2
INDEPENDENT CONTRACTOR

 

2.1        Independent Contractor. Consultant is an independent contractor and is not an employee, partner, or co-venturer of, or in any other service relationship with, the Company. The manner in which Consultant’s services are rendered shall be within Consultant’s sole control and discretion. Consultant is not authorized to speak for, represent, or obligate the Company in any manner without the prior express written authorization from an officer of the Company.

 

2.2        Taxes . Consultant shall be responsible for all taxes arising from compensation and other amounts paid under this Agreement, and shall be responsible for all payroll taxes and fringe benefits of Consultant’s employees. Neither federal, nor state, nor local income tax, nor payroll tax of any kind, shall be withheld or paid by the Company on behalf of Consultant or his/her employees. Consultant understands that he/she is responsible to pay, according to law, Consultant’s taxes and Consultant shall, when requested by the Company, properly document to the Company that any and all federal and state taxes have been paid.

 

 

 

 

2.3        Benefits . Consultant and Consultant’s employees will not be eligible for, and shall not participate in, any employee pension, health, welfare, or other fringe benefit plan of the Company. No workers’ compensation insurance shall be obtained by Company covering Consultant or Consultant’s employees.

 

ARTICLE 3
COMPENSATION FOR CONSULTING SERVICES

 

3.1        Compensation. The Company shall pay to Consultant 1,000,000 shares of GOPH common stock for services rendered to the Company under this Agreement.

 

3.2        Reimbursement. The Company agrees to reimburse Consultant for all actual reasonable and necessary expenditures, which are directly related to the consulting services. These expenditures include, but are not limited to, expenses related to travel (i.e., airfare, hotel, temporary housing, meals, parking, taxis, mileage, etc.), telephone calls, and postal expenditures. Expenses incurred by Consultant will be reimbursed by the Company within 15 days of Consultant’s proper written request for reimbursement.

 

ARTICLE 4
TERM AND TERMINATION

 

4.1        Term. This Agreement shall be effective as of September 1, 2018, and shall continue in full force and effect for 3 consecutive months. The Company and Consultant may negotiate to extend the term of this Agreement and the terms and conditions under which the relationship shall continue.

 

4.2        Termination. The Company may terminate this Agreement for “Cause,” after giving Consultant written notice of the reason. Cause means: (1) Consultant has breached the provisions of Article 5 or 7 of this Agreement in any respect, or materially breached any other provision of this Agreement and the breach continues for 30 days following receipt of a notice from the Company; (2) Consultant has committed fraud, misappropriation, or embezzlement in connection with the Company’ s business; (3) Consultant has been convicted of a felony; or (4) Consultant’s use of narcotics, liquor, or illicit drugs has a detrimental effect on the performance of his or her employment responsibilities, as determined by the Company.

 

4.3        Responsibility upon Termination. Any equipment provided by the Company to the Consultant in connection with or furtherance of Consultant’s services under this Agreement, including, but not limited to, computers, laptops, and personal management tools, shall, immediately upon the termination of this Agreement, be returned to the Company.

 

4.4        Survival. The provisions of Articles 5, 6, 7, and 8 of this Agreement shall survive the termination of this Agreement and remain in full force and effect thereafter.

 

ARTICLE 5
CONFIDENTIAL INFORMATION

 

5.1        Obligation of Confidentiality. In performing consulting services under this Agreement, Consultant may be exposed to and will be required to use certain “Confidential Information” (as hereinafter defined) of the Company. Consultant agrees that Consultant will not and Consultant’s employees, agents, or representatives will not use, directly or indirectly, such Confidential Information for the benefit of any person, entity, or organization other than the Company, or disclose such Confidential Information without the written authorization of the President of the Company, either during or after the term of this Agreement, for as long as such information retains the characteristics of Confidential Information.

 

5.2        Definition. “Confidential Information” means information not generally known and proprietary to the Company or to a third party for whom the Company is performing work, including, without limitation, information concerning any patents or trade secrets, confidential or secret designs, processes, formulae, source codes, plans, devices or material, research and development, proprietary software, analysis, techniques, materials, or designs (whether or not patented or patentable), directly or indirectly useful in any aspect of the business of the Company, any vendor names, customer and supplier lists, databases, management systems and sales and marketing plans of the Company, any confidential secret development or research work of the Company, or any other confidential information or proprietary aspects of the business of the Company. All information which Consultant acquires or becomes acquainted with during the period of this Agreement, whether developed by Consultant or by others, which Consultant has a reasonable basis to believe to be Confidential Information, or which is treated by the Company as being Confidential Information, shall be presumed to be Confidential Information.

 

 

 

 

5.3        Property of the Company. Consultant agrees that all plans, manuals, and specific materials developed by the Consultant on behalf of the Company in connection with services rendered under this Agreement, are and shall remain the exclusive property of the Company. Promptly upon the expiration or termination of this Agreement, or upon the request of the Company, Consultant shall return to the Company all documents and tangible items, including samples, provided to Consultant or created by Consultant for use in connection with services to be rendered hereunder, including, without limitation, all Confidential Information, together with all copies and abstracts thereof.

 

ARTICLE 6
RIGHTS AND DATA

 

All drawings, models, designs, formulas, methods, documents, and tangible items prepared for and submitted to the Company by Consultant in connection with the services rendered under this Agreement shall belong exclusively to the Company and shall be deemed to be works made for hire (the “Deliverable Items”). To the extent that any of the Deliverable Items may not, by operation of law, be works made for hire, Consultant hereby assigns to the Company the ownership of copyright or mask work in the Deliverable Items, and the Company shall have the right to obtain and hold in its own name any trademark, copyright, or mask work registration, and any other registrations and similar protection which may be available in the Deliverable Items. Consultant agrees to give the Company or its designees all assistance reasonably required to perfect such rights.

 

ARTICLE 7
CONFLICT OF INTEREST AND NON-SOLICITATION

 

7.1        Conflict of Interest. Consultant covenants and agrees not to consult or provide any services in any manner or capacity to a direct competitor of the Company during the duration of this Agreement unless express written authorization to do so is given by the Company’s President. A direct competitor of the Company for purposes of this Agreement is defined as any individual, partnership, corporation, and/or other business entity that engages in the business of private investing within 50 miles of the headquarters.

 

7.2        Non-Solicitation. Consultant covenants and agrees that during the term of this Agreement, Consultant will not, directly or indirectly, through an existing corporation, unincorporated business, affiliated party, successor employer, or otherwise, solicit, hire for employment or work with, on a part-time, consulting, advising, or any other basis, other than on behalf of the Company any employee or independent contractor employed by the Company while Consultant is performing services for the Company.

 

ARTICLE 8
RIGHT TO INJUNCTIVE RELIEF

 

Consultant acknowledges that the terms of Articles 5, 6, and 7 of this Agreement are reasonably necessary to protect the legitimate interests of the Company, are reasonable in scope and duration, and are not unduly restrictive. Consultant further acknowledges that a breach of any of the terms of Articles 5, 6, or 7 of this Agreement will render irreparable harm to the Company, and that a remedy at law for breach of the Agreement is inadequate, and that the Company shall therefore be entitled to seek any and all equitable relief, including, but not limited to, injunctive relief, and to any other remedy that may be available under any applicable law or agreement between the parties. Consultant acknowledges that an award of damages to the Company does not preclude a court from ordering injunctive relief. Both damages and injunctive relief shall be proper modes of relief and are not to be considered as alternative remedies.

 

ARTICLE 9
GENERAL PROVISIONS

 

9.1        Construction of Terms. If any provision of this Agreement is held unenforceable by a court of competent jurisdiction, that provision shall be severed and shall not affect the validity or enforceability of the remaining provisions.

 

9.2        Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws (and not the laws of conflicts) of the State of [ governing law ].

 

 

 

 

9.3        Complete Agreement. This Agreement constitutes the complete agreement and sets forth the entire understanding and agreement of the parties as to the subject matter of this Agreement and supersedes all prior discussions and understandings in respect to the subject of this Agreement, whether written or oral.

 

9.4        Dispute Resolution. If there is any dispute or controversy between the parties arising out of or relating to this Agreement, the parties agree that such dispute or controversy will be arbitrated in accordance with proceedings under American Arbitration Association rules, and such arbitration will be the exclusive dispute resolution method under this Agreement. The decision and award determined by such arbitration will be final and binding upon both parties. All costs and expenses, including reasonable attorney’s fees and expert’s fees, of all parties incurred in any dispute that is determined and/or settled by arbitration pursuant to this Agreement will be borne by the party determined to be liable in respect of such dispute; provided, however, that if complete liability is not assessed against only one party, the parties will share the total costs in proportion to their respective amounts of liability so determined. Except where clearly prevented by the area in dispute, both parties agree to continue performing their respective obligations under this Agreement until the dispute is resolved.

 

9.5        Modification. No modification, termination, or attempted waiver of this Agreement, or any provision thereof, shall be valid unless in writing signed by the party against whom the same is sought to be enforced.

 

9.6        Waiver of Breach. The waiver by a party of a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any other or subsequent breach by the party in breach.

 

9.7        Successors and Assigns. This Agreement may not be assigned by either party without the prior written consent of the other party; provided, however, that the Agreement shall be assignable by the Company without Consultant’s consent in the event the Company is acquired by or merged into another corporation or business entity. The benefits and obligations of this Agreement shall be binding upon and inure to the parties hereto, their successors and assigns.

 

9.8        No Conflict. Consultant warrants that Consultant has not previously assumed any obligations inconsistent with those undertaken by Consultant under this Agreement.

 

IN WITNESS WHEREOF , this Agreement is executed as of the date set forth above.

 

GOPHER PROTOCOL INC. Consul Group RE 2021
       
By : /s/Doug Davis September 4, 2018 By: /s/Mauricio Lara September 4, 2018
       
Doug Davis   Managing Member  
       
Its: Chief Executive Officer