UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934
July 21, 2017
Date of
Report (Date of earliest event reported)
Friendable, Inc.
(Exact
name of registrant as specified in its charter
Nevada
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000-52917
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98-0546715
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(State
or other jurisdiction
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(Commission
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(IRS
Employer
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of
incorporation)
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File
Number)
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Identification
No.)
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1821 S Bascom Ave., Suite 353, Campbell, California
95008
(Address
of principal executive offices) (Zip Code)
(855) 473-7473
Registrant’s
telephone number, including area code
Check
the appropriate box below if the Form 8-K is intended to
simultaneously satisfy the filing obligation of the registrant
under any of the following provisions:
☐
Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425)
☐
Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
☐
Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
☐
Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement.
Friendable,
Inc. (the
“Company”
) entered into a
Securities Purchase Agreement, dated July 21, 2017 (the
“Alpha SPA”
)
with Alpha Capital Anstalt (
“Alpha Capital”
), to issue
and sell up to, in principal amount, $500,000 of convertible notes,
payable in two tranches (the “
Alpha
Notes
”). The first tranche of
$300,000 was funded on July 21, 2017 (the “
Initial Closing Date
”). The second
tranche of $200,000 will be upon effectiveness of the registration
statement of Fan Pass Inc. and trading of common stock which is not
later than 9 months after first closing. The Alpha Notes are senior
to all current and future indebtedness of the Company except as
agreed to by the parties. The conversion price of the notes will be
the lowest conversion price of any instrument issued by the
Company. The Alpha Notes are long-term debt obligations that are
material to the Company. The Alpha Notes also contain certain
representations, warranties, covenants and events of default. In
the event of default, at the option of Alpha Capital and in their
sole discretion, Alpha Capital may consider the Alpha Note’s
immediately due and payable.
In
connection with the Alpha Notes and Alpha SPA, the Company also
entered into a Pledge Agreement whereby as collateral security, the
Company pledged shares of common stock of its subsidiary, Fan Pass,
Inc. The number shares pledged will be determined at a later date.
The Company has formed a subsidiary called Fan Pass Inc. to hold
all of the assets of the mobile application “Fan Pass
Live”. The Company also has pledged collateral to Alpha
Capital in the form of the
Fan Pass
Security Agreement
which grants a security interest in and
to, a lien upon and a right of set-off against all of their
respective right, title and interest to the assets of Fan Pass Inc,
including all intellectual property. The Alpha Notes have a
beneficial ownership limitation such that Alpha Capital can never
own more than 4.99% of the number of shares of the Common Stock
outstanding immediately after giving effect to the issuance of
shares of Common Stock issuable upon conversion of the Alpha
Notes.
For its
services as a placement agent for this transaction, Palladium
Capital Advisors, LLC (“
Palladium
”) shall receive
compensation of 8% of the aggregate purchase price paid in each
Closing, the amount being $24,000 for the first closing. The
Company has agreed to pay legal costs of $50,000 payable upon the
First Closing, and an additional $50,000 upon the funding of the
second tranche of $200,000, and $40,000 within thirty (30) days
that Fan Pass, Inc. has a class of common stock registered pursuant
to Section 12(g) of the Exchange Act.
The
foregoing description is qualified in its entirety by the complete
text of the Alpha SPA, Alpha Notes, and Fan Pass Security
Agreement, and Pledge Agreement, which are filed herewith as
Exhibits 10.1, 10.2, 10.3, and 10.4, respectively, and incorporated
herein by reference.
Item 2.03 Creation of a Direct Financial Obligation or an
Obligation under an Off-Balance Sheet Arrangement of a
Registrant
The information set forth in Item 1.01 of this Current Report on
Form 8-K is incorporated by reference into this Item
2.03.
Item 3.02 Unregistered Sales of Equity
Securities.
The
applicable information set forth in Item 1.01 of this Current
Report on Form 8-K is incorporated by reference in this Item 3.02.
The Company issued the securities described under Item 1.01 in
reliance upon the exemption from registration contained in Section
4(a)(2) of the Securities Act of 1933, as amended. The
Company’s reliance upon Section 4(a)(2) of the Securities Act
of 1933, as amended in issuing the securities was based upon the
following factors: (a) the issuance of the securities was an
isolated private transaction by us which did not involve a public
offering; (b) there were only two recipients; (c) there were no
subsequent or contemporaneous public offerings of the securities by
the Company; (d) the securities were not broken down into smaller
denominations; (e) the negotiations for the issuance of the
securities took place directly between the individual and the
Company; and (f) the recipients of the securities were accredited
investors.
Item 9.01 Financial Statements and Exhibits.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
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Friendable, Inc.
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By:
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/s/ Robert Rositano
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Robert
Rositano
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CEO
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SECURITIES
PURCHASE AGREEMENT
This
Securities Purchase Agreement (this “
Agreement
”) is dated as
of July 21, 2017, between Friendable, Inc., a Nevada corporation
(the “
Company
”), and purchaser
identified on the signature pages hereto (each, including its
successors and permitted assigns, a “
Purchaser
”).
WHEREAS, subject to
the terms and conditions set forth in this Agreement and pursuant
to Section 4(a)(2) of the Securities Act of 1933, as amended (the
“
Securities
Act
”), and Rule 506 promulgated thereunder, the
Company desires to issue and sell to Purchaser, and Purchaser
desires to purchase from the Company, securities of the Company as
more fully described in this Agreement (the “
Offering
”).
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in
this Agreement, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the Company
and Purchaser agree as follows:
ARTICLE
I.
DEFINITIONS
1.1
Definitions
. In addition to the
terms defined elsewhere in this Agreement: (a) capitalized terms
that are not otherwise defined herein have the meanings given to
such terms in the Notes (as defined herein), and (b) the following
terms have the meanings set forth in this Section 1.1:
“
Accredited Investor
”
shall have the meaning ascribed to such term in Section
3.2(c).
“
Acquiring Person
” shall
have the meaning ascribed to such term in Section 4.7.
“
Action
” shall have the
meaning ascribed to such term in Section 3.1(j).
“
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.
“
Board of Directors
” means
the board of directors of the Company.
“
Business Day
” means any
day except any Saturday, any Sunday, any day which is a federal
legal holiday in the United States or any day on which banking
institutions in the State of New York are required by law or other
governmental action to close.
“
Buy In
” shall have the
meaning ascribed to such term in Section 4.1(h).
“
Closing
”
means the Initial Closing and Subsequent Closing,
if any, of the purchase and sale of the Securities pursuant to
Section 2.1 or 2.4.
“
Closing Date
”
means each of the Initial Closing Date
and the Subsequent Closing Date, if any, and is the Business Day on
which all of the Transaction Documents have been executed and
delivered by the applicable parties thereto, and all conditions
precedent to (i) the Purchaser’s obligation to pay the
Subscription Amount at such Closing, and (ii) the Company’s
obligations to deliver the Securities to be issued and sold at such
Closing, in each case, have been satisfied or waived, but in no
event later than the tenth Business Day following the date hereof
in the case of the Initial Closing.
“
Commission
” means the
United States Securities and Exchange Commission.
“
Common Stock
” means the
common stock of the Company or the Subsidiaries, par value $0.0001
per share, and any other class of securities into which such
securities may hereafter be reclassified or changed.
“
Common Stock Equivalents
”
means any securities of the Company or the Subsidiaries which would
entitle the holder thereof to acquire at any time Common Stock,
including, without limitation, any debt, preferred stock, right,
option, warrant or other instrument that is at any time convertible
into or exercisable or exchangeable for, or otherwise entitles the
holder thereof to receive, Common Stock.
“
Company Counsel
” means,
Lucosky Brookman LLP, 101 Wood Avenue South, Woodbridge, NJ 08830,
Attn: Steven A. Lipstein, Esq., fax: (732) 395-4401.
“
Conversion Price
” shall
have the meaning ascribed to such term in the Notes.
“
Disclosure Schedules
”
means the Disclosure Schedules of the Company delivered
concurrently herewith.
“
Disqualification Event
”
shall have the meaning ascribed to such term in Section
3.1(oo).
“
Escrow Agreement
” means
the escrow agreement to be employed in connection with the sale of
the Securities, a copy of which is annexed hereto as
Exhibit B
.
“
Equity Line of Credit
”
shall have the meaning ascribed to such term in Section
4.13.
“
Evaluation Date
” shall
have the meaning ascribed to such term in Section
3.1(r).
“
Event of Default
” shall
have the meaning ascribed to such term in the Note.
“
Exchange Act
” means the
Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
“
Exchanged Securities
”
shall mean the exchange of Purchaser’s Notes and accrued
interest for equity in Fan Pass, Inc., as described in Section
2.1.
“
Exercise Notice
” shall
have the meaning ascribed to such term in Section 2.4.
“
Exempt Issuance
” means
the issuance of (a) shares of Common Stock and options to officers,
directors, or employees of the Company after the Closing Date up to
the amounts and on the terms set forth on
Schedule 3.1(g)
consistent with
past practices pursuant to the Stock Option Plans, (b) except for
any securities exercisable or exchangeable for or convertible into
shares of Common Stock previously issued or issuable to Purchaser
and which securities are specifically excluded from the definition
of Exempt Issuance, securities exercisable or exchangeable for or
convertible into shares of Common Stock issued and outstanding on
the date of this Agreement, provided that such securities and any
term thereof have not been amended since the date of this Agreement
to increase the number of such securities or to decrease the issue
price, exercise price, exchange price or conversion price of such
securities and which securities and the principal terms thereof are
set forth on
Schedule
3.1(g)
, and described in the SEC Reports, (c) securities
issued pursuant to acquisitions or strategic transactions approved
by a majority of the disinterested directors of the Company,
provided that any such issuance shall only be to a Person (or to
the equity holders of a Person) which is, itself or through its
subsidiaries, an operating company or an owner of an asset in a
business synergistic with the business of the Company and shall be
intended to provide to the Company substantial additional benefits
in addition to the investment of funds, but shall not include a
transaction in which the Company is issuing securities primarily
for the purpose of raising capital or to an entity whose primary
business is investing in securities, (d) as set forth on
Schedule 3.1(g)
,
and (e) securities issued or issuable to the Purchasers and their
assigns pursuant to this Agreement or the Notes, including without
limitation, Section 4.17 herein or upon conversion of any such
securities.
“
Fan Pass, Inc.
” shall
mean the Subsidiary of the Company incorporated in the State of
Nevada on June 28, 2017.
“
Fan Pass Intellectual Property
Software
” shall have the meaning ascribed to such term
in Section 2.6(b)(ix).
“
Fan Pass Securities
”
shall mean the shares of common stock of Fan Pass,
Inc.
“
Fan Pass Security
Agreement
” shall mean the Security Agreement executed
by Fan Pass, Inc., a form of which is annexed hereto as
Exhibit
I
.
“
Fan Pass Transaction
”
shall have the meaning, terms and conditions described on
Exhibit H
annexed
hereto.
“
FCPA
” means the Foreign
Corrupt Practices Act of 1977, as amended.
“
FDA
” shall have the
meaning ascribed to such term in Section 3.1(nn).
“
Form 8-K
” shall have the
meaning ascribed to such term in Section 4.6.
“
GAAP
” shall have the
meaning ascribed to such term in Section 3.1(h).
“
G&M
” shall mean
Grushko & Mittman, P.C., with offices located at 515 Rockaway
Avenue, Valley Stream, New York 11581, Fax:
212-697-3575.
“
Going Public Event
” shall
have the meaning ascribed to such term in Section
2.6(b)(x).
“
Indebtedness
” shall have
the meaning ascribed to such term in Section 3.1(z).
“
Initial
Closing
” shall have the
meaning ascribed to such term in Section 2.1.
“
Initial Closing
Date
” shall mean the date
upon which the Initial Closing occurs.
“
Intellectual Property
Rights
” shall have the meaning ascribed to such term
in Section 3.1(o).
“
Investor Questionnaire
”
means the form of Accredited Investor Questionnaire annexed hereto
as
Exhibit
E
.
“
Issuer Covered Person
”
shall have the meaning ascribed to such term in Section
3.1(oo).
“
Legal Opinion
” shall have
the meaning ascribed to such term in Section
2.2(a)(ii).
“
Legend Removal Date
”
shall have the meaning ascribed to such term in Section
4.1(c).
“
Liens
” means a lien,
charge, pledge, security interest, encumbrance, right of first
refusal, preemptive right or other restriction.
“
Listing Default
” shall
have the meaning ascribed to such term in Section
4.11(c).
“
Material Adverse Effect
”
shall have the meaning assigned to such term in Section
3.1(b).
“
Material Permits
” shall
have the meaning ascribed to such term in Section
3.1(m).
“
Maximum Rate
” shall have
the meaning ascribed to such term in Section 5.17.
“
Money Laundering
Laws
” shall have the
meaning ascribed to such term in Section
3.1(gg).
“
Notes
” means the
convertible notes issuable pursuant to this Agreement, in the form
of
Exhibit A
hereto.
“
OFAC
” shall have the
meaning ascribed to such term in Section 3.1(ii).
“
Participation Maximum
”
shall have the meaning ascribed to such term in Section
4.17(a).
“
Permitted Indebtedness
”
means (a) any liabilities for borrowed money or amounts owed not in
excess of $50,000 in the aggregate (other than trade accounts
payable incurred in the ordinary course of business), (b) all
guaranties, endorsements and other contingent obligations in
respect of indebtedness of others, whether or not the same are or
should be reflected in the Company’s consolidated balance
sheet (or the notes thereto) not affecting more than $50,000 in the
aggregate, except guaranties by endorsement of negotiable
instruments for deposit or collection or similar transactions in
the ordinary course of business; and (c) the present value of any
lease payments not in excess of $50,000 due under leases required
to be capitalized in accordance with GAAP.
“
Permitted Lien
” means the
individual and collective reference to the following: (a) Liens for
taxes, assessments and other governmental charges or levies not yet
due or Liens for taxes, assessments and other governmental charges
or levies being contested in good faith and by appropriate
proceedings for which adequate reserves (in the good faith judgment
of the management of the Company) have been established in
accordance with GAAP, (b) Liens imposed by law which were incurred
in the ordinary course of the Company’s business, such as
carriers’, warehousemen’s and mechanics’ Liens,
statutory landlords’ Liens, and other similar Liens arising
in the ordinary course of the Company’s business, and which
(x) do not individually or in the aggregate materially detract from
the value of such property or assets or materially impair the use
thereof in the operation of the business of the Company and its
consolidated Subsidiaries or (y) are being contested in good faith
by appropriate proceedings, which proceedings have the effect of
preventing for the foreseeable future the forfeiture or sale of the
property or asset subject to such Liens, and (c) Liens in
connection with Permitted Indebtedness under clauses (a), and (b)
thereunder, and Liens incurred in connection with Permitted
Indebtedness under clause (c) thereunder, provided that such Liens
are not secured by assets of the Company or its Subsidiaries other
than the assets so acquired or leased.
“
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.
“
Pre-Notice
” shall have
the meaning ascribed to such term in Section 4.17(b).
“
Proceeding
” means an
action, claim, suit, investigation or proceeding (including,
without limitation, an informal investigation or partial
proceeding, such as a deposition), whether commenced or
threatened.
“
Pro-Rata Portion
” shall
have the meaning ascribed to such term in Section
4.17(c).
“
Public Information
Failure
” shall have the meaning ascribed to such term
in Section 4.3(b).
“
Public Information Failure
Payments
” shall have the meaning ascribed to such term
in Section 4.3(b).
“
Purchaser Party
” shall
have the meaning ascribed to such term in Section
4.10.
“
Registration Expenses
”
shall have the meaning ascribed to such term in Section
4.30.
“
Required Approvals
” shall
have the meaning ascribed to such term in Section
3.1(e).
“
Required Minimum
” means,
as of any date, the maximum aggregate number of shares of Common
Stock then issued or potentially issuable in the future pursuant to
the Transaction Documents, including any Underlying Shares issuable
upon conversion in full of all Notes, ignoring any conversion or
exercise limits set forth therein.
“
Rule 144
” means Rule 144
promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended or interpreted from time to time, or any
similar rule or regulation hereafter adopted by the Commission
having substantially the same purpose and effect as such
Rule.
“
Rule 506 Bad Actor
Questionnaire
” means the
form annexed hereto as
Exhibit
F
.
“
SEC Reports
” shall have
the meaning ascribed to such term in Section 3.1(h).
“
Securities
” means the
Notes and the Underlying Shares.
“
Securities Act
” means the
Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“
Selling Expenses
” shall
have the meaning ascribed to such term in Section
4.30.
“
Short Sales
” means
“short sales” as defined in Rule 200 of Regulation SHO
under the Exchange Act and all types of direct and indirect stock
pledges, forward sale contracts, options, puts, calls, swaps and
similar arrangements (including on a total return basis) whether
such transactions are made through U.S. or non-U.S. broker dealers
or foreign regulated brokers.
“
Stock Option Plans
” means
the Company’s 2011 Stock Option Plan and the Company’s
2014 Equity Incentive Plan, copies of which are included in the SEC
Reports.
“
Stock Pledge Agreement
”
means the Stock Pledge Agreement to be employed in connection with
the Company’s pledging of Fan Pass Securities, a copy of
which is annexed hereto as
Exhibit D
.
“
Subscription Amount
”
means, as to each Purchaser, the
aggregate amoun
t to be paid for
the Notes purchased hereunder as specified below such
Purchaser’s name on the signature page of this Agreement and
next to the heading “Subscription Amount,” in United
States dollars and in immediately available
funds.
“
Subsequent Closing
” shall
have the meaning ascribed to such term in Section 2.4.
“
Subsequent Closing Date
”
shall have the meaning ascribed to such term in Section
2.4.
“
Subsequent Closing Escrow
Agreement
” shall have the meaning ascribed to such
term in Section 2.4.
“
Subsequent Closing Subscription
Amount
” shall have the meaning ascribed to such term
in Section 2.4.
“
Subsequent Financing
”
shall have the meaning ascribed to such term in Section
4.17(a).
“
Subsequent Financing
Notice
” shall have the meaning ascribed to such term
in Section 4.17(b).
“
Subsidiary
”
means
with respect to any entity at
any date, any direct or indirect corporation, limited or general
partnership, limited liability company, trust, estate, association,
joint venture or other business entity of which (A) more than
30% of (i) the outstanding capital stock having (in the
absence of contingencies) ordinary voting power to elect a majority
of the board of directors or other managing body of such entity,
(ii) in the case of a partnership or limited liability
company, the interest in the capital or profits of such partnership
or limited liability company or (iii) in the case of a trust,
estate, association, joint venture or other entity, the beneficial
interest in such trust, estate, association or other entity
business is, at the time of determination, owned or controlled
directly or indirectly through one or more intermediaries, by such
entity, or (B) is under the actual control of the
Company.
“
Termination Date
” shall
have the meaning ascribed to such term in Section 2.1.
“
Trading Day
” means a day
on which the principal Trading Market is open for
trading.
“
Trading Market
” means any
of the following markets or exchanges on which the Common Stock is
listed or quoted for trading on the date in question: the NYSE MKT,
the NASDAQ Capital Market, the NASDAQ Global Market, the NASDAQ
Global Select Market, the New York Stock Exchange, the OTC Bulletin
Board, the OTCQB, the OTCQX or the OTC Pink Marketplace (or any
successors to any of the foregoing).
“
Transaction Documents
”
means this Agreement, the Notes, the Stock Pledge Agreement, Fan
Pass Security Agreement, the Escrow Agreement, all exhibits and
schedules thereto and hereto and any other documents or agreements
executed in connection with the transactions contemplated
hereunder.
“
Transfer Agent
” means
Nevada Agency and Transfer, 50 West Liberty Street, Suite 880,
Reno, NV 89501, and any successor transfer agent of the
Company.
“
Underlying Shares
” means
the shares of Common Stock issued and issuable upon conversion of
the Notes and issued and issuable in lieu of the cash payment of
interest on the Notes in accordance with the terms of the Notes and
any other shares of Common Stock issued or issuable to Purchaser in
connection with or pursuant to the Securities or Transaction
Documents.
“
Unlegended Shares
” shall
have the meaning ascribed to such term in Section
4.1(c).
“
Variable Priced Equity Linked
Instruments
” shall have the meaning ascribed to such
term in Section 4.13.
“
Variable Rate
Transaction
”
shall have
the meaning ascribed to such term in Section
4.13.
“
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 a Trading Market but is then reported on the OTC Pink
Marketplace maintained by the OTC Markets Group, Inc. (or a similar
organization or agency succeeding to its functions of reporting
prices), the volume weighted average price of the Common Stock on
the first such facility (or a similar organization or agency
succeeding to its functions of reporting prices), 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
a Majority in Interest and reasonably acceptable to the Company,
the fees and expenses of which shall be paid by the
Company.
ARTICLE
II.
PURCHASE
AND SALE
2.1
Initial Closing
.
(a)
On the Initial
Closing Date, upon the terms and subject to the conditions set
forth herein, substantially concurrent with the execution and
delivery of this Agreement by the parties hereto, the Company
agrees to sell, and the Purchaser, agrees to purchase, a Note in
the principal amount of $300,000 (plus a portion of the placement
agent fee payable in the form of a Note) as determined pursuant to
Section 2.2(a) (such purchase and sale being the
“
Initial
Closing
”. Following the Company’s delivery of
all Deliveries as described in Section 2.2(a), Purchaser shall then
deliver to the Company such Purchaser’s Subscription Amount,
and the Company and each Purchaser shall deliver the other items
set forth in Section 2.2 deliverable at the Closing. Upon
satisfaction of the covenants and conditions set forth in Sections
2.2 and 2.3, the Closing shall occur at the offices of G&M or
such other location as the parties shall mutually agree.
Notwithstanding anything herein to the contrary, the Initial
Closing Date shall occur on or before August 4, 2017 (the
“
Termination
Date
”). If the Closing is not held on or before the
Termination Date, the Company shall cause all subscription
documents and funds to be returned, without interest or deduction
to each prospective Purchaser.
NO
MINIMUM NUMBER OF NOTES MUST BE SOLD IN ORDER FOR THE COMPANY TO
ACCEPT ANY SUBSCRIPTIONS, AND ALL NET PROCEEDS OF THE OFFERING WILL
BE IMMEDIATELY AVAILABLE FOR COMPANY PURPOSES.
(b)
On the Initial
Closing Date the Purchaser shall also surrender and exchange each
such Purchaser’s Exchanged Securities (in type and amounts
described on
Schedule
2.1
) for equity in Fan Pass, Inc. in the amounts set forth
on
Schedule
2.1
.
2.2
Deliveries
.
(a)
On or prior to the
Initial Closing Date, the Company shall deliver or cause to be
delivered to each Purchaser the following:
(i)
this Agreement duly
executed by the Company;
(ii)
a
legal opinion of Company Counsel, substantially in the form of
Exhibit C
attached
hereto;
(iii)
a
Note with a principal amount equal to such Purchaser’s
Subscription Amount registered in the name of such
Purchaser;
(iv)
the
Stock Pledge Agreement duly executed by the Company;
(v)
the Fan Pass
Security Agreement duly executed by Fan Pass, Inc.;
(vi)
the
Escrow Agreement duly executed by the Company and Escrow
Agent;
(vii)
stock
certificates representing Purchaser’s equity interest in Fan
Pass, Inc. which certificate the Company must deliver to Purchaser
no later than five (5) Business Days following the Initial Closing
Date;
(viii)
a
certificate of the Principal Executive Officer and Chief Executive
Officer (each as defined in the Exchange Act) of each of the
Company and Fan Pass, Inc., dated as of each Closing Date, in which
such officers shall certify that the conditions set forth in
Section 2.3(b)
have
been fulfilled, and in connection with subsequent Closing following
the initial Closing, ratifying the terms of this Agreement as an
additional Closing under this Agreement and under the Transaction
Documents; and
(ix)
Secretary’s
certificate containing (i) copies of the text of the resolutions by
which the corporate action on the part of each of the Company and
Fan Pass, Inc. necessary to approve this Agreement and the other
Transaction Documents and the transactions and actions contemplated
hereby and thereby, which shall be accompanied by a certificate of
the corporate secretary or assistant corporate secretary of each of
the Company and Fan Pass, Inc. dated as of the Closing Date
certifying to the Purchaser that such resolutions were duly adopted
and have not been amended or rescinded, (ii) an incumbency
certificate dated as of the Closing Date executed on behalf of each
of the Company and Fan Pass, Inc. by its corporate secretary or one
of its assistant corporate secretaries certifying the office of
each officer of each of the Company and Fan Pass, Inc. executing
this Agreement, or any other agreement, certificate or other
instrument executed pursuant hereto, and (iii) copies of (A) each
of the Company’s and Fan Pass, Inc.’s Certificate of
Incorporation and bylaws in effect on the Closing Date, and (B) the
certificate evidencing the good standing of each of the Company and
Fan Pass, Inc. as of a day within five (5) Business Days prior to
the Closing Date.
(b)
Following the
delivery by the Company of all items described in Section 2.2(a)
above, on or prior to the Initial Closing Date, each Purchaser
shall deliver or cause to be delivered to the Company the
following:
(i)
this Agreement and the Escrow Agreement each duly
executed by such Purchaser
;
(ii)
such
Purchaser’s Subscription Amount by wire transfer or as
otherwise permitted under the Escrow Agreement, to the Escrow
Agent;
(iii)
Accredited
Investor Questionnaire duly executed by Purchaser;
(iv)
the
Stock Pledge Agreement duly executed by Purchaser and the
Collateral Agent;
(v)
the Fan Pass
Security Agreement duly executed by Purchaser and the Collateral
Agent;
(vi)
as
applicable, such Purchaser’s Exchanged Securities to be
exchanged for Purchaser’s equity interest of Fan Pass, Inc.
in the amounts described on
Schedule 2.1
.
(c) Anything
to the contrary herein notwithstanding, Purchaser may elect to
bypass the escrow arrangement described herein and arrange for its
Closing directly with the Company without employing the Escrow
Agent as an intermediary.
2.3
Closing
Conditions
.
(a)
The obligations of
the Company hereunder to effect the Initial Closing are subject to
the following conditions being met:
(i)
the accuracy in all
material respects on the Initial Closing Date of the
representations and warranties of the Purchaser contained herein
(unless as of a specific date therein in which case they shall be
accurate as of such date);
(ii)
all
obligations, covenants and agreements of Purchaser required to be
performed at or prior to the Initial Closing Date shall have been
performed; and
(iii)
the
delivery by Purchaser of the items set forth in Section 2.2(b) of
this Agreement.
(b)
The respective
obligations of Purchaser hereunder to effect the Initial Closing,
unless waived by Purchaser, are subject to the following conditions
being met:
(i)
the accuracy in all
material respects
(determined without
regard to any materiality, Material Adverse Effect or other similar
qualifiers therein)
on the Initial Closing Date of the
representations and warranties of the Company contained herein
(unless as of a specific date therein in which case they shall be
accurate as of such date);
(ii)
all
obligations, covenants and agreements of the Company required to be
performed at or prior to the Initial Closing Date shall have been
performed; including but not limited to having obtained the
Required Approvals.
(iii)
the
Company shall have received executed signature pages to this
Agreement together with the Subscription Amount of $300,000 prior
to the Closing;
(iv)
the
delivery by the Company of the items set forth in Section 2.2(a) of
this Agreement;
(v)
there shall have
been no Material Adverse Effect with respect to the Company since
the date hereof; and
(vi)
from
the date hereof to the Initial Closing Date, trading in the Common
Stock shall not have been suspended by the Commission or the
Company’s principal Trading Market, and, at any time prior to
the Initial Closing Date, trading in securities generally as
reported by Bloomberg L.P. shall not have been suspended or
limited, or minimum prices shall not have been established on
securities whose trades are reported by such service, or on any
Trading Market, nor shall a banking moratorium have been declared
either by the United States or New York State authorities nor shall
there have occurred any material outbreak or escalation of
hostilities or other national or international calamity of such
magnitude in its effect on, or any material adverse change in, any
financial market which, in each case, in the reasonable judgment of
such Purchaser, makes it impracticable or inadvisable to purchase
the Securities at the Closing.
2.4
Subsequent
Closing
. A Closing for an additional $200,000 of
Subscription Amount will be held on the same terms and conditions
as the Initial Closing (“
Subsequent Closing
”). The
Subsequent Closing Subscription Amount shall be equal to $200,000
unless otherwise agreed to in writing by the
Purchaser.
2.5
Subsequent
Closing Deliveries
.
(a) On
or prior to the Subsequent Closing, the Company shall deliver or
cause to be delivered to the Escrow Agent the
following:
(i) current
updated Schedules;
(ii)
a legal opinion of Company counsel, substantially
in the form of
Exhibit C
attached hereto;
(iii)
a Note in the principal amount equal to
Purchaser’s Subsequent Closing Subscription Amount registered
in the name of Purchaser. The maturity date on the Note issued on
any Subsequent Closing
will be twelve (12) months from the
date of the Note issued on the Initial Closing Date
;
(iv)
a
Stock Pledge Agreement duly re-executed by the Company and
Collateral Agent together with updated schedules which may not be
materially adversely different than the schedules delivered on the
Initial Closing Date
;
(v)
a Fan Pass Security Agreement duly
re-executed by Fan Pass, Inc. and Collateral Agent together with
updated schedules which may not be materially adversely different
than the schedules delivered on the Initial Closing Date;
and
(vi)
an Escrow Agreement similar to the Escrow Agreement employed in
connection with the Initial Closing duly executed by the Company
and Escrow Agent (“
Subsequent Closing Escrow
Agreement
”).
(b) Following
delivery by the Company to Purchaser of the items described in
Section 2.5(a) above, on or prior to the Subsequent Closing Date,
Purchaser shall deliver or cause to be delivered to the Escrow
Agent, the following:
(i) the
Subsequent Closing Escrow Agreement, Stock Pledge Agreement and Fan
Pass Security Agreement duly executed by Purchaser;
and
(ii) to
Escrow Agent, Purchaser’s Subscription Amount by wire
transfer to the account specified in the Subsequent Closing Escrow
Agreement.
2.6
Subsequent
Closing Conditions
.
(a)
The obligations of the Company hereunder in connection with the
Subsequent Closing are subject to the following conditions being
met:
(i)
the accuracy in all material respects
(determined without regard to any materiality, Material Adverse
Effect or other similar qualifiers therein) on the Subsequent
Closing Date of the representations and warranties of the Purchaser
contained herein (unless as of a specific date therein in which
case they shall be accurate as of such date);
(ii)
all obligations, covenants and
agreements of Purchaser to be performed at or prior to the
Subsequent Closing Date shall have been
performed;
(iii)
the delivery by Purchaser to the Escrow Agent of
the items set forth in Section 2.5(b) of this
Agreement;
(iv)
following the delivery by the Company to Purchaser
all items described in Section 2.5(a) above, the Escrow Agent shall
have received $200,000 Subsequent Closing Subscription Amount from
Purchaser in good funds in the amount designated on such
Purchaser’s signed signature page to this
Agreement.
(b)
The
respective obligations of the Purchaser hereunder in connection
with the Subsequent Closing are subject to the following conditions
being met:
(i)
the accuracy in all material respects (determined without regard to
any materiality, Material Adverse Effect or other similar
qualifiers therein) on the Subsequent Closing Date of the
representations and warranties of the Company contained herein
(unless as of a specific date therein in which case they shall be
accurate as of such date);
(ii)
all obligations, covenants and agreements of the Company under this
Agreement required to be performed at or prior to the Subsequent
Closing Date shall have been performed;
(iii)
the delivery by the Company to the Escrow Agent of the items set
forth in Section 2.5(a) of this Agreement;
(iv)
there shall have been no Material Adverse Effect with respect to
the Company since the date hereof;
(v)
the Escrow Agent shall have received the Subsequent Closing
Subscription Amount from Purchaser in good funds in the amount
designated on such Purchaser’s signed signature page to this
Agreement;
(vii)
from the date
hereof to the Subsequent Closing Date, trading in securities in the
United States generally as reported by Bloomberg L.P. shall not
have been suspended or limited, nor shall a banking moratorium have
been declared either by the United States or New York State
authorities nor shall there have occurred any material outbreak or
escalation of hostilities or other national or international
calamity of such magnitude in its effect on, or any material
adverse change in, any financial market which, in each case, in the
reasonable judgment of such Purchaser, makes it impracticable or
inadvisable to purchase the Securities at the Subsequent
Closing
;
(viii)
there
has not occurred an Event of Default nor an event which with the
giving of notice or the passage of time could be or become an Event
of Default;
(ix)
the
full unqualified completion of the Fan Pass Intellectual Property
Software and technology as described on
Schedule 2.6(b)(ix)
;
and
(x)
not later than nine
(9) months after the Initial Closing Date, the Company will have
filed a registration statement on Form S-1, Form 10 or such other
form acceptable to Purchasers in order to register the shares of
Common Stock of Fan Pass, Inc. pursuant to the terms and time
frames described on
Exhibit H
pursuant to Section
12(g) of the Exchange Act.
2.7
Purchaser’s
Right To Terminate.
Anything in any of the
Transaction Documents to the contrary notwithstanding, Purchaser
has the right to demand and receive from the Escrow Agent such
Purchaser’s Subscription Amount at any time until a Closing
takes place in connection with such Subscription Amount. The
Company and Purchaser acknowledges that the Escrow Agent is acting
as agent and representative for the Purchaser with respect to the
Purchaser’s Subscription Amount and at no time is or will be
holding any funds on behalf of Palladium Capital Advisors LLC nor
on behalf of the Company until a Closing.
UNDER NO CIRCUMSTANCES WILL THE
PURCHASER’S SUBSCRIPTION AMOUNT BE DELIVERED TO OR UNDER THE
CONTROL OR AUTHORITY OF ANY PLACEMENT AGENT OR BROKER INCLUDING BUT
NOT LIMITED TO PALLADIUM CAPITAL ADVISORS LLC.
ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES
3.1
Representations
and Warranties of the Company
.
Except as set forth in the SEC Reports or
the Disclosure Schedules, which Disclosure Schedules shall be
deemed a part hereof and shall qualify any representation made
herein only to the extent of the disclosure contained in the
corresponding section of the Disclosure Schedules, the Company
hereby makes the following representations and warranties to each
Purchaser where the context allows all representations made in this
Section 3.1 by, on behalf or with regard to the Company are also
made with respect to each Subsidiary,
mutatis mutandis
:
(a)
Subsidiaries
. All of the direct
and indirect subsidiaries of the Company and the Company’s
ownership interests therein are set forth on
Schedule 3.1(a)
. The Company
owns, directly or indirectly, all of the capital stock or other
equity interests of each Subsidiary including but not limited to
Fan Pass, Inc., free and clear of any Liens, and all of the issued
and outstanding shares of capital stock of each Subsidiary are
validly issued and are fully paid, non-assessable and free of
preemptive and similar rights to subscribe for or purchase
securities. Entities in existence as of the Closing Date which
would otherwise be deemed Subsidiaries as of the Closing Date but
which are identified on
Schedule 3.1(a)
as inactive and
which have nominal assets and liabilities will not be deemed
Subsidiaries until such entities have or acquire material assets or
liabilities.
(b)
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 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, would not
reasonably be expected to result in: (i) a material adverse effect
on the legality, validity or enforceability of any Transaction
Document, (ii) a material adverse effect on the results of
operations, assets, business, or condition (financial or otherwise)
of the Company and the 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 any
Transaction Document (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.
(c)
Authorization; Enforcement
. The
Company has the requisite corporate power and authority to enter
into and to consummate the transactions contemplated by this
Agreement and each of the other Transaction Documents and otherwise
to carry out its obligations hereunder and thereunder. The
execution and delivery of this Agreement and each of the other
Transaction Documents 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 or the Company’s stockholders in connection
herewith or therewith other than in connection with the Required
Approvals. This Agreement and each other Transaction Document to
which it is a party has 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, 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.
(d)
No Conflicts
. The execution,
delivery and performance by the Company of this Agreement and the
other Transaction Documents, the issuance and sale of the
Securities and the consummation by it of the transactions
contemplated hereby and thereby to which it is a party do not and
will not: (i) conflict with or violate any provision of the
Company’s or any Subsidiary’s certificate or articles
of incorporation, bylaws or other organizational or charter
documents, (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, or give to
others any rights of termination, amendment, 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) 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.
(e)
Filings, Consents and
Approvals
. The Company is not required to obtain any
consent, waiver, authorization or order of, give any notice to, or
make any filing or registration with, any court or other federal,
state, local or other governmental authority or other Person in
connection with the execution, delivery and performance by the
Company of the Transaction Documents, other than: (i) the filings
required pursuant to Section 4.6 of this Agreement, (ii) the notice
and/or application(s) to each applicable Trading Market for the
issuance and sale of the Notes and the listing of the Underlying
Shares for trading thereon in the time and manner required thereby,
(iii) the filing of Form D with the Commission and such filings as
are required to be made under applicable state securities laws, and
(iv) all filings required to be made in connection with Fan Pass,
Inc., and the Fan Pass Transaction (collectively, the
“
Required
Approvals
”).
(f)
Issuance of the Securities
. The
Securities are duly authorized and, when issued and paid for in
accordance with the applicable Transaction Documents, will be duly
and validly issued, fully paid and nonassessable, free and clear of
all Liens imposed by the Company. The Company has reserved from its
duly authorized capital stock a number of shares of Common Stock
for issuance of the Underlying Shares at least equal to the
Required Minimum on the date hereof.
(g)
Capitalization
. The
capitalization of the Company is as set forth on
Schedule 3.1(g)
included
in the SEC Reports. The Company has not issued any capital stock
since its
most recently filed periodic
report
. Except as set forth on
Schedule 3.1(g)
, no Person has
any right of first refusal, preemptive right, right of
participation, or any similar right to participate in the
transactions contemplated by the Transaction Documents. Except as
disclosed in the SEC Reports or on
Schedule 3.1(g)
, there are no
outstanding options, employee or incentive stock option plans,
warrants, scrip rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities, rights or
obligations convertible into or exercisable or exchangeable for, or
giving any Person any right to subscribe for or acquire any shares
of Common Stock, or contracts, commitments, understandings or
arrangements by which the Company or any Subsidiary is or may
become bound to issue additional shares of Common Stock or Common
Stock Equivalents. Except as set forth on
Schedule 3.1(g)
, the issuance
and sale of the Securities will not obligate the Company to issue
shares of Common Stock or other securities to any Person (other
than the Purchasers) and will not result in a right of any holder
of Company securities to adjust the exercise, conversion, exchange
or reset price under any of such securities. All of the outstanding
shares of capital stock of the Company are duly authorized, validly
issued, fully paid and nonassessable, have been issued in material
compliance with all federal and state securities laws, and none of
such outstanding shares was issued in violation of any preemptive
rights or similar rights to subscribe for or purchase securities.
Except as contemplated by Section 3.1(e), no further approval or
authorization of any stockholder, the Board of Directors or others
is required for the issuance and sale of the Securities. There are
no stockholders agreements, voting agreements or other similar
agreements with respect to the Company’s capital stock to
which the Company is a party or, to the knowledge of the Company,
between or among any of the Company’s stockholders. The
Company is not a party to any Variable Rate Transaction and as of
Closing, there will not be outstanding any Equity Line of Credit
nor Variable Priced Equity Linked Instruments.
(h)
SEC Reports; Financial
Statements
. The Company has filed all reports, schedules,
forms, statements and other documents required to be filed by the
Company under the Securities Act and the Exchange Act, including
pursuant to Sections 12(b), 12(g), 13(a) or 15(d) thereof, for the
two years preceding the date hereof (or such shorter period as the
Company was required by law or regulation to file such material)
(the foregoing materials, including the exhibits thereto and
documents incorporated by reference therein filed not later than
ten (10) days prior to the date hereof, being collectively referred
to herein as the “
SEC Reports
”) on a timely
basis or has received a valid extension of such time of filing and
has filed any such SEC Reports prior to the expiration of any such
extension. As of their respective dates, the SEC Reports complied
in all material respects with the requirements of the Securities
Act and the Exchange Act, as applicable, and none of the SEC
Reports, when filed, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. The financial statements of the Company included in the
SEC Reports comply in all material respects with applicable
accounting requirements and the rules and regulations of the
Commission with respect thereto as in effect at the time of filing.
Such financial statements have been prepared in accordance with
United States generally accepted accounting principles
(“
GAAP
”) applied on a
consistent basis during the periods involved except as may be
otherwise specified in such financial statements or the notes
thereto and except that unaudited financial statements included in
the SEC Reports may not contain all footnotes required by GAAP, and
fairly present in all material respects the financial position of
the Company and its consolidated Subsidiaries as of and for the
dates thereof and the results of operations and cash flows for the
periods then ended, subject, in the case of unaudited statements,
to normal, immaterial, year-end audit adjustments. The Company is,
and has no reason to believe that it will not in the foreseeable
future continue to be in compliance with all its reporting
requirements under the Securities Act and Exchange
Act.
(i)
Material Changes; Undisclosed Events,
Liabilities or Developments
. Since the date of the latest
audited financial statements included within the SEC Reports,
except as specifically disclosed in a subsequent SEC Report or on
Schedule 3.1(i)
:
(i) there has been no event, occurrence or development that has had
or that would reasonably be expected to result in a Material
Adverse Effect, (ii) the Company has not incurred any material
liabilities (contingent or otherwise) other than (A) trade payables
and accrued expenses incurred in the ordinary course of business
consistent with past practice and (B) liabilities not required to
be reflected in the Company’s financial statements pursuant
to GAAP or disclosed in filings made with the Commission, (iii) the
Company has not altered its method of accounting, (iv) the Company
has not declared or made any dividend or distribution of cash or
other property to its stockholders or purchased, redeemed or made
any agreements to purchase or redeem any shares of its capital
stock and (v) the Company has not issued any equity securities to
any officer, director or Affiliate except pursuant to the Stock
Option Plans as set forth on
Schedule 3.1(i)
. The Company
does not have pending before the Commission any request for
confidential treatment of information. Except for the issuance of
the Securities contemplated by this Agreement, or as set forth on
Schedule 3.1(i)
, no
event, liability, fact, circumstance, occurrence or development has
occurred or exists or is reasonably expected to occur or exist with
respect to the Company or its Subsidiaries or their respective
businesses, properties, operations, assets or financial condition,
that would be required to be disclosed by the Company under
applicable securities laws at the time this representation is made
or deemed made that has not been publicly disclosed at least two
Trading Days prior to the date that this representation is
made.
(j)
Litigation
. Except as set forth
in the SEC Reports, there is no action, suit, inquiry, notice of
violation, proceeding or investigation pending or, to the knowledge
of the Company, threatened against or affecting the Company, any
Subsidiary or any of their respective properties before or by any
court, arbitrator, governmental or administrative agency or
regulatory authority (federal, state, county, local or foreign)
(collectively, an “
Action
”) which (i)
adversely affects or challenges the legality, validity or
enforceability of any of the Transaction Documents or the
Securities or (ii) could, if there were an unfavorable decision,
have or reasonably be expected to result in a Material Adverse
Effect. Except as set forth in the SEC Reports, neither the Company
nor any Subsidiary, nor any director or officer thereof, is or has
been the subject of any Action involving a claim of violation of or
liability under federal or state securities laws or a claim of
breach of fiduciary duty. Except as set forth in the SEC Reports,
there has not been, and to the knowledge of the Company, there is
not pending or contemplated, any investigation by the Commission
involving the Company or any current or former director or officer
of the Company. The Commission has not issued any stop order or
other order suspending the effectiveness of any registration
statement filed by the Company or any Subsidiary under the Exchange
Act or the Securities Act.
(k)
Labor Relations
. No labor
dispute exists or, to the knowledge of the Company, is imminent
with respect to any of the employees of the Company, which could
reasonably be expected to result in a Material Adverse Effect. None
of the Company’s or its Subsidiaries’ employees is a
member of a union that relates to such employee’s
relationship with the Company or such Subsidiary, and neither the
Company nor any of its Subsidiaries is a party to a collective
bargaining agreement, and the Company and its Subsidiaries believe
that their relationships with their employees are good. To the
knowledge of the Company, no executive officer of the Company or
any Subsidiary, is, or is now expected to be, in violation of any
material term of any employment contract, confidentiality,
disclosure or proprietary information agreement or non-competition
agreement, or any other contract or agreement or any restrictive
covenant in favor of any third party, and the continued employment
of each such executive officer does not subject the Company or any
of its Subsidiaries to any liability with respect to any of the
foregoing matters. The Company and its Subsidiaries are in
compliance with all U.S. federal, state, local and foreign laws and
regulations relating to employment and employment practices, terms
and conditions of employment and wages and hours, except where the
failure to be in compliance could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
(l)
Compliance
. Neither the Company
nor any Subsidiary: (i) is in default under or in violation of (and
no event has occurred that has not been waived that, with notice or
lapse of time or both, would result in a default by the Company or
any Subsidiary under), nor has the Company or any Subsidiary
received notice of a claim that it is in default under or that it
is in violation of, any indenture, loan or credit agreement or any
other agreement or instrument to which it is a party or by which it
or any of its properties is bound (whether or not such default or
violation has been waived), (ii) is in violation of any judgment,
decree or order of any court, arbitrator or other governmental
authority or (iii) is or has been in violation of any statute,
rule, ordinance or regulation of any governmental authority,
including without limitation all foreign, federal, state and local
laws relating to taxes, environmental protection, occupational
health and safety, product quality and safety and employment and
labor matters, except in each case as could not have or reasonably
be expected to result in a Material Adverse Effect.
(m)
Regulatory Permits
. The Company
and the Subsidiaries possess all certificates, authorizations and
permits issued by the appropriate federal, state, local or foreign
regulatory authorities necessary to conduct their respective
businesses as described in the SEC Reports, except where the
failure to possess such permits could not reasonably be expected to
result in a Material Adverse Effect (“
Material Permits
”), and
neither the Company nor any Subsidiary has received any notice of
proceedings relating to the revocation or modification of any
Material Permit.
(n)
Title to Assets
. The Company
and the Subsidiaries have good and marketable title in fee simple
to all real property (if any) owned by them and good and marketable
title in all personal property owned by them that is material to
the business of the Company and the Subsidiaries, in each case free
and clear of all Liens, except for (i) Liens as do not materially
affect the value of such property and do not materially interfere
with the use made and proposed to be made of such property by the
Company and the Subsidiaries and (ii) Liens for the payment of
federal, state or other taxes, for which appropriate reserves have
been made in accordance with GAAP and, the payment of which is
neither delinquent nor subject to penalties. Any real property and
facilities held under lease by the Company and the Subsidiaries are
held by them under valid, subsisting and enforceable leases with
which the Company and the Subsidiaries are in
compliance.
(o)
Intellectual Property
. All of
the Company’s and Subsidiary’s Intellectual Property
Rights, if any, are described in the SEC Reports and on
Schedule
3.1(o)
.
(i)
The term
“
Intellectual
Property Rights
” includes:
1.
the name of the
Company and each Subsidiary, all fictional business names, trading
names, registered and unregistered trademarks, service marks, and
applications of the Company and each Subsidiary (collectively,
“
Marks''
);
2.
all patents and
patent applications of the Company and each Subsidiary
(collectively, “
Patents''
);
3.
all copyrights in
both published works and unpublished works of the Company and each
Subsidiary (collectively, “
Copyrights
”);
4.
all rights in mask
works of the Company and each Subsidiary (collectively,
“
Rights in Mask
Works''
); and
5.
all know-how, trade
secrets, confidential information, customer lists, software,
technical information, data, process technology, plans, drawings,
and blue prints (collectively, “
Trade Secrets''
); owned, used,
or licensed by the Company and each Subsidiary as licensee or
licensor.
(ii)
Agreements
.
Except as set forth in the SEC Reports, there are no outstanding
and, to Company’s knowledge, no threatened disputes or
disagreements with respect to any agreements relating to any
Intellectual Property Rights to which the Company is a party or by
which the Company is bound.
(iii)
Know-How
Necessary for the Business
. Except as set forth in the SEC
Reports, the Intellectual Property Rights are all those necessary
for the operation of the Company’s and Subsidiaries’
businesses as currently conducted or as represented to the
Purchaser to be conducted. Each of the Company and each Subsidiary
is the owner of all right, title, and interest in and to each of
their respective Intellectual Property Rights, free and clear of
all Liens, and adverse claims, and has the right to use all of the
Intellectual Property Rights. To the Company’s knowledge, no
employee of the Company or any Subsidiary has entered into any
contract that restricts or limits in any way the scope or type of
work in which the employee may be engaged or requires the employee
to transfer, assign, or disclose information concerning his work to
anyone other than the Company or a Subsidiary.
(iv)
Patents
.
Except as set forth in the SEC Reports, the Company and each
Subsidiary is the owner of all right, title and interest in and to
each of the Patents, free and clear of all Liens and adverse
claims. All of the issued Patents are currently in compliance with
formal legal requirements (including payment of filing,
examination, and maintenance fees and proofs of working or use),
are valid and enforceable, and are not subject to any maintenance
fees or taxes or actions falling due within ninety days after the
Closing Date. No Patent has been or is now involved in any
interference, reissue, reexamination, or opposition proceeding.
Except as set forth in the SEC Reports, to the Company’s
knowledge: (1) there is no potentially interfering patent or patent
application of any third party, and (2) no Patent is infringed or
has been challenged or threatened in any way. To the
Company’s knowledge, none of the products manufactured and
sold, nor any process or know-how used, by the Company or any
Subsidiary infringes or is alleged to infringe any patent or other
proprietary right of any other Person.
(v)
Trademarks
. The Company and
each Subsidiary is the owner of all right, title, and interest in
and to each of the Marks, free and clear of all Liens and adverse
claims. All Marks that have been registered with the United States
Patent and Trademark Office are currently in compliance with all
formal legal requirements (including the timely post-registration
filing of affidavits of use and incontestability and renewal
applications), are valid and enforceable, and are not subject to
any maintenance fees or taxes or actions falling due within ninety
days after the Closing Date. No Mark has been or is now involved in
any opposition, invalidation, or cancellation and, to the
Company’s knowledge, no such action is threatened with
respect to any of the Marks. To the Company’s knowledge: (1)
there is no potentially interfering trademark or trademark
application of any third party, and (2) no Mark is infringed or has
been challenged or threatened in any way. To the Company’s
knowledge, none of the Marks used by the Company and each
Subsidiary infringes or is alleged to infringe any trade name,
trademark, or service mark of any third party.
(vi)
Copyrights
.
The Company and each Subsidiary is the owner of all right, title,
and interest in and to each of the Copyrights, free and clear of
all Liens and adverse claims. All the Copyrights have been
registered and are currently in compliance with formal
requirements, are valid and enforceable, and are not subject to any
maintenance fees or taxes or actions falling due within ninety days
after the Closing Date. To the Company’s knowledge, no
Copyright is infringed or has been challenged or threatened in any
way. To the Company’s knowledge, none of the subject matter
of any of the Copyrights infringes or is alleged to infringe any
copyright of any third party or is a derivative work based on the
work of a third party. All works encompassed by the Copyrights have
been marked with the proper copyright notice.
(vii)
Trade
Secrets
. With respect to each Trade Secret, the
documentation relating to such Trade Secret is current, accurate,
and sufficient in detail and content to identify and explain it and
to allow its full and proper use without reliance on the knowledge
or memory of any individual. The Company has taken all reasonable
precautions to protect the secrecy, confidentiality, and value of
its Trade Secrets. The Company and each Subsidiary has good title
and an absolute (but not necessarily exclusive) right to use the
Trade Secrets. The Trade Secrets are not part of the public
knowledge or literature, and, to the Company’s knowledge,
have not been used, divulged, or appropriated either for the
benefit of any Person (other the Company and each Subsidiary) or to
the detriment of the Company and each Subsidiary. No Trade Secret
is subject to any adverse claim or has been challenged or
threatened in any way.
(p)
Insurance
. The Company and each
Subsidiary are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as
are prudent and customary in the businesses in which the Company
and each Subsidiary are engaged, including, but not limited to,
directors and officers insurance coverage. Neither the Company nor
any Subsidiary has any reason to believe that it will not be able
to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business without a significant
increase in cost.
(q)
Transactions With Affiliates and
Employees
. Except as set forth in the SEC Reports, none of
the officers or directors of the Company or any Subsidiary and, to
the knowledge of the Company, none of the employees of the Company
or any Subsidiary is presently a party to any transaction with the
Company or any Subsidiary (other than for services as employees,
officers and directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or by,
providing for rental of real or personal property to or from,
providing for the borrowing of money from or lending of money to or
otherwise requiring payments to or from any officer, director or
such employee or, to the knowledge of the Company, any entity in
which any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee, stockholder, member
or partner, in each case in excess of $50,000 other than for: (i)
payment of salary or consulting fees for services rendered, (ii)
reimbursement for expenses incurred on behalf of the Company or any
Subsidiary, and (iii) other employee benefits, including stock
option agreements under the Stock Option Plans or any other plan of
the Company except as disclosed on
Schedule 3.1(g).
(r)
Sarbanes-Oxley; Internal Accounting
Controls
. The Company and each Subsidiary are in material
compliance with any and all applicable requirements of the
Sarbanes-Oxley Act of 2002 that are effective as of the date
hereof, and any and all applicable rules and regulations
promulgated by the Commission thereunder that are effective as of
the date hereof and as of the Closing Date.
The Company and each Subsidiary maintain a system
of internal accounting controls sufficient to provide reasonable
assurance that: (i) transactions are executed in accordance with
management’s general or specific authorizations, (ii)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP and to maintain asset
accountability, (iii) access to assets is permitted only in
accordance with management’s general or specific
authorization, and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The
Company and each Subsidiary have established disclosure controls
and procedures (as defined in Exchange Act Rules 13a-15(e) and
15d-15(e)) for the Company and each Subsidiary and designed such
disclosure controls and procedures to ensure that information
required to be disclosed by the Company in the reports it files or
submits under the Exchange Act is recorded, processed, summarized
and reported, within the time periods specified in the
Commission’s rules and forms. The Company’s certifying
officers have evaluated the effectiveness of the disclosure
controls and procedures of the Company and each Subsidiary as of
the end of the period covered by the most recently filed periodic
report under the Exchange Act (such date, the
“Evaluation
Date
”). The Company
presented in its most recently filed periodic report under the
Exchange Act the conclusions of the certifying officers about the
effectiveness of the disclosure controls and procedures based on
their evaluations as of the Evaluation Date. Since the Evaluation
Date, there have been no changes in the internal control over
financial reporting (as such term is defined in the Exchange Act)
of the Company and its Subsidiaries that have materially affected,
or is reasonably likely to materially affect, the internal control
over financial reporting of the Company and its
Subsidiaries.
(s)
Certain Fees
. Except as set
forth on
Schedule
3.1(s)
, no brokerage, finder’s fees, commissions or
due diligence fees are or will be payable by the Company or any
Subsidiary to any broker, financial advisor or consultant, finder,
placement agent, investment banker, bank or other Person with
respect to the transactions contemplated by the Transaction
Documents. The Purchasers shall have no obligation with respect to
any such fees or with respect to any claims made by or on behalf of
other Persons for fees of a type contemplated in this Section
3.1(s) that may be due in connection with the transactions
contemplated by the Transaction Documents.
(t)
Investment Company
. The Company
is not, and is not an Affiliate of, and immediately after receipt
of payment for the Securities, will not be or be an Affiliate of,
an “investment company” within the meaning of the
Investment Company Act of 1940, as amended. The Company shall
conduct its business in a manner so that it will not become an
“investment company” subject to registration under the
Investment Company Act of 1940, as amended.
(u)
Registration Rights
. Except as
set forth and described on
Schedule 3.1(u)
, no Person has
any right to cause the Company or any Subsidiary to effect the
registration under the Securities Act of any securities of the
Company or any Subsidiary, except for the Purchasers.
(v)
Reporting Company/Shell
Company
. The Company is a publicly-held company subject to
reporting obligations pursuant to Sections 12(g), 13 and 15(d) of
the Exchange Act. Pursuant to the provisions of the Exchange Act,
the Company has timely filed all reports and other materials
required to be filed by the Company thereunder with the SEC during
the twelve months preceding the date of this Agreement. The Company
has no reason to believe that it will not in the year following the
Closing continue to be in compliance with all listing and reporting
requirements applicable to the Company as of each of the Closing
Dates and thereafter. As of the date of this Agreement and the
Closing Date, the Company is not a “shell company” nor
a former “shell company” (as defined in Rule 405 of the
Securities Act).
(w)
Application of Takeover
Protections
. The Company and the Board of Directors will
have taken as of the Closing Date all necessary action, if any, in
order to render inapplicable any control share acquisition,
business combination, poison pill (including any distribution under
a rights agreement) or other similar anti-takeover provision under
the Company’s certificate of incorporation (or similar
charter documents) or the laws of its state of incorporation that
is or could become applicable to the Purchasers as a result of the
Purchasers and the Company fulfilling their obligations or
exercising their rights under the Transaction Documents, including
without limitation as a result of the Company’s issuance of
the Securities and the Purchasers’ ownership of the
Securities.
(x)
Disclosure
. Except with respect
to the material terms and conditions of the Offering as set forth
in the Transaction Documents together with the exhibits and
schedules thereto, the Company confirms that neither it nor any
other Person acting on its behalf has provided any of the
Purchasers or their agents or counsel with any information that it
believes constitutes or might constitute material, non-public
information. The Company understands and confirms that the
Purchasers will rely on the foregoing representation in effecting
transactions in securities of the Company. All of the disclosure
furnished by or on behalf of the Company to the Purchasers
regarding the Company and its Subsidiaries, their respective
businesses and the transactions contemplated hereby, including the
Disclosure Schedules to this Agreement, when taken together as a
whole, is true and correct and does not contain any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements made therein, in light of
the circumstances under which they were made, not misleading. The
press releases disseminated by the Company during the twelve months
preceding the date of this Agreement taken as a whole do not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under
which they were made and when made, not misleading. The Company
acknowledges and agrees that no Purchaser makes or has made any
representations or warranties with respect to the transactions
contemplated hereby other than those specifically set forth in
Section 3.2 hereof.
(y)
No Integrated Offering
.
Assuming the accuracy of the Purchasers’ representations and
warranties set forth in Section 3.2, neither the Company, nor any
of its Affiliates, nor any Person acting on its or their behalf
has, directly or indirectly, made any offers or sales of any
security or solicited any offers to buy any security, under
circumstances that would cause the Offering of the Securities to be
integrated with prior offerings by the Company for purposes of: (i)
the Securities Act which would require the registration of any such
securities under the Securities Act, or (ii) any applicable
shareholder approval provisions of any Trading Market on which any
of the securities of the Company are listed or
designated.
(z)
Solvency
. Based on the
consolidated financial condition of the Company and Subsidiaries as
of each Closing Date, and the Company’s good faith estimate
of the fair market value of its assets, after giving effect to the
receipt by the Company of the proceeds from the sale of the
Securities hereunder: (i) the fair saleable value of the
Company’s assets exceeds the amount that will be required to
be paid on or in respect of the Company’s existing debts and
other liabilities (including known contingent liabilities) as they
mature, (ii) the Company’s assets do not constitute
unreasonably small capital to carry on its business as now
conducted and as proposed to be conducted including its capital
needs taking into account the particular capital requirements of
the business conducted by the Company, consolidated and projected
capital requirements and capital availability thereof, and (iii)
the current cash flow of the Company, together with the proceeds
the Company would receive, were it to liquidate all of its assets,
after taking into account all anticipated uses of the cash, would
be sufficient to pay all amounts on or in respect of its
liabilities when such amounts are required to be paid. The Company
does not intend to incur debts beyond its ability to pay such debts
as they mature (taking into account the timing and amounts of cash
to be payable on or in respect of its debt). The Company has no
knowledge of any facts or circumstances which lead it to believe
that it will file for reorganization or liquidation under the
bankruptcy or reorganization laws of any jurisdiction within one
year from the Closing Date. The SEC Reports discloses, as of the
date hereof all outstanding secured and unsecured Indebtedness of
the Company or any Subsidiary, or for which the Company or any
Subsidiary has commitments. For the purposes of this Agreement,
“
Indebtedness
” means (x)
any liabilities for borrowed money or amounts owed in excess of
$50,000 in the aggregate (other than trade accounts payable
incurred in the ordinary course of business), (y) all guaranties,
endorsements and other contingent obligations in respect of
indebtedness of others, whether or not the same are or should be
reflected in the Company’s consolidated balance sheet (or the
notes thereto), except guaranties by endorsement of negotiable
instruments for deposit or collection or similar transactions in
the ordinary course of business; and (z) the present value of any
lease payments in excess of $50,000 due under leases required to be
capitalized in accordance with GAAP. Neither the Company nor any
Subsidiary is in default with respect to any Indebtedness. Neither
the Company nor any Subsidiary is in default with respect to any
Indebtedness.
(aa)
Tax
Status
. Except for matters that would not, individually or
in the aggregate, have or reasonably be expected to result in a
Material Adverse Effect, the Company and its Subsidiaries each (i)
has made or filed all United States federal, state and local income
and all foreign income and franchise tax returns, reports and
declarations required by any jurisdiction to which it is subject,
(ii) has paid all taxes and other governmental assessments and
charges that are material in amount, shown or determined to be due
on such returns, reports and declarations and (iii) has set aside
on its books provision reasonably adequate for the payment of all
material taxes for periods subsequent to the periods to which such
returns, reports or declarations apply. There are no unpaid taxes
in any material amount claimed to be due by the taxing authority of
any jurisdiction, and the officers of the Company or of any
Subsidiary know of no basis for any such claim.
(bb)
Foreign
Corrupt Practices
. Neither the Company nor any Subsidiary,
nor to the knowledge of the Company or any Subsidiary, any agent or
other person acting on behalf of the Company or any Subsidiary,
has: (i) directly or indirectly, used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses
related to foreign or domestic political activity, (ii) made any
unlawful payment to foreign or domestic government officials or
employees or to any foreign or domestic political parties or
campaigns from corporate funds, (iii) failed to disclose fully any
contribution made by the Company or any Subsidiary (or made by any
person acting on its behalf of which the Company is aware) which is
in violation of law or (iv) violated in any material respect any
provision of FCPA.
(cc)
Accountants
.
The Company’s accounting firm is set forth on
Schedule 3.1(cc)
of the
Disclosure Schedules. To the knowledge and belief of the Company,
such accounting firm: (i) is a registered public accounting firm as
required by the Exchange Act and (ii) shall express its opinion
with respect to the financial statements to be included in the
Company’s Annual Report for the fiscal year ending December
31, 2016.
There are no disagreements
of any kind presently existing, or reasonably anticipated by the
Company to arise, between the Company and such
accountants.
(dd)
Acknowledgment
Regarding Purchasers’ Purchase of Securities
. The
Company acknowledges and agrees that each of the Purchasers is
acting solely in the capacity of an arm’s length purchaser
with respect to the Transaction Documents and the transactions
contemplated thereby. The Company further acknowledges that no
Purchaser is acting as a financial advisor or fiduciary of the
Company (or in any similar capacity) with respect to the
Transaction Documents and the transactions contemplated thereby and
any advice given by any Purchaser or any of their respective
representatives or agents in connection with the Transaction
Documents and the transactions contemplated thereby is merely
incidental to the Purchasers’ purchase of the Securities. The
Company further represents to each Purchaser that the
Company’s decision to enter into this Agreement and the other
Transaction Documents has been based solely on the independent
evaluation of the transactions contemplated hereby by the Company
and its representatives.
(ee)
Acknowledgment
Regarding Purchaser’s Trading Activity
. Anything in this Agreement or elsewhere herein
to the contrary notwithstanding (except for Section 4.16 hereof),
it is understood and acknowledged by the Company that: (i) none of
the Purchasers has been asked by the Company to agree, nor has any
Purchaser agreed, to desist from purchasing or selling, long and/or
short, securities of the Company, or “derivative”
securities based on securities issued by the Company or to hold the
Securities for any specified term, (ii) past or future open market
or other transactions by any Purchaser, specifically including,
without limitation, Short Sales or “derivative”
transactions, before or after the closing of this or future private
placement transactions, may negatively impact the market price of
the Company’s publicly-traded securities, (iii) any
Purchaser, and counter-parties in “derivative”
transactions to which any such Purchaser is a party, directly or
indirectly, may presently have a “short” position in
the Common Stock and (iv) each Purchaser shall not be deemed to
have any affiliation with or control over any arm’s length
counter-party in any “derivative” transaction.
The Company further understands and acknowledges that (y) one or
more Purchasers may engage in hedging activities at various times
during the period that the Securities are outstanding, including,
without limitation, during the periods that the value of the
Underlying Shares deliverable with respect to Securities are being
determined, and (z) such hedging activities (if any) could reduce
the value of the existing stockholders' equity interests in the
Company at and after the time that the hedging activities are being
conducted. The Company acknowledges that such aforementioned
hedging activities do not constitute a breach of any of the
Transaction Documents.
The Company
acknowledges that anything to the contrary in the Transaction
Documents notwithstanding, Purchaser may sell long any Underlying
Shares it anticipates receiving after conversion of any part of a
Note.
(ff)
Regulation
M Compliance
. The Company has not, and to its
knowledge no one acting on its behalf has, (i) taken, directly or
indirectly, any action designed to cause or to result in the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of any of the Securities,
(ii) sold, bid for, purchased, or paid any compensation for
soliciting purchases of, any of the Securities, or (iii) paid or
agreed to pay to any Person any compensation for soliciting another
to purchase any other securities of the Company.
(gg)
Money
Laundering
. The operations of the Company and its
Subsidiaries are and have been conducted at all times in compliance
with applicable financial record-keeping and reporting requirements
of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, applicable money laundering statutes and applicable rules
and regulations thereunder (collectively, the “
Money Laundering Laws
”),
and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving
the Company or any Subsidiary with respect to the Money Laundering
Laws is pending or, to the knowledge of the Company or any
Subsidiary, threatened.
(hh)
Stock
Option Plans
. Each stock option and similar security granted
by the Company was granted (i) in accordance with the terms of such
any applicable stock option plans and (ii) with an exercise price
at least equal to the fair market value of the Common Stock on the
date such stock option would be considered granted under GAAP and
applicable law. No stock option granted under any stock option plan
has been backdated. The Company has not knowingly granted, and
there is no and has been no Company policy or practice to knowingly
grant, stock options prior to, or otherwise knowingly coordinate
the grant of stock options with, the release or other public
announcement of material information regarding the Company or its
Subsidiaries or their financial results or prospects.
(ii)
Office
of Foreign Assets Control
. Neither the Company nor any
Subsidiary nor, to the Company's knowledge, any director, officer,
agent, employee or affiliate of the Company is currently subject to
any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Treasury Department (“
OFAC
”).
(jj)
Private
Placement
. Assuming the accuracy of the Purchasers’
representations and warranties set forth in Section 3.2, no
registration under the Securities Act is required for the offer and
sale of the Securities by the Company to the Purchasers as
contemplated hereby. The issuance and sale of the Securities
hereunder does not contravene the rules and regulations of the
Trading Market.
(kk)
No
General Solicitation
. Neither the Company nor any person
acting on behalf of the Company has offered or sold any of the
Securities by any form of general solicitation or general
advertising. The Company has offered the Securities for sale only
to the Purchasers and certain other Accredited
Investors.
(ll)
Indebtedness
and Seniority
. As of the date hereof, all Indebtedness and
Liens of the Company and the principal terms thereof are set forth
in the SEC Reports. Except as set forth on
Schedule 3.1(ll)
, as of the
Closing Date, no Indebtedness or other equity of the Company is or
will be
pari passu
or
senior to the Notes in right of payment, whether with respect to
interest or upon liquidation or dissolution, or otherwise, other
than indebtedness secured by purchase money security interests
(which is senior only as to underlying assets covered thereby) and
capital lease obligations (which is senior only as to the property
covered thereby).
(mm)
Listing
and Maintenance Requirements
. The Common Stock is listed on the OTC Pink
Marketplace maintained by the OTC Markets Group, Inc. under the
symbol FDBL. Except as disclosed in the Reports, the Company has
not, in the twenty-four (24) months preceding the date hereof,
received notice from any Trading Market on which the Common Stock
is or has been listed or quoted to the effect that the Company is
not in compliance with the listing or maintenance requirements of
such Trading Market.
(nn)
FDA
.
The Company has no applications pending before the jurisdiction of
the U.S. Food and Drug Administration (“
FDA
”).
(oo)
No
Disqualification Events
. With respect to the Securities to
be offered and sold hereunder in reliance on Rule 506 under the
Securities Act, none of the Company, any of its predecessors, any
affiliated issuer, any director, executive officer, other officer
of the Company participating in the offering hereunder, any
beneficial owner of 20% or more of the Company’s outstanding
voting equity securities, calculated on the basis of voting power,
nor any promoter (as that term is defined in Rule 405 under the
Securities Act) connected with the Company in any capacity at the
time of sale (each, an “
Issuer Covered Person
”
and, together, “
Issuer Covered Persons
”)
is subject to any of the “Bad Actor” disqualifications
described in Rule 506(d)(1)(i) to (viii) under the Securities Act
(a “
Disqualification
Event
”), except for a Disqualification Event covered
by Rule 506(d)(2) or (d)(3). The Company has exercised reasonable
care to determine whether any Issuer Covered Person is subject to a
Disqualification Event. The Company has complied, to the extent
applicable, with its disclosure obligations under Rule 506(e), and
has furnished to the Purchasers a copy of any disclosures provided
thereunder.
(pp)
Other
Covered Persons
. Except as set forth on
Schedule 3.1(s)
or to attorneys
for legal services, the Company is not aware of any person that has
been or will be paid (directly or indirectly) remuneration in
connection with the sale of any Regulation D Securities pursuant to
this Agreement.
(qq)
Securities
may be purchased by Affiliates of the Company or other parties with
a financial interest in the Offering
.
Purchaser acknowledges that Securities may be
purchased by Affiliates of the Company or by other persons who will
receive fees or other compensation or gain which is dependent upon
the success of the Offering. Such purchases may be made at any
time, and will be counted in determining whether the level of
purchases has been met for a Closing of the Offering. Purchasers
acknowledges that the sale of Securities to any Person does not
indicate that such sales have been made to Purchasers who have no
financial or other interest in the Offering, or who otherwise are
exercising independent investment discretion.
(rr)
Survival
.
The foregoing representations and warranties shall survive the
Closing.
3.2
Representations and Warranties of the
Purchaser
. Purchaser hereby represents and warrants as of
the date hereof and as of the Closing Date to the Company with
respect to itself, the Securities, the Fan Pass Securities, as
follows (unless as of a specific date therein):
(a)
Organization; Authority
. Such
Purchaser is either an individual or 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 the Transaction Documents and otherwise to carry
out its obligations hereunder and thereunder. The execution and
delivery of the Transaction Documents and performance by Purchaser
of the transactions contemplated by the Transaction Documents have
been duly authorized by all necessary corporate, partnership,
limited liability company or similar action, as applicable, on the
part of Purchaser. Each Transaction Document to which it is a party
has been duly executed by Purchaser, and when delivered by
Purchaser in accordance with the terms hereof, will constitute the
valid and legally binding obligation of Purchaser, 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)
Understandings or Arrangements
.
Purchaser understands that the Securities are “restricted
securities” and have not been registered under 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 such Purchaser’s
right to sell the Securities pursuant to a registration statement
or otherwise in compliance with applicable federal and state
securities laws). Purchaser is acquiring the Securities hereunder
in the ordinary course of its business.
(c)
Purchaser Status
. At the time
Purchaser was offered the Securities, it was, and as of the date
hereof it is, and on each date on which it converts any Notes 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.
Purchaser is not required to be registered as a broker-dealer under
Section 15 of the Exchange Act. Purchaser has the authority and is
duly and legally qualified to purchase and own the Securities.
Purchaser is able to bear the risk of such investment for an
indefinite period and to afford a complete loss thereof. Purchaser
has provided the information in the Accredited Investor
Questionnaire attached hereto as
Exhibit E
(the
“
Investor
Questionnaire
”). The information set forth on the
signature pages hereto and the Investor Questionnaire regarding
Purchaser is true and complete in all respects. Except as disclosed
in the Investor Questionnaire, Purchaser has had no position,
office or other material relationship within the past three years
with the Company or Persons (as defined below) known to Purchaser
to be affiliates of the Company, and is not a member of the
Financial Industry Regulatory Authority or an “associated
person” (as such term is defined under the FINRA Membership
and Registration Rules Section 1011).
(d)
Experience of Such Purchaser
.
Purchaser, 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. Purchaser 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.
(e)
Information on Company
.
Purchaser has been furnished with or has had access to the SEC
Reports. Purchaser is not deemed to have any knowledge of any
information not included in the SEC Reports unless such information
is delivered in the manner described in the next
sentence. In addition, Purchaser may have received in
writing from the Company such other information concerning its
operations, financial condition and other matters as Purchaser has
requested, identified thereon as OTHER WRITTEN INFORMATION (such
other information is collectively, the “
Other Written
Information
”), and considered all factors Purchaser
deems material in deciding on the advisability of investing in the
Securities. Purchaser was afforded (i) the opportunity to
ask such questions as Purchaser deemed necessary of, and to receive
answers from, representatives of the Company concerning the merits
and risks of acquiring the Securities; (ii) the right of access to
information about the Company and its financial condition, results
of operations, business, properties, management and prospects
sufficient to enable Purchaser to evaluate the Securities; and
(iii) the opportunity to obtain such additional information that
the Company possesses or can acquire without unreasonable effort or
expense that is necessary to make an informed investment decision
with respect to acquiring the Securities.
(f)
Compliance with Securities Act;
Reliance on Exemptions
. Purchaser understands and agrees
that the Securities have not been registered under the 1933 Act or
any applicable state securities laws, by reason of their issuance
in a transaction that does not require registration under the 1933
Act, and that such Securities must be held indefinitely unless a
subsequent disposition is registered under the 1933 Act or any
applicable state securities laws or is exempt from such
registration. Purchaser understands and agrees that the Securities
are being offered and sold to Purchaser in reliance on specific
exemptions from the registration requirements of United States
federal and state securities laws and regulations and that the
Company is relying in part upon the truth and accuracy of, and
Purchaser’s compliance with, the representations, warranties,
agreements, acknowledgments and understandings of Purchaser set
forth herein in order to determine the availability of such
exemptions and the eligibility of such Purchaser to acquire the
Securities.
(g)
Communication of Offer
.
Purchaser is not purchasing the Securities as a result of any
“general solicitation” or “general
advertising,” as such terms are defined in Regulation D,
which includes, but is not limited to, any advertisement, article,
notice or other communication regarding the Securities published in
any newspaper, magazine or similar media or on the internet or
broadcast over television, radio or the internet or presented at
any seminar or any other general solicitation or general
advertisement.
(h)
No Governmental Review
.
Purchaser understands that no United States federal or state agency
or any other governmental or state agency has passed on or made
recommendations or endorsement of the Securities or the suitability
of the investment in the Securities nor have such authorities
passed upon or endorsed the merits of the Offering.
(i)
No Conflicts
. The execution,
delivery and performance of this Agreement and performance under
the other Transaction Documents and the consummation by Purchaser
of the transactions contemplated hereby and thereby or relating
hereto or thereto do not and will not (i) result in a violation of
Purchaser’s charter documents, bylaws or other organizational
documents, if applicable, (ii) conflict with nor constitute a
default (or an event which with notice or lapse of time or both
would become a default) under any agreement to which Purchaser is a
party, nor (iii) result in a violation of any law, rule, or
regulation, or any order, judgment or decree of any court or
governmental agency applicable to Purchaser or its properties
(except for such conflicts, defaults and violations as would not,
individually or in the aggregate, have a material adverse effect on
Purchaser). Purchaser is not required to obtain any consent,
authorization or order of, or make any filing or registration with,
any court or governmental agency in order for it to execute,
deliver or perform any of its obligations under this Agreement or
perform under the other Transaction Documents nor to purchase the
Securities in accordance with the terms hereof, provided that for
purposes of the representation made in this sentence, Purchaser is
assuming and relying upon the accuracy of the relevant
representations and agreements of the Company herein.
(j)
Certain Transactions
and Confidentiality
. Other
than consummating the transactions contemplated hereunder,
Purchaser has not directly or indirectly, nor has any Person acting
on behalf of or pursuant to any understanding with Purchaser,
executed any purchases or sales, including Short Sales, of the
securities of the Company during the period commencing as of the
time that Purchaser first received a written term sheet from the
Company or any other Person representing the Company setting forth
the material terms of the transactions contemplated hereby and
ending immediately prior to the execution
hereof.
(k)
The
sale of Securities does not indicate Purchaser’s investment
decision is shared by other unaffiliated
Purchaser
.
Because
there may be substantial purchases by Affiliates of the Company, or
other Persons who will receive fees or other compensation or gain
dependent upon the success of the Offering, Purchaser acknowledges
that Purchaser is not placing any reliance on such sales as an
indication of the merits of the Offering.
(l)
Survival
. The
foregoing representations and warranties shall survive the
Closing.
The
Company acknowledges and agrees that the representations contained
in Section 3.2 shall not modify, amend or affect such
Purchaser’s right to rely on the Company’s
representations and warranties contained in this Agreement or any
representations and warranties contained in any other Transaction
Document or any other document or instrument executed and/or
delivered in connection with this Agreement or the consummation of
the transaction contemplated hereby.
ARTICLE
IV.
OTHER
AGREEMENTS OF THE PARTIES
4.1
Transfer
Restrictions
.
(a) The
Securities may only be disposed of in compliance with state and
federal securities laws. In connection with any transfer of
Securities other than: (i) pursuant to an effective registration
statement, (ii) pursuant to Rule 144, (iii) a transfer to the
Company, (iv) a transfer to an Affiliate of a Purchaser, or (v) in
connection with a pledge as contemplated in Section 4.1(b), the
Company may require the transferor thereof to provide to the
Company, at the Company’s expense, an opinion of counsel
selected by the transferor and reasonably acceptable to the
Company, the form and substance of which opinion shall be
reasonably satisfactory to the Company, to the effect that such
transfer does not require registration of such transferred
Securities under the Securities Act. As a condition of transfer,
any such transferee shall agree in writing to be bound by the terms
of this Agreement and the Registration Rights Agreement and shall
have the rights and obligations of a Purchaser under this Agreement
and the other Transaction Documents.
(b) The
Purchaser agrees to the imprinting, so long as is required by this
Section 4.1, of a legend on any of the Securities in the following
form:
[NEITHER]
THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS
[EXERCISABLE] [CONVERTIBLE]] HAS [NOT] BEEN REGISTERED WITH THE
SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF
ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES
LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR
TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY
ACCEPTABLE TO THE COMPANY. THIS SECURITY [AND THE SECURITIES
ISSUABLE UPON [EXERCISE] [CONVERSION] OF THIS SECURITY] MAY BE
PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A
REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION
THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE
501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH
SECURITIES.
(c)
Pledge
.
The Company acknowledges and agrees that a Purchaser may from time
to time pledge pursuant to a bona fide margin agreement with a
registered broker-dealer or grant a security interest in some or
all of the Securities to a financial institution that is an
Accredited Investor and who agrees to be bound by the provisions of
this Agreement and, if required under the terms of such
arrangement, such Purchaser may transfer pledge or secure
Securities to the pledgees or secured parties. Such a pledge or
transfer would not be subject to approval of the Company and no
legal opinion of legal counsel of the pledgee, secured party or
pledgor shall be required in connection therewith. Further, no
notice shall be required of such pledge. At the appropriate
Purchaser’s expense, the Company will execute and deliver
such reasonable documentation as a pledgee or secured party of
Securities may reasonably request in connection with a pledge or
transfer of the Securities, including, if the Securities are
subject to registration pursuant to a registration rights
agreement, the preparation and filing of any required prospectus
supplement under Rule 424(b)(3) under the Securities Act or other
applicable provision of the Securities Act to appropriately amend
the list of selling stockholders thereunder.
(d)
Legend
Removal
. Certificates evidencing the Underlying Shares shall
not contain any legend (“
Unlegended
Shares
”) (including the legend set forth in Section
4.1(b) hereof): (i) while a registration statement covering the
resale of such security is effective under the Securities Act, (ii)
following any sale of such Underlying Shares pursuant to Rule 144,
(iii) if such Underlying Shares are eligible for sale under Rule
144, without the requirement for the Company to be in compliance
with the current public information required under Rule 144 as to
such Underlying Shares and without volume or manner-of-sale
restrictions or (iv) if such legend is not required under
applicable requirements of the Securities Act (including judicial
interpretations and pronouncements issued by the staff of the
Commission). The Company shall cause its counsel to issue a legal
opinion to the Transfer Agent promptly after the effective date of
a registration statement if required by the Transfer Agent to
effect the removal of the legend hereunder. If all or any Notes are
converted at a time when there is an effective registration
statement to cover the resale of the Underlying Shares, or if such
Underlying Shares may be sold under Rule 144 or if such legend is
not otherwise required under applicable requirements of the
Securities Act (including judicial interpretations and
pronouncements issued by the staff of the Commission) then such
Underlying Shares shall be issued free of all legends. The Company
agrees that following such time as such legend is no longer
required under this Section 4.1(d), it will, no later than five
Trading Days following the delivery by a Purchaser to the Company
or the Transfer Agent of a certificate representing Underlying
Shares, as applicable, issued with a restrictive legend (such fifth
Trading Day, the “
Legend Removal Date
”),
deliver or cause to be delivered to such Purchaser a certificate
representing such shares that is free from all restrictive and
other legends (however, the Corporation shall use reasonable best
efforts to deliver such shares within three (3) Trading Days). The
Company may not make any notation on its records or give
instructions to the Transfer Agent that enlarge the restrictions on
transfer set forth in this Section 4. Certificates for Underlying
Shares subject to legend removal hereunder shall be transmitted by
the Transfer Agent to the Purchaser by crediting the account of the
Purchaser’s prime broker with the Depository Trust Company
System as directed by Purchaser.
(e)
Legend
Removal Default
. In addition to Purchaser’s other
available remedies, provided the conditions for legend removal set
forth in Section 4.1(d) exist, the Company shall pay to Purchaser,
in cash, as partial liquidated damages and not as a penalty, for
each $1,000 of Underlying Shares (based on the higher of the actual
purchase price or VWAP of the Common Stock on the date such
Securities are submitted to the Transfer Agent) delivered for
removal of the restrictive legend and subject to Section 4.1(d),
$10 per Trading Day for each Trading Day after the Legend Removal
Date (increasing to $20 per Trading Day after the fifth Trading
Day) until such certificate is delivered without a legend. Nothing
herein shall limit Purchaser’s right to pursue actual damages
for the Company’s failure to deliver certificates
representing any Securities as required by the Transaction
Documents, and Purchaser shall have the right to pursue all
remedies available to it at law or in equity including, without
limitation, a decree of specific performance and/or injunctive
relief.
(f)
DWAC
.
In lieu of delivering physical certificates representing the
Unlegended Shares, upon request of Purchaser, so long as the
certificates therefor do not bear a legend and the Purchaser is not
obligated to return such certificate for the placement of a legend
thereon, the Company shall cause its transfer agent to
electronically transmit the Unlegended Shares by crediting the
account of Purchaser’s prime broker with the Depository Trust
Company through its Deposit Withdrawal At Custodian system,
provided that the Company’s Common Stock is DTC eligible and
the Company’s transfer agent participates in the Deposit
Withdrawal at Custodian system. Such delivery must be made on or
before the Legend Removal Date.
(g)
Injunction
.
In the event Purchaser shall request delivery of Unlegended Shares
as described in this Section 4.1 and the Company is required to
deliver such Unlegended Shares, the Company may not refuse to
deliver Unlegended Shares based on any claim that such Purchaser or
anyone associated or affiliated with Purchaser has not complied
with Purchaser’s obligations under the Transaction Documents,
or for any other reason, unless, an injunction or temporary
restraining order from a court, on notice, restraining and or
enjoining delivery of such Unlegended Shares shall have been sought
and obtained by the Company and the Company has posted a surety
bond for the benefit of Purchaser in the amount of the greater of
(i) 120% of the amount of the aggregate purchase price of the
Underlying Shares to be subject to the injunction or temporary
restraining order, or (ii) the VWAP of the Common Stock on the
trading day before the issue date of the injunction multiplied by
the number of Unlegended Shares to be subject to the injunction,
which bond shall remain in effect until the completion of
arbitration/litigation of the dispute and the proceeds of which
shall be payable to Purchaser to the extent Purchaser obtains
judgment in Purchaser’s favor.
(h)
Buy-In
.
In addition to any other rights available to Purchaser,
if the Company fails to deliver to a
Purchaser Unlegended Shares as required pursuant to this Agreement
and after the Legend Removal Date the Purchaser, or a broker on the
Purchaser’s behalf, purchases (in an open market transaction
or otherwise) shares of Common Stock to deliver in satisfaction of
a sale by such Purchaser of the shares of Common Stock which the
Purchaser was entitled to receive in unlegended form from the
Company (a “
Buy-In
”),
then the Company shall promptly pay in cash to the Purchaser (in
addition to any remedies available to or elected by the Purchaser)
the amount, if any, by which (A) the Purchaser’s total
purchase price (including brokerage commissions, if any) for the
shares of Common Stock so purchased exceeds (B) the aggregate
purchase price of the shares of Common Stock delivered to the
Company for reissuance as Unlegended Shares together with interest
thereon at a rate of 15% per annum accruing until such amount and
any accrued interest thereon is paid in full (which amount shall be
paid as liquidated damages and not as a penalty). For example, if a
Purchaser purchases shares of Common Stock having a total purchase
price of $11,000 to cover a Buy-In with respect to $10,000 of
purchase price of Underlying Shares delivered to the Company for
reissuance as Unlegended Shares, the Company shall be required to
pay the Purchaser $1,000, plus interest, if any. The Purchaser
shall provide the Company written notice indicating the amounts
payable to the Purchaser in respect of the
Buy-In.
(i)
Plan
of Distribution
. Purchaser agrees with the Company that
Purchaser will sell any Securities pursuant to either the
registration requirements of the Securities Act, including any
applicable prospectus delivery requirements, or an exemption
therefrom, and that if Securities are sold pursuant to a
registration statement, they will be sold in compliance with the
plan of distribution set forth therein, and acknowledges that the
removal of the restrictive legend from certificates representing
Securities as set forth in this Section 4.1 is predicated upon the
Company’s reliance upon this understanding.
4.2
Acknowledgment
of Dilution
. The Company acknowledges that the issuance of
the Securities may result in dilution of the outstanding shares of
Common Stock, which dilution may be substantial under certain
market conditions. The Company further acknowledges that its
obligations under the Transaction Documents, including, without
limitation, its obligation to issue the Underlying Shares pursuant
to the Transaction Documents, are unconditional and absolute and
not subject to any right of set off, counterclaim, delay or
reduction, regardless of the effect of any such dilution or any
claim the Company may have against Purchaser and regardless of the
dilutive effect that such issuance may have on the ownership of the
other stockholders of the Company.
4.3
Furnishing of Information;
Public Information
.
(a)
Until no Purchaser
owns Securities, the Company covenants to file all periodic reports
with the Commission pursuant to Section 15(d) of the Exchange Act
and maintains the registration of the Common Stock under Section
12(b) or 12(g) of the Exchange Act, after such time as the Company
initially becomes subject to such requirements, and to timely file
(or obtain extensions in respect thereof and file within the
applicable grace period) all reports required to be filed by the
Company after the date hereof pursuant to the Exchange Act and
timely file all reports that would be required to be filed by an
issuer subject to Section 12(b) or 12(g) of the Exchange Act even
if the Company is not then subject to the reporting requirements of
the Exchange Act.
(b)
At any time
commencing on the Closing Date and ending at such time that all of
the Securities may be sold without the requirement for the Company
to be in compliance with Rule 144(c)(1) and otherwise without
restriction or limitation pursuant to Rule 144, if the Company
shall fail for any reason to satisfy the current public information
requirement under Rule 144(c) (a “Public Information
Failure”) then, in addition to such Purchaser’s other
available remedies, the Company shall pay to Purchaser, in cash, as
partial liquidated damages and not as a penalty, by reason of any
such delay in or reduction of its ability to sell the Securities,
an amount in cash equal to two percent (2.0%) of the aggregate
principal amount of Notes and accrued interest held by such
Purchaser on the day of a Public Information Failure and on every
thirtieth (30th) day (pro-rated for periods totaling less than
thirty days) thereafter until the earlier of (a) the date such
Public Information Failure is cured and (b) such time that such
public information is no longer required for the Purchasers to
transfer the Underlying Shares pursuant to Rule 144. The payments
to which a Purchaser shall be entitled pursuant to this Section
4.2(b) are referred to herein as “
Public Information Failure
Payments
.” Public Information Failure Payments shall
be paid on the earlier of (i) the last day of the calendar month
during which such Public Information Failure Payments are incurred
and (ii) the third (3rd) Business Day after the event or failure
giving rise to the Public Information Failure Payments is cured. In
the event the Company fails to make Public Information Failure
Payments in a timely manner, such Public Information Failure
Payments shall bear interest at the rate of 1.5% per month
(prorated for partial months) until paid in full. Nothing herein
shall limit Purchaser’s right to pursue actual damages for
the Public Information Failure, and Purchaser shall have the right
to pursue all remedies available to it at law or in equity
including, without limitation, a decree of specific performance
and/or injunctive relief.
4.4
Integration
.
The Company shall not sell, offer for sale or solicit offers to buy
or otherwise negotiate in respect of any security (as defined in
Section 2 of the Securities Act) that would be integrated with the
offer or sale of the Securities in a manner that would require the
registration under the Securities Act of the sale of the Securities
or that would be integrated with the offer or sale of the
Securities for purposes of the rules and regulations of any Trading
Market such that it would require shareholder approval prior to the
closing of such other transaction or to effectuate such other
transaction unless shareholder approval is obtained before the
earlier of the closing of such subsequent transaction or
effectuation of such other transaction.
4.5
Conversion
and Exercise Procedures
. The form of Notice of Conversion
included in the Notes set forth the totality of the procedures
required of the Purchaser in order to convert the Notes. No
additional legal opinion, other information or instructions shall
be required of the Purchaser to convert their Notes. The Company
shall honor conversions of the Notes and shall deliver Underlying
Shares in accordance with the terms, conditions and time periods
set forth in the Transaction Documents.
4.6
Securities
Laws Disclosure; Publicity
. The Company shall, by 9:30 a.m.
(New York City time) on the fourth Trading Day following the
Closing Date, file a Current Report on Form 8-K including the
Transaction Documents as exhibits thereto with the Commission
within the time required by the Exchange Act (“
Form 8-K
”). A form of the
Form 8-K is annexed hereto as
Exhibit G
. Such
Exhibit G
will be identical to
the Form 8-K which will be filed with the Commission except for the
omission of signatures thereto by the Company and auditors
providing the financial statements. From and after the filing of
the Form 8-K, the Company represents to the Purchaser that it shall
have publicly disclosed all material, non-public information
delivered to the Purchaser by the Company or any of its
Subsidiaries, or any of their respective officers, directors,
employees or agents in connection with the transactions
contemplated by the Transaction Documents. The Company and
Purchaser shall consult with each other in issuing any press
releases with respect to the transactions contemplated hereby, and
neither the Company nor Purchaser shall issue any press release nor
otherwise make any such public statement without the prior consent
of the Company, with respect to any press release of Purchaser, or
without the prior consent of Purchaser, with respect to any press
release of the Company, which consent shall not unreasonably be
withheld or delayed, except if such disclosure is required by law,
in which case the disclosing party shall promptly provide the other
party with prior notice of such public statement or communication.
Notwithstanding the foregoing, the Company shall not publicly
disclose the name of Purchaser, or include the name of Purchaser in
any filing with the Commission or any regulatory agency or Trading
Market unless the name of Purchaser is already included in the body
of the Transaction Documents, without the prior written consent of
Purchaser, except: (a) as required by federal securities law in
connection with the filing of final Transaction Documents with the
Commission and (b) to the extent such disclosure is required by law
or Trading Market regulations, in which case the Company shall
provide the Purchaser with prior notice of such disclosure
permitted under this clause (b). The Company may file a Form 10-Q
in lieu of the Form 8-K provided such filing contains the content
required to be included in the Form 8-K and the Form 10-Q is filed
not later than the Trading Day after the Closing Date.
4.7
Shareholder
Rights Plan
. No claim will be made or enforced by the
Company or, with the consent of the Company, any other Person, that
Purchaser is an “Acquiring Person” under any control
share acquisition, business combination, poison pill (including any
distribution under a rights agreement) or similar anti-takeover
plan or arrangement in effect or hereafter adopted by the Company,
or that Purchaser could be deemed to trigger the provisions of any
such plan or arrangement, by virtue of receiving Securities under
the Transaction Documents or under any other agreement between the
Company and the Purchaser.
4.8
Non-Public
Information
. Except with respect to the material terms and
conditions of the transactions contemplated by the Transaction
Documents, the Company covenants and agrees that neither it, nor
any other Person acting on its behalf, will provide Purchaser or
its agents or counsel with any information that the Company
believes constitutes material non-public information, unless prior
thereto Purchaser shall have entered into a written agreement with
the Company regarding the confidentiality and use of such
information. The Company understands and confirms that Purchaser
shall be relying on the foregoing covenant in effecting
transactions in securities of the Company.
4.9
Use
of Proceeds
. The Company shall use the net proceeds from the
sale of the Offering hereunder for the purposes set forth on
Schedule 4.9
and
the expenses of the Offering and shall not use such proceeds: (a)
for the satisfaction of any portion of the Company’s debt
except as disclosed on
Schedule 4.9
(other than
payment of trade payables in the ordinary course of the
Company’s business and prior practices), (b) for the
redemption of any Common Stock or Common Stock Equivalents, (c) for
the settlement of any outstanding litigation or (d) in violation of
FCPA or OFAC regulations.
4.10
Indemnification
of Purchasers
. Subject to the provisions of this Section
4.10, the Company will indemnify and hold Purchaser and its
directors, officers, shareholders, members, partners, employees and
agents (and any other Persons with a functionally equivalent role
of a Person holding such titles notwithstanding a lack of such
title or any other title), each Person who controls such Purchaser
(within the meaning of Section 15 of the Securities Act and Section
20 of the Exchange Act), and the directors, officers, shareholders,
agents, members, partners or employees (and any other Persons with
a functionally equivalent role of a Person holding such titles
notwithstanding a lack of such title or any other title) of such
controlling persons (each, a “
Purchaser Party
”)
harmless from any and all losses, liabilities, obligations, claims,
contingencies, damages, costs and expenses, including all
judgments, amounts paid in settlements, court costs and reasonable
attorneys’ fees and costs of investigation that any such
Purchaser Party may suffer or incur as a result of or relating to
(a) any breach of any of the representations, warranties, covenants
or agreements made by the Company in this Agreement or in the other
Transaction Documents or (b) any action instituted against
Purchaser Parties in any capacity, or any of them or their
respective Affiliates, by any stockholder of the Company who is not
an Affiliate of such Purchaser Party, with respect to any of the
transactions contemplated by the Transaction Documents (unless such
action is based upon a breach of such Purchaser Party’s
representations, warranties or covenants under the Transaction
Documents or any agreements or understandings such Purchaser Party
may have with any such stockholder or any violations by such
Purchaser Party of state or federal securities laws or any conduct
by such Purchaser Party which constitutes fraud, gross negligence,
willful misconduct or malfeasance). If any action shall be brought
against any Purchaser Party in respect of which indemnity may be
sought pursuant to this Agreement, such Purchaser Party shall
promptly notify the Company in writing, and the Company shall have
the right to assume the defense thereof with counsel of its own
choosing reasonably acceptable to the Purchaser Party. Any
Purchaser Party shall have the right to employ separate counsel in
any such action and participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such
Purchaser Party except to the extent that (i) the employment
thereof has been specifically authorized by the Company in writing,
(ii) the Company has failed after a reasonable period of time to
assume such defense and to employ counsel or (iii) in such action
there is, in the reasonable opinion of counsel, a material conflict
on any material issue between the position of the Company and the
position of such Purchaser Party, in which case the Company shall
be responsible for the reasonable fees and expenses of no more than
one such separate counsel. The Company will not be liable to any
Purchaser Party under this Agreement (y) for any settlement by a
Purchaser Party effected without the Company’s prior written
consent, which shall not be unreasonably withheld or delayed; or
(z) to the extent, but only to the extent that a loss, claim,
damage or liability is attributable to any Purchaser Party’s
breach of its representations, warranties or covenants under the
Transaction Documents. The indemnification required by this Section
4.10 shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as and when
bills are received or are incurred. The indemnity agreements
contained herein shall be in addition to any cause of action or
similar right of any Purchaser Party against the Company or others
and any liabilities the Company may be subject to pursuant to
law.
4.11
Reservation
and Listing of Securities
.
(a)
The Company shall
maintain a reserve from its duly authorized shares of Common Stock
for issuance pursuant to the Transaction Documents in such amount
as may then be required to fulfill its obligations in full under
the Transaction Documents, but not less than the Required
Minimum.
(b)
If, on any date,
the number of authorized but unissued (and otherwise unreserved)
shares of Common Stock is less than the Required Minimum on such
date, then the Board of Directors shall amend the Company’s
certificate or articles of incorporation to increase the number of
authorized but unissued shares of Common Stock to at least the
Required Minimum at such time, as soon as possible and in any event
not later than the 60
th
day after such
date.
(c)
The Company shall,
if applicable: (i) in the time and manner required by the principal
Trading Market, prepare and file with such Trading Market an
additional shares listing application covering a number of shares
of Common Stock at least equal to the Required Minimum on the date
of such application, (ii) take all steps necessary to cause such
shares of Common Stock to be approved for listing or quotation on
such Trading Market as soon as possible thereafter, (iii) provide
to the Purchasers evidence of such listing or quotation and (iv)
maintain the listing or quotation of such Common Stock on any date
at least equal to the Required Minimum on such date on such Trading
Market or another Trading Market.
The
Company will then take all action necessary to continue the listing
or quotation and trading of its Common Stock on a Trading Market
until the later of (i) at least six (6) years after the Closing
Date, and (ii) for so long as the Notes are outstanding, and will
comply in all respects with the Company’s reporting, filing
and other obligations under the bylaws or rules of the Trading
Market.
In the event the aforedescribed listing is not
continuously maintained for six (6) years after the Closing Date
and for so long as Notes are outstanding (a “
Listing Default
”), then
in addition to any other rights the Purchasers may have hereunder
or under applicable law, on the first day of a Listing Default and
on each monthly anniversary of each such Listing Default date (if
the applicable Listing Default shall not have been cured by such
date) until the applicable Listing Default is cured, the Company
shall pay to each Purchaser an amount in cash, as partial
liquidated damages and not as a penalty, equal to 2% of the
aggregate Subscription Amount of Notes, and Conversion Price of the
Conversion Shares held by such Purchaser on the day of a Listing
Default and on every thirtieth day (pro-rated for periods less than
thirty days) thereafter until the date such Listing Default is
cured. If the Company fails to pay any liquidated damages pursuant
to this Section in a timely manner, the Company will pay interest
thereon at a rate of 1.5% per month (pro-rated for partial months)
to the Purchaser.
4.12
Form
D; Blue Sky Filings
. The Company agrees to timely file a
Form D with respect to the Securities as required under Regulation
D and to provide a copy thereof, promptly upon request of
Purchaser. The Company shall take such action as the Company shall
reasonably determine is necessary in order to obtain an exemption
for, or to qualify the Securities for, sale to the Purchaser at the
Closing under applicable securities or “Blue Sky” laws
of the states of the United States, and shall provide evidence of
such actions promptly upon request of Purchaser.
4.13
Subsequent
Equity Sales
. From the date hereof until the Notes are no
longer outstanding, the Company and its Subsidiaries will not,
without the consent of the Purchasers, enter into any Equity Line
of Credit or similar agreement, issue or agree to issue floating or
Variable Priced Equity Linked Instruments nor issue or agree to
issue any of the foregoing or equity with price reset rights
(subject to adjustment for stock splits, distributions, dividends,
recapitalizations and the like) (collectively, a
“
Variable Rate
Transaction
”). For purposes hereof,
“
Equity Line of
Credit
” shall include any transaction involving a
written agreement between the Company, its Subsidiaries and an
investor or underwriter whereby the Company or its Subsidiaries has
the right to “put” its securities to the investor or
underwriter over an agreed period of time and at an agreed price or
price formula, and “
Variable Priced Equity Linked
Instruments
” shall include: (A) any debt or equity
securities which are convertible into, exercisable or exchangeable
for, or carry the right to receive additional shares of Common
Stock or Common Stock Equivalents or any of the foregoing at a
price that can be reduced either (1) at any conversion, exercise or
exchange rate or other price that is based upon and/or varies with
the trading prices of or quotations for Common Stock at any time
after the initial issuance of such debt or equity security, or (2)
with a fixed conversion, exercise or exchange price that is subject
to being reset at some future date at any time after the initial
issuance of such debt or equity security due to a change in the
market price of the Company’s or its Subsidiaries’
Common Stock since date of initial issuance, or upon the issuance
of any debt, equity or Common Stock Equivalent, and (B) any
amortizing convertible security which amortizes prior to its
maturity date, where the Company or its Subsidiaries is required or
has the option to (or any investor in such transaction has the
option to require the Company or its Subsidiaries to make such
amortization payments in shares of Common Stock which are valued at
a price that is based upon and/or varies with the trading prices of
or quotations for Common Stock at any time after the initial
issuance of such debt or equity security (whether or not such
payments in stock are subject to certain equity conditions).
For purposes of determining the total consideration for a
convertible instrument (including a right to purchase equity of the
Company or its Subsidiaries) issued, subject to an original issue
or similar discount or which principal amount is directly or
indirectly increased after issuance, the consideration will be
deemed to be the actual net cash amount received by the Company in
consideration of the original issuance of such convertible
instrument. For so long as the Notes are outstanding, the Company
or its Subsidiaries will not, without the consent of the Purchasers
issue any Common Stock or Common Stock Equivalents to officers,
directors, and employees of the Company or its Subsidiaries unless
such issuance is an Exempt Issuance or in the amounts and on the
terms set forth on
Schedule 4.13
. For so long as
any Notes are outstanding, the Company or its Subsidiaries will not
amend the terms of any securities or Common Stock Equivalents or of
any agreement outstanding or in effect as of the date of this
Agreement pursuant to which same were or may be acquired without
the consent of the Purchasers, if the result of such amendment
would be at an effective price per share of Common Stock less than
the Conversion Price in effect at the time of such amendment.
Except for Exempt Issuances for so long as the Notes are
outstanding, the Company or its Subsidiaries will not issue any
Common Stock or Common Stock Equivalents, without the consent of
the Purchasers. The restrictions and limitations in this Section
4.13 are in addition to and shall apply whether or not a Purchaser
exercises its rights pursuant to Section 4.17 and Section
4.23.
4.14
Reserved
.
4.15
Capital
Changes
. Until the one year anniversary of the Closing Date,
the Company or its Subsidiaries shall not undertake a reverse or
forward stock split or reclassification of the Common Stock without
10 days prior written notice to the Purchaser.
4.16
Certain
Transactions and Confidentiality
. Purchaser covenants that
neither it, nor any Affiliate acting on its behalf or pursuant to
any understanding with it will execute any purchases or sales,
including Short Sales, of any of the Company’s securities
during the period commencing with the execution of this Agreement
and ending at such time that the transactions contemplated by this
Agreement are first publicly announced pursuant to a press release
or Form 8-K as described in Section 4.6. Purchaser covenants
that until such time as the transactions contemplated by this
Agreement are publicly disclosed by the Company pursuant to a press
release or Form 8-K as described in Section 4.6, such Purchaser
will maintain the confidentiality of the existence and terms of
this transaction and the information included in the Transaction
Documents and the Disclosure Schedules. Notwithstanding the
foregoing, and notwithstanding anything contained in this Agreement
to the contrary, the Company expressly acknowledges and agrees that
(i) no Purchaser makes any representation, warranty or covenant
hereby that it will not engage in effecting transactions in any
securities of the Company after the time that the transactions
contemplated by this Agreement are first publicly announced
pursuant to a press release or Form 8-K as described in Section
4.6, (ii) no Purchaser shall be restricted or prohibited from
effecting any transactions in any securities of the Company in
accordance with applicable securities laws from and after the time
that the transactions contemplated by this Agreement are first
publicly announced pursuant to a press release or Form 8-K, and
(iii) no Purchaser shall have any duty of confidentiality to the
Company or its Subsidiaries after the filing of the Form 8-K.
Notwithstanding the foregoing, in the case of a Purchaser that is a
multi-managed investment vehicle whereby separate portfolio
managers manage separate portions of such Purchaser’s assets
and the portfolio managers have no direct knowledge of the
investment decisions made by the portfolio managers managing other
portions of such Purchaser’s assets, the covenant set forth
above shall only apply with respect to the portion of assets
managed by the portfolio manager that made the investment decision
to purchase the Securities covered by this Agreement.
4.17
Participation
in Future Financing
.
(a)
Until thirty-six
(36) months after the final Closing Date, upon any proposed
issuance by the Company or any of its Subsidiaries of Common Stock,
Common Stock Equivalents, or equity linked debt obligations other
than (i) a rights offering to all holders of Common Stock (which
may include extending such rights offering to holders of Notes) or
(ii) an Exempt Issuance, (each a “
Subsequent Financing
”),
the Purchaser shall have the right to participate in up to an
amount of the Subsequent Financing equal to 100% of the Subsequent
Financing (the “
Participation Maximum
”)
pro rata to each other in proportion to its Subscription Amounts on
the same terms, conditions and price provided for in the Subsequent
Financing, unless the Subsequent Financing is an underwritten
public offering, in which case the Company shall offer Purchaser
the right to participate in such public offering when it is lawful
for the Company to do so, but no Purchaser shall be entitled to
purchase any particular amount of such public offering. For the
avoidance of doubt, an Additional Offering is a Subsequent
Financing.
(b)
At least ten (10)
Trading Days prior to the closing of the Subsequent Financing, the
Company shall deliver to each Purchaser a written notice of its
intention to effect a Subsequent Financing (“
Pre-Notice
”), which
Pre-Notice shall ask such Purchaser if it wants to review the
details of such financing (such additional notice, a
“
Subsequent
Financing Notice
”). Upon the request of a Purchaser,
and only upon a request by such Purchaser, for a Subsequent
Financing Notice, the Company shall promptly, but no later than one
(1) Trading Day after such request, deliver a Subsequent Financing
Notice to such Purchaser. The requesting Purchaser shall be deemed
to have acknowledged that the Subsequent Financing Notice may
contain material non-public information. The Subsequent Financing
Notice shall describe in reasonable detail the proposed terms of
such Subsequent Financing, the amount of proceeds intended to be
raised thereunder and the Person or Persons through or with whom
such Subsequent Financing is proposed to be effected and shall
include a term sheet or similar document relating thereto as an
attachment.
(c)
Any Purchaser
desiring to participate in such Subsequent Financing must provide
written notice to the Company by not later than 5:30 p.m. (New York
City time) on the tenth (10
th
) Trading Day after
all of the Purchasers have received the Pre-Notice that the
Purchaser is willing to participate in the Subsequent Financing,
the amount of such Purchaser’s participation, and
representing and warranting that such Purchaser has such funds
ready, willing, and available for investment on the terms set forth
in the Subsequent Financing Notice. If the Company receives no such
notice from a Purchaser as of such fifth (5
th
) Trading Day, such
Purchaser shall be deemed to have notified the Company that it does
not elect to participate.
(d)
If by 5:30 p.m.
(New York City time) on the tenth (10
th
) Trading Day after
the Purchaser has received the Pre-Notice, notifications by the
Purchaser of its willingness to participate in the Subsequent
Financing (or to cause their designees to participate) is, in the
aggregate, less than the total amount of the Subsequent Financing,
then the Company may affect the remaining portion of such
Subsequent Financing on the terms and with the Persons set forth in
the Subsequent Financing Notice and the Purchasers shall
simultaneously affect their portion of such Subsequent Financing as
set forth in their notification to the Company consistent with the
terms set forth in the Subsequent Financing Notice.
(e)
If by 5:30 p.m.
(New York City time) on the fifteenth (15
th
) Trading Day after
the Purchaser has received the Pre-Notice, the Company receives
responses to a Subsequent Financing Notice from Purchasers seeking
to purchase more than the aggregate amount of the Participation
Maximum, such Purchaser shall have the right to purchase its Pro
Rata Portion (as defined below) of the Participation Maximum.
“
Pro Rata
Portion
” means the ratio of (x) the principal amount
of Notes purchased hereunder by Purchaser participating under this
Section 4.17 and (y) the sum of the aggregate principal amounts of
Notes purchased hereunder by Purchaser participating under this
Section 4.17.
(f)
The Company must
provide the Purchaser with a second Subsequent Financing Notice,
and the Purchaser will again have the right of participation set
forth above in this Section 4.18, if the Subsequent Financing
subject to the initial Subsequent Financing Notice is not
consummated for any reason on the terms set forth in such
Subsequent Financing Notice within thirty (30) Trading Days after
the date of the initial Subsequent Financing Notice.
(g)
The
Company and Purchaser agree that if Purchaser elects to participate
in the Subsequent Financing, the transaction documents related to
the Subsequent Financing shall not include any term or provision
whereby Purchaser shall be required to agree to any restrictions on
trading as to any of the Securities purchased hereunder (for
avoidance of doubt, the securities purchased in the Subsequent
Financing shall not be considered securities purchased hereunder)
or be required to consent to any amendment to or termination of, or
grant any waiver, release or the like under or in connection with,
this Agreement, without the prior written consent of
Purchaser.
(h)
Notwithstanding anything to the contrary in this
Section 4.17 and unless otherwise agreed to by Purchaser, the
Company shall either confirm in writing to such Purchaser that the
transaction with respect to the Subsequent Financing has been
abandoned or shall publicly disclose its intention to issue the
securities in the Subsequent Financing, in either case in such a
manner such that such Purchaser will not be in possession of any
material, non-public information, by the tenth (10th) Business Day
following delivery of the Subsequent Financing Notice. If by such
tenth (10th) Business Day, no public disclosure regarding a
transaction with respect to the Subsequent Financing has been made,
and no notice regarding the abandonment of such transaction has
been received by Purchaser, such transaction shall be deemed to
have been abandoned and Purchaser shall not be deemed to be in
possession of any material, non-public information with respect to
the Company or any of its Subsidiaries.
4.18
Purchaser’s
Exercise Limitations
. Each of the Company and Fan Pass, Inc.
shall not effect exercise of the rights granted in Sections 4.17
and 4.23 of this Agreement, and a Purchaser shall not have the
right to exercise any portion of such rights granted in Sections
4.17 and 4.23 only to the extent that after giving effect to such
exercise, the Purchaser, would beneficially own in excess of the
Beneficial Ownership Limitation (as defined in the Note), applied
in the manner set forth in the Note. In such event the right by
Purchaser to benefit from such rights or receive shares in excess
of the Beneficial Ownership Limitation shall be held in abeyance
until such times as such excess shares shall not exceed the
Beneficial Ownership Limitation, provided the Purchaser complies
with the Purchaser’s other obligations in connection with the
exercise by Purchaser of its rights pursuant to Sections 4.17 and
4.23.
4.19
Maintenance
of Property
. The Company and Fan Pass, Inc. shall keep all
of its property, which is necessary or useful to the conduct of its
business, in good working order and condition, ordinary wear and
tear excepted.
4.20
Preservation
of Corporate Existence
. The Company and Fan Pass, Inc. shall
each preserve and maintain its corporate existence, rights,
privileges and franchises in the jurisdiction of its incorporation,
and qualify and remain qualified, as a foreign corporation in each
jurisdiction in which such qualification is necessary in view of
its business or operations and where the failure to qualify or
remain qualified might reasonably have a Material Adverse Effect
upon the financial condition, business or operations of the Company
taken as a whole.
4.21
Most Favored National
Provision.
From the date hereof and for so long as Purchaser
holds any Securities, in the event that the Company or Fan Pass,
Inc. issues or sells any Common Stock or Common Stock Equivalents,
if Purchaser then holding outstanding Securities reasonably
believes that any of the terms and conditions appurtenant to such
issuance or sale are more favorable to such investors than are the
terms and conditions granted to the Purchaser hereunder, upon
notice to the Company or Fan Pass, Inc., as applicable, by
Purchaser within five (5) Trading Days after disclosure of such
issuance or sale, the Company or Fan Pass, Inc., as applicable,
shall amend the terms of this transaction as to Purchaser only so
as to give Purchaser the benefit of such more favorable terms or
conditions. This Section 4.21 shall not apply with respect to an
Exempt Issuance. The Company or Fan Pass, Inc., as applicable,
shall provide Purchaser with notice of any such issuance or sale
not later than ten (10) Trading Days before such issuance or
sale.
4.22
DTC
Program
. At all times that
Securities are outstanding, each of the Company and
Fan
Pass, Inc.
shall use its best efforts
to employ as the transfer agent for the Common Stock a participant
in the Depository Trust Company Automated Securities Transfer
Program and cause the Common Stock to be transferable pursuant to
such program.
4.23
Consent to Offering,
Waiver of Rights and Amendment of Beneficial Ownership
Limitation.
Solely in connection with this Offering, Alpha
Capital Anstalt, and Palladium Capital Advisors LLC each consents
to this Offering, Alpha Capital Anstalt and Palladium Capital
Advisors LLC waive the prohibitions against the Company contained
in Section 4.13 of the Securities Purchase Agreement, the rights
and protections granted to each of Alpha Capital Anstalt and
Palladium Capital Advisors LLC pursuant to Section 4.21 of the
Securities Purchase Agreement, Section 5(e) of the Notes and
Section 3 of the Warrants, each dated August 5, 2015, March 8, 2016
as amended pursuant to Allonges 1-8, October 7, 2016 and its
subsequent closings dated November 7, 2016, December 16, 2016 and
January 20, 2017, and the rights and protections granted to each of
Alpha Capital Anstalt and Palladium Capital Advisors LLC pursuant
to Section 5(e) of the Notes and Section 3 of the Warrants each
dated August 5, 2015, March 8, 2016 as amended pursuant to Allonges
1-8, October 7, 2016 and its subsequent closings dated November 7,
2016, December 16, 2016 and January 20, 2017 (“
Subsequent Closing Note and
Warrant
”). Furthermore, Purchaser and the Company
agree that the Beneficial Ownership Limitation contained in all of
the prior agreements between the Company and the Purchaser is
amended to 4.99%.
4.24
Reimbursement.
If any Purchaser becomes involved in any capacity in any Proceeding
by or against any Person who is a stockholder of the Company
(except as a result of sales, pledges, margin sales and similar
transactions by such Purchaser to or with any current stockholder),
solely as a result of such Purchaser’s acquisition of the
Securities under this Agreement, the Company will reimburse such
Purchaser for its reasonable legal and other expenses (including
the cost of any investigation preparation and travel in connection
therewith) incurred in connection therewith, as such expenses are
incurred. The reimbursement obligations of the Company under this
paragraph shall be in addition to any liability which the Company
may otherwise have, shall extend upon the same terms and conditions
to any Affiliates of the Purchasers who are actually named in such
action, proceeding or investigation, and partners, directors,
agents, employees and controlling persons (if any), as the case may
be, of the Purchasers and any such Affiliate, and shall be binding
upon and inure to the benefit of any successors, assigns, heirs and
personal representatives of the Company, the Purchasers and any
such Affiliate and any such Person. The Company also agrees that
neither the Purchasers nor any such Affiliates, partners,
directors, agents, employees or controlling persons shall have any
liability to the Company or any Person asserting claims on behalf
of or in right of the Company solely as a result of acquiring the
Securities under this Agreement.
4.25
Further
Registration Statements.
From the date hereof until 24
months after the Closing Date, the Company will not, without the
consent of the Purchaser, file with the Commission or with state
regulatory authorities any registration statements, shares reserved
for outside securities counsel, or amend any already filed
registration statement to increase the amount of Common Stock
registered therein, or reduce the price of which such company
securities are registered therein, until the expiration of the
“
Exclusion
Period
,” which shall be defined as the sooner of (i)
the date all the Underlying Shares have been registered in an
effective registration statement that has been effective for not
less than six months, or (ii) until all the Underlying Shares may
be resold by the Subscribers pursuant to a registration statement
or Rule 144b(l)(i), without regard to volume limitations for a
period of not less than six months. The Exclusion Period will be
tolled or reinstated, as the case may be, during the pendency of an
Event of Default as defined in the Note.
4.26
Indebtedness
. For
so long as a majority in original principal amount of the Notes is
outstanding, the Company nor Fan Pass, Inc. will not incur any
Indebtedness other than Permitted Indebtedness, without the consent
of the Purchaser.
4.27
Notice
of Disqualification Events
. The Company will notify the
Purchaser in writing, prior to the Closing Date of (i) any
Disqualification Event relating to any Issuer Covered Person and
(ii) any event that would, with the passage of time, become a
Disqualification Event relating to any Issuer Covered Person not
otherwise disclosed herein or in the SEC Reports.
4.28
Duration of
Undertakings
. Unless otherwise stated in this Article IV,
all of the Company’s and Fan Pass, Inc.’s undertakings,
obligations and responsibilities set forth in Article IV of this
Agreement shall remain in effect for so long as any Securities
remain outstanding.
4.29
Non-Dilutability
Equity Interest
. For a period of one (1) year commencing
from the date that Fan Pass, Inc. has common stock registered
pursuant to Section 12(g) of the Exchange Act, neither the Company
nor Fan Pass, Inc. will issue any equity in Fan Pass Inc. which
would cause a dilution of Purchaser’s equity interest in Fan
Pass Inc.
4.30
Piggy-Back
Registrations
. For a period of one hundred and eighty (180)
days following
the Closing Date or at
a time when Rule 144b(1)(i) is unavailable for the resale of the
Underlying Shares, if the Company determines to prepare and file
with the Commission a registration statement relating to an
offering for its own account or the account of others under the
Securities Act of any of its equity securities, but excluding Forms
S-4 or S-8 and similar forms which do not permit such registration,
then the Company shall send to each holder of any of the issued
Securities written notice of such determination and, if within
fifteen calendar days after receipt of such notice, any such holder
shall so request in writing, the Company shall include in such
registration statement all or any part of the Underlying Shares,
such holder requests to be registered and which inclusion of such
Underlying Shares will be subject to customary underwriter cutbacks
applicable to all holders of registration rights and minimum
cutbacks in accordance with guidance provided by the Securities and
Exchange Commission (including, but not limited to, Rule 415). The
obligations of the Company under this Section may be waived by any
holder of any of the Securities entitled to registration rights
under this Section 4.30. The holders whose Underlying Shares are
included or required to be included in such registration statement
are granted the same rights, benefits, liquidated or other damages
and indemnification granted to other holders of securities included
in such registration statement. In no event shall the liability of
any holder of Securities or permitted successor in connection with
any Underlying Shares included in any such registration statement
be greater in amount than the dollar amount of the net proceeds
actually received by Purchaser upon the sale of the Underlying
Shares sold pursuant to such registration or such lesser amount in
proportion to all other holders of Securities included in such
registration statement.
All
expenses incurred by the Company in complying with Section 4.30,
including, without limitation, all registration and filing fees,
printing expenses (if required), fees and disbursements of counsel
and independent public accountants for the Company, fees and
expenses (including reasonable counsel fees) incurred in connection
with complying with state securities or “blue sky”
laws, fees of the FINRA, transfer taxes, and fees of transfer
agents and registrars, are called “
Registration
Expenses
.” All
underwriting discounts and selling commissions applicable to the
sale of Registrable Securities are called "
Selling
Expenses
." The Company will pay
all Registration Expenses in connection with the registration
statement under Section 4.30. Selling Expenses in connection with
each registration statement under Section 4.30 shall be borne by
the holder and will be apportioned among such holders in proportion
to the number of Shares included therein for a holder relative to
all the securities included therein for all selling holders, or as
all holders may agree. It shall be a condition precedent to the
obligations of the Company to complete the registration pursuant to
this Agreement with respect to the Underlying Shares of a
particular Purchaser that such Purchaser shall furnish to the
Company in writing such information and representation letters,
including a completed form of a securityholder questionnaire, with
respect to itself and the proposed distribution by it as the
Company may reasonably request to assure compliance with federal
and applicable state securities laws. The identical rights as to
the foregoing are granted to Purchasers with respect to Fan Pass,
Inc. for a period of one year.
4.31
Seniority
. Except
for Permitted Liens and as pursuant to the terms of this Agreement,
until the Notes are fully satisfied or converted, the Company shall
not grant nor allow any security interest to be taken in any assets
of Fan Pass, Inc.; nor issue any debt, equity or other instrument
which would give the holder thereof directly or indirectly, a right
in any assets of Fan Pass, Inc. or any right to payment equity to
or superior to any right of the Purchaser as holder of the Notes in
or to such assets or payment, nor issue or incur any
debt.
4.32
Fan Pass
Transaction
. The Company undertakes to consummate the Fan
Pass Transaction, the terms of which, including but not limited to
those set forth on
Exhibit
H
may not be modified or amended without the consent of
Purchaser.
4.33
Exchange of Fan Pass
Securities
. Purchaser has the absolute right, at
Purchaser’s sole option, to exchange any or all of its Fan
Pass Securities for convertible preferred stock of Fan Pass, Inc.
convertible into common stock of Fan Pass on terms acceptable to
Purchaser, which preferred stock will be subject to a beneficial
ownership limitation of between 4.99% up to 9.99% at
Purchaser’s election.
ARTICLE
V.
MISCELLANEOUS
5.1
Termination
. This
Agreement may be terminated by Purchaser, as to Purchaser’s
obligations hereunder by written notice to the Company, if the
Initial Closing has not been consummated on or before August 4,
2017;
provided
,
however
, that such
termination will not affect the right of any party to sue for any
breach by any other party (or parties).
5.2
Fees and Expenses
. At the
Closing, the Company has agreed to pay G&M for the legal fees
in connection with G&M’s representation of Alpha Capital
Anstalt in the amount of $140,000 payable as follows: $50,000 on
the Initial Closing Date, $50,000 on the Subsequent Closing Date,
and $40,000 within thirty (30) days that Fan Pass, Inc. has a class
of common stock registered pursuant to Section 12(g) of the
Exchange Act. Except as expressly set forth in the Transaction
Documents and on
Schedule
3.1(s)
, each party shall pay the fees and expenses of its
advisers, counsel, accountants and other experts, if any, and all
other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement.
The Company shall pay all Transfer Agent fees (including, without
limitation, any fees required for same-day processing of any
instruction letter delivered by the Company and any conversion or
exercise notice delivered by a Purchaser), stamp taxes and other
taxes and duties levied in connection with the delivery of any
Securities to the Purchasers. The Company shall be responsible for
all wire fees incurred by the Escrow Agent for the receipt and
disbursement of Subscription Amounts. Such fees may be disbursed by
the Escrow Agent from any funds deliverable to or for the benefit
of the Company. Purchaser acknowledges that it has been advised to
seek the advice of its own attorneys.
5.3
Entire Agreement
. The
Transaction Documents, together with the exhibits and schedules
thereto, contain the entire understanding of the parties with
respect to the subject matter hereof and thereof and supersede all
prior agreements and understandings, oral or written, with respect
to such matters, which the parties acknowledge have been merged
into such documents, exhibits and schedules.
5.4
Notices
.
All notices, demands, requests,
consents, approvals, and other communications required or permitted
hereunder shall be in writing and, unless otherwise specified
herein, shall be (i) personally served, (ii) deposited in the mail,
registered or certified, return receipt requested, postage prepaid,
(iii) delivered by reputable air courier service with charges
prepaid, or (iv) transmitted by hand delivery, telegram, facsimile,
or electronic mail, addressed as set forth below or to such other
address as such party shall have specified most recently by written
notice. Any notice or other communication required or permitted to
be given hereunder shall be deemed effective (a) upon hand delivery
or delivery by facsimile, with accurate confirmation generated by
the transmitting facsimile machine, at the address or number
designated below (if delivered on a business day during normal
business hours where such notice is to be received), or the first
business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to
be received), or (b) upon receipt, when sent by electronic mail
(provided confirmation of transmission is electronically
generatedand keep on file by the sending party), or (c) on the
second business day following the date of mailing by express
courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The
addresses for such communications shall be: (i) if to Borrower,
to:
Friendable, Inc.
,
125 East Campbell Avenue, 2
nd
Floor, Campbell CA
95008, Attn: Robert Rositano, CEO, fax: (408) 547-0110, email:
robert@friendable.com, with a copy by fax or email only to: Lucosky
Brookman LLP, 101 Wood Avenue South, Woodbridge, NJ 08830, Attn:
Steven A. Lipstein, Esq., fax: (732) 395-4401, email:
slipstein@lucbro.com, and (ii) if to the Holder, to: the address
and fax number indicated on the front page of this Note, with an
additional copy by fax only to (which shall not constitute notice):
Grushko & Mittman, P.C., 515 Rockaway Avenue, Valley Stream,
New York 11581, fax: (212) 697-3575, email:
counslers@gmail.com.
5.5
Amendments;
Waivers
. No provision of this Agreement may be waived,
modified, supplemented or amended except in a written instrument
signed, in the case of an amendment, by the Company and the
Purchasers holding the affected Securities then outstanding or, in
the case of a waiver, by the party against whom enforcement of any
such waived provision is sought. No waiver of any default with
respect to any provision, condition or requirement of this
Agreement shall be deemed to be a continuing waiver in the future
or a waiver of any subsequent default or a waiver of any other
provision, condition or requirement hereof, nor shall any delay or
omission of any party to exercise any right hereunder in any manner
impair the exercise of any such right.
5.6
Headings
. The headings herein
are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the
provisions hereof.
5.7
Successors
and Assigns
. This Agreement shall be binding upon and inure
to the benefit of the parties and their successors and permitted
assigns. The Company may not assign this Agreement or any rights or
obligations hereunder without the prior written consent of
Purchaser (other than by merger). Following the Closing, Purchaser
may assign any or all of its rights under this Agreement to any
Person to whom Purchaser assigns or transfers any Securities,
provided that such transferee agrees in writing to be bound, with
respect to the transferred Securities, by the provisions of the
Transaction Documents that apply to the
“Purchasers.”
5.8
No
Third-Party Beneficiaries
. This Agreement is intended for
the benefit of the parties hereto and their respective successors
and permitted assigns and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person, except as
otherwise set forth in Section 4.10.
5.9
Governing Law
. All questions
concerning the construction, validity, enforcement and
interpretation of the Transaction Documents shall be governed by
and construed and enforced in accordance with the internal laws of
the State of New York, 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 Agreement and any other
Transaction Documents (whether brought against a party hereto or
its respective affiliates, directors, officers, shareholders,
partners, members, employees or agents) shall be commenced
exclusively in the state and federal courts sitting in the City of
New York. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in the City of
New York, Borough of Manhattan for the adjudication of any dispute
hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein (including with respect to
the enforcement of any of the Transaction Documents), and hereby
irrevocably waives, and agrees not to assert in any action, suit 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 or proceeding to enforce any provisions of the
Transaction Documents, then, in addition to the obligations of the
Company under Section 4.10, the prevailing party in such action,
suit or proceeding shall be reimbursed by the other party for its
reasonable attorneys’ fees and other costs and expenses
incurred with the investigation, preparation and prosecution of
such action or proceeding.
5.10
Survival
. The representations
and warranties contained herein shall survive the Closing and the
delivery of the Securities.
5.11
Execution
. This Agreement may
be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall
become effective when counterparts have been signed by each party
and delivered to each other party, it being understood that the
parties need not sign the same counterpart. In the event that any
signature is delivered by facsimile transmission or by e-mail
delivery of a “.pdf” format data file, such signature
shall create a valid and binding obligation of the party executing
(or on whose behalf such signature is executed) with the same force
and effect as if such facsimile or “.pdf” signature
page were an original thereof.
5.12
Severability
. If any term,
provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction to be invalid, illegal, void or
unenforceable, the remainder of the terms, provisions, covenants
and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated,
and the parties hereto shall use their commercially reasonable
efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be hereafter
declared invalid, illegal, void or unenforceable.
5.13
Rescission and Withdrawal
Right
.
Notwithstanding anything
to the contrary contained in (and without limiting any similar
provisions of) any of the other Transaction Documents, whenever any
Purchaser exercises a right, election, demand or option under a
Transaction Document and the Company does not timely perform its
related obligations within the periods therein provided, then such
Purchaser may rescind or withdraw, in its sole discretion from time
to time upon written notice to the Company, any relevant notice,
demand or election in whole or in part without prejudice to its
future actions and rights.
5.14
Replacement of Securities
. If
any certificate or instrument evidencing any Securities is
mutilated, lost, stolen or destroyed, the Company shall issue or
cause to be issued in exchange and substitution for and upon
cancellation thereof (in the case of mutilation), or in lieu of and
substitution therefor, a new certificate or instrument, but only
upon receipt of evidence reasonably satisfactory to the Company of
such loss, theft or destruction. The applicant for a new
certificate or instrument under such circumstances shall also pay
any reasonable third-party costs (including customary indemnity)
associated with the issuance of such replacement
Securities.
5.15
Remedies
. In addition to being
entitled to exercise all rights provided herein or granted by law,
including recovery of damages, each of the Purchasers and the
Company will be entitled to specific performance under the
Transaction Documents. The parties agree that monetary damages may
not be adequate compensation for any loss incurred by reason of any
breach of obligations contained in the Transaction Documents and
hereby agree to waive and not to assert in any action for specific
performance of any such obligation the defense that a remedy at law
would be adequate.
5.16
Payment Set Aside
. To the
extent that the Company makes a payment or payments to any
Purchaser pursuant to any Transaction Document or a Purchaser
enforces or exercises its rights thereunder, and such payment or
payments or the proceeds of such enforcement or exercise or any
part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside, recovered from, disgorged by
or are required to be refunded, repaid or otherwise restored to the
Company, a trustee, receiver or any other Person under any law
(including, without limitation, any bankruptcy law, state or
federal law, common law or equitable cause of action), then to the
extent of any such restoration the obligation or part thereof
originally intended to be satisfied shall be revived and continued
in full force and effect as if such payment had not been made or
such enforcement or setoff had not occurred.
5.17
Usury
. To the extent it may
lawfully do so, the Company hereby agrees not to insist upon or
plead or in any manner whatsoever claim, and will resist any and
all efforts to be compelled to take the benefit or advantage of,
usury laws wherever enacted, now or at any time hereafter in force,
in connection with any claim, action or proceeding that may be
brought by any Purchaser in order to enforce any right or remedy
under any Transaction Document. Notwithstanding any provision to
the contrary contained in any Transaction Document, it is expressly
agreed and provided that the total liability of the Company under
the Transaction Documents for payments in the nature of interest
shall not exceed the maximum lawful rate authorized under
applicable law (the “
Maximum Rate
”), and,
without limiting the foregoing, in no event shall any rate of
interest or default interest, or both of them, when aggregated with
any other sums in the nature of interest that the Company may be
obligated to pay under the Transaction Documents exceed such
Maximum Rate. It is agreed that if the maximum contract rate of
interest allowed by law and applicable to the Transaction Documents
is increased or decreased by statute or any official governmental
action subsequent to the date hereof, the new maximum contract rate
of interest allowed by law will be the Maximum Rate applicable to
the Transaction Documents from the Closing Date thereof forward,
unless such application is precluded by applicable law. If under
any circumstances whatsoever, interest in excess of the Maximum
Rate is paid by the Company to any Purchaser with respect to
indebtedness evidenced by the Transaction Documents, such excess
shall be applied by such Purchaser to the unpaid principal balance
of any such indebtedness or be refunded to the Company, the manner
of handling such excess to be at such Purchaser’s
election.
5.18
Reserved
.
5.19
Liquidated Damages
. The
Company’s obligations to pay any partial liquidated damages
or other amounts owing under the Transaction Documents is a
continuing obligation of the Company and shall not terminate until
all unpaid partial liquidated damages and other amounts have been
paid notwithstanding the fact that the instrument or security
pursuant to which such partial liquidated damages or other amounts
are due and payable shall have been canceled.
5.20
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.
5.21
Construction
. The parties agree
that each of them and/or their respective counsel have reviewed and
had an opportunity to revise the Transaction Documents and,
therefore, the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not
be employed in the interpretation of the Transaction Documents or
any amendments thereto. In addition, each and every reference to
share prices and shares of Common Stock in any Transaction Document
shall be subject to adjustment for reverse and forward stock
splits, stock dividends, stock combinations and other similar
transactions of the Common Stock that occur after the date of this
Agreement.
5.22
WAIVER OF JURY TRIAL
. IN ANY ACTION, SUIT, OR PROCEEDING IN
ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE
PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT
PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY,
IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY
JURY.
5.23
Equitable Adjustment
. Trading
volume amounts, price/volume amounts and similar figures in the
Transaction Documents shall be equitably adjusted (but without
duplication) to offset the effect of stock splits, similar events
and as otherwise described in this Agreement.
(Signature Pages Follow)
IN
WITNESS WHEREOF, the parties hereto have caused this Securities
Purchase Agreement to be duly executed by their respective
authorized signatories as of the date first indicated
above.
FRIENDABLE,
INC.
|
Address for
Notice:
125
East Campbell Avenue
Campbell, CA
95008
Fax:
(408) 547-0110
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/s/
Robert Rositano
By:__________________________________________
Name:
Robert A. Rositano, Jr.
Title:
Chief Executive
Officer
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With a
copy to (which shall not constitute notice):
Lucosky
Brookman LLP
101
Wood Avenue South
Woodbridge, NJ
08830
Attn:
Steven A. Lipstein, Esq.
Fax:
(732) 395-4401
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[REMAINDER OF PAGE
INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR
PURCHASER FOLLOWS]
[PURCHASER
SIGNATURE PAGE TO FRIENDABLE, INC.
SECURITIES PURCHASE
AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities
Purchase Agreement to be duly executed by their respective
authorized signatories as of the date first indicated
above.
Name of
Purchaser:
________________________________________________________
Signature of Authorized Signatory of
Purchaser
: __________________________________
Name of
Authorized Signatory:
____________________________________________________
Title
of Authorized Signatory:
_____________________________________________________
Email
Address of Authorized Signatory:
_____________________________________________
Facsimile Number of
Authorized Signatory:
__________________________________________
State
of Residence of Purchaser:
_________________________________________________
Address
for Notice to Purchaser:
Address
for Delivery of Securities to Purchaser (if not same as address for
notice):
Subscription
Amount:
US$________________
Note
principal amount:
___________________
EIN
Number, if applicable, will be provided under separate cover.
________________________
Date:
___________________________
[SIGNATURE PAGES
CONTINUE]
EXHIBITS AND SCHEDULES
Exhibit B
Escrow
Agreement
Exhibit C
Form of Legal
Opinion
Exhibit D
Stock Pledge
Agreement
Exhibit E
Form of Investor
Questionnaire
Exhibit F
Rule 506 Bad Actor
Disqualification Questionnaire
Exhibit G
Form of Form
8-K
Exhibit H
Fan Pass
Transaction
Exhibit I
Fan Pass Security
Agreement
Schedule
2.1
Schedule
2.6(b)(ix)
Schedule
3.1(a)
Schedule
3.1(g)
Schedule
3.1(i)
Schedule
3.1(o)
Schedule
3.1(s)
Schedule
3.1(u)
Schedule
3.1(cc)
Schedule
3.1(ll)
Schedule
4.9
Schedule
4.13
EXHIBIT E
ACCREDITED
INVESTOR QUESTIONNAIRE
IN
CONNECTION WITH INVESTMENT IN CONVERTIBLE NOTE
FRIENDABLE,
INC.,
A
NEVADA CORPORATION
PURSUANT
TO SECURITIES PURCHASE AGREEMENT DATED JUNE [RC], 2017
TO :
Palladium Capital
Advisors LLC
10 Rockefeller
Plaza, Suite 909
INSTRUCTIONS
PLEASE
ANSWER ALL QUESTIONS. If the appropriate answer is
“None” or “Not Applicable”, so state.
Please print or type your answers to all questions. Attach
additional sheets if necessary to complete your answers to any
item.
Your
answers will be kept strictly confidential at all times. However,
Palladium Capital Advisors LLC (the “Company”) may
present this Questionnaire to such parties as it deems appropriate
in order to assure itself that the offer and sale of securities of
the Company will not result in a violation of the registration
provisions of the Securities Act of 1933, as amended, or a
violation of the securities laws of any state.
1.
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Please provide the following information:
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Name:
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Name of additional purchaser:
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(Please complete information in Question 5)
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Date of birth, or if other than an individual, year of organization
or incorporation:
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2.
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Residence address, or if other than an individual, principal office
address:
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Telephone number:
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Social Security Number:
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Taxpayer Identification Number:
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3.
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Business
address:
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Business
telephone number:
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4. Send mail
to:
Residence
______
Business
_______
5.
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With respect to tenants in common,
joint tenants and tenants by the entirety, complete only if
information differs from that above:
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R
esidence
address:
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T
elephone
number:
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S
ocial Security
Number:
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T
axpayer
Identification
Number:
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B
usiness
address:
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B
usiness telephone
number:
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Send Mail
to:
Residence
_______
Business
_______
6.
Please describe your present or most recent business or occupation
and indicate such information as the nature of your employment, how
long you have been employed there, the principal business of your
employer, the principal activities under your management or
supervision and the scope (e.g. dollar volume, industry rank, etc.)
of such activities:
7.
Please state whether you (i) are associated with or affiliated with
a member of the Financial Industry Regulatory Association, Inc.
(“FINRA”), (ii) are an owner of stock or other
securities of FINRA member (other than stock or other securities
purchased on the open market), or (iii) have made a subordinated
loan to any FINRA member:
If you
answered yes to any of (i) – (iii) above, please indicate the
applicable answer and briefly describe the facts
below:
8A.
Applicable to Individuals ONLY. Please answer the following
questions concerning your financial condition as an Accredited
Investor (within the meaning of Rule 501 of Regulation D). If the
purchaser is more than one individual, each individual must initial
an answer where the question indicates a “yes” or
“no” response and must answer any other question fully,
indicating to which individual such answer applies. If the
purchaser is purchasing jointly with his or her spouse, one answer
may be indicated for the couple as a whole:
8.1
Does your net worth* (or joint net worth with your spouse) exceed
$1,000,000?
8.2
Did you have an individual income** in excess of $200,000 or joint
income together with your spouse in excess of $300,000 in each of
the two most recent years and do you reasonably expect to reach the
same income level in the current year?
8.3
Are you an executive officer of the Company?
* For
purposes hereof, net worth shall be deemed to include ALL of your
assets, liquid or illiquid MINUS any liabilities.
** For
purposes hereof, the term “income” is not limited to
“adjusted gross income” as that term is defined for
federal income tax purposes, but rather includes certain items of
income which are deducted in computing “adjusted gross
income”. For investors who are salaried employees, the gross
salary of such investor, minus any significant expenses personally
incurred by such investor in connection with earning the salary,
plus any income from any other source including unearned income, is
a fair measure of “income” for purposes hereof. For
investors who are self-employed, “income” is generally
construed to mean total revenues received during the calendar year
minus significant expenses incurred in connection with earning such
revenues.
8.B
Applicable to Corporations, Partnerships, Trusts, Limited Liability
Companies and other Entities ONLY:
The
purchaser is an Accredited Investor because the purchaser falls
within at least one of the following categories (Check all
appropriate lines):
___
(i) a bank as
defined in Section 3(a)(2) of the Act or a savings and loan
association or other institution as defined in Section 3(a)(5)(A)
of the Act whether acting in its individual or fiduciary
capacity;
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(ii) a
broker-dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934, as amended;
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(iii) an insurance
company as defined in Section 2(13) of the Act;
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(iv) an investment
company registered under the Investment Company Act of 1940, as
amended (the “Investment Act”) or a business
development company as defined in Section 2(a)(48) of the
Investment Act;
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(v) a Small
Business Investment Company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958, as amended;
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(vi) a plan
established and maintained by a state, its political subdivisions,
or any agency or instrumentality of a state or its political
subdivisions, for the benefit of its employees, where such plan has
total assets in excess of $5,000,000;
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(vii) an employee
benefit plan within the meaning of Title 1 of the Employee
Retirement Income Security Act of 1974, as amended (the
“Employee Act”), where the investment decision is made
by a plan fiduciary, as defined in Section 3(21) of the Employee
Act, which is either a bank, savings and loan association,
insurance company, or registered investment adviser, or an employee
benefit plan that has total assets in excess of $5,000,000, or a
self-directed plan the investment decisions of which are made
solely by persons that are Accredited Investors;
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(viii) a private
business development company, as defined in Section 202(a)(22) of
the Investment Advisers Act of 1940, as amended;
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(ix) an
organization described in Section 501(c)(3) of the Internal Revenue
Code, a corporation, a Massachusetts or similar business trust, or
a partnership, not formed for the specific purpose of acquiring the
securities offered, with total assets in excess of
$5,000,000;
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(x) a trust, with
total assets in excess of $5,000,000, not formed for the specific
purpose of acquiring the securities offered, whose purchase is
directed by a “sophisticated” person, as described in
Rule 506(b)(2)(ii) promulgated under the Act, who has such
knowledge and experience in financial and business matters that he
or she is capable of evaluating the merits and risks of the
prospective investment;
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(xi) an entity in
which all of the equity investors are persons or entities described
above (“Accredited Investors”). ALL EQUITY OWNERS MUST
COMPLETE “EXHIBIT A” ATTACHED HERETO.
9.A
Do you have sufficient knowledge and experience in financial and
business matters so as to be capable of evaluating the merits and
risks associated with investing in the Company?
ANSWER
QUESTION 9B ONLY IF THE ANSWER TO QUESTION 9A WAS
“NO.”
9.B
If the answer to Question 9A was “NO,” do you have a
financial or investment adviser (a) that is acting in the capacity
as a purchaser representative and (b) who has sufficient knowledge
and experience in financial and business matters so as to be
capable of evaluating the merits and risks associated with
investing in the Company?
If you
have a financial or investment adviser(s), please identify each
such person and indicate his or her business address and telephone
number in the space below. (Each such person must complete, and you
must review and acknowledge, a separate Purchaser Representative
Questionnaire which will be supplied at your request).
10.
You have the right, will be afforded an opportunity, and are
encouraged to investigate the Company and review relevant factors
and documents pertaining to the officers of the Company, and the
Company and its business and to ask questions of a qualified
representative of the Company regarding this investment and the
properties, operations, and methods of doing business of the
Company.
Have
you or has your purchaser representative, if any, conducted any
such investigation, sought such documents or asked questions of a
qualified representative of the Company regarding this investment
and the properties, operations, and methods of doing business of
the Company?
If so,
have you completed your investigation and/or received satisfactory
answers to your questions?
11.
Do you understand the nature of an investment in the Company and
the risks associated with such an investment?
12.
Do you understand that there is no guarantee of any financial
return on this investment and that you will be exposed to the risk
of losing your entire investment?
13.
Do you understand that this investment is not liquid
14.
Do you have adequate means of providing for your current needs and
personal contingencies in view of the fact that this is not a
liquid investment?
15.
Are you aware of the Company’s business affairs and financial
condition, and have you acquired all such information about the
Company as you deem necessary and appropriate to enable you to
reach an informed and knowledgeable decision to acquire the
Interests?
16.
Do you have a “pre-existing relationship” with the
Company or any of the officers of the Company?
(For
purposes hereof, “pre-existing relationship” means any
relationship consisting of personal or business contacts of a
nature and duration such as would enable a reasonably prudent
investor to be aware of the character, business acumen, and general
business and financial circumstances of the person with whom such
relationship exists.)
If so,
please name the individual or other person with whom you have a
pre-existing relationship and describe the
relationship:
17.
Exceptions to the representations and warranties made in Section
3.2 of the Securities Purchase Agreement (if no exceptions, write
“none” – if left blank, the response will be
deemed to be “none”):
Dated:
__________________, 2017
If
purchaser is one or more individuals (all individuals must
sign):
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(Type
or print name of prospective purchaser)
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Signature of
prospective purchaser
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(Type
or print name of additional purchaser)
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Signature of
spouse, joint tenant, tenant in common or other signature, if
required
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Annex
A
Definition
of Accredited Investor
The
securities will only be sold to investors who represent in writing
in the Securities Purchase Agreement that they are Accredited
Investors, as defined in Regulation D, Rule 501 under the Act which
definition is set forth below:
1.
A natural person
whose net worth, or joint net worth with spouse, at the time of
purchase exceeds $1 million (excluding home); or
2.
A natural person
whose individual gross income exceeded $200,000 or whose joint
income with that person’s spouse exceeded $300,000 in each of
the last two years, and who reasonably expects to exceed such
income level in the current year; or
3.
A trust with total
assets in excess of $5 million, not formed for the specific purpose
of acquiring the securities offered, whose purchase is directed by
a sophisticated person described in Regulation D; or
4.
A director or
executive officer of the Company; or
5.
The investor is an
entity, all of the owners of which are Accredited Investors;
or
6.
(a) bank as defined
in Section 3(a)(2) of the Act, or any savings and loan association
or other institution as defined in Section 3(a)(5)(A) of the Act,
(b) any broker or dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934, (c) an insurance Company as
defined in Section 2(13) of the Act, (d) an investment Company
registered under the Investment Company Act of 1940 or a business
development Company as defined in Section 2(a)(48) of such Act, (e)
a Small Business Investment Company licensed by the United States
Small Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958, (f) an employee benefit plan
established and maintained by a state, its political subdivisions,
or any agency or instrumentality of a state or its political
subdivisions, if such plan has total assets in excess of $5
million, (g) an employee benefit plan within the meaning of Title I
of the Employee Retirement Income Securities Act of 1974, and the
employee benefit plan has assets in excess of $5 million, or the
investment decision is made by a plan fiduciary, as defined in
Section 3(21) of such act, that is either a bank, savings and loan
institution, insurance Company, or registered investment advisor,
or, if a self-directed plan, with an investment decisions made
solely by persons that are Accredited Investors, (h) a private
business development company as defined in Section 202(a)(22) of
the Investment Advisers Act of 1940, or (i) an organization
described in Section 501(c)(3) of the Internal Revenue code,
corporation, Massachusetts or similar business trust, or
partnership, not formed for the specific purpose of acquiring the
securities offered, with assets in excess of $5
million.
EXHIBIT
“A” TO ACCREDITED INVESTOR QUESTIONNAIRE
ACCREDITED
CORPORATIONS, PARTNERSHIPS, LIMITED LIABILITY COMPANIES, TRUSTS OR
OTHER ENTITIES INITIALING QUESTION 8B(xi) MUST PROVIDE THE
FOLLOWING INFORMATION.
I
hereby certify that set forth below is a complete list of all
equity owners in __________________ [NAME OF ENTITY], a
[TYPE OF
ENTITY] formed pursuant to the laws of the State of
. I also certify that
EACH SUCH OWNER HAS
INITIALED THE SPACE OPPOSITE HIS OR HER NAME
and that each
such owner understands that by initialing that space he or she is
representing that he or she is an accredited individual investor
satisfying the test for accredited individual investors indicated
under “Type of Accredited Investor.”
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signature of authorized corporate officer, general partner or
trustee
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Name
of Equity Owner
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Type
of Accredited Investor1
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1.
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2.
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3.
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4.
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5.
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6.
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7.
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8.
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9.
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10.
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__________________________________
1
Indicate which
Subparagraph of 8.1 - 8.3 the equity owner satisfies.
EXHIBIT
F
RULE
506 BAD ACTOR DISQUALIFICATION QUESTIONNAIRE
____________________________________
______________
___, 2017
Name
Friendable, Inc.
(the “Company”) is about to close a private placement
of convertible Notes pursuant to the terms of a Securities Purchase
Agreement. Under an SEC Rule effective September 23, 2013, the
Company is requesting each director and executive officer to
complete and execute this questionnaire. Please answer yes or no to
all questions listed below.
DEFINITION
OF PROMOTERS
Under
the Securities Act of 1933 (the “Act”) Rule 405 defines
a promoter as any person—individual or legal
entity—that either alone or with others, directly or
indirectly takes initiative in founding the business or enterprise
of the issuer, or, in connection with such founding or
organization, directly or indirectly receives 10% or more of any
class of issuer securities or 10% or more of the proceeds from the
sale of any class of issuer securities (other than securities
received solely as underwriting commissions or solely in exchange
for property). The test considers activities “alone or
together with others, directly or indirectly”; therefore, the
result does not change if there are other legal entities (which may
themselves be promoters) in the chain between that person and the
issuer.
DEFINITION
OF INVESTMENT MANAGERS AND PRINCIPALS OF POOLED INVESTMENT FUND
ISSUERS
For
issuers that are pooled investment funds, the rule covers
investment advisers and other investment managers of the fund; the
directors, general partners, managing members, executive officers
and other officers participating in the offering of such investment
managers; and the directors, executive officers and other officers
participating in the offering of the investment managers’
general partners or managing members.
DEFINITION
OF COMPENSATED SOLICITORS
Persons
compensated for soliciting investors as well as their directors,
general partners, managing members, executive officers and officers
participating in the offering. This category covers any
persons compensated for soliciting investors but will typically
involve broker-dealers and other intermediaries.
DEFINITION
OF DIRECTORS, GENERAL PARTNERS AND MANAGING MEMBERS OF THE
ISSUER
Members
of the Board of Directors (for issuers that are corporations),
general partners (for issuers that are partnerships) and managing
members (for issuers that are limited liability
companies).
DEFINITION
OF EXECUTIVE OFFICERS AND PARTICIPATING OFFICERS OF THE
ISSUER
The
term “executive officer” means a company’s
president, any vice president in charge of a principal business
unit, division or function (such as sales, administration or
finance), any other officer who performs a policy-making function
or any other person who performs similar policy-making functions.
The term “officer” means a president, vice president,
secretary, treasurer or principal financial officer, comptroller or
principal accounting officer, as well as any person who routinely
performs corresponding functions. Participation in an
offering would have to be more than transitory or incidental
involvement, and could include activities such as participation or
involvement in due diligence activities, involvement in the
preparation of disclosure documents, and communication with the
issuer, prospective investors or other offering
participants.
DEFINITION
OF 20% BENEFICIAL OWNERS OF THE ISSUER
Beneficial owners
of 20% or more of the issuer’s outstanding equity securities,
calculated on the basis of total voting power rather than on the
basis of ownership of any single class of securities.
NOTE
ON REFERENCES TO THE COMPANY
All
references to the Company made herein include its predecessors and
affiliated issuers.
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1.
Criminal
Convictions:
Within the past 10 years (or five years, in the
of case the Company), have you or the Company been convicted of any
felony or misdemeanor
(a)
In connection with the purchase or sale of a security
(b)
Involving the making of a false filing with the Securities and
Exchange Commission (the “SEC”)
(c)
Arising out of the conduct of the business of an underwriter,
broker, dealer, municipal securities dealer, investment adviser or
paid solicitor of purchasers of securities.
2.
Court injunctions and restraining
orders:
Within the past five years,
have you or the Company been the
subject of a court injunction or restraining order
(a)
In connection with the purchase or sale of a security
(b)
Involving the making of a false filing with the SEC
(c)
Arising out of the conduct of the business of an underwriter,
broker, dealer, municipal securities dealer, investment adviser or
paid solicitor of purchasers of securities.
3.
Final orders of certain state and
federal regulators:
Have you or the Company been the subject
of any final orders of state regulators of securities, insurance,
banking, savings associations or credit unions; federal banking
agencies; the Commodity Futures Trading Commission and the National
Credit Union Administration that
(a)
Bar you or the Company from associating with a regulated entity,
engaging in the business of securities, insurance or banking, or
engaging in savings association or credit union activities
or
(b)
Are based on a violation of a law or regulation that prohibits
fraudulent, manipulative, or deceptive conduct and were issued
within the last 10 years
4.
SEC disciplinary orders: Are you or
the Company currently the subject of any
SEC disciplinary
orders relating to brokers, dealers, municipal securities dealers,
investment companies, and investment advisers and their associated
persons under Section 15(b) or 15B(c) of the Securities Exchange
Act of 1934, or Section 203(e) or (f) of the Investment Advisers
Act that
(a)
Suspends or revokes your or
the Company’s registration as a broker, dealer, municipal
securities dealer or investment adviser
(1)
Places limitations on your or the Company’s activities,
functions or operations
(2)
Bars you or the Company from being associated with any entity or
from participating in the offering of any penny stock
5.
SEC cease-and-desist orders: Within
the last five years, have you or the Company been the subject
of
SEC orders to cease and desist from committing or causing
a violation or future violations of
(a)
The scienter-based anti-fraud provisions of the federal securities
laws
(b)
Section 5 of the Act
6.
Suspension
or expulsion from membership in an SRO or from association with an
SRO member:
Have you or the Company been suspended or
expelled from membership in, or suspended or barred from
association with a member of, a securities self-regulatory
organization or “SRO” (
i.e.
, a registered national securities
exchange or national securities association, such as FINRA) for any
act or omission to act constituting conduct inconsistent with just
and equitable principles of trade.
7.
SEC stop orders:
(a)
Within the last five years, have you, as an officer or director of
an issuer, or the Company filed a registration statement or
Regulation A offering statement that was the subject of a SEC
refusal order, stop order or order suspending the Regulation A
exemption, or are you now the subject of an investigation or
proceeding to determine whether such an order should be
issued.
(b)
Within the last five years, have you or the Company been, or been
named as, an underwriter of securities under a registration
statement or Regulation A offering statement that was the subject
of a Commission refusal order, stop order or order suspending the
Regulation A exemption, or are you now the subject of an
investigation or proceeding to determine whether such an order
should be issued.
8.
U.S.
Postal Service false representation orders:
Within the last
five years have you or the Company been subject to a U. S Postal
Service false representation order, temporary restraining order or
preliminary injunction with respect to conduct alleged by the U.S.
Postal Service to constitute a scheme or device for obtaining money
or property through the mail by means of false
representations.
The
foregoing answers are true and correct in all respects. I
understand that a “yes” answer will disqualify the
issuer from relying on exemption under Rule 506 under the
Securities Act of 1933.
NEITHER
THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS
CONVERTIBLE HAS NOT BEEN REGISTERED WITH THE SECURITIES AND
EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN
RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY
A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE
SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO BORROWER. THIS
SECURITY AND THE SECURITIES ISSUABLE UPON CONVERSION OF THIS
SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN
ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A
FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR”
AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN
SECURED BY SUCH SECURITIES.
Original
Issue Date:
July 21,
2017
Principal Amount: $300,000.00
Original Conversion Price (subject to adjustment herein):
$0.0003
SECURED CONVERTIBLE NOTE
DUE JULY 21, 2018
THIS
CONVERTIBLE NOTE is one of a series of duly authorized and validly
issued Notes of
FRIENDABLE,
INC.
, a Nevada corporation, (the “
Borrower
”), having its
principal place of business at 125 East Campbell Avenue,
2
nd
Floor,
Campbell CA 95008
,
due
July 21, 2018
(this note,
the “
Note
” and, collectively
with the other notes of such series, the “
Notes
”).
FOR
VALUE RECEIVED, Borrower promises to pay to
ALPHA CAPITAL ANSTALT
or its registered
assigns (the “
Holder
”), with an address
at: Lettstrasse 32, 9490 Vaduz, Liechtenstein, Fax:
011-423-2323196, or shall have paid pursuant to the terms
hereunder, the principal sum of
Three Hundred Thousand Dollars
(
$300,000.00)
on
July 21, 2018
(the
“
Maturity
Date
”) or such earlier date as this Note is required
or permitted to be repaid as provided hereunder, and to pay
interest, if any, to the Holder on the aggregate unconverted and
then outstanding principal amount of this Note in accordance with
the provisions hereof.
The
Holder of this Note has been granted a security interest in assets
of Borrower, specifically in Fan Pass, Inc. in Borrower’s
ownership in Fan Pass, Inc.
This
Note is subject to the following additional
provisions:
Section
1
.
Definitions
.
For the purposes hereof, in addition to the terms defined elsewhere
in this Note, (a) capitalized terms not otherwise defined herein
shall have the meanings set forth in the Purchase Agreement and (b)
the following terms shall have the following meanings:
“
Alternate Consideration
”
shall have the meaning set forth in Section 5(d).
“
Bankruptcy Event
” means
any of the following events: (a) Borrower or any Subsidiary thereof
commences a case or other proceeding under any bankruptcy,
reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any
jurisdiction relating to Borrower or any Subsidiary thereof, (b)
there is commenced against Borrower or any Subsidiary thereof any
such case or proceeding that is not dismissed within 60 days after
commencement, (c) Borrower or any Subsidiary thereof is adjudicated
insolvent or bankrupt or any order of relief or other order
approving any such case or proceeding is entered, (d) Borrower or
any Subsidiary thereof suffers any appointment of any custodian or
the like for it or any substantial part of its property that is not
discharged or stayed within 60 calendar days after such
appointment, (e) Borrower or any Subsidiary thereof makes a general
assignment for the benefit of creditors, (f) Borrower or any
Subsidiary thereof calls a meeting of its creditors with a view to
arranging a composition, adjustment or restructuring of its debts
or (g) Borrower or any Subsidiary thereof, by any act or failure to
act, expressly indicates its consent to, approval of or
acquiescence in any of the foregoing or takes any corporate or
other action for the purpose of effecting any of the
foregoing.
“
Beneficial Ownership
Limitation
” shall have the meaning set forth in
Section 4(d).
“
Business Day
” means any
day except any Saturday, any Sunday, any day which is a federal
legal holiday in the United States or any day on which banking
institutions in the State of New York are required by law or other
governmental action to close.
“
Buy-In
” shall have the
meaning set forth in Section 4(c)(v).
“
Change of Control
Transaction
” means, other than by means of conversion
or exercise of the Notes and the Securities issued together with
the Notes, the occurrence after the date hereof of any of (a) an
acquisition after the date hereof by an individual or legal entity
or “group” (as described in Rule 13d-5(b)(1)
promulgated under the Exchange Act) of effective control (whether
through legal or beneficial ownership of capital stock of Borrower,
by contract or otherwise) of in excess of 50% of the voting
securities of Borrower, (b) Borrower merges into or consolidates
with any other Person, or any Person merges into or consolidates
with Borrower and, after giving effect to such transaction, the
stockholders of Borrower immediately prior to such transaction own
less than 50% of the aggregate voting power of Borrower or the
successor entity of such transaction, (c) Borrower sells or
transfers all or substantially all of its assets to another Person
and the stockholders of Borrower immediately prior to such
transaction own less than 50% of the aggregate voting power of the
acquiring entity immediately after the transaction, (d) a
replacement at one time or within a three year period of more than
one-half of the members of the Board of Directors which is not
approved by a majority of those individuals who are members of the
Board of Directors on the Original Issue Date (or by those
individuals who are serving as members of the Board of Directors on
any date whose nomination to the Board of Directors was approved by
a majority of the members of the Board of Directors who are members
on the date hereof), or (e) the execution by Borrower of an
agreement to which Borrower is a party or by which it is bound,
providing for any of the events set forth in clauses (a) through
(d) above.
“
Closing Price
” means on
any particular date (a) the last reported closing bid price
per share of Common Stock on such date on the Trading Market (as
reported by Bloomberg L.P. at 4:15 p.m. (New York City time)), or
(b) if there is no such price on such date, then the closing bid
price on the Trading Market on the date nearest preceding such date
(as reported by Bloomberg L.P. at 4:15 p.m. (New York City time)),
or (c) if the Common Stock is not then listed or quoted on a
Trading Market and if prices for the Common Stock are then reported
in the “pink sheets” published by OTC Pink Marketplace
(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) if the shares of Common Stock
are not then publicly traded the fair market value of a share of
Common Stock as determined by an independent appraiser selected in
good faith by the Holder and reasonably acceptable to Borrower, the
fees and expenses of which shall be paid by Borrower.
“
Conversion
” shall have
the meaning ascribed to such term in Section 4.
“
Conversion Date
” shall
have the meaning set forth in Section 4(a).
“
Conversion Price
” shall
have the meaning set forth in Section 4(b).
“
Conversion Shares
” means,
collectively, the shares of Common Stock issuable upon conversion
of this Note in accordance with the terms hereof.
“
Dilutive Issuance
” shall
have the meaning set forth in Section 5(e).
“
Equity Conditions
” means,
during the period in question,
(a)
Borrower shall have duly honored all conversions scheduled to occur
or occurring by virtue of one or more Notices of Conversion of the
applicable Holder on or prior to the dates so requested or
required, if any, (b) Borrower shall have paid all liquidated
damages and other amounts owing to the applicable Holder in respect
of this Note and the other Transaction Documents,
(c) (i)
there is an effective registration statement pursuant to which the
Holders are permitted to utilize the prospectus thereunder to
resell all of the Underlying Shares (and Borrower believes, in good
faith, that such effectiveness will continue uninterrupted for the
foreseeable future), or (ii) all of the Underlying Shares (and
shares issuable in lieu of cash payments of interest) may be resold
pursuant to Rule 144 without volume or manner-of-sale restrictions
or current public information requirements as confirmed by counsel
to Borrower in a written opinion letter to such effect, addressed
and acceptable to the Borrower’s Transfer Agent and the
affected Holders, (d) the Common Stock is trading on a Trading
Market and all of the shares issuable pursuant to the Transaction
Documents are listed or quoted for trading on such Trading Market
(and Borrower believes, in good faith, that trading of the Common
Stock on a Trading Market will continue uninterrupted for the
foreseeable future), (e) there is a sufficient number of
authorized, but unissued and otherwise unreserved, shares of Common
Stock for the issuance of all of the shares then issuable pursuant
to the Transaction Documents, (f) an Event of Default has not
occurred, whether or not such Event of Default has been cured, (g)
there is no existing event which, with the passage of time or the
giving of notice, would constitute an Event of Default, (h) the
issuance of the shares in question to the applicable Holder would
not exceed the Beneficial Ownership Limitation,
(i) there has been no public announcement of a
pending or proposed Fundamental Transaction or Change of Control
Transaction that has not been consummated, and (j) the applicable
Holder is not in possession of any information provided by Borrower
that constitutes, or may constitute, material non-public
information.
“
Event of Default
” shall
have the meaning set forth in Section 8(a).
“
Fan Pass Transaction
”
means the Company’s transactions in connection with Fan Pass,
Inc. as defined in the Securities Purchase Agreement.
“
Fundamental Transaction
”
shall have the meaning set forth in Section 5(d).
“
Interest Payment Date
”
shall have the meaning set forth in Section 2(a).
“
Interest Share Amount
”
shall have meaning set forth in Section 2(a).
“
Mandatory Default Amount
”
means the sum of (a) the greater of (i) the outstanding principal
amount of this Note divided by the Conversion Price on the date the
Mandatory Default Amount is either (A) demanded (if demand or
notice is required to create an Event of Default) or otherwise due
or (B) paid in full, whichever has a lower Conversion Price,
multiplied by the VWAP on the date the Mandatory Default Amount is
either (x) demanded or otherwise due or (y) paid in full, whichever
has a higher VWAP, or (ii) 125% of the outstanding principal amount
of this Note and (b) all other amounts, costs, expenses and
liquidated damages due in respect of this Note.
“
New York Courts
” shall
have the meaning set forth in Section 9(d).
“
Note Register
” shall have
the meaning set forth in Section 2(c).
“
Notice of Conversion
”
shall have the meaning set forth in Section 4(a).
“
Original Issue Date
”
means the date of the first issuance of the Notes, regardless of
any transfers of any Note and regardless of the number of
instruments which may be issued to evidence such
Notes.
“
Other Holders
” means
holders of Other Notes.
“
Other Notes
” means Notes
nearly identical to this Note issued to other Holders pursuant to
the Purchase Agreement.
“
Permitted Indebtedness
”
means (a) any liabilities for borrowed money or amounts owed not in
excess of $100,000 in the aggregate (other than trade accounts
payable incurred in the ordinary course of business), (b) all
guaranties, endorsements and other contingent obligations in
respect of indebtedness of others, whether or not the same are or
should be reflected in the Company’s consolidated balance
sheet (or the notes thereto) not affecting more than $100,000 in
the aggregate, except guaranties by endorsement of negotiable
instruments for deposit or collection or similar transactions in
the ordinary course of business; and (c) the present value of any
lease payments not in excess of $100,000 due under leases required
to be capitalized in accordance with GAAP. Neither the Company nor
any Subsidiary is in default with respect to any
Indebtedness.
“
Permitted Lien
” means the
individual and collective reference to the following: (a) Liens for
taxes, assessments and other governmental charges or levies not yet
due or Liens for taxes, assessments and other governmental charges
or levies being contested in good faith and by appropriate
proceedings for which adequate reserves (in the good faith judgment
of the management of Borrower) have been established in accordance
with GAAP, (b) Liens imposed by law which were incurred in the
ordinary course of Borrower’s business, such as
carriers’, warehousemen’s and mechanics’ Liens,
statutory landlords’ Liens, and other similar Liens arising
in the ordinary course of Borrower’s business, and which (x)
do not individually or in the aggregate materially detract from the
value of such property or assets or materially impair the use
thereof in the operation of the business of Borrower and its
consolidated Subsidiaries or (y) are being contested in good faith
by appropriate proceedings, which proceedings have the effect of
preventing for the foreseeable future the forfeiture or sale of the
property or asset subject to such Lien, and (c) Liens incurred
prior to the Closing Date in connection with Permitted Indebtedness
under clauses (a) and (b) thereunder, and Liens incurred in
connection with Permitted Indebtedness under clause (c) thereunder,
provided that such Liens are not secured by assets of Borrower or
its Subsidiaries other than the assets so acquired or
leased.
“
Purchase Agreement
” means
the Securities Purchase Agreement, dated as of June ___, 2017 among
Borrower and the original Holders, as amended, modified or
supplemented from time to time in accordance with its
terms.
“
Securities Act
” means the
Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“
Share Delivery Date
”
shall have the meaning set forth in Section 4(c)(ii).
“
Successor Entity
” shall
have the meaning set forth in Section 5(d).
“
Trading Day
” means a day
on which the principal Trading Market is open for
trading.
“
Trading Market
” means any
of the following markets or exchanges on which the Common Stock is
listed or quoted for trading on the date in question: the NYSE MKT,
the NASDAQ Capital Market, the NASDAQ Global Market, the NASDAQ
Global Select Market, the New York Stock Exchange, the OTC Bulletin
Board, the OTCQB, the OTCQX or the OTC Pink Marketplace (or any
successors to any of the foregoing).
“
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 any of the NASDAQ markets or exchanges is not a
Trading Market, the volume weighted average price of the Common
Stock for such date (or the nearest preceding date) on the OTC
Bulletin Board, (c) if the Common Stock is not then listed or
quoted for trading on the OTC Bulletin Board and if prices for the
Common Stock are then reported on the OTCQX, OTCQB or OTC Pink
Marketplace maintained by the OTC Markets Group, Inc. (or a similar
organization or agency succeeding to its functions of reporting
prices), the volume weighted average price of the Common Stock on
the first such facility (or a similar organization or agency
succeeding to its functions of reporting prices), 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 Borrower, the fees and
expenses of which shall be paid by Borrower.
Section
2
.
Interest
.
a)
Interest
.
Simple interest payable on the interest bearing portion of this
Note shall accrue at the annual rate of ten percent (10%) and in
arrears on the Maturity Date (the “Interest Payment
Date”) (if the Interest Payment Date is not a Trading Day,
the applicable payment should be made on the next succeeding
Trading Day). Interest shall be payable in duly authorized, validly
issued, fully paid and non-assessable shares of Common Stock (the
amount to be paid in shares of Common Stock, the
“
Interest Share
Amount
”). The Interest Share Amount will be determined
by dividing the amount of interest on the subject Interest Payment
Date by the lesser of (i) Conversion Price in effect on such date
(ii) or the average of the closing price for the Common Stock for
the 5 Trading Days prior to the Interest Payment Date as reported
by Bloomberg L.P. on the Trading Market on which the Common Stock
is then listed or quoted. The Holders shall have the same rights
and remedies with respect to the delivery of any such shares as if
such shares were being issued pursuant to Section 4. Borrower may
not pay interest by delivery of Common Stock without the consent of
the Holder in the event that the Equity Conditions are not in
effect on each day from the relevant Interest Payment Date through
the date the Interest Share Amount is delivered to the Holder.
Borrower may not pay any Interest Share Amount in excess of the
Beneficial Ownership Limitation when applicable, unless waived by
Holder. Following the occurrence and during the continuance of an
Event of Default, then from the first date of such occurrence, the
annual interest rate on this Note shall be eighteen percent (18%).
Such interest shall be due and payable on the Maturity Date,
whether by acceleration or otherwise.
b)
Payment
Grace Period
. The Borrower shall not have any grace period
to pay any monetary amounts due under this Note.
c)
Conversion
Privileges
. The Conversion Rights set forth in Section 4
shall remain in full force and effect immediately from the date
hereof and until the Note is paid in full regardless of the
occurrence of an Event of Default. This Note shall be payable in
full on the Maturity Date, unless previously converted into Common
Stock in accordance with Section 4 hereof.
d)
Application of
Payments
. Interest on this Note shall be calculated on the
basis of a 360-day year and the actual number of days elapsed.
Payments made in connection with this Note shall be applied first
to amounts due hereunder other than principal and interest,
thereafter to interest and finally to principal.
e)
Pari Passu
. Except
as otherwise set forth herein, all payments made on this Note and
the Other Notes and all actions taken by the Borrower with respect
to this Note and the Other Notes, shall be made and taken
pari passu
with respect to
this Note and the Other Notes. Notwithstanding anything to the
contrary contained herein or in the Transaction Documents, it shall
not be considered non-pari passu for a Holder or Other Holder to
elect to receive interest paid in shares of Common Stock or for the
Borrower to actually pay interest in shares of Common Stock to such
electing Holder or Other Holder.
f)
Manner
and Place of Payment
. Principal and interest on this Note
and other payments in connection with this Note shall be payable at
the Holder’s offices as designated above in lawful money of
the United States of America in immediately available funds without
set-off, deduction or counterclaim. Upon assignment of the interest
of Holder in this Note, Borrower shall instead make its payment
pursuant to the assignee’s instructions upon receipt of
written notice thereof. Except as set forth herein, this Note may
not be prepaid or mandatorily converted without the consent of the
Holder.
Section
3.
Registration of Transfers and
Exchanges
.
a)
Different Denominations
. This
Note is exchangeable for an equal aggregate principal amount of
Notes of different authorized denominations, as requested by the
Holder surrendering the same. No service charge will be payable for
such registration of transfer or exchange.
b)
Investment Representations
.
This Note has been issued subject to certain investment
representations of the original Holder set forth in the Purchase
Agreement and may be transferred or exchanged only in compliance
with the Purchase Agreement and applicable federal and state
securities laws and regulations.
c)
Reliance on Note Register
.
Prior to due presentment for transfer to Borrower of this Note,
Borrower and any agent of Borrower may treat the Person in whose
name this Note is duly registered on the Note Register as the owner
hereof for the purpose of receiving payment as herein provided and
for all other purposes, whether or not this Note is overdue, and
neither Borrower nor any such agent shall be affected by notice to
the contrary.
Section
4.
Conversion
.
a)
Voluntary Conversion
. At any
time after the Original Issue Date until this Note is no longer
outstanding, this Note shall be convertible, in whole or in part,
into shares of Common Stock at the option of the Holder, at any
time and from time to time (subject to the conversion limitations
set forth in Section 4(d) hereof). The Holder shall effect
conversions by delivering to Borrower a Notice of Conversion, the
form of which is attached hereto as
Annex A
(each, a
“
Notice of
Conversion
”), specifying therein the principal amount
of this Note to be converted and the date on which such conversion
shall be effected (such date, the “
Conversion Date
”). If no
Conversion Date is specified in a Notice of Conversion, the
Conversion Date shall be the date that such Notice of Conversion is
deemed delivered hereunder. To effect conversions hereunder, the
Holder shall not be required to physically surrender this Note to
Borrower unless the entire principal amount of this Note has been
so converted. Conversions hereunder shall have the effect of
lowering the outstanding principal amount of this Note in an amount
equal to the applicable conversion. The Holder and Borrower shall
maintain records showing the principal amount(s) converted and the
date of such conversion(s). Borrower may deliver an objection to
any Notice of Conversion within one (1) Business Day of delivery of
such Notice of Conversion. In the event of any dispute or
discrepancy, the records of the Holder shall be controlling and
determinative in the absence of manifest error.
The Holder, and any assignee by acceptance of
this Note, acknowledge and agree that, by reason of the provisions
of this paragraph, following conversion of a portion of this Note,
the unpaid and unconverted principal amount of this Note may be
less than the amount stated on the face hereof.
b)
Conversion Price
. The
conversion price for the principal and interest, if any, in
connection with voluntary conversions by the Holder shall be equal
to
$0.0003
, subject to
adjustment herein (the “
Conversion
Price
”).
c)
Mechanics of
Conversion
.
i.
Conversion
Shares Issuable Upon Conversion of Principal Amount
. The
number of Conversion Shares issuable upon a conversion hereunder
shall be determined by the quotient obtained by dividing (x) the
outstanding principal amount of this Note to be converted plus
interest, if any, elected by the Holder to be converted by (y) the
Conversion Price.
ii.
Delivery
of Certificate Upon Conversion
. Not later than two (2)
Trading Days after each Conversion Date (the “
Share Delivery Date
”),
Borrower shall deliver, or cause to be delivered, to the Holder a
certificate or certificates representing the Conversion Shares
which, on or after the earlier of (i) the six month anniversary of
the Original Issue Date or (ii) the Effective Date, shall be free
of restrictive legends and trading restrictions (other than those
which may then be required by the Purchase Agreement) representing
the number of Conversion Shares being acquired upon the conversion
of this Note. Borrower shall use its best efforts to deliver any
certificate or certificates required to be delivered by Borrower
under this Section 4(c) electronically through the Depository Trust
Company or another established clearing corporation performing
similar functions.
iii.
Failure
to Deliver Certificates
. If, in the case of any Notice of
Conversion, such certificate or certificates are not delivered to
or as directed by the applicable Holder by the Share Delivery Date,
the Holder shall be entitled to elect by written notice to Borrower
at any time on or before its receipt of such certificate or
certificates, to rescind such Conversion, in which event Borrower
shall promptly return to the Holder any original Note delivered to
Borrower and the Holder shall promptly return to Borrower the
Common Stock certificates issued to such Holder pursuant to the
rescinded Conversion Notice.
iv.
Obligation
Absolute; Partial Liquidated Damages
. Borrower’s
obligations to issue and deliver the Conversion Shares upon
conversion of this Note in accordance with the terms hereof are
absolute and unconditional, irrespective of any action or inaction
by the Holder to enforce the same, any waiver or consent with
respect to any provision hereof, the recovery of any judgment
against any Person or any action to enforce the same, or any
setoff, counterclaim, recoupment, limitation or termination, or any
breach or alleged breach by the Holder or any other Person of any
obligation to Borrower or any violation or alleged violation of law
by the Holder or any other Person, and irrespective of any other
circumstance which might otherwise limit such obligation of
Borrower to the Holder in connection with the issuance of such
Conversion Shares;
provided
,
however
, that such delivery
shall not operate as a waiver by Borrower of any such action
Borrower may have against the Holder. In the event the Holder of
this Note shall elect to convert any or all of the outstanding
principal amount hereof, Borrower may not refuse conversion based
on any claim that the Holder or anyone associated or affiliated
with the Holder has been engaged in any violation of law, agreement
or for any other reason, unless an injunction from a court, on
notice to Holder, restraining and or enjoining conversion of all or
part of this Note shall have been sought and obtained, and Borrower
posts a surety bond for the benefit of the Holder in the amount of
150% of the outstanding principal amount of this Note, which is
subject to the injunction, which bond shall remain in effect until
the completion of arbitration/litigation of the underlying dispute
and the proceeds of which shall be payable to the Holder to the
extent it obtains judgment. In the absence of such injunction,
Borrower shall issue Conversion Shares or, if applicable, cash,
upon a properly noticed conversion. If Borrower fails for any
reason to deliver to the Holder such certificate or certificates
pursuant to Section 4(c)(ii) by the Share Delivery Date, Borrower
shall pay to the Holder, in cash, as liquidated damages and not as
a penalty, for each $1,000 of principal amount being converted, $10
per Trading Day (increasing to $20 per Trading Day on the fifth
(5
th
)
Trading Day after such liquidated damages being to accrue) for each
Trading Day after such Share Delivery Date until such certificates
are delivered or Holder rescinds such conversion. Nothing herein
shall limit a Holder’s right to pursue actual damages or
declare an Event of Default pursuant to Section 8 hereof for
Borrower’s failure to deliver Conversion Shares within the
period specified herein and the Holder shall have the right to
pursue all remedies available to it hereunder, at law or in equity
including, without limitation, a decree of specific performance
and/or injunctive relief. The exercise of any such rights shall not
prohibit the Holder from seeking to enforce damages pursuant to any
other Section hereof or under applicable law.
v.
Compensation
for Buy-In on Failure to Timely Deliver Certificates Upon
Conversion
. In addition to any other rights available to the
Holder, if Borrower fails for any reason to deliver to the Holder
such certificate or certificates by the Share Delivery Date
pursuant to Section 4(c)(ii), and if after such Share Delivery Date
the Holder is required by its brokerage firm to purchase (in an
open market transaction or otherwise), or the Holder or
Holder’s brokerage firm otherwise purchases, shares of Common
Stock to deliver in satisfaction of a sale by the Holder of the
Conversion Shares which the Holder was entitled to receive upon the
conversion relating to such Share Delivery Date (a
“
Buy-In
”), then Borrower
shall (A) pay in cash to the Holder (in addition to any other
remedies available to or elected by the Holder) the amount, if any,
by which (x) the Holder’s total purchase price (including any
brokerage commissions) for the Common Stock so purchased exceeds
(y) the product of (1) the aggregate number of shares of Common
Stock that the Holder was entitled to receive from the conversion
at issue multiplied by (2) the actual sale price at which the sell
order giving rise to such purchase obligation was executed
(including any brokerage commissions) and (B) at the option of the
Holder, either reissue (if surrendered) this Note in a principal
amount equal to the principal amount of the attempted conversion
(in which case such conversion shall be deemed rescinded) or
deliver to the Holder the number of shares of Common Stock that
would have been issued if Borrower had timely complied with its
delivery requirements under Section 4(c)(ii). For example, if the
Holder purchases Common Stock having a total purchase price of
$11,000 to cover a Buy-In with respect to an attempted conversion
of this Note with respect to which the actual sale price of the
Conversion Shares (including any brokerage commissions) giving rise
to such purchase obligation was a total of $10,000 under clause (A)
of the immediately preceding sentence, Borrower shall be required
to pay the Holder $1,000. The Holder shall provide Borrower written
notice indicating the amounts payable to the Holder in respect of
the Buy-In and, upon request of Borrower, 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
Borrower’s failure to timely deliver certificates
representing shares of Common Stock upon conversion of this Note as
required pursuant to the terms hereof.
vi.
Reservation
of Shares Issuable Upon Conversion
. Borrower covenants that
it will at all times reserve and keep available out of its
authorized and unissued shares of Common Stock for the sole purpose
of issuance upon conversion of this Note as herein provided, free
from preemptive rights or any other actual contingent purchase
rights of Persons other than the Holder (and the other holders of
the Notes), not less than such aggregate number of shares of the
Common Stock as shall (subject to the terms and conditions set
forth in the Purchase Agreement) be issuable (taking into account
the adjustments and restrictions of Section 5) upon the conversion
of the then outstanding principal amount of this Note and interest
which has accrued and would accrue on such principal amount,
assuming such principal amount was not converted through the
Maturity Date. Borrower covenants that all shares of Common Stock
that shall be so issuable shall, upon issue, be duly authorized,
validly issued, fully paid and nonassessable.
vii.
Fractional
Shares
. No fractional shares or scrip representing
fractional shares shall be issued upon the conversion of this Note.
As to any fraction of a share which the Holder would otherwise be
entitled to purchase upon such conversion, Borrower 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
Conversion Price or round up to the next whole share.
viii.
Transfer
Taxes and Expenses
. The issuance of certificates for shares
of the Common Stock on conversion of this Note shall be made
without charge to the Holder hereof for any documentary stamp or
similar taxes that may be payable in respect of the issue or
delivery of such certificates, provided that, Borrower shall not be
required to pay any tax that may be payable in respect of any
transfer involved in the issuance and delivery of any such
certificate upon conversion in a name other than that of the Holder
of this Note so converted and Borrower shall not be required to
issue or deliver such certificates unless or until the Person or
Persons requesting the issuance thereof shall have paid to Borrower
the amount of such tax or shall have established to the
satisfaction of Borrower that such tax has been paid. Borrower
shall pay all Transfer Agent fees required for same-day processing
of any Notice of Conversion.
d)
Holder’s
Conversion Limitations
. Borrower shall not effect any
conversion of this Note, and a Holder shall not have the right to
convert any portion of this Note, to the extent that after giving
effect to the conversion set forth on the applicable Notice of
Conversion, the Holder (together with the Holder’s
Affiliates, and any Persons acting as a group together with the
Holder or any of the Holder’s Affiliates) would beneficially
own in excess of the Beneficial Ownership Limitation (as defined
below). 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 conversion of this Note with respect to which such
determination is being made, but shall exclude the number of shares
of Common Stock which are issuable upon (i) conversion of the
remaining, unconverted principal amount of this Note beneficially
owned by the Holder or any of its Affiliates and (ii) exercise or
conversion of the unexercised or unconverted portion of any other
securities of Borrower subject to a limitation on conversion or
exercise analogous to the limitation contained herein (including,
without limitation, any other Notes or the Warrants) beneficially
owned by the Holder or any of its Affiliates. Except as set
forth in the preceding sentence, for purposes of this Section 4(d),
beneficial ownership shall be calculated in accordance with Section
13(d) of the Exchange Act and the rules and regulations promulgated
thereunder. To the extent that the limitation contained in this
Section 4(d) applies, the determination of whether this Note is
convertible (in relation to other securities owned by the Holder
together with any Affiliates) and of which principal amount of this
Note is convertible shall be in the sole discretion of the Holder,
and the submission of a Notice of Conversion shall be deemed to be
the Holder’s determination of whether this Note may be
converted (in relation to other securities owned by the Holder
together with any Affiliates) and which principal amount of this
Note is convertible, in each case subject to the Beneficial
Ownership Limitation. To ensure compliance with this restriction,
the Holder will be deemed to represent to Borrower each time it
delivers a Notice of Conversion that such Notice of Conversion has
not violated the restrictions set forth in this paragraph and
Borrower shall have no obligation to verify or confirm the accuracy
of such determination. 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 4(d), in
determining the number of outstanding shares of Common Stock, the
Holder may rely on the number of outstanding shares of Common Stock
as stated in the most recent of the following: (i) Borrower’s
most recent periodic or annual report filed with the Commission, as
the case may be, (ii) a more recent public announcement by
Borrower, or (iii) a more recent written notice by Borrower or
Borrower’s transfer agent setting forth the number of shares
of Common Stock outstanding. Upon the written or oral request
of a Holder, Borrower shall within two Trading Days confirm orally
and in writing to the Holder the number of shares of Common Stock
then outstanding. In any case, the number of outstanding
shares of Common Stock shall be determined after giving effect to
the conversion or exercise of securities of Borrower, including
this Note, by the Holder or its Affiliates since the date as of
which such number of outstanding shares of Common Stock was
reported. The “
Beneficial Ownership
Limitation
” shall be 4.99% of the number of shares of
the Common Stock outstanding immediately after giving effect to the
issuance of shares of Common Stock issuable upon conversion of this
Note held by the Holder. The Holder may decrease the Beneficial
Ownership Limitation at any time and the Holder, upon not less than
61 days’ prior notice to Borrower, and may increase the
Beneficial Ownership Limitation provided that the Beneficial
Ownership Limitation in no event exceeds 9.99% of the number of
shares of the Common Stock outstanding immediately after giving
effect to the issuance of shares of Common Stock upon conversion of
this Note held by the Holder and the Beneficial Ownership
Limitation provisions of this Section 4(d) shall continue to apply.
Any such increase will not be effective until the 61
st
day after such
notice is delivered to Borrower. The Beneficial Ownership
Limitation provisions of this paragraph shall be construed and
implemented in a manner otherwise than in strict conformity with
the terms of this Section 4(d) to correct this paragraph (or any
portion hereof) which may be defective or inconsistent with the
intended Beneficial Ownership Limitation contained herein or to
make changes or supplements necessary or desirable to properly give
effect to such limitation. The limitations contained in this
paragraph shall apply to a successor holder of this
Note.
Section 5
.
Certain
Adjustments
.
a)
Stock Dividends and Stock
Splits
. If Borrower, at any time while this Note is
outstanding: (i) pays a stock dividend or otherwise makes a
distribution or distributions payable in shares of Common Stock on
shares of Common Stock or any Common Stock Equivalents (which, for
avoidance of doubt, shall not include any shares of Common Stock
issued by Borrower upon conversion of the Notes), (ii) subdivides
outstanding shares of Common Stock into a larger number of shares,
(iii) combines (including by way of a reverse stock split)
outstanding shares of Common Stock into a smaller number of shares
or (iv) issues, in the event of a reclassification of shares of the
Common Stock, any shares of capital stock of Borrower, then the
Conversion Price shall be multiplied by a fraction of which the
numerator shall be the number of shares of Common Stock (excluding
any treasury shares of Borrower) outstanding immediately before
such event, and of which the denominator shall be the number of
shares of Common Stock outstanding immediately after such event.
Any adjustment made pursuant to this Section 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)
Subsequent Rights Offerings
.
In addition to any adjustments
pursuant to Section 5(a) above, if at any time Borrower grants,
issues or sells any Common Stock Equivalents or rights to purchase
stock, warrants, securities or other property pro rata to the
record holders of any class of shares of Common Stock (the
“
Purchase
Rights
”), then the Holder
will be entitled to acquire, upon the terms applicable to such
Purchase Rights, the aggregate Purchase Rights which the Holder
could have acquired if the Holder had held the number of shares of
Common Stock acquirable upon complete conversion of this Note
(without regard to any limitations on exercise hereof, including
without limitation, the Beneficial Ownership Limitation)
immediately before the date on which a record is taken for the
grant, issuance or sale of such Purchase Rights, or, if no such
record is taken, the date as of which the record holders of shares
of Common Stock are to be determined for the grant, issue or sale
of such Purchase Rights (provided, however, to the extent that the
Holder’s right to participate in any such Purchase Right
would result in the Holder exceeding the Beneficial Ownership
Limitation, then the Holder shall not be entitled to participate in
such Purchase Right to such extent (or beneficial ownership of such
shares of Common Stock as a result of such Purchase Right to such
extent) and such Purchase Right to such extent shall be held in
abeyance for the Holder until such time, if ever, as its right
thereto would not result in the Holder exceeding the Beneficial
Ownership Limitation).
c)
Pro
Rata Distributions
. During such time as this Note is
outstanding, if Borrower shall declare or make any dividend whether
or not permitted, or makes any other distribution of its assets (or
rights to acquire its assets) to holders of shares of Common Stock,
by way of return of capital or otherwise (including, without
limitation, any distribution of cash, stock or other securities,
property or options by way of a dividend, spin off,
reclassification, corporate rearrangement, scheme of arrangement or
other similar transaction) (a “
Distribution
”), at any
time after the issuance of this Note, then, in each such case, the
Holder shall be entitled to participate in such Distribution to the
same extent that the Holder would have participated therein if the
Holder had held the number of shares of Common Stock acquirable
upon complete exercise of this Note (without regard to any
limitations on exercise hereof, including without limitation, the
Beneficial Ownership Limitation) immediately before the date of
which a record is taken for such Distribution, or, if no such
record is taken, the date as of which the record holders of shares
of Common Stock are to be determined for the participation in such
Distribution (
provided
,
however
, to the extent that the
Holder's right to participate in any such Distribution would result
in the Holder exceeding the Beneficial Ownership Limitation, then
the Holder shall not be entitled to participate in such
Distribution to such extent (or in the beneficial ownership of any
shares of Common Stock as a result of such Distribution to such
extent) and the portion of such Distribution shall be held in
abeyance for the benefit of the Holder until such time, if ever, as
its right thereto would not result in the Holder exceeding the
Beneficial Ownership Limitation).
d)
Fundamental Transaction
. If, at
any time while this Note is outstanding, (i) Borrower, directly or
indirectly, in one or more related transactions effects any merger
or consolidation of Borrower with or into another Person, (ii)
Borrower, 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 Borrower 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) Borrower, 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) Borrower, 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 conversion of
this Note, the Holder shall have the right to receive, for each
Conversion Share that would have been issuable upon such conversion
immediately prior to the occurrence of such Fundamental Transaction
(without regard to any limitation in Section 4(d) on the conversion
of this Note), the number of shares of Common Stock of the
successor or acquiring corporation or of Borrower, 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 Note is convertible immediately prior
to such Fundamental Transaction (without regard to any limitation
in Section 4(d) on the conversion of this Note). For purposes of
any such conversion, the determination of the Conversion Price
shall be appropriately adjusted to apply to such Alternate
Consideration based on the amount of Alternate Consideration
issuable in respect of one (1) share of Common Stock in such
Fundamental Transaction, and Borrower shall apportion the
Conversion 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
conversion of this Note following such Fundamental Transaction.
Borrower shall cause any successor entity in a Fundamental
Transaction in which Borrower is not the survivor (the
“
Successor
Entity
”) to assume in writing all of the obligations
of Borrower under this Note and the other Transaction Documents (as
defined in the Purchase Agreement) in accordance with the
provisions of this Section 5(d) pursuant to written agreements in
form and substance reasonably satisfactory to the Holder and
approved by the Holder (without unreasonable delay) prior to such
Fundamental Transaction and shall, at the option of the holder of
this Note, deliver to the Holder in exchange for this Note a
security of the Successor Entity evidenced by a written instrument
substantially similar in form and substance to this Note which is
convertible for a corresponding number of shares of capital stock
of such Successor Entity (or its parent entity) equivalent to the
shares of Common Stock acquirable and receivable upon conversion of
this Note (without regard to any limitations on the conversion of
this Note) prior to such Fundamental Transaction, and with a
conversion price which applies the conversion price hereunder to
such shares of capital stock (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 conversion price being
for the purpose of protecting the economic value of this Note
immediately prior to the consummation of such Fundamental
Transaction), and which is reasonably satisfactory in form and
substance to the Holder. 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 Note and the other
Transaction Documents referring to the “Company” shall
refer instead to the Successor Entity), and may exercise every
right and power of Borrower and shall assume all of the obligations
of Borrower under this Note and the other Transaction Documents
with the same effect as if such Successor Entity had been named as
Borrower herein.
e)
Adjustment
Upon Issuance of Shares of Common Stock
. If and whenever on
or after the date hereof, the Company issues or sells, or in
accordance with this Section 5 is deemed to have issued or sold,
any shares of Common Stock (including (i) the issuance or sale of
shares of Common Stock owned or held by or for the account of the
Company, and (ii) all issuances or sales of shares to the Purchaser
pursuant to all prior agreements between the Company and Purchaser,
including but not limited to conversion of notes and exercise of
warrants previously issued to Purchaser, but excluding any Exempt
Issuance issued or sold or deemed to have been issued or sold) for
a consideration per share (the “
New Issuance Price
”) less
than a price equal to the Conversion Price in effect immediately
prior to such issue or sale or deemed issuance or sale (such
Conversion Price then in effect is referred to as the
“
Applicable
Price
”) (the foregoing a “
Dilutive Issuance
”), then
immediately after such Dilutive Issuance, the Conversion Price then
in effect shall be reduced to the New Issuance Price. For all
purposes of the foregoing (including, without limitation,
determining the adjusted Conversion Price and consideration per
share under this Section 5(e)), the following shall be
applicable:
(i)
Issuance of Options
. If the
Company in any manner grants or sells any Options (other than
Options that qualify as Exempt Issuances) and the lowest price per
share for which one share of Common Stock is issuable upon the
exercise of any such Option or upon conversion, exercise or
exchange of any Convertible Securities issuable upon exercise of
any such Option is less than the Applicable Price, then such share
of Common Stock shall be deemed to be outstanding and to have been
issued and sold by the Company at the time of the granting or sale
of such Option for such price per share. For purposes of this
Section 5(e)(i), the “lowest price per share for which one
share of Common Stock is issuable upon the exercise of any such
Options or upon conversion, exercise or exchange of any Convertible
Securities issuable upon exercise of any such Option” shall
be equal to (1) the lower of (x) the sum of the lowest amounts of
consideration (if any) received or receivable by the Company with
respect to any one share of Common Stock upon the granting or sale
of such Option, upon exercise of such Option and upon conversion,
exercise or exchange of any Convertible Security issuable upon
exercise of such Option and (y) the lowest exercise price set forth
in such Option for which one share of Common Stock is issuable upon
the exercise of any such Options or upon conversion, exercise or
exchange of any Convertible Securities issuable upon exercise of
any such Option minus (2) the sum of all amounts paid or payable to
the holder of such Option (or any other Person) upon the granting
or sale of such Option, upon exercise of such Option and upon
conversion, exercise or exchange of any Convertible Security
issuable upon exercise of such Option plus the value of any other
consideration received or receivable by, or benefit conferred on,
the holder of such Option (or any other Person). Except as
contemplated below, no further adjustment of the Conversion Price
shall be made upon the actual issuance of such shares of Common
Stock or of such Convertible Securities upon the exercise of such
Options or upon the actual issuance of such shares of Common Stock
upon conversion, exercise or exchange of such Convertible
Securities.
(ii)
Issuance
of Convertible Securities
. If the Company in any manner
issues or sells any Convertible Securities (other than Convertible
Securities that qualify as Exempt Issuances) and the lowest price
per share for which one share of Common Stock is issuable upon the
conversion, exercise or exchange thereof is less than the
Applicable Price, then such share of Common Stock shall be deemed
to be outstanding and to have been issued and sold by the Company
at the time of the issuance or sale of such Convertible Securities
for such price per share. For the purposes of this Section
5(e)(ii), the “lowest price per share for which one share of
Common Stock is issuable upon the conversion, exercise or exchange
thereof” shall be equal to (1) the lower of (x) the sum of
the lowest amounts of consideration (if any) received or receivable
by the Company with respect to one share of Common Stock upon the
issuance or sale of the Convertible Security and upon conversion,
exercise or exchange of such Convertible Security and (y) the
lowest conversion price set forth in such Convertible Security for
which one share of Common Stock is issuable upon conversion,
exercise or exchange thereof minus (2) the sum of all amounts paid
or payable to the holder of such Convertible Security (or any other
Person) upon the issuance or sale of such Convertible Security plus
the value of any other consideration received or receivable by, or
benefit conferred on, the holder of such Convertible Security (or
any other Person). Except as contemplated below, no further
adjustment of the Conversion Price shall be made upon the actual
issuance of such shares of Common Stock upon conversion, exercise
or exchange of such Convertible Securities, and if any such issue
or sale of such Convertible Securities is made upon exercise of any
Options for which adjustment of this Note has been or is to be made
pursuant to other provisions of this Section 5(e), except as
contemplated below, no further adjustment of the Conversion Price
shall be made by reason of such issue or sale.
(iii)
Change
in Option Price or Rate of Conversion
. If the purchase or
exercise price provided for in any Options, the additional
consideration, if any, payable upon the issue, conversion, exercise
or exchange of any Convertible Securities, or the rate at which any
Convertible Securities are convertible into or exercisable or
exchangeable for shares of Common Stock increases or decreases at
any time, the Conversion Price in effect at the time of such
increase or decrease shall be adjusted to the Conversion Price
which would have been in effect at such time had such Options or
Convertible Securities provided for such increased or decreased
purchase price, additional consideration or increased or decreased
conversion rate, as the case may be, at the time initially granted,
issued or sold. For purposes of this Section 5(e)(iii), if the
terms of any Option or Convertible Security that was outstanding as
of the date of issuance of this Note are increased or decreased in
the manner described in the immediately preceding sentence, then
such Option or Convertible Security and the shares of Common Stock
deemed issuable upon exercise, conversion or exchange thereof shall
be deemed to have been issued as of the date of such increase or
decrease. No adjustment pursuant to this Section 5(e) shall be made
if such adjustment would result in an increase of the Conversion
Price then in effect.
(iv)
Calculation
of Consideration Received
. If any Option and/or Convertible
Security and/or Adjustment Right is issued in connection with the
issuance or sale or deemed issuance or sale of any other securities
of the Company (as determined by the Holder, the
“
Primary
Security
”, and such Option and/or Convertible Security
and/or Adjustment Right, the “
Secondary Securities
”),
together comprising one integrated transaction, the consideration
per share of Common Stock with respect to such Primary Security
shall be deemed to be equal to the difference of (x) the lowest
price per share for which one share of Common Stock was issued in
such integrated transaction (or was deemed to be issued pursuant to
Section 5(e)(i) or 5(e)(ii) above, as applicable) solely with
respect to such Primary Security, minus (y) with respect to such
Secondary Securities, the fair market value of such Secondary
Securities as agreed to by the Company and Holder and absent such
agreement by an independent, reputable appraiser jointly selected
by the Company and the Holder. The determination of such appraiser
shall be final and binding upon all parties absent manifest error
and the fees and expenses of such appraiser shall be borne by the
Company.
f)
Calculations
.
All calculations under this Section 5 shall be made to the nearest
cent or the nearest 1/100th of a share, as the case may be. For
purposes of this Section 5, the number of shares of Common Stock
deemed to be issued and outstanding as of a given date shall be the
sum of the number of shares of Common Stock (excluding any treasury
shares of Borrower) issued and outstanding.
g)
Notice to the
Holder
.
i.
Adjustment
to Conversion Price
. Whenever the Conversion Price is
adjusted pursuant to any provision of this Section 5, Borrower
shall promptly deliver to each Holder a notice setting forth the
Conversion Price after such adjustment and setting forth a brief
statement of the facts requiring such adjustment.
ii.
Notice to
Allow Conversion by Holder
. If (A) Borrower shall declare a
dividend (or any other distribution in whatever form) on the Common
Stock, (B) Borrower shall declare a special nonrecurring cash
dividend on or a redemption of the Common Stock, (C) Borrower shall
authorize the granting to all holders of the Common Stock of 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 Borrower shall be required in connection with any
reclassification of the Common Stock, any consolidation or merger
to which Borrower is a party, any sale or transfer of all or
substantially all of the assets of Borrower, or any compulsory
share exchange whereby the Common Stock is converted into other
securities, cash or property or (E)
Borrower shall authorize the voluntary or
involuntary dissolution, liquidation or winding up of the affairs
of Borrower, then, in each case, Borrower shall cause to be filed
at each office or agency maintained for the purpose of conversion
of this Note, and shall cause to be delivered to the Holder at its
last address as it shall appear upon the Note Register, at least
twenty (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 hereunder constitutes, or contains, material,
non-public information regarding Borrower or any of the
Subsidiaries, Borrower shall simultaneously file such notice with
the Commission pursuant to a Current Report on Form 8-K. The Holder
shall remain entitled to convert this Note during the 20-day period
commencing on the date of such notice through the effective date of
the event triggering such notice except as may otherwise be
expressly set forth herein.
Section
6
.
Negative
Covenants
. As long as any portion of this Note remains
outstanding, unless the holders of at least 51% in principal amount
of the then outstanding Notes shall have otherwise given prior
written consent, Borrower shall not, and shall not permit any of
the Subsidiaries to, directly or indirectly:
a)
other
than Permitted Indebtedness, enter into, create, incur, assume,
guarantee or suffer to exist any indebtedness for borrowed money of
any kind, including, but not limited to, a guarantee, on or with
respect to any of its property or assets now owned or hereafter
acquired or any interest therein or any income or profits
therefrom;
b)
other
than Permitted Liens, enter into, create, incur, assume or suffer
to exist any Liens of any kind, on or with respect to any of its
property or assets now owned or hereafter acquired or any interest
therein or any income or profits therefrom;
c)
amend
its charter documents, including, without limitation, its
certificate of incorporation and bylaws, in any manner that
materially and adversely affects any rights of the
Holder;
d) repay,
repurchase or offer to repay, repurchase or otherwise acquire more
than a
de
minimis
number of
shares of its Common Stock or Common Stock Equivalents other than
as to the Conversion Shares or Warrant Shares as permitted or
required under the Transaction Documents;
e) redeem,
defease, repurchase, repay or make any payments in respect of, by
the payment of cash or cash equivalents (in whole or in part,
whether by way of open market purchases, tender offers, private
transactions or otherwise), all or any portion of any Indebtedness
(other than the Notes if on a pro-rata basis), whether by way of
payment in respect of principal of (or premium, if any) or interest
on, such Indebtedness, the foregoing restriction shall also apply
to Permitted Indebtedness from and after the occurrence of an Event
of Default
;
f) declare
or make any dividend or other distribution of its assets or rights
to acquire its assets to holders of shares of Common Stock, by way
of return of capital or otherwise including, without limitation,
any distribution of cash, stock or other securities, property or
options by way of a dividend, spin off, reclassification, corporate
rearrangement, scheme of arrangement or other similar
transaction
;
g) issue
any Common Stock or Common Stock Equivalents except as permitted
pursuant to the Purchase Agreement;
h) enter
into any transaction with any Affiliate of Borrower which would be
required to be disclosed in any public filing with the Commission,
unless such transaction is made on an arm’s-length basis and
expressly approved by a majority of the disinterested directors of
Borrower (even if less than a quorum otherwise required for board
approval); or
i) enter
into any agreement with respect to any of the foregoing
.
Section
7
.
Events of
Default
.
a)
“
Event of
Default
” means, wherever used herein, any of the
following events (whatever the reason for such event and whether
such event shall be voluntary or involuntary or effected by
operation of law or pursuant to any judgment, decree or order of
any court, or any order, rule or regulation of any administrative
or governmental body):
i. any
default in the payment of (A) the principal or interest amount of
this Note or (B) liquidated damages and other amounts owing to a
Holder on any Note, as and when the same shall become due and
payable (whether on a Conversion Date or the Maturity Date or by
acceleration or otherwise) which default, solely in the case of a
default under clause (B) above, is not cured within 3 Trading Days
after Borrower has become or should have become aware of such
default;
ii.
Borrower
shall fail to observe or perform any other covenant or agreement
contained in the Notes (other than a breach by Borrower of its
obligations to deliver shares of Common Stock to the Holder upon
conversion, which breach is addressed in clause (ix) below) which
failure is not cured, if possible to cure, within the earlier to
occur of (A) 5 Trading Days after
notice of such failure sent by the Holder or by any Other Holder to
Borrower and (B) 10 Trading Days after Borrower has become or
should have become aware of such failure;
iii.
a
default or event of default (subject to any grace or cure period
provided in the applicable agreement, document or instrument) shall
occur under (A) any of the Transaction Documents, or (B) any other
material agreement, lease, document or instrument to which Borrower
or any Subsidiary is obligated (and not covered by clause (vi)
below), which in the case of subsection (B) would reasonably be
expected to have a Material Adverse Effect;
iv.
any
representation or warranty made in this Note, any other Transaction
Documents, any written statement pursuant hereto or thereto or any
other report, financial statement or certificate made or delivered
to the Holder or any Other Holder shall be untrue or incorrect in
any material respect as of the date when made or deemed
made;
v. Borrower
or any Subsidiary shall be subject to a Bankruptcy
Event;
vi. Borrower
or any Subsidiary shall default on any of its obligations under any
mortgage, credit agreement or other facility, indenture agreement,
factoring agreement or other instrument under which there may be
issued, or by which there may be secured or evidenced, any
indebtedness for borrowed money or money due under any long term
leasing or factoring arrangement that (a) involves an obligation
greater than $50,000, whether such indebtedness now exists or shall
hereafter be created, and (b) results in such indebtedness becoming
or being declared due and payable prior to the date on which it
would otherwise become due and payable;
vii. Borrower
shall be a party to any Change of Control Transaction or
Fundamental Transaction or shall agree to sell or dispose of all or
in excess of 30% of its assets in one transaction or a series of
related transactions (whether or not such sale would constitute a
Change of Control Transaction);
viii. Borrower
does not meet the current public information requirements under
Rule 144;
ix.
Borrower shall fail for any reason to deliver certificates to
a Holder prior to the fifth Trading Day after a Conversion Date
pursuant to Section 4(c) or Borrower shall provide at any time
notice to the Holder, including by way of public announcement, of
Borrower’s intention to not honor requests for conversions of
any Notes in accordance with the terms hereof;
x.
any Person shall breach any agreement delivered to the
initial Holders pursuant to Section 2.2 of the Purchase
Agreement;
xi.
any monetary judgment, writ or similar final process shall be
entered or filed against Borrower, any subsidiary or any of their
respective property or other assets for more than $50,000, and such
judgment, writ or similar final process shall remain unvacated,
unbonded or unstayed for a period of 90 calendar days;
xii.
any dissolution, liquidation or winding up by Borrower or a
material Subsidiary of a substantial portion of their
business;
xiii.
cessation of operations by Borrower or a material
Subsidiary;
xiv.
the failure by Borrower or any
material Subsidiary to maintain any material intellectual property
rights, personal, real property, equipment, leases or other assets
which are necessary to conduct its business (whether now or in the
future) and such breach is not cured with twenty (20) days after
written notice to the Borrower from the Holder;
xv.
an event resulting in the Common Stock no longer being listed or
quoted on a Trading Market, or notification from a Trading Market
that the Borrower is not in compliance with the conditions for such
continued quotation and such non-compliance continues for twenty
(20) days following such notification;
xvi.
a Commission or judicial stop trade order or suspension from the
Borrower’s Principal Trading Market;
xvii.
the restatement after the date hereof of any financial statements
filed by the Borrower with the Commission for any date or period
from two years prior to the Original Issue Date and until this Note
is no longer outstanding, if the result of such restatement would,
by comparison to the unrestated financial statements, have
constituted a Material Adverse Effect. For the avoidance of doubt,
any restatement related to new accounting pronouncements shall not
constitute a default under this Section;
xviii.
the Borrower effectuates a reverse split of its Common Stock
without ten (10) days prior written notice to the
Holder;
xix.
a failure by Borrower to
notify Holder of any material event of which Borrower is obligated
to notify Holder pursuant to the terms of this Note or any other
Transaction Document;
xx.
a default by the Borrower of a material term, covenant, warranty or
undertaking of any other agreement to which the Borrower and Holder
are parties, or the occurrence of an event of default under any
such other agreement to which Borrower and Holder are parties which
is not cured after any required notice and/or cure
period;
xxi.
t
he occurrence of an Event of Default
under any Other Note;
xxii.
any material provision of any Transaction Document shall at any
time for any reason (other than pursuant to the express terms
thereof) cease to be valid and binding on or enforceable against
the Borrower, or the validity or enforceability thereof shall be
contested by Borrower, or a proceeding shall be commenced by
Borrower or any governmental authority having jurisdiction over
Borrower or Holder, seeking to establish the invalidity or
unenforceability thereof, or Borrower shall deny in writing that it
has any liability or obligation purported to be created under any
Transaction Document;
xxiii.
the failure by Borrower to comply with its obligations under the
terms of the Fan Pass Transaction pursuant to the Transaction
Documents; or
xxiv.
any default, failure or breach by Borrower relating to the Fan Pass
Transaction and as further described in the Transaction
Documents.
In the
event more than one grace, cure or notice period is applicable to
an Event of Default, then the shortest grace, cure or notice period
shall be applicable thereto.
b)
Remedies Upon Event of Default,
Fundamental Transaction and Change of Control Transaction
.
If any Event of Default or a Fundamental Transaction or a Change of
Control Transaction occurs, the outstanding principal amount of
this Note, liquidated damages and other amounts owing in respect
thereof through the date of acceleration, shall become, at the
Holder’s election, immediately due and payable in cash at the
Mandatory Default Amount. Commencing on the Maturity Date and also
five (5) days after the occurrence of any Event of Default interest
on this Note shall accrue at an interest rate equal to the lesser
of 18% per annum or the maximum rate permitted under applicable
law. Upon the payment in full of the Mandatory Default Amount, the
Holder shall promptly surrender this Note to or as directed by
Borrower. In connection with such acceleration described herein,
the Holder need not provide, and Borrower hereby waives, any
presentment, demand, protest or other notice of any kind, and the
Holder may immediately and without expiration of any grace period
enforce any and all of its rights and remedies hereunder and all
other remedies available to it under applicable law. Such
acceleration may be rescinded and annulled by Holder at any time
prior to payment hereunder and the Holder shall have all rights as
a holder of the Note until such time, if any, as the Holder
receives full payment pursuant to this Section 7(b). No such
rescission or annulment shall affect any subsequent Event of
Default or impair any right consequent thereon.
Section
8
.
Security Interest/Waiver
of Automatic Stay
. This Note is secured by a security
interest granted to the Holder pursuant to a Security Agreement, as
delivered by Borrower to Holder. The Borrower acknowledges and
agrees that should a proceeding under any bankruptcy or insolvency
law be commenced by or against the Borrower or a Subsidiary, or if
any of the Collateral (as defined in the Security Agreement) should
become the subject of any bankruptcy or insolvency proceeding, then
the Holder should be entitled to, among other relief to which the
Holder may be entitled under the Transaction Documents and any
other agreement to which the Borrower or a Subsidiary and Holder
are parties (collectively, “
Loan Documents
”) and/or
applicable law, an order from the court granting immediate relief
from the automatic stay pursuant to 11 U.S.C. Section 362 to permit
the Holder to exercise all of its rights and remedies pursuant to
the Loan Documents and/or applicable law. THE BORROWER EXPRESSLY
WAIVES THE BENEFIT OF THE AUTOMATIC STAY IMPOSED BY 11 U.S.C.
SECTION 362. FURTHERMORE, THE BORROWER EXPRESSLY ACKNOWLEDGES AND
AGREES THAT NEITHER 11 U.S.C. SECTION 362 NOR ANY OTHER SECTION OF
THE BANKRUPTCY CODE OR OTHER STATUTE OR RULE (INCLUDING, WITHOUT
LIMITATION, 11 U.S.C. SECTION 105) SHALL STAY, INTERDICT,
CONDITION, REDUCE OR INHIBIT IN ANY WAY THE ABILITY OF THE HOLDER
TO ENFORCE ANY OF ITS RIGHTS AND REMEDIES UNDER THE LOAN DOCUMENTS
AND/OR APPLICABLE LAW. The Borrower hereby consents to any motion
for relief from stay that may be filed by the Holder in any
bankruptcy or insolvency proceeding initiated by or against the
Borrower and, further, agrees not to file any opposition to any
motion for relief from stay filed by the Holder. The Borrower
represents, acknowledges and agrees that this provision is a
specific and material aspect of the Loan Documents, and that the
Holder would not agree to the terms of the loan Documents if this
waiver were not a part of this Note. The Borrower further
represents, acknowledges and agrees that is waiver is knowingly,
intelligently and voluntarily made, that neither the Holder nor any
person acting on behalf of the Holder has made any representations
to induce this waiver, that the Borrower has been represented (or
has had the opportunity to by represented) in the signing of this
Note and the Loan Documents and in the making of this waiver by
independent legal counsel selected by the Borrower and that the
Borrower has discussed this waiver with counsel.
Section
9
.
Miscellaneous
.
a)
Notices
.
All notices, demands, requests, consents,
approvals, and other communications required or permitted hereunder
shall be in writing and, unless otherwise specified herein, shall
be (i) personally served, (ii) deposited in the mail, registered or
certified, return receipt requested, postage prepaid, (iii)
delivered by reputable air courier service with charges prepaid, or
(iv) transmitted by hand delivery, telegram, facsimile, or
electronic mail, addressed as set forth below or to such other
address as such party shall have specified most recently by written
notice. Any notice or other communication required or permitted to
be given hereunder shall be deemed effective (a) upon hand delivery
or delivery by facsimile, with accurate confirmation generated by
the transmitting facsimile machine, at the address or number
designated below (if delivered on a business day during normal
business hours where such notice is to be received), or the first
business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to
be received), or (b) upon receipt, when sent by electronic mail
(provided confirmation of transmission is electronically generated
and keep on file by the sending party), or (c) on the second
business day following the date of mailing by express courier
service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur. The addresses
for such communications shall be: (i) if to Borrower, to:
Friendable, Inc.
,
125 East
Campbell Avenue, 2
nd
Floor, Campbell CA
95008, Attn: Robert Rositano, CEO, fax: (408) 547-0110, email:
robert@ihookupsocial.com, with a copy by fax or email only to:
Lucosky Brookman LLP, 101 Wood Avenue South, Woodbridge, NJ 08830,
Attn: Steven A. Lipstein, Esq., fax: (732) 395-4401, email:
slipstein@lucbro.com, and (ii) if to the Holder, to: the address
and fax number indicated on the front page of this Note, with an
additional copy by fax only to (which shall not constitute notice):
Grushko & Mittman, P.C., 515 Rockaway Avenue, Valley Stream,
New York 11581, fax: (212) 697-3575, email:
counslers@gmail.com.
b)
Absolute Obligation
. Except as
expressly provided herein, no provision of this Note shall alter or
impair the obligation of Borrower, which is absolute and
unconditional, to pay the principal of, liquidated damages and
accrued interest, as applicable, on this Note at the time, place,
and rate, and in the coin or currency, herein prescribed. This Note
is a direct debt obligation of Borrower. This Note ranks
pari
passu
with all other Notes now
or hereafter issued under the terms set forth
herein.
c)
Lost or Mutilated Note
. If this
Note shall be mutilated, lost, stolen or destroyed, Borrower shall
execute and deliver, in exchange and substitution for and upon
cancellation of a mutilated Note, or in lieu of or in substitution
for a lost, stolen or destroyed Note, a new Note for the principal
amount of this Note so mutilated, lost, stolen or destroyed, but
only upon receipt of evidence of such loss, theft or destruction of
such Note, and of the ownership hereof, reasonably satisfactory to
Borrower.
d)
Governing Law
. All questions
concerning the construction, validity, enforcement and
interpretation of this Note shall be governed by and construed and
enforced in accordance with the internal laws of the State of New
York, without regard to the principles of conflict of laws thereof.
Each party agrees that all legal proceedings concerning the
interpretation, enforcement and defense of the transactions
contemplated by any of the Transaction Documents (whether brought
against a party hereto or its respective Affiliates, directors,
officers, shareholders, employees or agents) shall be commenced in
the state and federal courts sitting in the City of New York,
Borough of Manhattan (the “
New York Courts
”). Each
party hereto hereby irrevocably submits to the exclusive
jurisdiction of the New York Courts for the adjudication of any
dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein (including with respect to
the enforcement of any of the Transaction Documents), 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 such New York Courts, or such New York Courts are
improper or 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 Note 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 applicable law. Each party hereto hereby
irrevocably waives, to the fullest extent permitted by applicable
law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Note or the transactions
contemplated hereby. If any party shall commence an action or
proceeding to enforce any provisions of this Note, then the
prevailing party in such action or proceeding shall be reimbursed
by the other party for its attorneys fees and other costs and
expenses incurred in the investigation, preparation and prosecution
of such action or proceeding.
This
Note shall be deemed an unconditional obligation of Borrower for
the payment of money and, without limitation to any other remedies
of Holder, may be enforced against Borrower by summary proceeding
pursuant to New York Civil Procedure Law and Rules Section 3213 or
any similar rule or statute in the jurisdiction where enforcement
is sought. For purposes of such rule or statute, any other document
or agreement to which Holder and Borrower are parties or which
Borrower delivered to Holder, which may be convenient or necessary
to determine Holder’s rights hereunder or Borrower’s
obligations to Holder are deemed a part of this Note, whether or
not such other document or agreement was delivered together
herewith or was executed apart from this Note.
e)
Waiver
. Any waiver by Borrower
or the Holder of a breach of any provision of this Note shall not
operate as or be construed to be a waiver of any other breach of
such provision or of any breach of any other provision of this
Note. The failure of Borrower or the Holder to insist upon strict
adherence to any term of this Note on one or more occasions shall
not be considered a waiver or deprive that party of the right
thereafter to insist upon strict adherence to that term or any
other term of this Note on any other occasion. Any waiver by
Borrower or the Holder must be in writing.
f)
Severability
.
If any provision of this Note is invalid, illegal or unenforceable,
the balance of this Note shall remain in effect, and if any
provision is inapplicable to any Person or circumstance, it shall
nevertheless remain applicable to all other Persons and
circumstances.
g)
Usury
. If it shall be found
that any interest or other amount deemed interest due hereunder
violates the applicable law governing usury, the applicable rate of
interest due hereunder shall automatically be lowered to equal the
maximum rate of interest permitted under applicable law. Borrower
covenants (to the extent that it may lawfully do so) that it shall
not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or
usury law or other law which would prohibit or forgive Borrower
from paying all or any portion of the principal of or interest on
this Note as contemplated herein, wherever enacted, now or at any
time hereafter in force, or which may affect the covenants or the
performance of this Note, and Borrower (to the extent it may
lawfully do so) hereby expressly waives all benefits or advantage
of any such law, and covenants that it will not, by resort to any
such law, hinder, delay or impede the execution of any power herein
granted to the Holder, but will suffer and permit the execution of
every such as though no such law has been enacted.
h)
Next Business Day
. Whenever any
payment or other obligation hereunder shall be due on a day other
than a Business Day, such payment shall be made on the next
succeeding Business Day.
i)
Headings
.
The headings contained herein are for convenience only, do not
constitute a part of this Note and shall not be deemed to limit or
affect any of the provisions hereof.
j)
Amendment
.
Unless otherwise provided for hereunder, this Note may not be
modified or amended or the provisions hereof waived without the
written consent of Borrower
and the
Holder
.
k)
Facsimile Signature
. In the
event that the Borrower’s signature is delivered by facsimile
transmission, PDF, electronic signature or other similar electronic
means, such signature shall create a valid and binding obligation
of the Borrower with the same force and effect as if such signature
page were an original thereof.
*********************
(Signature Pages Follow)
IN WITNESS WHEREOF
, Borrower has caused
this Note to be signed in its name by an authorized officer as of
the 21st day of July, 2017.
|
FRIENDABLE,
INC.
/s/ Robert Rositano
By:
___________________________________
Name:
Robert Rositano
Title:
CEO
|
WITNESS:
/s/ Dean Rositano
______________________________________
ANNEX A
NOTICE OF CONVERSION
The
undersigned hereby elects to convert principal under the
Convertible Note due
July 21,
2018
of Friendable, Inc., a Nevada corporation (the
“
Company
”), into shares of
common stock (the “
Common Stock
”), of
Borrower according to the conditions hereof, as of the date written
below. If shares of Common Stock are to be issued in the name of a
person other than the undersigned, the undersigned will pay all
transfer taxes payable with respect thereto and is delivering
herewith such certificates and opinions as reasonably requested by
Borrower in accordance therewith. No fee will be charged to the
holder for any conversion, except for such transfer taxes, if
any.
By the
delivery of this Notice of Conversion the undersigned represents
and warrants to Borrower that its ownership of the Common Stock
does not exceed the amounts specified under Section 4 of this Note,
as determined in accordance with Section 13(d) of the Exchange
Act.
The
undersigned agrees to comply with the prospectus delivery
requirements under the applicable securities laws in connection
with any transfer of the aforesaid shares of Common
Stock.
Conversion
calculations:
|
Date to
Effect Conversion: ____________________________
|
|
|
|
Principal
Amount of Note to be Converted: $__________________
|
|
|
|
Accrued
Interest to be Converted: $______________
|
|
|
|
Number
of shares of Common Stock to be issued: ______________
|
|
|
|
Signature:
_________________________________________
|
|
|
|
Name:
____________________________________________
|
|
|
|
Address
for Delivery of Common Stock Certificates: __________
|
|
_____________________________________________________
|
|
_____________________________________________________
|
|
|
|
Or
|
|
|
|
DWAC
Instructions: _________________________________
|
|
|
|
Broker
No:_____________
|
|
Account
No: _______________
|
SECURITY AGREEMENT
This SECURITY AGREEMENT, dated as of July 21, 2017
(this “
Agreement
”),
is among
Fan Pass, Inc., a Nevada corporation
(the “
Company
”),
also known as the Subsidiary of Friendable, Inc., a Nevada
corporation (“Friendable”), and a guarantor pursuant to
the execution and delivery of the form annexed hereto as Annex A
and the Guaranty annexed thereto (such Subsidiary, a
“
Guarantor
”
and together with Friendable and the Company, the
“
Debtors
”),
Alpha Capital Anstalt
, as collateral
agent (the “
Collateral
Agent
”) for and the
holders of Friendable’s Secured Convertible Notes issued at
or about the date of this Agreement, in the original aggregate
principal amount of $300,000 and such other of Friendable’s
secured Convertible Notes which may be issued in the future
pursuant to the Securities Purchase Agreement (collectively, the
“
Notes
”)
(collectively, the “
Secured
Parties
”).
W I T N E S S E T H:
WHEREAS, on or about the date hereof, the Secured
Parties identified on
Annex C
entered into Securities Purchase
Agreements with Friendable, collectively referred to therein, the
“Securities Purchase Agreement” which schedule will be
amended to include additional Secured Parties by participating in
the Offering or becoming a permitted assignee of a Secured
Party;
WHEREAS, pursuant to a certain Guaranty
(“
Guaranty
”)
to be dated as of the date of the Additional Debtor Joinder, forms
of which are annexed hereto as Annex A, the Guarantor agrees to
guarantee and act as surety for payment of such Notes, and other
obligations of Friendable;
WHEREAS,
in order to induce the Secured Parties to extend the loans
evidenced by the Notes, each Debtor has agreed to execute and
deliver to the Collateral Agent this Agreement and to grant
Collateral Agent, for the ratable benefit of the Secured Parties, a
security interest in certain property of such Debtor to secure the
prompt payment, performance and discharge in full of all of the
Debtors’ obligations under the Notes and Transaction
Documents.
NOW,
THEREFORE, in consideration of the agreements herein contained and
for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
1.
Certain
Definitions
. As used in this
Agreement, the following terms shall have the meanings set forth in
this Section 1. Terms used but not otherwise defined in this
Agreement that are defined in Article 8 or 9 of the UCC (such as
“account,” “chattel paper,”
“commercial tort claim,” “deposit account,”
“document,” “equipment,”
“fixtures,” “general intangibles,”
“goods,” “instruments,”
“inventory,” “investment property,”
“letter-of-credit rights,” “proceeds” and
“supporting obligations”) shall have the respective
meanings given such terms in Article 8 or 9 of the UCC, as
applicable. Upper case terms shall have the meanings attributed to
them in the Securities Purchase Agreement.
(a)
“
Collateral
”
means the collateral in which the Collateral Agent is granted a
security interest by this Agreement and which shall include the
following personal property of the Company, whether presently owned
or existing or hereafter acquired or coming into existence,
wherever situated, and all additions and accessions thereto and all
substitutions and replacements thereof, and all proceeds, products
and accounts thereof, including, without limitation, all proceeds
from the disposition, sale or transfer of the Collateral and of
insurance covering the same and of any tort claims in connection
therewith, and all dividends, interest, cash, notes, securities,
equity interest or other property at any time and from time to time
acquired, receivable or otherwise distributed in respect of, or in
exchange for, any or all of the Pledged Securities (as defined
below):
(i)
All
goods, including, without limitation, (A) all machinery, equipment,
computers, motor vehicles, trucks, tanks, boats, ships, appliances,
furniture, special and general tools, fixtures, test and quality
control devices and other equipment of every kind and nature and
wherever situated, together with all documents of title and
documents representing the same, all additions and accessions
thereto, replacements therefor, all parts therefor, and all
substitutes for any of the foregoing and all other items used and
useful in connection with any of the Company’s businesses and
all improvements thereto; and (B) all inventory;
(ii)
All
contract rights and other general intangibles, including, without
limitation, all partnership interests, membership interests, stock
or other securities, rights under any of the Organizational
Documents (as defined herein), agreements related to the Pledged
Securities (as defined herein), licenses, distribution and other
agreements, computer software (whether “off-the-shelf,”
licensed from any third party or developed by any Debtor), computer
software development rights, leases, franchises, customer lists,
quality control procedures, grants and rights, goodwill,
trademarks, service marks, trade styles, trade names, patents,
patent applications, copyrights, and income tax
refunds;
(iii)
All
accounts, together with all instruments, all documents of title
representing any of the foregoing, all rights in any merchandising,
goods, raw materials, timber cut or to be cut, oil, gas,
hydrocarbons, and minerals extracted or to be extracted, equipment,
motor vehicles and trucks which any of the same may represent, and
all right, title, security and guaranties with respect to each
account, including any right of stoppage in transit;
(iv)
All
documents, letter-of-credit rights, instruments and chattel
paper;
(v)
All
commercial tort claims;
(vi)
All
deposit accounts and all cash (whether or not deposited in such
deposit accounts);
(vii)
All
investment property;
(viii)
All
supporting obligations;
(ix)
All
files, records, books of account, business papers, and computer
programs;
(x)
all
software and technology relating to “Fan Pass” and
owned by Fan Pass, Inc. as further described on
Schedule
1(a)(x)
;
and
(xi)
the
products and proceeds of all of the foregoing Collateral set forth
in clauses (i)-(x) above.
Without limiting the generality of the foregoing,
the “
Collateral
”
shall include all investment property and general intangibles
respecting ownership and/or other equity interests in Guarantor,
including, without limitation, the shares of capital stock and the
other equity interests listed on
Schedule H
hereto (as the same may be modified
from time to time pursuant to the terms hereof), and any other
shares of capital stock and/or other equity interests of any other
direct or indirect subsidiary of the Company obtained in the
future, and, in each case, all certificates representing such
shares and/or equity interests and, in each case, all rights,
options, warrants, stock, other securities and/or equity interests
that may hereafter be received, receivable or distributed in
respect of, or exchanged for, any of the foregoing and all rights
arising under or in connection with the Pledged Securities,
including, but not limited to, all dividends, interest and
cash.
Notwithstanding the foregoing, nothing herein
shall be deemed to constitute an assignment of any asset which, in
the event of an assignment, becomes void by operation of applicable
law or the assignment of which is otherwise prohibited by
applicable law (in each case to the extent that such applicable law
is not overridden by Sections 9-406, 9-407 and/or 9-408 of the UCC
or other similar applicable law);
provided
,
however
,
that to the extent permitted by applicable law, this Agreement
shall create a valid security interest in such asset and, to the
extent permitted by applicable law, this Agreement shall create a
valid security interest in the proceeds of such
asset.
(b)
“
Intellectual
Property
” means the
collective reference to all rights, priorities and privileges
relating to intellectual property, whether arising under United
States, multinational or foreign laws or otherwise, including,
without limitation, (i) all copyrights arising under the laws of
the United States, any other country or any political subdivision
thereof, whether registered or unregistered and whether published
or unpublished, all registrations and recordings thereof, and all
applications in connection therewith, including, without
limitation, all registrations, recordings and applications in the
United States Copyright Office, (ii) all patents of the United
States, any other country or any political subdivision thereof, all
reissues and extensions thereof, and all applications for letters
patent of the United States or any other country and all divisions,
continuations and continuations-in-part thereof, (iii) all
trademarks, trade names, corporate names, company names, business
names, fictitious business names, trade dress, service marks,
logos, domain names and other source or business identifiers, and
all goodwill associated therewith, now existing or hereafter
adopted or acquired, all registrations and recordings thereof, and
all applications in connection therewith, whether in the United
States Patent and Trademark Office or in any similar office or
agency of the United States, any State thereof or any other country
or any political subdivision thereof, or otherwise, and all common
law rights related thereto, (iv) all trade secrets arising under
the laws of the United States, any other country or any political
subdivision thereof, (v) all rights to obtain any reissues,
renewals or extensions of the foregoing, (vi) all licenses for any
of the foregoing, (vii) any items included in the definition of
Intellectual Property Rights of the Company as defined in the
Securities Purchase Agreement and not set forth above, and (viii)
all causes of action for infringement of the
foregoing.
(c)
“
Majority
in Interest
” means, at
any time of determination, the holders of more than fifty percent
(50%) (based on then-outstanding principal amounts and accrued
interest of Notes at the time of such determination) of the
Notes.
(d)
“
Necessary
Endorsement
” means
undated stock powers endorsed in blank and other proper instruments
of assignment duly executed and such other instruments or documents
as the Collateral Agent (as that term is defined below) may
reasonably request.
(e)
“
Obligations
”
means all of the liabilities and obligations (primary, secondary,
direct, contingent, sole, joint or several) due or to become due,
or that are now or may be hereafter contracted or acquired, or
owing to, of any Debtor to the Secured Parties, including, without
limitation, all obligations under this Agreement, the Notes, the
Guaranty and obligations under any other Transaction Document,
instrument, agreement or other document executed and/or delivered
in connection herewith or therewith in each case, whether now or
hereafter existing, voluntary or involuntary, direct or indirect,
absolute or contingent, liquidated or unliquidated, whether or not
jointly owed with others, and whether or not from time to time
decreased or extinguished and later increased, created or incurred,
and all or any portion of such obligations or liabilities that are
paid, to the extent all or any part of such payment is avoided or
recovered directly or indirectly from any of the Secured Parties as
a preference, fraudulent transfer or otherwise as such obligations
may be amended, supplemented, converted, extended or modified from
time to time. Without limiting the generality of the foregoing, the
term “Obligations” shall include, without limitation:
(i) principal of, and interest on the Notes and the loans extended
pursuant thereto; (ii) any and all other fees, indemnities, costs,
obligations and liabilities of the Debtors from time to time under
or in connection with this Agreement, the Notes and any other
Transaction Documents, instruments, agreements or other documents
executed and/or delivered in connection herewith or therewith; and
(iii) all amounts (including but not limited to post-petition
interest) in respect of the foregoing that would be payable but for
the fact that the obligations to pay such amounts are unenforceable
or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving any
Debtor.
(f)
“
Organizational
Documents
” means with
respect to any Debtor, the documents by which such Debtor was
organized (such as a certificate of incorporation, certificate of
limited partnership or articles of organization, and including,
without limitation, any certificates of designation for preferred
stock or other forms of preferred equity) and which relate to the
internal governance of such Debtor (such as bylaws, a partnership
agreement or an operating, limited liability or members
agreement).
(g)
“
Pledged
Securities
” shall have
the meaning ascribed to such term in Section
4(i).
(h)
“
UCC
”
means the Uniform Commercial Code of the State of New York and or
any other applicable law of any state or states which has
jurisdiction with respect to all, or any portion of, the Collateral
or this Agreement, from time to time. It is the intent of the
parties that defined terms in the UCC should be construed in their
broadest sense so that the term “Collateral” will be
construed in its broadest sense. Accordingly if there are, from
time to time, changes to defined terms in the UCC that broaden the
definitions, they are incorporated herein and if existing
definitions in the UCC are broader than the amended definitions,
the existing ones shall be controlling.
2.
Grant
of Security Interest in Collateral
. As an inducement for the Secured Parties to
extend the loans as evidenced by the Notes and to secure the
complete and timely payment, performance and discharge in full, as
the case may be, of all of the Obligations, the Company hereby
unconditionally and irrevocably pledges, grants and hypothecates to
the Secured Parties a security interest in and to, a lien upon and
a right of set-off against all of their respective right, title and
interest of whatsoever kind and nature in and to, the Collateral (a
“
Security
Interest
” and,
collectively, the “
Security
Interests
”).
3.
Delivery
of Certain Collateral
. At any
time at the request of the Collateral Agent, each Debtor shall
deliver or cause to be delivered to the Collateral Agent, any and
all certificates and other instruments or documents representing
any of the Collateral, in each case, together with all Necessary
Endorsements.
4.
Representations,
Warranties, Covenants and Agreements of the
Debtors
. Except as set forth
under the corresponding section of the disclosure schedules
delivered to the Secured Parties and Collateral Agent concurrently
herewith (the “
Disclosure
Schedules
”), which
Disclosure Schedules shall be deemed a part hereof. As of the date
hereof, each Debtor represents and warrants to the Secured Parties
as follows and, until the repayment in full of the Obligations,
covenants and agrees with, the Secured Parties as
follows:
(a)
Each
Debtor has the requisite corporate, partnership, limited liability
company or other power and authority to enter into this Agreement
and otherwise to carry out its obligations hereunder. The
execution, delivery and performance by each Debtor of this
Agreement and the filings contemplated herein have been duly
authorized by all necessary action on the part of such Debtor and
no further action is required by such Debtor. This Agreement, when
executed and delivered, will constitute the legal, valid and
binding obligation of each Debtor, enforceable against each Debtor
in accordance with its terms except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization and
similar laws of general application relating to or affecting the
rights and remedies of creditors and by general principles of
equity.
(b)
The
Debtors have no place of business or offices where their respective
books of account and records are kept (other than temporarily at
the offices of its attorneys or accountants) or places where
Collateral is stored or located, except as set forth on
Schedule
A
attached hereto. Except as
specifically set forth on
Schedule
A
, each Debtor is the record
owner of the real property where such Collateral is located, and
there exist no mortgages or other liens on any such real property
or on the Collateral except for Permitted Liens (as defined in the
Securities Purchase Agreement), which are identified on
Schedule
B
hereto. Except as disclosed
on
Schedule A
and except for Collateral to be held
by the Collateral Agent, none of such Collateral is in the
possession of any consignee, bailee, warehouseman, agent or
processor.
(c)
Except
for Permitted Liens and except as set forth on
Schedule B
attached hereto, the Company is the
sole owner of the Collateral (except for non-exclusive licenses
granted by any Debtor in the ordinary course of business), free and
clear of any liens, security interests, encumbrances, rights or
claims, and is fully authorized to grant the Security Interests.
Except for Permitted Liens and other items which are all as set
forth on
Schedule B
attached hereto, there is not on file
in any governmental or regulatory authority, agency or recording
office an effective financing statement, security agreement,
license or transfer or any notice of any of the foregoing (other
than those that will be filed in favor of the Secured Parties
pursuant to this Agreement) covering or affecting any of the
Collateral.
(d)
No
written claim has been received that any Collateral or any
Debtor’s use of any Collateral violates the rights of any
third party. There has been no adverse decision to any
Debtor’s claim of ownership rights in or exclusive rights to
use the Collateral in any jurisdiction or to any Debtor’s
right to keep and maintain such Collateral in full force and
effect, and there is no proceeding involving said rights pending
or, to the best knowledge of any Debtor, threatened before any
court, judicial body, administrative or regulatory agency,
arbitrator or other governmental authority.
(e)
Each
Debtor shall at all times maintain its books of account and records
relating to the Collateral at its principal place of business and
its Collateral at the locations set forth on
Schedule A
attached hereto and may not relocate
such books of account and records or tangible Collateral except in
the ordinary course of sales unless it delivers to the Secured
Parties at least 15 days prior to such relocation (i) written
notice of such relocation and the new location thereof (which must
be within the United States) and (ii) evidence that appropriate
financing statements under the UCC and other necessary documents
have been filed and recorded and other steps have been taken to
perfect the Security Interests to create in favor of the Secured
Parties a valid, perfected and continuing perfected first priority
lien in the Collateral, except as otherwise permitted
hereby.
(f)
This
Agreement creates in favor of the Secured Parties a valid security
interest in the Collateral, subject only to Permitted Liens
securing the payment and performance of the Obligations. Upon
making the filings described in the immediately following
paragraph, all security interests created hereunder in any
Collateral that may be perfected by filing Uniform Commercial Code
financing statements shall have been duly perfected. Except for the
filing of the Uniform Commercial Code financing statements referred
to in the immediately following paragraph, the recordation of the
Intellectual Property Security Agreement (as defined below) with
respect to copyrights and copyright applications in the United
States Copyright Office referred to in paragraph (m), the execution
and delivery of deposit account control agreements satisfying the
requirements of Section 9-104(a)(2) of the UCC with respect to each
deposit account of the Debtors, and the delivery of the
certificates and other instruments provided in Section 3, no action
is necessary to create, perfect or protect the security interests
created hereunder. Without limiting the generality of the
foregoing, except for the filing of said financing statements, the
recordation of said Intellectual Property Security Agreement, and
the execution and delivery of said deposit account control
agreements, no consent of any third parties and no authorization,
approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body is required for (i) the
execution, delivery and performance of this Agreement, (ii) the
creation or perfection of the Security Interests created hereunder
in the Collateral or (iii) the enforcement of the rights of the
Collateral Agent and the Secured Parties hereunder.
(g)
Each
Debtor hereby authorizes the Collateral Agent to file one or more
financing statements under the UCC, with respect to the Security
Interests, with the proper filing and recording agencies in any
jurisdiction deemed proper by it and authorizes Collateral Agent to
take any other action in Collateral Agent’s absolute
discretion to effectuate, memorialize and protect Secured
Parties’ interest and rights under this
Agreement.
(h)
The
execution, delivery and performance of this Agreement by the
Debtors does not (i) violate any of the provisions of any
Organizational Documents of any Debtor or, to the knowledge of any
Debtor, any judgment, decree, order or award of any court,
governmental body or arbitrator or any applicable law, rule or
regulation applicable to any Debtor or (ii) to the knowledge of
each Debtor, conflict with, or constitute a default (or an event
that with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time
or both) of, any agreement, credit facility, debt or other
instrument (evidencing any Debtor’s debt or otherwise) or
other understanding to which such Debtor is a party or by which any
property or asset of any Debtor is bound or affected. If any, all
required consents (including, without limitation, from stockholders
or creditors of any Debtor) necessary for any Debtor to enter into
and perform its obligations hereunder have been
obtained.
(i)
The
capital stock and other equity interests listed on
Schedule
H
hereto (the
“
Pledged
Securities
”) represent
all of the capital stock and other equity interests of the
Guarantor, and represent all capital stock and other equity
interests owned, directly or indirectly, by the Company. All of the
Pledged Securities, if applicable, are validly issued, fully paid
and nonassessable, and the Company is the legal and beneficial
owner of the Pledged Securities, free and clear of any lien,
security interest or other encumbrance except for the security
interests created by this Agreement and other Permitted
Liens.
(j)
The
ownership and other equity interests in partnerships and limited
liability companies (if any) included in the Collateral (the
“
Pledged
Interests
”) by their
express terms do not provide that they are securities governed by
Article 8 of the UCC and are not held in a securities account or by
any financial intermediary.
(k)
Except
for Permitted Liens, each Debtor shall at all times maintain the
liens and Security Interests provided for hereunder as valid and
perfected first priority liens and security interests in the
Collateral in favor of the Secured Parties until this Agreement and
the Security Interest hereunder shall be terminated pursuant to
Section 14 hereof. Each Debtor hereby agrees to defend the same
against the claims of any and all persons and entities. Each Debtor
shall safeguard and protect all Collateral for the account of the
Secured Parties. Upon request of the Collateral Agent, each Debtor
will sign and deliver to the Collateral Agent on behalf of the
Secured Parties at any time or from time to time one or more
financing statements pursuant to the UCC in form reasonably
satisfactory to the Collateral Agent and will pay the cost of
filing the same in all public offices wherever filing is, or is
deemed by the Collateral Agent to be, necessary or desirable to
effect the rights and obligations provided for herein. Without
limiting the generality of the foregoing, each Debtor shall pay all
fees, taxes and other amounts necessary to maintain the Collateral
and the Security Interest hereunder, and each Debtor shall obtain
and furnish to the Collateral Agent from time to time, upon demand,
such releases and/or subordinations of claims and liens (other than
Permitted Liens) that may be required to maintain the priority of
the Security Interest hereunder.
(l)
Other
than with respect to Permitted Liens, no Debtor will transfer,
pledge, hypothecate, encumber, license, sell or otherwise dispose
of any of the Collateral (except for non-exclusive licenses granted
by a Debtor in its ordinary course of business, sales of inventory
by a Debtor in its ordinary course of business and disposition of
obsolete equipment) without the prior written consent of the
Collateral Agent. The foregoing notwithstanding, Debtor may replace
noncash components of the Collateral with a cash or Cash Equivalent
deposit made at an institution subject to a cash account control
agreement acceptable to the Secured Parties, provided the amount of
cash deposited subject to such agreement is not less than the
highest amount of the Obligations that may be outstanding pursuant
to the Transaction Documents. Cash Equivalent shall mean U.S.
government Treasury bills, bank certificates of deposit, bankers'
acceptances, corporate commercial paper and other money market
instruments.
(m)
Each
Debtor shall keep and preserve its equipment, inventory and other
tangible Collateral in good condition, repair and order and shall
not operate or locate any such Collateral (or cause to be operated
or located) in any area excluded from insurance
coverage.
(n)
Each
Debtor shall maintain with financially sound and reputable
insurers, insurance with respect to the Collateral, including
Collateral hereafter acquired, against loss or damage of the kinds
and in the amounts customarily insured against by entities of
established reputation having similar properties similarly situated
and in such amounts as are customarily carried under similar
circumstances by other such entities and otherwise as is prudent
for entities engaged in similar businesses but in any event
sufficient to cover the full replacement cost thereof. Each Debtor
shall cause each insurance policy issued in connection herewith to
provide, and the insurer issuing such policy to certify to the
Collateral Agent, that (a) the Collateral Agent will be named as
lender loss payee and additional insured under each such insurance
policy; and (b) if such insurance is proposed to be cancelled or
materially changed for any reason whatsoever, such insurer or the
Company will promptly notify the Collateral Agent. In addition, the
Collateral Agent will have the right (but no obligation) at its
election to remedy any default in the payment of premiums within
thirty (30) days of notice from the Company or the insurer of any
such default. If no Event of Default (as defined in the Notes)
exists and if the proceeds arising out of any claim or series of
related claims do not exceed $100,000, loss payments in each
instance will be applied by the applicable Debtor to the repair
and/or replacement of property with respect to which the loss was
incurred to the extent reasonably feasible, and any loss payments
or the balance thereof remaining, to the extent not so applied,
shall be payable to the applicable Debtor;
provided
,
however
, that payments received by any Debtor
after an Event of Default occurs and is continuing or in excess of
$100,000 for any occurrence or series of related occurrences shall
be paid to the Collateral Agent on behalf of the Secured Parties
and, if received by such Debtor, shall be held in trust for the
Secured Parties and immediately paid over to the Collateral Agent
unless otherwise directed in writing by the Collateral Agent.
Copies of such policies or the related certificates, in each case,
naming the Collateral Agent as lender loss payee and additional
insured shall be delivered to the Collateral Agent at least
annually and at the time any new policy of insurance is
issued.
(o)
Each
Debtor shall, within ten (10) days of obtaining knowledge thereof,
advise Collateral Agent promptly, in sufficient detail, of any
material adverse change in the Collateral, and of the occurrence of
any event which would have a material adverse effect on the value
of the Collateral or on the Secured Parties’ security
interest.
(p)
Each
Debtor shall promptly execute and deliver to the Collateral Agent
such further deeds, mortgages, assignments, security agreements,
financing statements or other instruments, documents, certificates
and assurances and take such further action as the Collateral Agent
may from time to time request and may in its sole discretion deem
necessary to perfect, protect or enforce the Secured Parties’
security interest in the Collateral including, without limitation,
one or more deposit account control agreements, and if applicable,
the execution and delivery of a separate security agreement with
respect to each Debtor’s Intellectual Property
(“
Intellectual Property
Security Agreement
”) in
which the Secured Parties have been granted a security interest
hereunder, all substantially in forms reasonably acceptable to the
Collateral Agent, which Intellectual Property Security Agreement,
and other such documents and agreements other than as stated
therein, shall be subject to all of the terms and conditions
hereof.
(q)
Each
Debtor shall permit the Collateral Agent and its representatives
and agents to inspect the Collateral during normal business hours
and upon reasonable prior notice, and to make copies of records
pertaining to the Collateral as may be reasonably requested by the
Collateral Agent from time to time.
(r)
Each
Debtor shall take commercially reasonable steps necessary to
diligently pursue and seek to preserve, enforce and collect any
rights, claims, causes of action and accounts receivable in respect
of the Collateral.
(s)
Each
Debtor shall promptly notify the Secured Parties in sufficient
detail upon becoming aware of any attachment, garnishment,
execution or other legal process levied against any Collateral and
of any other information received by such Debtor that may
materially affect the value of the Collateral, the Security
Interest or the rights and remedies of the Secured Parties
hereunder.
(t)
All
information heretofore, herein or hereafter supplied to the Secured
Parties by or on behalf of any Debtor with respect to the
Collateral is accurate and complete in all material respects as of
the date furnished and in light of the circumstances under which
such statements were made.
(u)
Each
Debtor shall at all times preserve and keep in full force and
effect its existence and good standing and any rights and
franchises material to its business.
(v)
No
Debtor will change its name, type of organization, jurisdiction of
organization, organizational identification number (if it has one),
legal or corporate structure, or add any new fictitious name unless
it provides at least 15 days prior written notice to the Collateral
Agent of such change and, at the time of such written notification,
such Debtor provides any financing statements or fixture filings
necessary to perfect and continue the perfection of the Security
Interests granted and evidenced by this Agreement.
(w)
Except
in the ordinary course of business, no Debtor may consign any of
its inventory or sell any of its inventory on bill and hold, sale
or return, sale on approval, or other conditional terms of sale
without the consent of the Collateral Agent which shall not be
unreasonably withheld.
(x)
No
Debtor may relocate its chief executive office to a new location
without providing 15 days prior written notification thereof to the
Secured Parties and provided that at the time of such written
notification, such Debtor provides any financing statements
necessary to perfect and continue the perfection of the Security
Interests granted and evidenced by this Agreement.
(y)
Each
Debtor was organized and remains organized solely under the laws of
the state set forth next to such Debtor’s name in
Schedule
D
attached hereto, which
Schedule
D
sets forth each
Debtor’s organizational identification number or, if any
Debtor does not have one, states that one does not
exist.
(z)
(i)
The
actual name of each Debtor is the name set forth in
Schedule
D
attached
hereto;
(ii)
no
Debtor has any trade names except as set forth on
Schedule
E
attached
hereto;
(iii)
no
Debtor has used any name other than that stated in the preamble
hereto or as set forth on
Schedule E
for the preceding five years;
and
(iv)
no
entity has merged into any Debtor or been acquired by any Debtor
within the past five years except as set forth on
Schedule
E
.
(aa)
At
any time that any Collateral consists of instruments, certificated
securities or other items that require or permit possession by a
secured party to perfect the security interest created hereby, the
applicable Debtor shall deliver such Collateral to the Collateral
Agent.
(bb)
During
the continuance of an Event of Default, each Debtor, in its
capacity as issuer, hereby agrees to comply with any and all orders
and instructions of Collateral Agent regarding the Pledged
Securities consistent with the terms of this Agreement without the
further consent of any Debtor as contemplated by Section 8-106 (or
any successor section) of the UCC. Further, each Debtor agrees,
solely with respect to the Pledged Securities, that it shall not
enter into a similar agreement (or one that would confer
“control” within the meaning of Article 8 of the UCC)
with any other person or entity.
(cc)
each
Debtor shall cause all tangible chattel paper constituting
Collateral to be delivered to the Collateral Agent or, if such
delivery is not possible, then to cause such tangible chattel paper
to contain a legend noting that it is subject to the security
interest created by this Agreement. To the extent that any
Collateral consists of electronic chattel paper, the applicable
Debtor shall cause the underlying chattel paper to be
“marked” within the meaning of Section 9-105 of the UCC
(or successor section thereto).
(dd)
If
there is any investment property or deposit account included as
Collateral that can be perfected by “control” through
an account control agreement, the applicable Debtor shall at the
request of the Collateral Agent cause such an account control
agreement, in form and substance in each case reasonably
satisfactory to the Collateral Agent, to be entered into and
delivered to the Collateral Agent for the benefit of the Secured
Parties.
(ee)
To
the extent that any Collateral consists of letter-of-credit rights,
the applicable Debtor shall cause the issuer of each underlying
letter of credit to consent to an assignment of the proceeds
thereof to the Secured Parties.
(ff)
To
the extent that any Collateral is in the possession of any third
party, the applicable Debtor shall join with the Collateral Agent
in notifying such third party of the Secured Parties’
security interest in such Collateral and shall use commercially
reasonable efforts to obtain an acknowledgement and agreement from
such third party with respect to the Collateral, in form and
substance reasonably satisfactory to the Collateral
Agent.
(gg)
If
any Debtor shall at any time hold or acquire a commercial tort
claim, such Debtor shall promptly notify the Secured Parties in a
writing signed by such Debtor of the particulars thereof and grant
to the Secured Parties in such writing a security interest therein
and in the proceeds thereof, all upon the terms of this Agreement,
with such writing to be in form and substance satisfactory to the
Collateral Agent.
(hh)
Each
Debtor shall promptly provide written notice to the Collateral
Agent of any and all accounts which arise out of contracts with any
governmental authority and, to the extent necessary to perfect or
continue the perfected status of the Security Interests in such
accounts and proceeds thereof, shall execute and deliver to the
Collateral Agent an assignment of claims for such accounts and
cooperate with the Collateral Agent in taking any other steps
required, in its judgment, under the Federal Assignment of Claims
Act or any similar federal, state or local statute or rule to
perfect or continue the perfected status of the Security Interests
in such accounts and proceeds thereof.
(ii)
The
Company shall cause each subsidiary of the Company to promptly
become a party hereto (an “
Additional
Debtor
”), by executing
and delivering an Additional Debtor Joinder substantially in the
form of
Annex A
attached hereto and comply with the
provisions hereof applicable to the Debtors. Concurrent therewith,
the Additional Debtor shall deliver replacement schedules for, or
supplements to all other Disclosure Schedules to (or referred to
in) this Agreement, as applicable, which replacement schedules
shall supersede, or supplements shall modify, the Schedules then in
effect. The Additional Debtor shall also deliver such opinions of
counsel, authorizing resolutions, good standing certificates,
incumbency certificates, organizational documents, financing
statements and other information and documentation as the
Collateral Agent may reasonably request. Upon delivery of the
foregoing to the Collateral Agent, the Additional Debtor shall be
and become a party to this Agreement with the same rights and
obligations as the Debtors, for all purposes hereof as fully and to
the same extent as if it were an original signatory hereto and
shall be deemed to have made the representations, warranties and
covenants set forth herein as of the date of execution and delivery
of such Additional Debtor Joinder (other than representations and
warranties that specifically refer to an earlier date), and all
references herein to the “Debtors” shall be deemed to
include each Additional Debtor.
(jj)
Each
Debtor shall vote the Pledged Securities to comply with the
covenants and agreements set forth herein and in the
Notes.
(kk)
Each
Debtor shall register the pledge of the applicable Pledged
Securities on the books of such Debtor. Each Debtor shall notify
each issuer of Pledged Securities to register the pledge of the
applicable Pledged Securities in the name of the Collateral Agent
on the books of such issuer. Further, except with respect to
certificated securities delivered to the Collateral Agent, the
applicable Debtor shall deliver to Collateral Agent an
acknowledgement of pledge (which, where appropriate, shall comply
with the requirements of the relevant UCC with respect to
perfection by registration) signed by the issuer of the applicable
Pledged Securities, which acknowledgement shall confirm that: (a)
it has registered the pledge on its books and records; and (b) at
any time directed by Collateral Agent during the continuation of an
Event of Default, such issuer will transfer the record ownership of
such Pledged Securities into the name of any designee of the
Collateral Agent, will take such steps as may be necessary to
effect the transfer, and will comply with all other instructions of
the Collateral Agent regarding such Pledged Securities without the
further consent of the applicable Debtor.
(ll)
In
the event that, upon an occurrence of an Event of Default,
Collateral Agent shall sell all or any of the Pledged Securities to
another party or parties (herein called the
“
Transferee
”)
or shall purchase or retain all or any of the Pledged Securities,
each Debtor shall, to the extent applicable: (i) deliver to
Collateral Agent or the Transferee, as the case may be, the
articles of incorporation, bylaws, minute books, stock certificate
books, corporate seals, deeds, leases, indentures, agreements,
evidences of indebtedness, books of account, financial records and
all other Organizational Documents and records of the Debtors and
their direct and indirect subsidiaries; (ii) use its commercially
reasonable efforts to obtain resignations of the persons then
serving as officers and directors of the Debtors and their direct
and indirect subsidiaries, if so requested; and (iii) use its
commercially reasonable efforts to obtain any approvals that are
required by any governmental or regulatory body in order to permit
the sale of the Pledged Securities to the Transferee or the
purchase or retention of the Pledged Securities by Collateral Agent
and allow the Transferee or Collateral Agent to continue the
business of the Debtors and their direct and indirect
subsidiaries.
(mm)
Without
limiting the generality of the other obligations of the Debtors
hereunder, each Debtor shall (i) cause to be registered at the
United States Copyright Office all of its material copyrights, (ii)
cause the security interest contemplated hereby with respect to all
Intellectual Property registered at the United States Copyright
Office or United States Patent and Trademark Office to be duly
recorded at the applicable office, and (iii) give the Collateral
Agent notice whenever it acquires (whether absolutely or by
license) or creates any additional material Intellectual
Property.
(nn)
Each
Debtor will from time to time, at the joint and several expense of
the Debtors, promptly execute and deliver all such further
instruments and documents, and take all such further action as may
be reasonably necessary or desirable, or as the Collateral Agent
may reasonably request, in order to perfect and protect any
security interest granted or purported to be granted hereby or to
enable the Collateral Agent to exercise and enforce Collateral
Agent’s rights and remedies hereunder and with respect to any
Collateral or to otherwise carry out the purposes of this
Agreement.
(oo)
Schedule
F
attached hereto lists all of
the patents, patent applications, trademarks, trademark
applications, registered copyrights, and domain names owned by the
Company as of the date hereof.
Schedule F
lists all material licenses in favor
of the Company for the use of any patents, trademarks, copyrights
and domain names as of the date hereof. All material patents and
trademarks of the Company have been duly recorded at the United
States Patent and Trademark Office and all material copyrights of
the Company have been duly recorded at the United States Copyright
Office.
(pp)
Except
as set forth on
Schedule G
attached hereto, none of the account
debtors or other persons or entities obligated on any of the
Collateral is a governmental authority covered by the Federal
Assignment of Claims Act or any similar federal, state or local
statute or rule in respect of such Collateral.
5.
Effect
of Pledge on Certain Rights
.
If any of the Collateral subject to this Agreement
consists of nonvoting equity or ownership interests (regardless of
class, designation, preference or rights) that may be converted
into voting equity or ownership interests upon the occurrence of
certain events (including, without limitation, upon the transfer of
all or any of the other stock or assets of the issuer), it is
agreed that the pledge of such equity or ownership interests
pursuant to this Agreement or the enforcement of any of Collateral
Agent’s rights hereunder shall not be deemed to be the type
of event which would trigger such conversion rights notwithstanding
any provisions in the Organizational Documents or agreements to
which any Debtor is subject or to which any Debtor is
party.
6.
Defaults
.
The following events shall be “
Events of
Default
”:
(a)
The
occurrence of an Event of Default (as defined in the Notes) under
the Notes;
(b)
Any
representation or warranty of any Debtor in this Agreement shall
prove to have been incorrect in any material respect when
made;
(c)
The
failure by any Debtor to observe or perform any of its obligations
hereunder for five (5) days after delivery to such Debtor of
written notice of such failure by or on behalf of a Secured Party
or ten (10) days after Debtor otherwise becomes aware of such
non-observance or non-performance; or
(d)
If
any material provision of this Agreement shall at any time for any
reason be declared to be null and void, or the validity or
enforceability thereof shall be contested by any Debtor, or a
proceeding shall be commenced by any Debtor, or by any governmental
authority having jurisdiction over any Debtor, seeking to establish
the invalidity or unenforceability thereof, or any Debtor shall
deny that any Debtor has any liability or obligation purported to
be created under this Agreement.
7.
Duty
to Hold In Trust
.
(a)
During
the continuance of an Event of Default, each Debtor shall, upon
receipt of any revenue, income, dividend, interest or other sums
subject to the Security Interests, whether payable pursuant to the
Notes or otherwise, or of any check, draft, note, trade acceptance
or other instrument evidencing an obligation to pay any such sum,
hold the same in trust for the Secured Parties and shall forthwith
endorse and transfer any such sums or instruments, or both, to the
Collateral Agent for distribution to the Secured Parties, pro-rata
in proportion to their respective then-currently outstanding
principal amount of Notes for application to the satisfaction of
the Obligations (and if any Note is not outstanding, pro-rata in
proportion to the initial purchases of the remaining
Notes).
(b)
If
any Debtor shall become entitled to receive or shall receive any
securities or other property (including, without limitation, shares
of Pledged Securities or instruments representing Pledged
Securities acquired after the date hereof, or any options,
warrants, rights or other similar property or certificates
representing a dividend, or any distribution in connection with any
recapitalization, reclassification or increase or reduction of
capital, or issued in connection with any reorganization of such
Debtor or any of its direct or indirect subsidiaries) in respect of
the Pledged Securities (whether as an addition to, in substitution
of, or in exchange for, such Pledged Securities or otherwise), such
Debtor agrees to (i) hold the same in trust on behalf of and for
the benefit of the Secured Parties; and (ii) to deliver any and all
certificates or instruments evidencing the same to Collateral Agent
on or before the close of business on the fifth Business Day
following the receipt thereof by such Debtor, in the exact form
received together with the Necessary Endorsements, to be held by
Collateral Agent subject to the terms of this Agreement as
Collateral.
8.
Rights
and Remedies Upon Default
.
(a)
After
the occurrence and during the continuance of any Event of Default,
the Collateral Agent shall have the right to exercise all of the
remedies conferred hereunder and under the Notes, and the
Collateral Agent shall have all the rights and remedies of a
secured party under the UCC. Without limitation, the Collateral
Agent, for the benefit of the Secured Parties, shall have the
following rights and powers:
(i)
The
Collateral Agent shall have the right to take possession of the
Collateral and, for that purpose, enter, with the aid and
assistance of any person, any premises where the Collateral, or any
part thereof, is or may be placed and remove the same, so long as
the same can be accomplished without breach of the peace and
otherwise in compliance with applicable law, and each Debtor shall
assemble the Collateral and make it available to the Collateral
Agent at places which the Collateral Agent shall reasonably select,
whether at such Debtor’s premises or elsewhere, and make
available to the Collateral Agent, without rent, all of such
Debtor’s respective premises and facilities for the purpose
of the Collateral Agent taking possession of, removing or putting
the Collateral in saleable or disposable form.
(ii)
Upon
notice to the Debtors by Collateral Agent, all rights of each
Debtor to exercise the voting and other consensual rights which it
would otherwise be entitled to exercise and all rights of each
Debtor to receive the dividends and interest which it would
otherwise be authorized to receive and retain, shall cease. Upon
such notice, Collateral Agent shall have the right to receive, for
the benefit of the Secured Parties, any interest, cash dividends or
other payments on the Collateral and, at the option of Collateral
Agent, to exercise in such Collateral Agent’s discretion all
voting rights pertaining thereto. Without limiting the generality
of the foregoing, Collateral Agent shall have the right (but not
the obligation) to exercise all rights with respect to the
Collateral as if it were the sole and absolute owner thereof,
including, without limitation, to vote and/or to exchange, at its
sole discretion, any or all of the Collateral in connection with a
merger, reorganization, consolidation, recapitalization or other
readjustment concerning or involving the Collateral or any Debtor
or any of its direct or indirect subsidiaries.
(iii)
The
Collateral Agent shall have the right to seek an Order from a court
appointing a Trustee to operate the business of each Debtor using
the Collateral and shall have the right to assign, sell, lease or
otherwise dispose of and deliver all or any part of the Collateral,
at public or private sale or otherwise, either with or without
special conditions or stipulations, for cash or on credit or for
future delivery, in such parcel or parcels and at such time or
times and at such place or places, and upon such terms and
conditions as are commercially reasonable. Upon each such sale,
lease, assignment or other transfer or disposition of Collateral,
the Collateral Agent, for the benefit of the Secured Parties, may,
unless prohibited by applicable law which cannot be waived,
purchase all or any part of the Collateral being sold, free from
and discharged of all trusts, claims, right of redemption and
equities of any Debtor, which are hereby waived and
released.
(iv)
The
Collateral Agent shall have the right (but not the obligation) to
notify any account debtors and any obligors under instruments or
accounts to make payments directly to the Collateral Agent, on
behalf of the Secured Parties, and to enforce the Debtors’
rights against such account debtors and obligors.
(v)
The
Collateral Agent, for the benefit of the Secured Parties, may (but
is not obligated to) direct any financial intermediary or any other
person or entity holding any investment property to transfer the
same to the Collateral Agent, on behalf of the Secured Parties, or
its designee.
(vi)
The
Collateral Agent may (but is not obligated to) transfer any or all
Intellectual Property registered in the name of any Debtor at the
United States Patent and Trademark Office and/or Copyright Office
into the name of the Collateral Agent or any purchaser of any
Collateral.
(b)
The
Collateral Agent shall comply with any applicable law in connection
with a disposition of Collateral and such compliance will not be
considered adversely to affect the commercial reasonableness of any
sale of the Collateral. The Collateral Agent may sell the
Collateral without giving any warranties and may specifically
disclaim such warranties. If the Collateral Agent sells any of the
Collateral on credit, the Debtors will only be credited with
payments actually made by the purchaser. In addition, each Debtor
waives any and all rights that it may have to a judicial hearing in
advance of the enforcement of any of the Collateral Agent’s
rights and remedies hereunder, including, without limitation, its
right following an Event of Default to take immediate possession of
the Collateral and to exercise its rights and remedies with respect
thereto.
(c)
If
any notice to Debtor of the sale or other disposition of Collateral
is required by then applicable law, five (5) business days prior
written notice (which Debtor agree is reasonable notice within the
meaning of Section 9.612(a) of the Uniform Commercial Code) shall
be given to Debtor of the time and place of any sale of Collateral.
The rights granted in this Section are in addition to any and all
rights available to Collateral Agent under the Uniform Commercial
Code.
(d)
For
the purpose of enabling the Collateral Agent to further exercise
rights and remedies under this Section 8 or elsewhere provided by
agreement or applicable law, each Debtor hereby grants to the
Collateral Agent, for the benefit of the Collateral Agent and the
Secured Parties, an irrevocable, nonexclusive license (exercisable
without payment of royalty or other compensation to such Debtor) to
use, license or sublicense during the continuance of an Event of
Default, any Intellectual Property now owned or hereafter acquired
by such Debtor, and wherever the same may be located, and including
in such license access to all media in which any of the licensed
items may be recorded or stored and to all computer software and
programs used for the compilation or printout thereof.
9.
Applications
of Proceeds
. The proceeds of
any such sale, lease or other disposition of the Collateral
hereunder or from payments made on account of any insurance policy
insuring any portion of the Collateral shall be applied first, to
the expenses of retaking, holding, storing, processing and
preparing for sale, selling, and the like (including, without
limitation, any taxes, fees and other costs incurred in connection
therewith) of the Collateral, if any, to the reasonable
attorneys’ fees and expenses incurred by the Collateral Agent
in enforcing the Secured Parties’ rights hereunder and in
connection with collecting, storing and disposing of the
Collateral, and then to satisfaction of the Obligations pro rata
among the Secured Parties (based on then-outstanding principal
amounts of Notes at the time of any such determination), and then
to the payment of any other amounts required by applicable law,
after which the Secured Parties shall pay to the applicable Debtor
any surplus proceeds. If, upon the sale, license or other
disposition of the Collateral, the proceeds thereof are
insufficient to pay all amounts to which the Secured Parties are
legally entitled, the Debtors will be liable for the deficiency,
together with interest thereon, at the rate of 18% per annum or the
lesser amount permitted by applicable law (the “Default
Rate”), and the reasonable fees of any attorneys employed by
the Secured Parties to collect such deficiency. To the extent
permitted by applicable law, each Debtor waives all claims, damages
and demands against the Secured Parties arising out of the
repossession, removal, retention or sale of the Collateral, unless
due solely to the gross negligence or willful misconduct of the
Secured Parties as determined by a final judgment (not subject to
further appeal) of a court of competent
jurisdiction.
10.
Securities
Law Provision
. Each Debtor
recognizes that Collateral Agent may be limited in its ability to
effect a sale to the public of all or part of the Pledged
Securities by reason of certain prohibitions in the Securities Act
of 1933, as amended, or other federal or state securities laws
(collectively, the “
Securities
Laws
”), and may
reasonably be obliged to resort to one or more sales to a
restricted group of purchasers who may be required to agree to
acquire the Pledged Securities for their own account, for
investment and not with a view to the distribution or resale
thereof. Each Debtor agrees that sales so made may be at prices and
on terms less favorable than if the Pledged Securities were sold to
the public, and that Collateral Agent has no obligation to delay
the sale of any Pledged Securities for the period of time necessary
to register the Pledged Securities for sale to the public under the
Securities Laws. Each Debtor shall cooperate with Collateral Agent
in its attempt to satisfy any requirements under the Securities
Laws (including, without limitation, registration thereunder if
requested by Collateral Agent) applicable to the sale of the
Pledged Securities by Collateral Agent.
11.
Costs
and Expenses
. Each Debtor
agrees to pay all reasonable out-of-pocket fees, costs and expenses
incurred in connection with any filing required hereunder,
including without limitation, any financing statements pursuant to
the UCC, continuation statements, partial releases and/or
termination statements related thereto or any expenses of any
searches reasonably required by the Collateral Agent. The Debtors
shall also pay all other claims and charges which in the reasonable
opinion of the Collateral Agent is reasonably likely to prejudice,
imperil or otherwise affect the Collateral or the Security
Interests therein. The Debtors will also, upon demand, pay to the
Collateral Agent the amount of any and all reasonable expenses,
including the reasonable fees and expenses of its counsel and of
any experts and agents, which the Collateral Agent, for the benefit
of the Secured Parties, may incur in connection with (i) the
enforcement of this Agreement, (ii) the custody or preservation of,
or the sale of, collection from, or other realization upon, any of
the Collateral, or (iii) the exercise or enforcement of any of the
rights of the Secured Parties under the Notes. Until so paid, any
fees payable hereunder shall be added to the principal amount of
the Notes and shall bear interest at the Default
Rate.
12.
Responsibility
for Collateral
. The Debtors
assume all liabilities and responsibility in connection with all
Collateral, and the Obligations shall in no way be affected or
diminished by reason of the loss, destruction, damage or theft of
any of the Collateral or its unavailability for any reason. Without
limiting the generality of the foregoing, (a) neither the
Collateral Agent nor any Secured Party (i) has any duty (either
before or after an Event of Default) to collect any amounts in
respect of the Collateral or to preserve any rights relating to the
Collateral, or (ii) has any obligation to clean-up or otherwise
prepare the Collateral for sale, and (b) each Debtor shall remain
obligated and liable under each contract or agreement included in
the Collateral to be observed or performed by such Debtor
thereunder. Neither the Collateral Agent nor any Secured Party
shall have any obligation or liability under any such contract or
agreement by reason of or arising out of this Agreement or the
receipt by the Collateral Agent or any Secured Party of any payment
relating to any of the Collateral, nor shall the Collateral Agent
or any Secured Party be obligated in any manner to perform any of
the obligations of any Debtor under or pursuant to any such
contract or agreement, to make inquiry as to the nature or
sufficiency of any payment received by the Collateral Agent or any
Secured Party in respect of the Collateral or as to the sufficiency
of any performance by any party under any such contract or
agreement, to present or file any claim, to take any action to
enforce any performance or to collect the payment of any amounts
which may have been assigned to the Collateral Agent or to which
the Collateral Agent or any Secured Party may be entitled at any
time or times.
13.
Security
Interests Absolute
. All rights
of the Secured Parties and all obligations of the Debtors
hereunder, shall be absolute and unconditional, irrespective of:
(a) any lack of validity or enforceability of this Agreement, the
Notes or any agreement entered into in connection with the
foregoing, or any portion hereof or thereof; (b) any change in the
time, manner or place of payment or performance of, or in any other
term of, all or any of the Obligations, or any other amendment or
waiver of or any consent to any departure from the Notes or any
other agreement entered into in connection with the foregoing; (c)
any exchange, release or non-perfection of any of the Collateral,
or any release or amendment or waiver of or consent to departure
from any other collateral for, or any guarantee, or any other
security, for all or any of the Obligations; (d) any action by the
Secured Parties to obtain, adjust, settle and cancel in its sole
discretion any insurance claims or matters made or arising in
connection with the Collateral; or (e) any other circumstance which
might otherwise constitute any legal or equitable defense available
to a Debtor, or a discharge of all or any part of the Security
Interests granted hereby. Until the Obligations shall have been
paid and performed in full, the rights of the Secured Parties shall
continue even if the Obligations are barred for any reason,
including, without limitation, the running of the statute of
limitations or bankruptcy. Each Debtor expressly waives
presentment, protest, notice of protest, demand, notice of
nonpayment and demand for performance. In the event that at any
time any transfer of any Collateral or any payment received by the
Secured Parties hereunder shall be deemed by final order of a court
of competent jurisdiction to have been a voidable preference or
fraudulent conveyance under the bankruptcy or insolvency laws of
the United States, or shall be deemed to be otherwise due to any
party other than the Secured Parties, then, in any such event, each
Debtor’s obligations hereunder shall survive cancellation of
this Agreement, and shall not be discharged or satisfied by any
prior payment thereof and/or cancellation of this Agreement, but
shall remain a valid and binding obligation enforceable in
accordance with the terms and provisions hereof. Each Debtor waives
all right to require the Secured Parties to proceed against any
other person or entity or to apply any Collateral which the Secured
Parties may hold at any time, or to marshal assets, or to pursue
any other remedy. Each Debtor waives any defense arising by reason
of the application of the statute of limitations to any Obligations
secured hereby.
14.
Term
of Agreement
. This Agreement
and the Security Interest shall terminate on the date on which all
payments under the Notes have been indefeasibly paid in full and
all other Obligations have been paid or discharged; provided,
however, that all indemnities of the Debtors contained in this
Agreement (including, without limitation, Annex B hereto) shall
survive and remain operative and in full force and effect
regardless of the termination of this
Agreement.
15.
Power
of Attorney; Further Assurances
.
(a)
Each
Debtor authorizes the Collateral Agent, and does hereby make,
constitute and appoint the Collateral Agent and its officers,
agents, successors or assigns with full power of substitution, as
such Debtor’s true and lawful attorney-in-fact, with power,
in the name of the Collateral Agent or such Debtor, after the
occurrence and during the continuance of an Event of Default, (i)
to endorse any note, checks, drafts, money orders or other
instruments of payment (including, without limitation, payments
payable under or in respect of any policy of insurance) in respect
of the Collateral that may come into possession of the Collateral
Agent; (ii) to sign and endorse any financing statement pursuant to
the UCC or any invoice, freight or express bill, bill of lading,
storage or warehouse receipts, drafts against debtors, assignments,
verifications and notices in connection with accounts, and other
documents relating to the Collateral; (iii) to pay or discharge
taxes, liens, security interests or other encumbrances at any time
levied or placed on or threatened against the Collateral; (iv) to
demand, collect, receipt for, compromise, settle and sue for monies
due in respect of the Collateral; (v) to transfer any Intellectual
Property or provide licenses respecting any Intellectual Property;
and (vi) generally, at the option of the Collateral Agent, and at
the expense of the Debtors, at any time, or from time to time, to
execute and deliver any and all documents and instruments and to do
all acts and things which the Collateral Agent deems necessary to
protect, preserve and realize upon the Collateral and the Security
Interests granted therein in order to effect the intent of this
Agreement and the Notes all as fully and effectually as the Debtors
might or could do; and each Debtor hereby ratifies all that said
attorney shall lawfully do or cause to be done by virtue hereof.
This power of attorney is coupled with an interest and shall be
irrevocable for the term of this Agreement and thereafter as long
as any of the Obligations shall be outstanding. The designation set
forth herein shall be deemed to amend and supersede any
inconsistent provision in the Organizational Documents or other
documents or agreements to which any Debtor is subject or to which
any Debtor is a party. Without limiting the generality of the
foregoing, after the occurrence and during the continuance of an
Event of Default, each Secured Party is specifically authorized to
execute and file any applications for or instruments of transfer
and assignment of any patents, trademarks, copyrights or other
Intellectual Property with the United States Patent and Trademark
Office and the United States Copyright Office.
(b)
On
a continuing basis, each Debtor will make, execute, acknowledge,
deliver, file and record, as the case may be, with the proper
filing and recording agencies in any jurisdiction, including,
without limitation, the jurisdictions indicated on
Schedule
C
attached hereto, all such
instruments, and take all such action as may reasonably be deemed
necessary or advisable, or as reasonably requested by the
Collateral Agent, to perfect the Security Interest granted
hereunder and otherwise to carry out the intent and purposes of
this Agreement, or for assuring and confirming to the Collateral
Agent the grant or perfection of a perfected security interest in
all the Collateral under the UCC.
(c)
Each
Debtor hereby irrevocably appoints the Collateral Agent as such
Debtor’s attorney-in-fact, with full authority in the place
and instead of such Debtor and in the name of such Debtor, from
time to time in the Collateral Agent’s discretion, to take
any action permitted under this Agreement and to execute any
instrument which the Collateral Agent may reasonably deem necessary
or advisable to accomplish the purposes of this Agreement,
including the filing, in its sole discretion, of one or more
financing or continuation statements and amendments thereto,
relative to any of the Collateral without the signature of such
Debtor where permitted by law, which financing statements may (but
need not) describe the Collateral as “all assets” or
“all personal property” or words of like import, and
ratifies all such actions taken by the Collateral Agent. This power
of attorney is coupled with an interest and shall be irrevocable
for the term of this Agreement and thereafter as long as any of the
Obligations shall be outstanding.
16.
Notices
.
All notices, demands, requests, consents, approvals, and other
communications required or permitted hereunder shall be in writing
and, unless otherwise specified herein, shall be (a) personally
served, (b) deposited in the mail, registered or certified, return
receipt requested, postage prepaid, (c) delivered by a reputable
overnight courier service with charges prepaid, or (d) transmitted
by hand delivery, telegram, or facsimile, addressed as set forth
below or to such other address as such party shall have specified
most recently by written notice. Any notice or other communication
required or permitted to be given hereunder shall be deemed
effective (i) upon hand delivery or delivery by facsimile, with
accurate confirmation generated by the transmitting facsimile
machine, at the address or number designated below (if delivered on
a Business Day during normal business hours), or the first Business
Day following such delivery (if delivered other than on a Business
Day during normal business hours), (ii) on the first Business Day
following the date deposited with an overnight courier service with
charges prepaid, or (iii) on the fifth Business Day following the
date of mailing pursuant to subpart (b) above, or upon actual
receipt of such mailing, whichever shall first occur.
The addresses for such communications shall
be:
To
Debtor, to:
Fan Pass, Inc.
Attn:
Robert A. Rositano, Jr.
Email:
robert@ihookupsocial.com
With a
copy by fax only to
(which
shall not constitute notice):
Lucosky Brookman
LLP
Attn: Steven A.
Lipstein, Esq.
Email:
slipstein@lucbro.com
To the
Collateral Agent:
Alpha
Capital Anstalt
9490
Vaduz, Liechtenstein
Attn:
Konrad Ackermann, Director
17.
Other
Security
. To the extent that
the Obligations are now or hereafter secured by property other than
the Collateral or by the guarantee, endorsement or property of any
other person, firm, corporation or other entity, then the
Collateral Agent shall have the right, in its sole discretion, to
pursue, relinquish, subordinate, modify or take any other action
with respect thereto, without in any way modifying or affecting any
of the Secured Parties’ rights and remedies
hereunder.
18.
Appointment
of Collateral Agent
. The
Secured Parties hereby appoint Alpha Capital Anstalt to act as
their agent (“
Collateral
Agent
”) for purposes of
exercising any and all rights and remedies of the Secured Parties
hereunder. Such appointment shall continue until revoked in writing
by a Majority in Interest, at which time a Majority in Interest
shall appoint a new Collateral Agent. The Collateral Agent shall
have the rights, responsibilities and immunities set forth
in
Annex B
hereto.
19.
Miscellaneous
.
(a)
No
course of dealing between the Debtors and the Collateral Agent, nor
any failure to exercise, nor any delay in exercising, on the part
of the Collateral Agent, any right, power or privilege hereunder or
under the Notes shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege
hereunder or thereunder preclude any other or further exercise
thereof or the exercise of any other right, power or
privilege.
(b)
All
of the rights and remedies of the Collateral Agent with respect to
the Collateral, whether established hereby or by the Notes or by
any other agreements, instruments or documents or by law shall be
cumulative and may be exercised singly or
concurrently.
(c)
This
Agreement, together with the exhibits and schedules hereto, contain
the entire understanding of the parties with respect to the subject
matter hereof and supersede all prior agreements and
understandings, oral or written, with respect to such matters,
which the parties acknowledge have been merged into this Agreement
and the exhibits and schedules hereto. No provision of this
Agreement may be waived, modified, supplemented or amended except
in a written instrument signed, in the case of an amendment, by the
Debtors and Collateral Agent or, in the case of a waiver, by the
party against whom enforcement of any such waived provision is
sought.
(d)
If
any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or
invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to
achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It
is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or
unenforceable.
(e)
No
waiver of any default with respect to any provision, condition or
requirement of this Agreement shall be deemed to be a continuing
waiver in the future or a waiver of any subsequent default or a
waiver of any other provision, condition or requirement hereof, nor
shall any delay or omission of any party to exercise any right
hereunder in any manner impair the exercise of any such
right.
(f)
This
Agreement shall be binding upon and inure to the benefit of the
parties and their successors and permitted assigns. The Debtors may
not assign this Agreement or any rights or obligations hereunder
without the prior written consent of a Majority in Interest (other
than by merger). Any Secured Party may assign any or all of its
rights under this Agreement to any Person to whom such Secured
Party assigns or transfers any Obligations, provided such
transferee agrees in writing to be bound, with respect to the
transferred Obligations, by the provisions of this Agreement that
apply to the “Secured Parties.”
(g)
Each
party shall take such further action and execute and deliver such
further documents as may be necessary or appropriate in order to
carry out the provisions and purposes of this
Agreement.
(h)
All
questions concerning the construction, validity, enforcement and
interpretation of this Agreement shall be governed by and construed
and enforced in accordance with the internal laws of the State of
New York, without regard to the principles of conflicts of law
thereof. Each Debtor agrees that all proceedings concerning the
interpretations, enforcement and defense of the transactions
contemplated by this Agreement and the Notes (whether brought
against a party hereto or its respective affiliates, directors,
officers, shareholders, partners, members, employees or agents)
shall be commenced exclusively in the state and federal courts
sitting in the City of New York, Borough of Manhattan. Each Debtor
hereby irrevocably submits to the exclusive jurisdiction of the
state and federal courts sitting in the City of New York, Borough
of Manhattan 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 proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, that such proceeding
is improper. Each party hereto hereby irrevocably waives personal
service of process and consents to process being served in any such
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 manner permitted by law.
Each party hereto hereby
irrevocably waives, to the fullest extent permitted by applicable
law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions
contemplated hereby.
If any
party shall commence a proceeding to enforce any provisions of this
Agreement, then the prevailing party in such proceeding shall be
reimbursed by the other party for its reasonable attorney’s
fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such proceeding.
(i)
This
Agreement may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original and, all
of which taken together shall constitute one and the same
Agreement. In the event that any signature is delivered by
facsimile or other electronic transmission, such signature shall
create a valid binding obligation of the party executing (or on
whose behalf such signature is executed) the same with the same
force and effect as if such signature were the original
thereof.
(j)
All
Debtors shall jointly and severally be liable for the obligations
of each Debtor to the Secured Parties hereunder.
(k)
Each
Debtor shall indemnify, reimburse and hold harmless the Collateral
Agent and the Secured Parties and their respective partners,
members, shareholders, officers, directors, employees and agents
(and any other persons with other titles that have similar
functions) (collectively, “
Indemnitees
”)
from and against any and all losses, claims, liabilities, damages,
penalties, suits, costs and expenses, of any kind or nature,
(including fees relating to the cost of investigating and defending
any of the foregoing) imposed on, incurred by or asserted against
such Indemnitee in any way related to or arising from or alleged to
arise from this Agreement or the Collateral, except any such
losses, claims, liabilities, damages, penalties, suits, costs and
expenses which result from the gross negligence or willful
misconduct of the Indemnitee as determined by a final,
nonappealable decision of a court of competent jurisdiction. This
indemnification provision is in addition to, and not in limitation
of, any other indemnification provision in the Notes, the
Securities Purchase Agreement (as such term is defined in the
Notes) or any other agreement, instrument or other document
executed or delivered in connection herewith or
therewith.
(l)
Nothing
in this Agreement shall be construed to subject Collateral Agent or
any Secured Party to liability as a partner in any Debtor or any if
its direct or indirect subsidiaries that is a partnership or as a
member in any Debtor or any of its direct or indirect subsidiaries
that is a limited liability company, nor shall Collateral Agent or
any Secured Party be deemed to have assumed any obligations under
any partnership agreement or limited liability company agreement,
as applicable, of any such Debtor or any if its direct or indirect
subsidiaries or otherwise, unless and until any such Secured Party
exercises its right to be substituted for such Debtor as a partner
or member, as applicable, pursuant hereto.
(m)
To
the extent that the grant of the security interest in the
Collateral and the enforcement of the terms hereof require the
consent, approval or action of any partner or member, as
applicable, of any Debtor or any direct or indirect subsidiary of
any Debtor or compliance with any provisions of any of the
Organizational Documents, the Debtors hereby grant such consent and
approval and waive any such noncompliance with the terms of said
documents.
[SIGNATURE PAGES FOLLOW]
IN
WITNESS WHEREOF, the parties hereto have caused this Security
Agreement to be duly executed on the day and year first above
written.
FAN PASS, INC.
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By:
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Name:
Robert Rositano, Jr.
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Title: Chief Executive Officer
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COLLATERAL AGENT
ALPHA CAPITAL ANSTALT
OMNIBUS SECURED PARTY SIGNATURE PAGE TO
FAN PASS, INC.
SECURITY AGREEMENT
The
undersigned, in its capacity as a Secured Party, hereby executes
and delivers the Security Agreement to which this signature page is
attached and agrees to be bound by the Security Agreement on the
date set forth on the first page of the Security Agreement. This
counterpart signature page, together with all counterparts of the
Security Agreement and signature pages of the other parties named
therein, shall constitute one and the same instrument in accordance
with the terms of the Security Agreement.
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[Print
Name of Investor]
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[Signature]
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Name:
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Title:
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Address:
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Taxpayer
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Schedule 1(a)(x)
[software and technology relating to “Fan
Pass”]
Schedule A
[RC]
Each Debtor is the lessor of record of the place of business where
such Collateral is located. Except for Collateral to be held by the
Collateral Agent, none of such Collateral is in the possession of
any consignee, bailee, warehouseman, agent or
processor.
Schedule B
The Debtors are the sole owner(s) of the Collateral (except for
non-exclusive licenses granted by any Debtor in the ordinary course
of business), free and clear of any liens, security interests,
encumbrances, rights or claims, and are fully authorized to grant
the Security Interests. Except for Permitted Liens and other items
which are all as set forth on this
Schedule
B
, there is not on file in any
governmental or regulatory authority, agency or recording office an
effective financing statement, security agreement, license or
transfer or any notice of any of the foregoing (other than those
that will be filed in favor of the Secured Parties pursuant to this
Agreement) covering or affecting any of the
Collateral.
Permitted Liens
[RC]
Schedule C
[RC]
Schedule D
Legal Names and Organizational Identification Numbers
Organized and
existing under the laws of the State of Nevada.
Federal
Taxpayer Identification Number:
[RC]
Schedule E
[RC]
Schedule F
[RC]
Schedule G
None of the account debtors or other persons or entities obligated
on any of the Collateral is a governmental authority covered by the
Federal Assignment of Claims Act or any similar federal, state or
local statute or rule in respect of such Collateral.
Schedule H
[RC]
ANNEX A
to
SECURITY
AGREEMENT
FORM OF ADDITIONAL DEBTOR JOINDER
Security Agreement dated as of July [
RC
], 2017 made by
Fan Pass, Inc.
and its Subsidiaries party thereto from time to time, as
Debtors
to and in favor of
the Secured Parties identified therein (the
“
Security
Agreement
”)
Reference is made to the Security Agreement as defined above;
capitalized terms used herein and not otherwise defined herein
shall have the meanings given to such terms in, or by reference in,
the Security Agreement.
The undersigned hereby agrees that upon delivery of this Additional
Debtor Joiner to the Secured Parties referred to above, the
undersigned shall (a) be an Additional Debtor under the Security
Agreement, (b) have all the rights and obligations of the Debtors
under the Security Agreement as fully and to the same extent as if
the undersigned was an original signatory thereto and (c) be deemed
to have made the representations and warranties set forth therein
as of the date of execution and delivery of this Additional Debtor
Joinder (except to the extent such representation or warranty
specifically refers to an earlier date). WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, THE UNDERSIGNED SPECIFICALLY GRANTS TO
THE SECURED PARTIES A SECURITY INTEREST IN THE COLLATERAL AS MORE
FULLY SET FORTH IN THE SECURITY AGREEMENT AND ACKNOWLEDGES AND
AGREES TO THE WAIVER OF JURY TRIAL PROVISIONS SET FORTH
THEREIN.
Attached hereto are supplemental and/or replacement Schedules to
the Security Agreement, as applicable.
Attached
hereto is an original Subsidiary Guaranty executed by the
undersigned and delivered herewith.
An executed copy of this Additional Debtor Joinder shall be
delivered to the Secured Parties, and the Secured Parties may rely
on the matters set forth herein on or after the date hereof. This
Additional Debtor Joinder shall not be modified, amended or
terminated without the prior written consent of the Secured
Parties.
IN
WITNESS WHEREOF, the undersigned has caused this Joiner to be
executed in the name and on behalf of the undersigned.
Dated:
SUBSIDIARY GUARANTY
This
Guaranty (the “
Guaranty
”), dated as of
July 21, 2017, is entered into by Fan Pass, Inc., a Nevada
corporation (“
Guarantor
”), for the
benefit of the Collateral Agent identified below and the parties
identified on
Schedule
A
hereto (each a “
Lender
” and collectively,
the “
Lenders
”).
2.1 Guarantor
is a direct or indirect subsidiary of Friendable, Inc., a Nevada
corporation (“
Parent
”). The Lenders
have made and/or are making loans to Parent (the
“
Loans
”).
Guarantor will obtain substantial benefit from the proceeds of the
Loans.
2.2
The Loans are and will be evidenced by certain Secured Convertible
Promissory Notes (collectively, “
Note
” or the
“
Notes
”) issued by Parent
on, about or after the date of this Guaranty pursuant to those
certain Securities Purchase Agreements dated at or about the date
hereof (“
Securities
Purchase Agreements
”). The Notes issued on the Closing
Date are further described on
Schedule A
hereto and were and
or will be executed by Parent as “Borrower” for the
benefit of each Lender as the “Holder”
thereof.
2.3 In
consideration of the Loans made and to be made by Lenders to Parent
and for other good and valuable consideration, and as security for
the performance by Parent of its obligations under the Notes and as
security for the repayment of the Loans and all other sums due from
Debtor to Lenders arising under the Notes (collectively, the
“
Obligations
”), Guarantor,
for good and valuable consideration, receipt of which is
acknowledged, has agreed to enter into this Guaranty.
2.4 The
Lenders have appointed
Alpha Capital
Anstalt
as Collateral Agent pursuant to that certain
Security Agreement dated at or about the date of this Agreement
(“
Security
Agreement
”), among the Lenders and Collateral
Agent.
2.5 Upper
case terms employed but not defined herein shall have the meanings
ascribed to them in the Transaction Documents (as defined in the
Securities Purchase Agreement).
3.1
Guaranty
.
Guarantor hereby unconditionally and irrevocably guarantees,
jointly and severally with any other guarantor of the Obligations,
the punctual payment, performance and observance when due, whether
at stated maturity, by acceleration or otherwise, of all of the
Obligations now or hereafter existing, whether for principal,
interest (including, without limitation, all interest that accrues
after the commencement of any insolvency, bankruptcy or
reorganization of Parent, whether or not constituting an allowed
claim in such proceeding), fees, commissions, expense
reimbursements, liquidated damages, indemnifications or otherwise
arising under the Notes, Security Agreement, or any other
Transaction Document (as defined in the Securities Purchase
Agreement) (such obligations, to the extent not paid by Parent
being the “
Guaranteed Obligations
”
and included in the definition of Obligations), and agrees to pay
any and all reasonable costs, fees and expenses (including
reasonable counsel fees and expenses) incurred by Collateral Agent
and the Lenders in enforcing any rights under the Guaranty set
forth herein. Without limiting the generality of the foregoing,
Guarantor’s liability shall extend to all amounts that
constitute part of the Guaranteed Obligations and would be owed by
Parent to Collateral Agent and the Lenders, but for the fact that
they are unenforceable or not allowable due to the existence of an
insolvency, bankruptcy or reorganization involving
Parent.
3.2
Guaranty
Absolute
. Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of
the Notes, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms
or the rights of Collateral Agent or the Lenders with respect
thereto. The obligations of Guarantor under this Guaranty are
independent of the Guaranteed Obligations, and a separate action or
actions may be brought and prosecuted against Guarantor to enforce
such obligations, irrespective of whether any action is brought
against Parent or any other guarantor or whether Parent or any
other guarantor is joined in any such action or actions. The
liability of Guarantor under this Guaranty constitutes a primary
obligation, and not a contract of surety, and to the extent
permitted by law, shall be irrevocable, absolute and unconditional
irrespective of, and Guarantor hereby irrevocably waives any
defenses it may now or hereafter have in any way relating to, any
or all of the following:
(a)
any lack of validity of the Notes or any
agreement or instrument relating thereto;
(b)
any change in the time, manner or place
of payment of, or in any other term of, all or any of the
Guaranteed Obligations, or any other amendment or waiver of or any
consent to departure from the Notes, including, without limitation,
any increase in the Guaranteed Obligations resulting from the
extension of additional credit to Parent or otherwise;
(c)
any taking, exchange, release,
subordination or non-perfection of any Collateral, or any taking,
release or amendment or waiver of or consent to departure from any
other guaranty, for all or any of the Guaranteed
Obligations;
(d)
any change, restructuring or
termination of the corporate, limited liability company or
partnership structure or existence of Parent; or
(e) any
other circumstance (including, without limitation, any statute of
limitations) or any existence of or reliance on any representation
by Collateral Agent or the Lenders that might otherwise constitute
a defense available to, or a discharge of, Parent or any other
guarantor or surety.
This
Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of any of the Guaranteed
Obligations is rescinded or must otherwise be returned by
Collateral Agent, the Lenders or any other entity upon the
insolvency, bankruptcy or reorganization of the Parent or otherwise
(and whether as a result of any demand, settlement, litigation or
otherwise), all as though such payment had not been
made.
3.3
Waiver
.
Guarantor hereby waives promptness, diligence, notice of acceptance
and any other notice with respect to any of the Guaranteed
Obligations and this Guaranty and any requirement that Collateral
Agent or the Lenders exhaust any right or take any action against
any Borrower or any other person or entity or any Collateral.
Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated herein and
that the waiver set forth in this Section 3.3 is knowingly
made in contemplation of such benefits. Guarantor hereby waives any
right to revoke this Guaranty, and acknowledges that this Guaranty
is continuing in nature and applies to all Guaranteed Obligations,
whether existing now or in the future.
3.4
Continuing Guaranty;
Assignments
. This Guaranty is a continuing guaranty and
shall (a) remain in full force and effect until the later of the
indefeasible cash or other payment in full of the Guaranteed
Obligations, (b) be binding upon Guarantor, its successors and
assigns, and (c) inure to the benefit of and be enforceable by the
Lenders and their successors, pledgees, transferees and assigns.
Without limiting the generality of the foregoing clause (c),
any Lender may pledge, assign or otherwise transfer all or any
portion of its rights and obligations under this Guaranty
(including, without limitation, all or any portion of its Notes
owing to it) to any other Person, and such other Person shall
thereupon become vested with all the benefits in respect thereof
granted such Collateral Agent or Lender herein or
otherwise.
3.5
Subrogation
. Guarantor will not
exercise any rights that it may now or hereafter acquire against
the Collateral Agent or any Lender or other guarantor (if any) that
arise from the existence, payment, performance or enforcement of
such Guarantor’s obligations under this Guaranty, including,
without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification, whether or not such
claim, remedy or right arises in equity or under contract, statute
or common law, including, without limitation, the right to take or
receive from the Collateral Agent or any Lender or other guarantor
(if any), directly or indirectly, in cash or other property or by
set-off or in any other manner, payment or security solely on
account of such claim, remedy or right, unless and until all of the
Guaranteed Obligations and all other amounts payable under this
Guaranty shall have been indefeasibly paid in full.
3.6
Maximum
Obligations
. Notwithstanding any provision herein contained
to the contrary, Guarantor’s liability with respect to the
Obligations shall be limited to an amount not to exceed, as of any
date of determination, the amount that could be claimed by Lenders
from Guarantor without rendering such claim voidable or avoidable
under Section 548 of the Bankruptcy Code or under any applicable
state Uniform Fraudulent Transfer Act, Uniform Fraudulent
Conveyance Act or similar statute or common law.
4.1
Expenses
.
Guarantor shall pay to the Lenders, on demand, the amount of any
and all reasonable expenses, including, without limitation,
reasonable attorneys’ fees, reasonable legal expenses and
reasonable brokers’ fees, which the Lenders may incur in
connection with exercise or enforcement of any the rights, remedies
or powers of the Lenders hereunder or with respect to any or all of
the Obligations.
4.2
Waivers,
Amendment and Remedies
. No course of dealing by the Lenders
and no failure by the Lenders to exercise, or delay by the Lender
in exercising, any right, remedy or power hereunder shall operate
as a waiver thereof, and no single or partial exercise thereof
shall preclude any other or further exercise thereof or the
exercise of any other right, remedy or power of the Lenders. No
amendment, modification or waiver of any provision of this Guaranty
and no consent to any departure by Guarantor therefrom, shall, in
any event, be effective unless contained in a writing signed by the
Guarantor and the Majority in Interest (as such term is defined in
the Security Agreement) or Lenders against whom such amendment,
modification or waiver is sought, and then such waiver or consent
shall be effective only in the specific instance and for the
specific purpose for which given. The rights, remedies and powers
of the Lenders, not only hereunder, but also under any other
Transaction Documents and under applicable law are cumulative, and
may be exercised by the Lenders from time to time in such order as
the Lenders may elect.
4.3
Notices
.
All notices, demands, requests, consents, approvals, and other
communications required or permitted hereunder shall be in writing
and, unless otherwise specified herein, shall be (a) personally
served, (b) deposited in the mail, registered or certified, return
receipt requested, postage prepaid, (c) delivered by a reputable
overnight courier service with charges prepaid, or (d) transmitted
by hand delivery, telegram, or facsimile, addressed as set forth
below or to such other address as such party shall have specified
most recently by written notice. Any notice or other communication
required or permitted to be given hereunder shall be deemed
effective (i) upon hand delivery or delivery by facsimile, with
accurate confirmation generated by the transmitting facsimile
machine, at the address or number designated below if delivered on
a Business Day during normal business hours, or the first Business
Day following such delivery (if delivered other than on a Business
Day during normal business hours), (ii) on the first Business Day
following the date deposited with an overnight courier service with
charges prepaid, or (iii) on the fifth Business Day following the
date of mailing pursuant to subpart (b) above, or upon actual
receipt of such mailing, whichever shall first occur.
The addresses for such communications shall
be:
To
Guarantor, to:
Fan Pass, Inc.
Attn:
Robert A. Rositano, Jr.
Email:
robert@ihookupsocial.com
With a
copy by fax only to
(which
shall not constitute notice):
Lucosky
Brookman LLP
Attn:
Steven A. Lipstein, Esq.
Email:
slipstein@lucbro.com
To the
Collateral Agent:
Alpha
Capital Anstalt
9490
Vaduz, Liechtenstein
Attn:
Konrad Ackermann, Director
To
Lenders:
To the
addresses and telecopier numbers set
forth on Schedule
A
Any
party may change its address by written notice in accordance with
this paragraph.
4.4
Term;
Binding Effect
. This Guaranty shall (a) remain in full force
and effect until payment and satisfaction in full of all of the
Guaranteed Obligations; (b) be binding upon Guarantor and its
successors and permitted assigns; and (c) inure to the benefit of
the Lenders and their respective successors and assigns. All the
rights and benefits granted by Guarantor to the Collateral Agent
and Lenders hereunder and other agreements and documents delivered
in connection therewith are deemed granted to both the Collateral
Agent and Lenders. Upon the payment in full of the Guaranteed
Obligations, (i) this Guaranty shall terminate and (ii) the Lenders
will, upon Guarantor’s request and at Guarantor’s
expense, execute and deliver to Guarantor such documents as
Guarantor shall reasonably request to evidence such termination,
all without any representation, warranty or recourse
whatsoever.
4.5
Captions
.
The captions of Paragraphs, Articles and Sections in this Guaranty
have been included for convenience of reference only, and shall not
define or limit the provisions hereof and have no legal or other
significance whatsoever.
4.6
Governing
Law; Venue; Severability
. This Guaranty shall be governed by
and construed in accordance with the laws of the State of New York
without regard to principles of conflicts or choice of law. Any
legal action or proceeding against Guarantor with respect to this
Guaranty may be brought in the courts of the State of New York or
of the United States for the Southern District of New York, and, by
execution and delivery of this Guaranty, Guarantor hereby
irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of the aforesaid
courts. Guarantor hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection
with this Guaranty brought in the aforesaid courts and hereby
further irrevocably waives and agrees not to plead or claim in any
such court that any such action or proceeding brought in any such
court has been brought in an inconvenient forum. If any provision
of this Guaranty, or the application thereof to any person or
circumstance, is held invalid, such invalidity shall not affect any
other provisions which can be given effect without the invalid
provision or application, and to this end the provisions hereof
shall be severable and the remaining, valid provisions shall remain
of full force and effect.
This
Guaranty shall be deemed an unconditional obligation of Guarantor
for the payment of money and, without limitation to any other
remedies of Lenders, may be enforced against Guarantor by summary
proceeding pursuant to New York Civil Procedure Law and Rules
Section 3213 or any similar rule or statute in the jurisdiction
where enforcement is sought. For purposes of such rule or statute,
any other document or agreement to which Lenders and Guarantor are
parties or which Guarantor delivered to Lenders, which may be
convenient or necessary to determine Lenders’ rights
hereunder or Guarantor’s obligations to Lenders are deemed a
part of this Guaranty, whether or not such other document or
agreement was delivered together herewith or was executed apart
from this Guaranty.
Each party hereby irrevocably waives
personal service of process and consents to process being served in
any suit, action or proceeding in connection with this Agreement or
any other Transaction Document 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. Guarantor irrevocably appoints Parent its true and lawful
agent for service of process upon whom all processes of law and
notices may be served and given in the manner described above; and
such service and notice shall be deemed valid personal service and
notice upon Guarantor with the same force and validity as if served
upon Guarantor.
4.7
Satisfaction
of Obligations
. For all purposes of this Guaranty, the
payment in full of the Obligations shall be conclusively deemed to
have occurred when the Obligations have been paid pursuant to the
terms of the Notes and the Securities Purchase
Agreements.
4.8
Counterparts/Execution
.
This Agreement may be executed in any number of counterparts and by
the different signatories hereto on separate counterparts, each of
which, when so executed, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument. This
Agreement may be executed by facsimile signature and delivered by
electronic transmission.
[THE
BALANCE OF THIS PAGE HAS BEEN INTENTIONALLY LEFT
BLANK]
IN WITNESS WHEREOF,
the undersigned have
executed and delivered this Guaranty, as of the date first written
above.
“GUARANTOR”
FAN
PASS, INC.
___________________________________
Its:
Chief Executive Officer
This Guaranty Agreement may be signed by facsimile signature
and
delivered by confirmed facsimile transmission.
SCHEDULE A TO GUARANTY
PURCHASER AND ADDRESS
|
PURCHASE
PRICE and
NOTE PRINCIPAL
|
ALPHA CAPITAL ANSTALT
Lettstrasse
32
9490
Vaduz, Liechtenstein
Attn:
Konrad Ackermann, Director
Fax:
011-423-2323196
|
$300,000.00
|
PALLADIUM CAPITAL
ADVISORS, LLC
10
Rockefeller Plaza, Suite 909
New
York, NY 10020
Fax:
Taxpayer
ID#:
|
Partial Placement Agent Fee in the amount of $24,000.00
*
|
TOTAL
|
$324,000.00
|
*
Palladium Capital Advisors, LLC is using its partial Placement
Agent Fee Note as payment for a Subscription Amount.
ANNEX B
to
SECURITY
AGREEMENT
THE COLLATERAL AGENT
1.
Appointment
.
The Secured Parties (all capitalized terms used
herein and not otherwise defined shall have the respective meanings
provided in the Security Agreement to which this Annex B is
attached (the “
Agreement
”),
by their acceptance of the benefits of the Agreement, hereby
designate Alpha Capital Anstalt (“
Collateral
Agent
”) as the Collateral
Agent to act as specified herein and in the Agreement. Each Secured
Party shall be deemed irrevocably to authorize the Collateral Agent
to take such action on its behalf under the provisions of the
Agreement and any other Transaction Document (as such term is
defined in the Notes) and to exercise such powers and to perform
such duties hereunder and thereunder as are specifically delegated
to or required of the Collateral Agent by the terms hereof and
thereof and such other powers as are reasonably incidental thereto.
The Collateral Agent may perform any of its duties hereunder by or
through its agents or employees.
2.
Nature of
Duties
.
The Collateral Agent shall have no duties or
responsibilities except those expressly set forth in the Agreement.
Neither the Collateral Agent nor any of its partners, members,
shareholders, officers, directors, employees or agents shall be
liable for any action taken or omitted by it as such under the
Agreement or hereunder or in connection herewith or therewith, be
responsible for the consequence of any oversight or error of
judgment or answerable for any loss, unless caused solely by its or
their gross negligence or willful misconduct as determined by a
final judgment (not subject to further appeal) of a court of
competent jurisdiction. The duties of the Collateral Agent shall be
mechanical and administrative in nature; the Collateral Agent shall
not have by reason of the Agreement or any other Transaction
Document a fiduciary relationship in respect of any Debtor or any
Secured Party; and nothing in the Agreement or any other
Transaction Document, expressed or implied, is intended to or shall
be so construed as to impose upon the Collateral Agent any
obligations in respect of the Agreement or any other Transaction
Document except as expressly set forth herein and
therein.
3.
Lack of
Reliance on the Collateral Agent
. Independently and without reliance upon the
Collateral Agent, each Secured Party, to the extent it deems
appropriate, has made and shall continue to make (i) its own
independent investigation of the financial condition and affairs of
the Company and its subsidiaries in connection with such Secured
Party’s investment in the Debtors, the creation and
continuance of the Obligations, the transactions contemplated by
the Transaction Documents, and the taking or not taking of any
action in connection therewith, and (ii) its own appraisal of the
creditworthiness of the Company and its subsidiaries, and of the
value of the Collateral from time to time, and the Collateral Agent
shall have no duty or responsibility, either initially or on a
continuing basis, to provide any Secured Party with any credit,
market or other information with respect thereto, whether coming
into its possession before any Obligations are incurred or at any
time or times thereafter. The Collateral Agent shall not be
responsible to the Debtors or any Secured Party for any recitals,
statements, information, representations or warranties herein or in
any document, certificate or other writing delivered in connection
herewith, or for the execution, effectiveness, genuineness,
validity, enforceability, perfection, collectibility, priority or
sufficiency of the Agreement or any other Transaction Document, or
for the financial condition of the Debtors or the value of any of
the Collateral, or be required to make any inquiry concerning
either the performance or observance of any of the terms,
provisions or conditions of the Agreement or any other Transaction
Document, or the financial condition of the Debtors, or the value
of any of the Collateral, or the existence or possible existence of
any default or Event of Default under the Agreement, the Notes or
any of the other Transaction Documents.
4.
Certain
Rights of the Collateral Agent
.
The Collateral Agent shall have the right to take any action with
respect to the Collateral, on behalf of all of the Secured Parties.
To the extent practical, the Collateral Agent shall request
instructions from the Secured Parties with respect to any material
act or action (including failure to act) in connection with the
Agreement or any other Transaction Document, and shall be entitled
to act or refrain from acting in accordance with the instructions
of Secured Parties holding a majority in principal amount of Notes
(based on then-outstanding principal amounts of Notes at the time
of any such determination); if such instructions are not provided
despite the Collateral Agent’s request therefor, the
Collateral Agent shall be entitled to refrain from such act or
taking such action, and if such action is taken, shall be entitled
to appropriate indemnification from the Secured Parties in respect
of actions to be taken by the Collateral Agent; and the Collateral
Agent shall not incur liability to any person or entity by reason
of so refraining. Without limiting the foregoing, (a) no Secured
Party shall have any right of action whatsoever against the
Collateral Agent as a result of the Collateral Agent acting or
refraining from acting hereunder in accordance with the terms of
the Agreement or any other Transaction Document, and the Debtors
shall have no right to question or challenge the authority of, or
the instructions given to, the Collateral Agent pursuant to the
foregoing and (b) the Collateral Agent shall not be required to
take any action which the Collateral Agent believes (i) could
reasonably be expected to expose it to personal liability or (ii)
is contrary to this Agreement, the Transaction Documents or
applicable law.
5.
Reliance
. The Collateral Agent shall be entitled to rely,
and shall be fully protected in relying, upon any writing,
resolution, notice, statement, certificate, telex, teletype or
telecopier message, cablegram, radiogram, order or other document
or telephone message signed, sent or made by the proper person or
entity, and, with respect to all legal matters pertaining to the
Agreement and the other Transaction Documents and its duties
thereunder, upon advice of counsel selected by it and upon all
other matters pertaining to this Agreement and the other
Transaction Documents and its duties thereunder, upon advice of
other experts selected by it. Anything to the contrary
notwithstanding, the Collateral Agent shall have no obligation
whatsoever to any Secured Party to assure that the Collateral
exists or is owned by the Debtors or is cared for, protected or
insured or that the liens granted pursuant to the Agreement have
been properly or sufficiently or lawfully created, perfected, or
enforced or are entitled to any particular
priority.
6.
Indemnification
.
To the extent that the Collateral
Agent is not reimbursed and indemnified by the Debtors, the Secured
Parties will jointly and severally reimburse and indemnify the
Collateral Agent, in proportion to their initially purchased
respective principal amounts of Notes, from and against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or asserted
against the Collateral Agent in performing its duties hereunder or
under the Agreement or any other Transaction Document, or in any
way relating to or arising out of the Agreement or any other
Transaction Document except for those determined by a final
judgment (not subject to further appeal) of a court of competent
jurisdiction to have resulted solely from the Collateral
Agent’s own gross negligence or willful misconduct. Prior to
taking any action hereunder as Collateral Agent, the Collateral
Agent may require each Secured Party to deposit with it sufficient
sums as it determines in good faith is necessary to protect the
Collateral Agent for costs and expenses associated with taking such
action.
7.
Resignation by the Collateral
Agent
.
(a)
The Collateral Agent may resign from the performance of all its
functions and duties under the Agreement and the other Transaction
Documents at any time by giving 5 days’ prior written notice
(as provided in the Agreement) to the Debtors and the Secured
Parties. Such resignation shall take effect upon the appointment of
a successor Collateral Agent pursuant to clauses (b) and (c)
below.
(b)
Upon any such notice of resignation, the Secured Parties, acting by
a Majority in Interest, shall appoint a successor Collateral
Agent hereunder.
(c)
If a successor Collateral Agent shall not have been so appointed
within said 5-day period, the Collateral Agent shall then appoint a
successor Collateral Agent who shall serve as Collateral Agent
until such time, if any, as the Secured Parties appoint a successor
Collateral Agent as provided above. If a successor Collateral Agent
has not been appointed within such 5-day period, the Collateral
Agent may petition any court of competent jurisdiction or may
interplead the Debtors and the Secured Parties in a proceeding for
the appointment of a successor Collateral Agent, and all fees,
including, but not limited to, extraordinary fees associated with
the filing of interpleader and expenses associated therewith, shall
be payable by the Debtors on demand.
8.
Rights
with respect to Collateral
.
Each Secured Party agrees with all other Secured
Parties and the Collateral Agent (i) that it shall not, and shall
not attempt to, exercise any rights with respect to its security
interest in the Collateral, whether pursuant to any other agreement
or otherwise (other than pursuant to this Agreement), or take or
institute any action against the Collateral Agent or any of the
other Secured Parties in respect of the Collateral or its rights
hereunder (other than any such action arising from the breach of
this Agreement) and (ii) that such Secured Party has no other
rights with respect to the Collateral other than as set forth in
this Agreement and the other Transaction Documents. Upon the
acceptance of any appointment as Collateral Agent hereunder by a
successor Collateral Agent, such successor Collateral Agent shall
thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Collateral Agent and the
retiring Collateral Agent shall be discharged from its duties and
obligations under the Agreement. After any retiring
Collateral Agent’s resignation or removal hereunder as
Collateral Agent, the provisions of the Agreement including this
Annex B shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Collateral
Agent.
ANNEX C TO SECURITY AGREEMENT
PURCHASER AND ADDRESS
|
PURCHASE
PRICE and
NOTE PRINCIPAL
|
ALPHA CAPITAL ANSTALT
Lettstrasse
32
9490
Vaduz, Liechtenstein
Attn:
Konrad Ackermann, Director
Fax:
011-423-2323196
|
$300,000.00
|
PALLADIUM CAPITAL
ADVISORS, LLC
10
Rockefeller Plaza, Suite 909
New
York, NY 10020
Fax:
Taxpayer
ID#:
|
Partial Placement Agent Fee in the amount of $24,000.00
*
|
TOTAL
|
$324,000.00
|
*
Palladium Capital Advisors, LLC is using its partial Placement
Agent Fee Note as payment for a Subscription Amount.
This Schedule will be amended to include additional Secured Parties
by participating in the Offering or becoming a permitted assignee
of a Secured Party.
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT
, made as of this
21
st
day
of July, 2017 (this “
Agreement
”),
is between Friendable, Inc., a Nevada corporation (the
“
Pledgor
”), and
Alpha Capital Anstalt, on its own behalf and in its capacity as
collateral agent for the Buyers identified below (in such capacity,
together with its successors and assigns, the “
Pledgee
”).
WHEREAS:
A.
Friendable, Inc., a Nevada corporation (the “
Company
”)
,
has executed and delivered to each of the Buyers (as defined below)
those certain senior notes, dated as of the date hereof, in an
original aggregate principal amount of $300,000 (such notes,
together with any promissory notes or other securities issued in
exchange or substitution therefor or replacement thereof, and as
any of the same may be amended, supplemented, restated or modified
and in effect from time to time, the “
Notes
”). The
Notes were issued pursuant to that certain Securities Purchase
Agreement dated as of July 21, 2017 (as the same may be amended,
restated, supplemented or otherwise modified, the
“
Loan
Agreement
”), among the Company and the buyers listed
on the signature pages thereto (together with their respective
successors and assigns, the “
Buyers
”), and
pursuant to which the Buyers have made certain loans
(“
Loans
”) to the
Company.
B. The
Pledgor is a shareholder of the Company and has agreed to enter
into a Guaranty dated the date hereof (the “
Guaranty
”) in
favor of the Pledgee, guaranteeing all present and future
obligations of the Company under the Loan Agreement, the Notes, and
the other Transaction Agreements (as defined in the Loan Agreement)
on such terms and conditions as are set forth therein and has also
agreed to pledge the Pledged Collateral (as defined below) to
secure all of his obligations under the Guaranty as further
described herein.
C. It
is a condition precedent to the Buyers’ purchase of the Notes
that the Pledgor shall have executed and delivered to the Pledgee
for the benefit of the Buyers this Agreement.
NOW, THEREFORE
, in consideration of the
premises and in order to induce the Buyers to purchase the Notes
under the Loan Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Pledgor hereby agrees with the Pledgee as
follows:
1.
Defined Terms
. Unless otherwise
defined herein, all capitalized terms used herein shall have the
meanings given them in the
Loan Agreement.
2.
Pledge
. As collateral security
for all of the Obligations (as defined in the Guaranty), the
Pledgor hereby pledges and assigns and grants to the Pledgee, for
the benefit of the Buyers, a continuing first priority perfected
security interest in, and first lien on, all of his right, title
and interest in and to the following (collectively, the
“
Pledged
Collateral
”):
(a)
[REQUIRES
COMPLETION]
shares of common stock of its subsidiary, Fan
Pass, Inc. owned by the Pledgor, as further described in
Exhibit A
(as such
Schedule may be amended from time to time in accordance with the
terms hereof), and any and all future, issued and outstanding
shares of capital stock, or other equity or investment securities
of, or partnership, membership, or joint venture interests in, Fan
Pass, Inc., whether now owned or hereafter acquired by the Pledgor
and whether or not evidenced or represented by any stock
certificate, certificated security or other instrument, together
with the certificates representing such equity interests, all
options and other rights, contractual or otherwise, in respect
thereof and all dividends, distributions, cash, instruments,
investment property and any other property (including, but not
limited to, any stock dividend and any distribution in connection
with a stock split) from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all
of the foregoing and all cash and noncash proceeds thereof
(collectively, the “
Pledged
Shares
”),
(b)
all present and
future increases, profits, combinations, reclassifications, and
substitutes and replacements for all or part of the foregoing
Pledged Collateral heretofore described;
(c)
all investment
property, financial assets, securities, capital stock, other equity
interests, stock options and commodity contracts of the Pledgor,
all notes, debentures, bonds, promissory notes or other evidences
of indebtedness payable or owing to the Pledgor, and all other
assets now or hereafter received or receivable with respect to the
foregoing Pledged Collateral heretofore described;
(d)
all securities
entitlements of the Pledgor in any and all of the foregoing Pledged
Collateral heretofore described; and
(e)
all proceeds
(including proceeds of proceeds) of any and all of the foregoing
Pledged Collateral heretofore described;
in each
case, whether now owned or hereafter acquired by the Pledgor and
howsoever its interest therein may arise or appear (whether by
ownership, security interest, lien, claim or otherwise). All of the
Pledged Shares now owned by the Pledgor which are presently
represented by certificates are listed on
Exhibit A
hereto, which
certificates, with undated assignments separate from certificates
or stock powers duly executed in blank by the Pledgor and
irrevocable proxies, are being delivered to the Pledgee
simultaneously herewith. Upon the creation or acquisition of any
new Pledged Shares, the Pledgor shall execute an Addendum in the
form of
Exhibit B
attached hereto (a “
Pledge
Addendum
”). Any Pledged Collateral described in a
Pledge Addendum executed by the Pledgor shall thereafter be deemed
to be listed on
Exhibit
A
hereto. The Pledgee shall maintain possession and custody
of the certificates representing the Pledged Shares and any
additional Pledged Collateral.
3.
Representations and Warranties of the
Pledgor
.
The
Pledgor represents and warrants to
the Pledgee, and covenants with the Pledgee, that:
(a)
the Pledgor is the
record and beneficial owner of, and has good and marketable title
to, the Pledged Shares, and such shares or other equity interests
are and will remain free and clear of all pledges, liens, security
interests and other encumbrances and restrictions whatsoever,
except the liens and security interests in favor of the Pledgee
created by this Agreement;
(b)
there are no
outstanding options, warrants or other similar agreements with
respect to the Pledged Shares or any of the other Pledged
Collateral;
(c)
this Agreement is
the legal, valid and binding obligation of the Pledgor, enforceable
against the Pledgor in accordance with its terms;
(d)
the Pledged Shares
have been duly and validly authorized and issued, are fully paid
and non-assessable and the holders thereof are not entitled to any
preemptive first refusal or similar rights;
(e)
no consent,
approval or authorization of or designation or filing with any
governmental or regulatory authority on the part of the Pledgor is
required in connection with the pledge and security interest
granted under this Agreement;
(f)
the execution,
delivery and performance of this Agreement will not violate any
provision of any applicable law or regulation or of any order,
judgment, writ, award or decree of any court, arbitrator or
governmental authority, domestic or foreign, or any mortgage,
indenture, lease, contract, or other agreement, instrument or
undertaking to which the Pledgor is a party or which purports to be
binding upon the Pledgor or upon any of the assets of the Pledgor,
and will not result in the creation or imposition of any lien,
charge or encumbrance on or security interest in any of the assets
of the Pledgor or Fan Pass, Inc., except as otherwise contemplated
by this Agreement; and
(g)
the pledge,
assignment and delivery of the Pledged Shares and the other Pledged
Collateral pursuant to this Agreement creates a valid first lien on
and perfected first priority security interest in such Pledged
Shares and Pledged Collateral and the proceeds thereof in favor of
the Pledgee, subject to no prior pledge, lien, mortgage,
hypothecation, security interest, charge, option or encumbrance or
to any agreement purporting to grant to any third party a security
interest in the property or assets of the Pledgor which would
include the Pledged Shares or any other Pledged Collateral. The
Pledgor covenants and agrees that it will defend, for the benefit
of the Pledgee, the Pledgee’s right, title and security
interest in and to the Pledged Shares, the other Pledged Collateral
and the proceeds thereof against the claims and demands of all
other persons or entities.
4.
Dividends, Distributions,
Etc.
If, while
this Agreement is in effect, the Pledgor shall become entitled to
receive or shall receive any certificate (including, without
limitation, any certificate representing a dividend or a
distribution in connection with any reclassification, increase or
reduction of capital, or issued in connection with any
reorganization, merger or consolidation), or any options or rights,
whether as an addition to, in substitution for, or in exchange for
any of the Pledged Shares or otherwise, the Pledgor agrees, in each
case, to accept the same as the Pledgee’s agent and to hold
the same in trust for the Pledgee, and to deliver the same promptly
(but in any event within three days) to the Pledgee in the exact
form received, with the endorsement of the Pledgor when necessary
and/or with appropriate undated assignments separate from
certificates or stock powers duly executed in blank, to be held by
the Pledgee subject to the terms hereof, as additional Pledged
Collateral. The Pledgor shall promptly deliver to the Pledgee (a) a
Pledge Addendum with respect to such additional certificates, and
(b) any financing statements or amendments to financing statements
as requested by the Pledgee. The Pledgor hereby authorizes the
Pledgee to attach each Pledge Addendum to this Agreement. In case
any distribution of capital shall be made on or in respect of the
Pledged Shares or any property shall be distributed upon or with
respect to the Pledged Shares pursuant to the recapitalization or
reclassification of the capital of the issuer thereof or pursuant
to the reorganization thereof, the property so distributed shall be
delivered to the Pledgee to be held by it as additional Pledged
Collateral. Except as provided in
Section 5(b)
below, all sums of
money and property so paid or distributed in respect of the Pledged
Shares which are received by the Pledgor shall, until paid or
delivered to the Pledgee, be held by the Pledgor in trust as
additional Pledged Collateral.
5.
Voting Rights; Dividends;
Certificates
.
(a)
So long as no Event
of Default (as defined in the Notes) has occurred and is
continuing, the Pledgor shall be entitled (subject to the other
provisions hereof, including, without limitation,
Section 8
below) to exercise
its voting and other consensual rights with respect to the Pledged
Shares and otherwise exercise the incidents of ownership thereof in
any manner not inconsistent with this Agreement or the Loan
Agreement and the other Transaction Agreements. The Pledgor hereby
grants to the Pledgee or its nominee, an irrevocable proxy to
exercise all voting and corporate rights relating to the Pledged
Shares in any instance, which proxy shall be effective, at the
discretion of the Pledgee, upon the occurrence and during the
continuance of an Event of Default.
Upon the request of the Pledgee at
any time, the Pledgor agrees to deliver to the Pledgee such further
evidence of such irrevocable proxy or such further irrevocable
proxies to vote the Pledged Shares as the Pledgee may
request.
(b)
In the event that
the Pledgor, as record and beneficial owner of the Pledged Shares,
shall have received or shall have become entitled to receive, any
cash dividends or other distributions in the ordinary course, the
Pledgor shall deliver to the Pledgee, and the Pledgee shall be
entitled to receive and retain, for the benefit of the Pledgee and
the Buyers, all such cash or other distributions as additional
security for the Obligations.
(c)
Subject to any sale
or other disposition by the Pledgee of the Pledged Shares, any
other Pledged Collateral or other property pursuant to this
Agreement, upon the indefeasible full payment in cash, satisfaction
and termination of all of the Obligations and the termination of
this Agreement pursuant to
Section 11
hereof and of the
liens and security interests hereby granted, the Pledged Shares,
the other Pledged Collateral and any other property then held as
part of the Pledged Collateral in accordance with the provisions of
this Agreement shall be returned to the Pledgor or to such other
persons or entities as shall be legally entitled
thereto.
(d)
The Pledgor shall
cause all Pledged Shares to be certificated at all times while this
Agreement is in effect.
6.
Rights of the Pledgee
. The
Pledgee shall not be liable for failure to collect or realize upon
the Obligations or any collateral security or guaranty therefor, or
any part thereof, or for any delay in so doing, nor shall the
Pledgee be under any obligation to take any action whatsoever with
regard thereto. Any or all of the Pledged Shares held by the
Pledgee hereunder may, if an Event of Default has occurred and is
continuing, without notice, be registered in the name of the
Pledgee or its nominee, and the Pledgee or its nominee may
thereafter without notice exercise all voting and corporate rights
at any meeting with respect to Fan Pass, Inc. and exercise any and
all rights of conversion, exchange, subscription or any other
rights, privileges or options pertaining to any of the Pledged
Shares as if it were the absolute owner thereof, including, without
limitation, the right to vote in favor of, and to exchange at its
discretion any and all of the Pledged Shares upon, the merger,
consolidation, reorganization, recapitalization or other
readjustment with respect to Fan Pass, Inc. or upon the exercise by
Fan Pass, Inc., the Pledgor or the Pledgee of any right, privilege
or option pertaining to any of the Pledged Shares, and in
connection therewith, to deposit and deliver any and all of the
Pledged Shares with any committee, depository, transfer agent,
registrar or other designated agency upon such terms and conditions
as the Pledgee may reasonably determine, all without liability
except to account for property actually received by the Pledgee,
but the Pledgee shall have no duty to exercise any of the aforesaid
rights, privileges or options and shall not be responsible for any
failure to do so or delay in so doing.
7.
Remedies
.
Upon the occurrence and during the
continuance of an Event of Default, the Pledgee may exercise in
respect of the Pledged Collateral, in addition to other rights and
remedies provided for herein or otherwise available to it, all the
rights and remedies of a secured party under the Uniform Commercial
Code (“
UCC
”) in
effect in the State of New York from time to time, whether or not
the UCC applies to the affected Pledged Collateral (or the Uniform
Commercial Code as in effect in any other relevant jurisdiction).
The Pledgee also, without demand of performance or other demand,
advertisement or notice of any kind (except the notice specified
below of time and place of public or private sale) to or upon the
Pledgor or any other person or entity (all and each of which
demands, advertisements and/or notices are hereby expressly
waived), may forthwith collect, receive, appropriate and realize
upon the Pledged Collateral, or any part thereof, and/or may
forthwith date and otherwise fill in the blanks on any assignments
separate from certificates or stock power or otherwise sell,
assign, give an option or options to purchase, contract to sell or
otherwise dispose of and deliver said Pledged Collateral, or any
part thereof, in one or more portions at one or more public or
private sales or dispositions, at any exchange or broker’s
board or at any of the Pledgee’s offices or elsewhere upon
such terms and conditions as the Pledgee may deem advisable and at
such prices as it may deem best, for any combination of cash and/or
securities or other property or on credit or for future delivery
without assumption of any credit risk, with the right to the
Pledgee upon any such sale, public or private, to purchase the
whole or any part of said Pledged Collateral so sold, free of any
right or equity of redemption in the Pledgor, which right or equity
is hereby expressly waived or released. The Pledgee shall apply the
net proceeds of any such collection, recovery, receipt,
appropriation, realization, sale or disposition, after deducting
all costs and expenses of every kind incurred therein or incidental
to the safekeeping of any and all of the Pledged Collateral or in
any way relating to the rights of the Pledgee hereunder, including
attorneys’ fees and legal expenses, to the payment, in whole
or in part, of the Obligations, in such order as the Pledgee may
elect. The Pledgor shall remain liable for any deficiency remaining
unpaid after such application. Only after so paying over such net
proceeds and after the payment by the Pledgee of any other amount
required by any provision of law, including, without limitation,
Section 9-608 of the UCC, need the Pledgee account for the surplus,
if any, to the Pledgor. The Pledgor agrees that the Pledgee will
give reasonable notice (such reasonable notice to be determined by
the Pledgee in its sole and absolute discretion) of the time and
place of any public sale or of the time after which a private sale
or other intended disposition is to take place. No notification
need be given to the Pledgor if it has signed after default a
statement renouncing or modifying any right to notification of sale
or other intended disposition.
8.
No Disposition, Etc
. The
Pledgor agrees that it will not sell, assign, transfer, exchange,
or otherwise dispose of, or grant any option with respect to, the
Pledged Shares or any other Pledged Collateral, nor will the
Pledgor create, incur or permit to exist any pledge, lien,
mortgage, hypothecation, security interest, charge, option or any
other encumbrance with respect to any of the Pledged Shares or any
other Pledged Collateral, or any interest therein, or any proceeds
thereof, except for the lien and security interest of the Pledgee
provided for by this Agreement.
9.
Sale of Pledged
Shares
.
(a)
The Pledgor
recognizes that the Pledgee may be unable to effect a public sale
or disposition (including, without limitation, any disposition in
connection with a merger of the Company) of any or all the Pledged
Shares by reason of certain prohibitions contained in the
Securities Act of 1933, as amended (the “
1933 Act
”),
and applicable state securities laws, but may be compelled to
resort to one or more private sales or dispositions thereof to a
restricted group of purchasers who will be obliged to agree, among
other things, to acquire such securities for their own account, for
investment and not with a view to the distribution or resale
thereof. The Pledgor acknowledges and agrees that any such private
sale or disposition may result in prices and other terms (including
the terms of any securities or other property received in
connection therewith) less favorable to the seller than if such
sale or disposition were a public sale or disposition and,
notwithstanding such circumstances, agrees that any such private
sale or disposition shall be deemed to be reasonable and affected
in a commercially reasonable manner. The Pledgee shall be under no
obligation to delay a sale or disposition of any of the Pledged
Shares in order to permit Fan Pass, Inc. to register such
securities for public sale under the 1933 Act, or under applicable
state securities laws, even if Fan Pass, Inc. would agree to do
so.
(b)
The Pledgor further
agrees to do or cause to be done all such other acts and things as
may be reasonably necessary to make such sales or dispositions of
the Pledged Shares valid and binding and in compliance with any and
all applicable laws, regulations, orders, writs, injunctions,
decrees or awards of any and all courts, arbitrators or
governmental instrumentalities, domestic or foreign, having
jurisdiction over any such sales or dispositions, all at the
Pledgor’s expense. The Pledgor further agrees that a breach
of any of the covenants contained in
Sections 4
,
5(a)
,
5(b)
,
8
,
9
and
24
will cause irreparable
injury to the Pledgee and that the Pledgee has no adequate remedy
at law in respect of such breach and, as a consequence, agrees,
without limiting the right of the Pledgee to seek and obtain
specific performance of other obligations of the Pledgor contained
in this Agreement, that each and every covenant referenced above
shall be specifically enforceable against the Pledgor, and the
Pledgor hereby waives and agrees not to assert any defenses against
an action for specific performance of such covenants.
(c)
The Pledgor further
agrees to indemnify and hold harmless the Buyers, the Pledgee and
their respective successors and assigns, their respective officers,
directors, employees, attorneys and agents, and any person or
entity in control of any thereof, from and against any loss,
liability, claim, damage and expense, including, without
limitation, legal fees and expenses (in this paragraph collectively
called the “
Indemnified
Liabilities
”), under federal and state securities laws
or otherwise insofar as such Indemnified Liability (i) arises out
of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in any registration
statement, prospectus or offering memorandum or in any preliminary
prospectus or preliminary offering memorandum or in any amendment
or supplement to any thereof or in any other writing prepared in
connection with the offer, sale or resale of all or any portion of
the Pledged Collateral unless such untrue statement of material
fact was provided by the Pledgee, in writing, specifically for
inclusion therein, or (ii) arises out of or is based upon any
omission or alleged omission to state therein a material fact
required to be stated or necessary to make the statements therein
not misleading, such indemnification to remain operative regardless
of any investigation made by or on behalf of the Pledgee or any
successor thereof, or any person or entity in control of any
thereof. In connection with a public sale or other distribution,
the Pledgor will provide customary indemnification to any
underwriters, their successors and assigns, officers and directors
and each person or entity who controls any such underwriter (within
the meaning of the 1933 Act). If and to the extent that the
foregoing undertakings in this paragraph may be unenforceable for
any reason, the Pledgor agrees to make the maximum contribution to
the payment and satisfaction of each of the Indemnified Liabilities
which is permissible under applicable law. The obligations of the
Pledgor under this
paragraph (c)
shall survive any
termination of this Agreement.
(d)
The Pledgor further
agrees to waive any and all rights of subrogation it may have
against Fan Pass, Inc. upon the sale or disposition of all or any
portion of the Pledged Collateral by the Pledgee pursuant to the
terms of this Agreement until the termination of this Agreement in
accordance with
Section
11
below.
10.
No Waiver; Cumulative Remedies
.
The Pledgee shall not by any act, delay, omission or otherwise be
deemed to have waived any of its remedies hereunder, and no waiver
by the Pledgee shall be valid unless in writing and signed by the
Pledgee, and then only to the extent therein set forth. A waiver by
the Pledgee of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which the
Pledgee would otherwise have on any further occasion. No course of
dealing between the Pledgor and the Pledgee and no failure to
exercise, nor any delay in exercising on the part of the Pledgee or
the Buyers of, any right, power or privilege hereunder shall impair
such right or remedy or operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege
hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and
remedies herein provided are cumulative and may be exercised singly
or concurrently, and are not exclusive of any rights or remedies
provided by law or in the Loan Agreement.
11.
Termination
.
This Agreement and the liens and
security interests granted hereunder shall terminate and the
Pledgee shall return any Pledged Shares or other Pledged Collateral
then held by the Pledgee in accordance with the provisions of this
Agreement to the Pledgor at such time as the earliest of (a)
subject to Purchaser’s approval, between 5% of the
Company’s ownership of the Fan Pass Securities (as disclosed
on Schedule 2.1 to the Securities Purchase Agreement) and up to 46%
of the Company’s ownership of the Fan Pass Securities (as
disclosed on Schedule 2.1 to the Securities Purchase Agreement) of
the Pledged Shares will have been distributed to Pledgor’s
shareholders as a non-taxable dividend or asset distribution, (b)
all Obligations under the Notes shall be finally and irrevocably
paid in full in cash or otherwise satisfied pursuant to the terms
of the Notes, (c) no Notes shall remain outstanding, (d) all
commitments to lend under the Loan Agreement shall have terminated,
and (e) there shall exist no other outstanding payment or
reimbursement obligations (other than contingent indemnification
obligations for which no claims shall have been asserted) of the
Company or the Pledgor to the Buyers and the Pledgee under any of
the Transaction Agreements.
12.
Possession of
Collateral
.
Beyond the exercise of reasonable
care to assure the safe custody of the Pledged Shares in the
physical possession of the Pledgee pursuant hereto, neither the
Pledgee, nor any nominee of the Pledgee, shall have any duty or
liability to collect any sums due in respect thereof or to protect,
preserve or exercise any rights pertaining thereto (including any
duty to ascertain or take action with respect to calls,
conversions, exchanges, maturities, tenders or other matters
relating to the Pledged Collateral and any duty to take any
necessary steps to preserve rights against any parties with respect
to the Pledged Collateral), and shall be relieved of all
responsibility for the Pledged Collateral upon surrendering them to
the Pledgor. The Pledgor assumes the responsibility for being and
keeping itself informed of the financial condition of Fan Pass,
Inc. and of all other circumstances bearing upon the risk of
non-payment of the Obligations, and the Pledgee shall have no duty
to advise the Pledgor of information known to the Pledgee regarding
such condition or any such circumstance. The Pledgee shall have no
duty to inquire into the powers of Fan Pass, Inc. or its officers,
directors, managers, members, partners or agents thereof acting or
purporting to act on its behalf.
13.
Taxes and Expenses
. The Pledgor
will upon demand pay to the Pledgee, (a) any taxes (excluding
income taxes, franchise taxes or other taxes levied on gross
earnings, profits or the like of the Pledgee) payable or ruled
payable by any governmental authority in respect of this Agreement,
together with interest and penalties, if any, and (b) all expenses,
including the fees and expenses of counsel for the Pledgee and of
any experts and agents that the Pledgee may incur in connection
with (i) the administration, modification or amendment of this
Agreement, (ii) the custody or preservation of, or the sale of,
collection from, or other realization upon, any of the Pledged
Collateral, (iii) the exercise or enforcement of any of the rights
of the Pledgee hereunder, or (iv) the failure of the Pledgor to
perform or observe any of the provisions hereof.
14.
The Pledgee Appointed
Attorney-In-Fact
. The Pledgor hereby irrevocably appoints
the Pledgee as the Pledgor’s attorney-in-fact, with full
authority in the place and stead of the Pledgor and in the name of
the Pledgor or otherwise, from time to time in the Pledgee’s
discretion, to take any action and to execute any instrument that
the Pledgee deems reasonably necessary or advisable to accomplish
the purposes of this Agreement, including, without limitation, (i)
to receive, endorse and collect all instruments made payable to the
Pledgor representing any dividend, interest payment or other
distribution in respect of the Pledged Collateral or any part
thereof and to give full discharge for the same, when and to the
extent permitted by this Agreement and (ii) to complete any
assignment separate from the certificates delivered hereunder;
provided that the power of attorney granted hereunder shall only be
exercised by the Pledgee after the occurrence and during the
continuance of an Event of Default.
15.
Governing Law; Jurisdiction; Jury
Trial
. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed
by the internal laws of the State of New York, without giving
effect to any choice of law or conflict of law provision or rule
(whether of the State of New York or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other
than the State of New York. Each party hereby irrevocably submits
to the non-exclusive jurisdiction of the state and federal courts
sitting in the City of New York, borough of Manhattan, 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 brought in an inconvenient forum or that the venue of
such suit, action or proceeding is improper. 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 to such party at the address for such
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 manner permitted by law.
Notwithstanding the foregoing, the Pledgee may enforce its rights
and remedies in any other jurisdiction applicable to the Pledged
Collateral. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY
HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION
OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT
OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED
HEREBY.
16.
Counterparts
. This Agreement
may be executed in two or more identical counterparts, all of which
shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and
delivered to the other party; provided that a facsimile, .pdf or
similar electronically transmitted signature shall be considered
due execution and shall be binding upon the signatory thereto with
the same force and effect as if the signature were an original
signature.
17.
Headings
. The headings of this
Agreement are for convenience of reference and shall not form part
of, or affect the interpretation of, this Agreement.
18.
Severability
. If any provision
of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect
the validity or enforceability of the remainder of this Agreement
in that jurisdiction or the validity or enforceability of any
provision of this Agreement in any other jurisdiction.
19.
Entire Agreement; Amendments
.
This Agreement supersedes all other prior oral or written
agreements between the Pledgor, the Pledgee, the Buyers and their
affiliates and persons acting on their behalf with respect to the
matters discussed herein, and this Agreement and the Transaction
Agreements and instruments referenced herein and therein contain
the entire understanding of the parties with respect to the matters
covered herein and therein.
20.
Notices
. Any notices, consents,
waivers or other communications required or permitted to be given
under the terms of this Agreement must be in writing and will be
deemed to have been delivered: (i) upon receipt, when delivered
personally; (ii) upon receipt, when sent by facsimile (provided
confirmation of transmission is mechanically or electronically
generated and kept on file by the sending party); or (iii) one
Business Day (as defined in the Loan Agreement) after deposit with
a nationally recognized overnight delivery service, 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 Pledgor:
Friendable,
Inc.
125
East Campbell Avenue
Campbell, CA
95008
Attn:
Robert A. Rositano, Jr., Chief Executive Officer
Fax:
(408) 547-0110
Email:
robert@ihookupsocial.com
With a
copy by fax only to (which shall not constitute
notice):
Lucosky
Brookman LLP
101
Wood Avenue South
Woodbridge, NJ
08830
Attn:
Steven A. Lipstein, Esq.
Fax:
(732) 395-4401
Email:
slipstein@lucbro.com
If to
the Pledgee:
Alpha
Capital Anstalt
Lettstrasse
32
9490
Vaduz, Liechtenstein
Attn:
Konrad Ackermann, Director
Fax:
011-423-2323196
21.
Successors and Assigns
. This
Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and assigns, including any
Buyers of the Notes. The Pledgor shall not assign this Agreement or
any rights or obligations hereunder without the prior written
consent of the Pledgee. The Pledgee may assign its rights hereunder
without the consent of the Pledgor, in which event such assignee
shall be deemed to be the Pledgee hereunder with respect to such
assigned rights.
22.
No Third Party Beneficiaries
.
This Agreement is intended for the benefit of the parties hereto
and their respective successors and permitted assigns, and is not
for the benefit of, nor may any provision hereof be enforced by,
any other person or entity.
23.
Surviva
l. All representations,
warranties, covenants and agreements of the Pledgor and the Pledgee
shall survive the execution and delivery of this
Agreement.
24.
Further Assurances
. The Pledgor
agrees that at any time and from time to time upon the written
request of the Pledgee, the Pledgor will execute and deliver all
assignments separate from certificates or stock powers, financing
statements and such further documents and do such further acts and
things as the Pledgee may reasonably request consistent with the
provisions hereof in order to carry out the intent and accomplish
the purpose of this Agreement and the consummation of the
transactions contemplated hereby.
25.
No Strict Construction
. The
language used in this Agreement will be deemed to be the language
chosen by the parties to express their mutual intent, and no rules
of strict construction will be applied against any
party.
26.
Pledgee Authorized
. The Pledgor
hereby authorizes the Pledgee to file one or more financing or
continuation statements and amendments thereto (or similar
documents required by any laws of any applicable jurisdiction)
relating to all or any part of the Pledged Shares or other Pledged
Collateral without the signature of the Pledgor.
27.
Pledgee Acknowledgement
. The
Pledgor
acknowledges receipt of an
executed copy of this Agreement. The Pledgor waives the right to
receive any amount that it may now or hereafter be entitled to
receive (whether by way of damages, fine, penalty, or otherwise) by
reason of the failure of the Pledgee to deliver to the Pledgor a
copy of any financing statement or any statement issued by any
registry that confirms registration of a financing statement
relating to this Agreement.
[Signature Page Follows]
IN
WITNESS WHEREOF, the parties hereto have caused this Pledge
Agreement to be duly executed and delivered by their duly
authorized officers on the date first above written.
PLEDGOR:
FRIENDABLE,
INC.
/s/ Robert Rositano
By:
_____________________________________
Robert
Rositano, Jr.
Chief
Executive Officer
PLEDGEE:
ALPHA
CAPITAL ANSTALT
/s/ Konrad Ackermann
By:
_____________________________________
Name: Konrad
Ackermann
Title:
Director
ACKNOWLEDGEMENT
Each of
the undersigned hereby (i) acknowledges receipt of a copy of the
foregoing Pledge Agreement, (ii) waives any rights or requirement
at any time hereafter to receive a copy of such Pledge Agreement in
connection with the registration of any Pledged Shares (as defined
therein) in the name of the Pledgee or its nominee or the exercise
of voting rights by the Pledgee and (iii) agrees promptly to note
on its books and records the grant of the security interest in the
stock or other equity interests of the undersigned as provided in
such Pledge Agreement.
Dated:
July 21, 2017
|
/s/ Robert Rositano
By:
_____________________________________
Robert
Rositano, Jr.
Chief
Executive Officer
|
EXHIBIT A
to Pledge Agreement
DESCRIPTION OF CAPITAL STOCK OR EQUITY INTERESTS OF PLEDGE
ENTITIES
Name
of
Pledge
Entity
|
Class
of Stock or Other Equity Interests
|
Authorized No.
of
Shares
or Units
|
Issued
and Outstanding Shares or Units
|
Percentage of
Shares or Units
Held
by Pledgor
|
|
Common
Stock
|
|
|
|
|
|
|
|
|
DESCRIPTION OF PLEDGED SHARES OR UNITS
Name
of
Pledge
Entity
|
Class
of Stock or Other Equity Interests
|
Stock
or Unit Certificate No.
|
No. of
Shares or Units
Represented
by
Certificate
|
|
Common
Stock
|
|
|
|
|
|
|
EXHIBIT B
to Pledge Agreement
Addendum to Pledge Agreement
The
undersigned, being the Pledgor pursuant to that certain Pledge
Agreement dated as of July ___, 2017(as amended, restated,
supplemented or otherwise modified from time to time, the
“
Pledge
Agreement
”) in favor of [_______________________], a
Delaware limited partnership, as collateral agent (the
“
Pledgee
”), by
executing this Addendum, hereby acknowledges that the Pledgor has
acquired and legally and beneficially owns all of the issued and
outstanding
[ shares of capital
stock ]
of
[__________________, a _______ corporation
]
(the “
Company
”)
described below (the “
Shares
”). The
Pledgor hereby agrees and acknowledges that the Shares shall be
deemed Pledged Shares pursuant to the Pledge Agreement. The Pledgor
hereby represents and warrants to the Pledgee that (i) all of the
[ capital stock ]
of the
Company now owned by the Pledgor is presently represented by the
certificates listed below, which certificates, with undated
assignments separate from certificate or stock powers duly executed
in blank by the Pledgor, are being delivered to the Pledgee,
simultaneously herewith (or have been previously delivered to the
Pledgee), and (ii) after giving effect to this addendum, the
representations and warranties set forth in Section 3 of the Pledge
Agreement are true, complete and correct as of the date
hereof.
Pledged Shares
Name
of
the
Pledged Entity
|
Class
of Equity Interest
|
Certificate
No.
|
No. of
Shares
Represented
by
Certificate
|
|
|
|
|
|
|
|
|
IN
WITNESS WHEREOF, the Pledgor has executed this Addendum this _____
day of ______.
|
PLEDGOR
:
By:________________________________
Name:
____________________________
Title:
____________________________
|