Exhibit 10.39
COMMON STOCK PURCHASE AGREEMENT
This common stock purchase agreement is entered
into as of December 29, 2018 (this “
Agreement
”),
by and between Investview Inc. a Nevada corporation (the
“
Company
”),
and TRITON FUNDS LP, a Delaware limited partnership (the
“
Investor
”).
WHEREAS
, the parties desire that, upon the terms and
subject to the conditions contained herein, the Investor shall
purchase, from time to time, as provided herein, and the Company
shall issue and sell One Million Dollars ($1,000,000) of the
Company’s Common Stock (as defined
below);
NOW,
THEREFORE
, the parties hereto
agree as follows:
CERTAIN DEFINITIONS
DEFINED
TERMS
. As used in this
Agreement, the following terms shall have the following meanings
specified or indicated (such meanings to be equally applicable to
both the singular and plural forms of the terms
defined):
“
Agreement
”
shall have the meaning specified in the preamble
hereof.
“
Bankruptcy
Law
” means Title 11, U.S.
Code, or any similar federal or state law for the relief of
debtors.
“
Business
Day
” shall mean a day on
which the Principal Market shall be open for
business.
“
Claim
Notice
” shall have the
meaning specified in Section 9.3(a).
“
Clearing
Costs
” shall mean all of
the Investor’s broker and Transfer Agent fees, excluding
commissions.
“
Clearing
Date
” shall be the date
on which the Investor receives the Purchase Notice Shares as DWAC
Shares in its brokerage account.
“
Closing
”
shall mean one of the closings of a purchase and sale of shares of
Common Stock pursuant to Section 2.3.
“
Closing
Date
” shall mean the date
that is no later than five (5) Business Days after the Clearing
Date.
“
Commitment
Amount
” shall mean One
Million Dollar ($1,000,000).
“
Commitment
Period
” shall mean the
period commencing on the Execution Date and ending on the earlier
of (i) the date on which the Investor shall have purchased Purchase
Notice Shares pursuant to this Agreement equal to the Commitment
Amount, (ii) the Expiration Date, (iii) June 30, 2019, or (iv)
written notice of termination by the Company to the Investor upon a
material breach of this Agreement by Investor.
“
Common
Stock
” shall mean the
Company’s common stock, $0.0001 value per share, and any
shares of any other class of common stock whether now or hereafter
authorized, having the right to participate in the distribution of
dividends (as and when declared) and assets (upon liquidation of
the Company).
“
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
”
shall have the meaning specified in the preamble to this
Agreement.
“
Custodian
”
means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
“
Damages
”
shall mean any loss, claim, damage, liability, cost and expense
(including, without limitation, reasonable attorneys’ fees
and disbursements and costs and expenses of expert witnesses and
investigation).
“
Dispute
Period
” shall have the
meaning specified in Section 9.3(a).
“
DTC
” shall mean The Depository Trust Company,
or any successor performing substantially the same function for the
Company.
“
DTC/FAST
Program
” shall mean the
DTC’s Fast Automated Securities Transfer
Program.
“
DWAC
”
shall mean Deposit Withdrawal at Custodian as defined by the
DTC.
“
DWAC
Eligible
” shall mean that
(a) the Common Stock is eligible at DTC for full services pursuant
to DTC’s Operational Arrangements, including, without
limitation, transfer through DTC’s DWAC system, (b) the
Company has been approved (without revocation) by the DTC’s
underwriting department, (c) the Transfer Agent is approved as an
agent in the DTC/FAST Program, (d) the Purchase Notice Shares are
otherwise eligible for delivery via DWAC, and (e) the Transfer
Agent does not have a policy prohibiting or limiting delivery of
the Purchase Notice Shares, as applicable, via
DWAC.
“
DWAC
Shares
” means shares of
Common Stock that are (i) issued in electronic form, (ii) freely
tradable and transferable and without restriction on resale and
(iii) timely credited by the Company to the Investor’s or its
designee’s specified DWAC account with DTC under the DTC/FAST
Program, or any similar program hereafter adopted by DTC performing
substantially the same function.
“
Exchange
Act
” shall mean the
Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
“
Exchange
Cap
” shall have the
meaning set forth in Section 7.1(c).
“
Execution
Date
” shall mean the date
of this Agreement.
“
Expiration
Date
” shall mean one
sixty (60) Business Days after the Registration Statement has been
declared effective.
“
FINRA
”
shall mean the Financial Industry Regulatory Authority,
Inc.
“
Indemnified
Party
” shall have the
meaning specified in Section 9.2.
“
Indemnifying
Party
” shall have the
meaning specified in Section 9.2.
“
Indemnity
Notice
” shall have the
meaning specified in Section 9.3(e).
“
Investment
Amount
” shall mean the
Purchase Notice Shares referenced in the Purchase Notice multiplied
by the Purchase Price.
“
Investor
”
shall have the meaning specified in the preamble to this
Agreement.
“
Lien
”
means a lien, charge, pledge, security interest, encumbrance, right
of first refusal, preemptive right or other
restriction.
“
Material Adverse
Effect
” shall mean any
effect on the business, operations, properties, or financial
condition of the Company and the Subsidiaries that is material and
adverse to the Company and the Subsidiaries and/or any condition,
circumstance, or situation that would prohibit or otherwise
materially interfere with the ability of the Company to enter into
and perform its obligations under any Transaction
Document.
“
Person
”
shall mean an individual, a corporation, a partnership, an
association, a trust or other entity or organization, including a
government or political subdivision or an agency or instrumentality
thereof.
“
Principal
Market
” shall mean any of
the national exchanges (i.e. NYSE, NYSE AMEX, Nasdaq), or principal
quotation systems (i.e. OTCQX, OTCQB, OTC Pink, the OTC Bulletin
Board), or other principal exchange or recognized quotation system
which is at the time the principal trading platform or market for
the Common Stock.
“
Purchase
Notice
” shall mean a
written notice from Investor, substantially in the form of Exhibit
A hereto, to Company setting forth the Purchase Notice Shares which
the Investor intends to require Company to sell pursuant to the
terms of this Agreement.
“
Purchase Notice
Shares
” shall mean all
shares of Common Stock issued, or that the Company shall be
entitled to issue, per applicable Purchase Notice in accordance
with the terms and conditions of this
Agreement.
“
Purchase
Price
” shall mean 85% of
the lowest closing price of the Common Stock the five Business Days
prior to the Closing Date.
“
Registration
Statement
” shall have the
meaning specified in Section 6.3.
“
Regulation
D
” shall mean Regulation
D promulgated under the Securities Act.
“
Rule
144
” shall mean Rule 144
under the Securities Act or any similar provision then in force
under the Securities Act.
“
SEC
” shall mean the United States Securities
and Exchange Commission.
“
SEC
Documents
” shall have the
meaning specified in Section 4.5.
“
Securities
”
mean the Purchase Notice Shares.
“
Securities
Act
” shall mean the
Securities Act of 1933, as amended.
“
Subsidiary
”
means any Person the Company wholly-owns or controls, or in which
the Company, directly or indirectly, owns a majority of the voting
stock or similar voting interest, in each case that would be
disclosable pursuant to Item 601(b)(21) of Regulation S-K
promulgated under the Securities Act.
“
Third Party
Claim
” shall have the
meaning specified in Section 9.3(a).
“
Transaction
Documents
” shall mean
this Agreement and all schedules and exhibits hereto and
thereto.
“
Transfer
Agent
” shall mean the
current transfer agent of the Company, and any successor transfer
agent of the Company.
PURCHASE AND SALE OF COMMON STOCK
PURCHASE
NOTICES
. Upon the terms and
conditions set forth herein (including, without limitation, the
provisions of Article VII), the Investor shall have the right, but
not the obligation, to direct the Company, by its delivery to the
Company of a Purchase Notice from time to time, to purchase
Purchase Notice Shares provided that the amount of Purchase Notice
Shares shall not exceed the Beneficial Ownership Limitation set
forth in Section 7.1(g).
MECHANICS
.
PURCHASE
NOTICE
. At any time and from
time to time during the Commitment Period, except as provided in
this Agreement, the Investor may deliver a Purchase Notice to
Company, subject to satisfaction of the conditions set forth in
Section 7.2 and otherwise provided herein. The Company shall
deliver the Purchase Notice Shares as DWAC Shares to the Investor
immediately upon receipt of the Purchase
Notice.
DATE OF DELIVERY OF
PURCHASE NOTICE
. A Purchase
Notice shall be deemed delivered on (i) the Business Day it is
received by email by the Investor if such notice is received on or
prior to 8:00 p.m. New York time or (ii) the immediately succeeding
Business Day if it is received by email after 8:00 p.m. New York
time on a Business Day or at any time on a day which is not a
Business Day.
CLOSINGS
.
CLOSING
.
The Closing of a Purchase Notice shall occur no later than five (5)
Business Days following the Clearing Date, whereby the Investor,
shall deliver the Investment Amount (minus the Clearing Costs), by
wire transfer of immediately available funds to an account
designated by the Company.
EXPIRATION
DATE
. If, by 30 days after the
Registration Statement becomes effective, the Investor has invested
less than $500,000, pursuant to this Agreement, Investor shall
within one (1) Business Day transfer to the Company the amount
representing the difference between $500,000 and the amount the
Investor has already paid to the Company. The Purchase Price for
this amount shall be 85% of the lowest closing price of the Common
Stock for the previous five Business Days, (ii) the Company shall
immediately deliver the Purchase Notice Shares as DWAC Shares to
the Investor, and (iii) the Investor shall immediately wire to the
Company the Purchase Price multiplied by the lessor of the
Beneficial Ownership Limitation or the remaining Commitment Amount.
If by Expiration date the Investor has invested less than
$1,000,000, pursuant to this Agreement, Investor shall within one
(1) Business Day transfer to the Company the amount representing
the difference between $1,000,000 and the amount the Investor has
already paid to the Company. The Purchase Price for this amount
shall be 85% of the lowest closing price of the Common Stock for
the previous five Business Days, (ii) the Company shall immediately
deliver the Purchase Notice Shares as DWAC Shares to the Investor,
and (iii) the Investor shall immediately wire to the Company the
Purchase Price multiplied by the lessor of the Beneficial Ownership
Limitation or the remaining Commitment Amount.
REPRESENTATIONS AND WARRANTIES OF INVESTOR
The
Investor represents and warrants to the Company that:
INTENT
.
The Investor is entering into this Agreement for its own account
and the Investor has no present arrangement (whether or not legally
binding) at any time to sell the Securities to or through any
Person in violation of the Securities Act or any applicable state
securities laws;
provided
,
however
,
that the Investor reserves the right to dispose of the Securities
at any time in accordance with federal and state securities laws
applicable to such disposition.
NO LEGAL ADVICE FROM
THE COMPANY
. The Investor
acknowledges that it has had the opportunity to review this
Agreement and the transactions contemplated by this Agreement with
its own legal counsel and investment and tax advisors. The Investor
is relying solely on such counsel and advisors and not on any
statements or representations of the Company or any of its
representatives or agents for legal, tax or investment advice with
respect to this investment, the transactions contemplated by this
Agreement or the securities laws of any
jurisdiction.
ACCREDITED
INVESTOR
. The Investor is an
accredited investor as defined in Rule 501(a)(3) of Regulation D,
and the Investor has such experience in business and financial
matters that it is capable of evaluating the merits and risks of an
investment in the Securities. The Investor acknowledges that an
investment in the Securities is speculative and involves a high
degree of risk.
AUTHORITY
.
The Investor has the requisite power and authority to enter into
and perform its obligations under the Transaction Documents and to
consummate the transactions contemplated hereby and thereby. The
execution and delivery of the Transaction Documents and the
consummation by it of the transactions contemplated hereby and
thereby have been duly authorized by all necessary action and no
further consent or authorization of the Investor is required. The
Transaction Documents to which it is a party has been duly executed
by the Investor, and when delivered by the Investor in accordance
with the terms hereof, will constitute the valid and binding
obligation of the Investor enforceable against it in accordance
with its terms, subject to applicable bankruptcy, insolvency, or
similar laws relating to, or affecting generally the enforcement
of, creditors’ rights and remedies or by other equitable
principles of general application.
NOT AN
AFFILIATE
. The Investor is not
an officer, director or “
affiliate
”
(as that term is defined in Rule 405 of the Securities Act) of the
Company.
ORGANIZATION AND
STANDING
. The Investor is an
entity duly incorporated or formed, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or
formation with full right, corporate, partnership, limited
liability company or similar power and authority to enter into and
to consummate the transactions contemplated by the Transaction
Documents.
ABSENCE OF
CONFLICTS
. The execution and
delivery of the Transaction Documents, and the consummation of the
transactions contemplated hereby and thereby and compliance with
the requirements hereof and thereof, will not (a) violate any law,
rule, regulation, order, writ, judgment, injunction, decree or
award binding on the Investor, (b) violate any provision of any
indenture, instrument or agreement to which the Investor is a party
or is subject, or by which the Investor or any of its assets is
bound, or conflict with or constitute a material default
thereunder, (c) result in the creation or imposition of any lien
pursuant to the terms of any such indenture, instrument or
agreement, or constitute a breach of any fiduciary duty owed by the
Investor to any third party, or (d) require the approval of any
third-party (that has not been obtained) pursuant to any material
contract, instrument, agreement, relationship or legal obligation
to which the Investor is subject or to which any of its assets,
operations or management may be subject.
DISCLOSURE; ACCESS TO
INFORMATION
. The Investor had
an opportunity to review copies of the SEC Documents filed on
behalf of the Company and has had access to all publicly available
information with respect to the Company.
MANNER OF
SALE
. At no time was the
Investor presented with or solicited by or through any leaflet,
public promotional meeting, television advertisement or any other
form of general solicitation or advertising.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The
Company represents and warrants to the Investor that, except as
disclosed in the SEC Documents or except as set forth in the
disclosure schedules hereto:
ORGANIZATION OF THE
COMPANY
. 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, could not have or reasonably be
expected to result in 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.
AUTHORITY
.
The Company has the requisite corporate power and authority to
enter into and perform its obligations under the Transaction
Documents. The execution and delivery of the Transaction Documents
by the Company and the consummation by it of the transactions
contemplated hereby and thereby have been duly authorized by all
necessary corporate action and no further consent or authorization
of the Company or its Board of Directors or stockholders is
required. The Transaction Documents have been duly executed and
delivered by the Company and constitutes a valid and binding
obligation of the Company enforceable against the Company in
accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, or similar laws
relating to, or affecting generally the enforcement of,
creditors’ rights and remedies or by other equitable
principles of general application.
CAPITALIZATION
.
As of the date hereof, the authorized capital stock of the Company
consists of 10,000,000,000 shares of Common Stock, par value of
$0.0001 per share, of which approximately 2,213,661,318 shares of
Common Stock are issued and outstanding. Except as set forth
on
Schedule
4.3
, the Company has not issued
any capital stock since its most recently filed periodic report
under the Exchange Act, other than pursuant to the exercise of
employee stock options under the Company’s stock option
plans, the issuance of shares of Common Stock to employees pursuant
to the Company’s employee stock purchase plans and pursuant
to the conversion and/or exercise of Common Stock Equivalents
outstanding as of the date of the most recently filed periodic
report under the Exchange Act. 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 set forth on
Schedule 4.3
and except as a result of the purchase
and sale of the Securities, there are no outstanding options,
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. 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 Investor) 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. 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.
LISTING AND
MAINTENANCE REQUIREMENTS
. The
Common Stock is registered pursuant to Section 12(b) or 12(g) of
the Exchange Act, and the Company has taken no action designed to,
or which to its knowledge is likely to have the effect of,
terminating the registration of the Common Stock under the Exchange
Act nor has the Company received any notification that the SEC is
contemplating terminating such registration. The Company has not,
in the twelve (12) months preceding the date hereof, received
notice from the Principal 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
Principal Market. The Company is and has no reason to believe that
it will not in the foreseeable future continue to be, in compliance
with all such listing and maintenance
requirements.
SEC DOCUMENTS;
DISCLOSURE
. Except as set forth
on
Schedule
4.5
, 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 Section 13(a) or 15(d) thereof,
for the one (1) year 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, being
collectively referred to herein as the “
SEC
Documents
”) on a timely
basis or has received a valid extension of such time of filing and
has filed any such SEC Documents prior to the expiration of any
such extension. As of their respective dates, the SEC Documents
complied in all material respects with the requirements of the
Securities Act and the Exchange Act, as applicable, and other
federal laws, rules and regulations applicable to such SEC
Documents, and none of the SEC Documents 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 light of the circumstances under which
they were made, not misleading. The financial statements of the
Company included in the SEC Documents comply as to form and
substance in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC or
other applicable rules and regulations with respect thereto. Such
financial statements have been prepared in accordance with
generally accepted accounting principles applied on a consistent
basis during the periods involved (except (a) as may be otherwise
indicated in such financial statements or the notes thereto or (b)
in the case of unaudited interim statements, to the extent they may
not include footnotes or may be condensed or summary statements)
and fairly present in all material respects the financial position
of the Company as of 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). Except with respect to the material terms and
conditions of the transactions contemplated by the Transaction
Documents, the Company confirms that neither it nor any other
Person acting on its behalf has provided the Investor or its agents
or counsel with any information that it believes constitutes or
might constitute material, non-public information. The Company
understands and confirms that the Investor will rely on the
foregoing representation in effecting transactions in securities of
the Company.
VALID
ISSUANCES
. 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 non-assessable, free and clear of all Liens
imposed by the Company other than restrictions on transfer provided
for in the Transaction Documents.
NO
CONFLICTS
. The execution,
delivery and performance of the Transaction Documents by the
Company and the consummation by the Company of the transactions
contemplated hereby and thereby, including, without limitation, the
issuance of the Purchase Notice Shares, do not and will not: (a)
result in a violation of the Company’s or any
Subsidiary’s certificate or articles of incorporation,
by-laws or other organizational or charter documents, (b) conflict
with, or constitute a material default (or an event that with
notice or lapse of time or both would become a material 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 of, any agreement, indenture, instrument or any
“
lock-up
”
or similar provision of any underwriting or similar agreement to
which the Company or any Subsidiary is a party, or (c) result in a
violation of any federal, state or local law, rule, regulation,
order, judgment or decree (including federal and state securities
laws and regulations) applicable to the Company or any Subsidiary
or by which any property or asset of the Company or any Subsidiary
is bound or affected (except for such conflicts, defaults,
terminations, amendments, accelerations, cancellations and
violations as would not, individually or in the aggregate, have a
Material Adverse Effect) nor is the Company otherwise in violation
of, conflict with or in default under any of the foregoing. The
business of the Company is not being conducted in violation of any
law, ordinance or regulation of any governmental entity, except for
possible violations that either singly or in the aggregate do not
and will not have a Material Adverse Effect. The Company is not
required under federal, state or local law, rule or regulation 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 the
Transaction Documents (other than any SEC, FINRA or state
securities filings that may be required to be made by the Company
subsequent to any Closing or any registration statement that may be
filed pursuant hereto); provided that, for purposes of the
representation made in this sentence, the Company is assuming and
relying upon the accuracy of the relevant representations and
agreements of Investor herein.
NO MATERIAL ADVERSE
CHANGE
. No event has occurred
that would have a Material Adverse Effect on the Company that has
not been disclosed in subsequent SEC filings.
LITIGATION AND OTHER
PROCEEDINGS
. Except as
disclosed in the SEC Documents or as set forth on Schedule 4.9,
there are no actions, suits, investigations, inquiries or
proceedings pending or, to the knowledge of the Company, threatened
against or affecting the Company, any Subsidiary or any of their
respective properties, nor has the Company received any written or
oral notice of any such action, suit, proceeding, inquiry or
investigation, which would have a Material Adverse Effect. No
judgment, order, writ, injunction or decree or award has been
issued by or, to the knowledge of the Company, requested of any
court, arbitrator or governmental agency which would have a
Material Adverse Effect. There has not been, and to the knowledge
of the Company, there is not pending or contemplated, any
investigation by the SEC involving the Company, any Subsidiary or
any current or former director or officer of the Company or any
Subsidiary.
REGISTRATION
RIGHTS
. Except as set forth on
Schedule 4.10, no Person (other than the Investor) has any right to
cause the Company to effect the registration under the Securities
Act of any securities of the Company or any
Subsidiary.
COVENANTS OF INVESTOR
COMPLIANCE WITH LAW;
TRADING IN SECURITIES
. The
Investor’s trading activities with respect to shares of
Common Stock will be in compliance with all applicable state and
federal securities laws and regulations and the rules and
regulations of FINRA and the Principal Market.
COVENANTS OF THE COMPANY
LISTING OF COMMON
STOCK
. The Company shall
promptly secure the listing of all of the Purchase Notice Shares to
be issued to the Investor hereunder on the Principal Market
(subject to official notice of issuance) and shall use commercially
reasonable best efforts to maintain, so long as any shares of
Common Stock shall be so listed, the listing of all such Purchase
Notice Shares from time to time issuable hereunder. The Company
shall use its commercially reasonable efforts to continue the
listing and trading of the Common Stock on the Principal Market
(including, without limitation, maintaining sufficient net tangible
assets) and will comply in all respects with the Company’s
reporting, filing and other obligations under the bylaws or rules
of FINRA and the Principal Market.
FILING OF CURRENT
REPORT AND REGISTRATION STATEMENT
. The Company agrees that it shall file a Current
Report on Form 8-K, including the Transaction Documents as exhibits
thereto, with the SEC within the time required by the Exchange Act,
relating to the transactions contemplated by, and describing the
material terms and conditions of, the Transaction Documents (the
“
Current
Report
”). The Company
shall permit the Investor to review and comment upon the final
pre-filing draft version of the Current Report at least two (2)
Business Days prior to its filing with the SEC, and the Company
shall give reasonable consideration to all such comments. The
Investor shall use its reasonable best efforts to comment upon the
final pre-filing draft version of the Current Report within one (1)
Business Day from the date the Investor receives it from the
Company. The Company shall also file with the SEC, within ten (15)
calendar days from the date hereof, a new registration statement
(the “
Registration
Statement
”) covering only
the resale of the Purchase Notice Shares.
CONDITIONS TO DELIVERY OF
PURCHASE NOTICE AND CONDITIONS TO CLOSING
CONDITIONS PRECEDENT
TO THE RIGHT OF THE COMPANY TO ISSUE AND SELL PURCHASE NOTICE
SHARES
. The right of the
Company to issue and sell the Purchase Notice Shares to the
Investor is subject to the satisfaction of each of the conditions
set forth below:
ACCURACY OF
INVESTOR’S REPRESENTATIONS AND WARRANTIES
. The representations and warranties of the
Investor shall be true and correct in all material respects as of
the date of this Agreement and as of the date of each Closing as
though made at each such time.
PERFORMANCE BY
INVESTOR
. Investor shall have
performed, satisfied and complied in all respects with all
covenants, agreements and conditions required by this Agreement to
be performed, satisfied or complied with by the Investor at or
prior to such Closing.
PRINCIPAL MARKET
REGULATION
. The Company shall
not issue any Purchase Notice Shares, and the Investor shall not
have the right to receive any Purchase Notice Shares, if the
issuance of such Purchase Notice Shares would exceed the aggregate
number of shares of Common Stock which the Company may issue
without breaching the Company’s obligations under the rules
or regulations of the Principal Market (the
“
Exchange
Cap
”).
CONDITIONS PRECEDENT
TO THE OBLIGATION OF INVESTOR TO PURCHASE PURCHASE NOTICE
SHARES
. The obligation of the
Investor hereunder to purchase Purchase Notice Shares is subject to
the satisfaction of each of the following
conditions:
EFFECTIVE REGISTRATION
STATEMENT
. The Registration
Statement, and any amendment or supplement thereto, shall remain
effective for the resale by the Investor of the Purchase Notice
Shares and (i) neither the Company nor the Investor shall have
received notice that the SEC has issued or intends to issue a stop
order with respect to such Registration Statement or that the SEC
otherwise has suspended or withdrawn the effectiveness of such
Registration Statement, either temporarily or permanently, or
intends or has threatened to do so and (ii) no other suspension of
the use of, or withdrawal of the effectiveness of, such
Registration Statement or related prospectus shall
exist.
ACCURACY OF THE
COMPANY’S REPRESENTATIONS AND WARRANTIES
. The representations and warranties of the
Company shall be true and correct in all material respects as of
the date of this Agreement and as of the date of each Closing
(except for representations and warranties specifically made as of
a particular date).
PERFORMANCE BY THE
COMPANY
. The Company shall have
performed, satisfied and complied in all material respects with all
covenants, agreements and conditions required by this Agreement to
be performed, satisfied or complied with by the
Company.
NO
INJUNCTION
. No statute, rule,
regulation, executive order, decree, ruling or injunction shall
have been enacted, entered, promulgated or adopted by any court or
governmental authority of competent jurisdiction that prohibits or
directly and materially adversely affects any of the transactions
contemplated by the Transaction Documents, and no proceeding shall
have been commenced that may have the effect of prohibiting or
materially adversely affecting any of the transactions contemplated
by the Transaction Documents.
ADVERSE
CHANGES
. Since the date of
filing of the Company’s most recent SEC Document, no event
that had or is reasonably likely to have a Material Adverse Effect
has occurred.
NO SUSPENSION OF
TRADING IN OR DELISTING OF COMMON STOCK
. The trading of the Common Stock shall not have
been suspended by the SEC, the Principal Market or FINRA, or
otherwise halted for any reason, and the Common Stock shall have
been approved for listing or quotation on and shall not have been
delisted from the Principal Market. In the event of a suspension,
delisting, or halting for any reason, of the trading of the Common
Stock, as contemplated by this Section 7.2(f), the Investor shall
have the right to return to the Company any amount of Purchase
Notice Shares associated with such Purchase Notice, and the
Investment Amount with respect to such Purchase Notice shall be
reduced accordingly.
BENEFICIAL OWNERSHIP
LIMITATION
. The number of
Purchase Notice Shares then to be purchased by the Investor shall
not exceed the number of such shares that, when aggregated with all
other shares of Common Stock then owned by the Investor
beneficially or deemed beneficially owned by the Investor, would
result in the Investor owning more than the Beneficial Ownership
Limitation (as defined below), as determined in accordance with
Section 16 of the Exchange Act and the regulations promulgated
thereunder. For purposes of this Section 7.2(g), in the event that
the amount of Common Stock outstanding is greater on a Closing Date
than on the date upon which the Purchase Notice associated with
such Closing Date is given, the amount of Common Stock outstanding
on such issuance of a Purchase Notice shall govern for purposes of
determining whether the Investor, when aggregating all purchases of
Common Stock made pursuant to this Agreement, would own more than
the Beneficial Ownership Limitation following such Closing Date.
The “
Beneficial Ownership
Limitation
” shall be
4.99% of the number of shares of the Common Stock outstanding
immediately prior to the issuance of shares of Common Stock
issuable pursuant to a Purchase Notice.
PRINCIPAL MARKET
REGULATION
. The issuance of the
Purchase Notice Shares shall not exceed the Exchange
Cap.
NO
KNOWLEDGE
. The Company shall
have no knowledge of any event more likely than not to have the
effect of causing the Registration Statement to be suspended or
otherwise ineffective (which event is more likely than not to occur
within the fifteen (15) Business Days following the Business Day on
which such Purchase Notice is deemed
delivered).
NO VIOLATION OF
SHAREHOLDER APPROVAL REQUIREMENT
. The issuance of the Purchase Notice Shares shall
not violate the shareholder approval requirements of the Principal
Market.
DWAC
ELIGIBLE
. The Common Stock must
be DWAC Eligible and not subject to a “
DTC
chill
”.
SEC
DOCUMENTS
. All reports,
schedules, registrations, forms, statements, information and other
documents required to have been filed by the Company with the SEC
pursuant to the reporting requirements of the Exchange Act shall
have been filed with the SEC within the applicable time periods
prescribed for such filings under the Exchange
Act.
LEGENDS
NO RESTRICTIVE STOCK
LEGEND
. No restrictive stock
legend shall be placed on the share certificates representing the
Purchase Notice Shares.
INVESTOR’S
COMPLIANCE
. Nothing in this
Article VIII shall affect in any way the Investor’s
obligations hereunder to comply with all applicable securities laws
upon the sale of the Common Stock.
NOTICES; INDEMNIFICATION
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 reputable air
courier service with charges prepaid, or (d) transmitted by hand
delivery, telegram, or email as a PDF, addressed as set forth below
or to such other address as such party shall have specified most
recently by written notice given in accordance herewith. Any notice
or other communication required or permitted to be given hereunder
shall be deemed effective (i) upon hand delivery or delivery by
email at the address 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 (ii) on the second business
day following the date of mailing by express courier service or on
the fifth business day after deposited in the mail, in each case,
fully prepaid, addressed to such address, or upon actual receipt of
such mailing, whichever shall first occur.
The
addresses for such communications shall be:
If
to the Company:
If
to the Investor:
TRITON
FUNDS LLC
1262
Prospect Street
La
Jolla, CA 92037
Email:
tritonfunds@tritonfunds.com
Either
party hereto may from time to time change its address or email for
notices under this Section 9.1 by giving at least ten (10)
days’ prior written notice of such changed address to the
other party hereto.
INDEMNIFICATION
.
Each party (an “
Indemnifying
Party
”) agrees to
indemnify and hold harmless the other party along with its
officers, directors, employees, and authorized agents, and each
Person or entity, if any, who controls such party within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act (an “
Indemnified
Party
”) from and against
any Damages, joint or several, and any action in respect thereof to
which the Indemnified Party becomes subject to, resulting from,
arising out of or relating to (i) any misrepresentation, breach of
warranty or nonfulfillment of or failure to perform any covenant or
agreement on the part of the Indemnifying Party contained in this
Agreement, (ii) any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or any
post-effective amendment thereof or supplement thereto, or the
omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein
not misleading, (iii) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary
prospectus or contained in the final prospectus (as amended or
supplemented, if the Company files any amendment thereof or
supplement thereto with the SEC) or the omission or alleged
omission to state therein any material fact necessary to make the
statements made therein, in the light of the circumstances under
which the statements therein were made, not misleading, or (iv) any
violation or alleged violation by the Company of the Securities
Act, the Exchange Act, any state securities law or any rule or
regulation under the Securities Act, the Exchange Act or any state
securities law, as such Damages are incurred, except to the extent
such Damages result primarily from the Indemnified Party’s
failure to perform any covenant or agreement contained in this
Agreement or the Indemnified Party’s negligence, recklessness
or bad faith in performing its obligations under this
Agreement;
provided
,
however
,
that the foregoing indemnity agreement shall not apply to any
Damages of an Indemnified Party to the extent, but only to the
extent, arising out of or based upon any untrue statement or
alleged untrue statement or omission or alleged omission made by an
Indemnifying Party in reliance upon and in conformity with written
information furnished to the Indemnifying Party by the Indemnified
Party expressly for use in the Registration Statement, any
post-effective amendment thereof or supplement thereto, or any
preliminary prospectus or final prospectus (as amended or
supplemented).
METHOD OF ASSERTING
INDEMNIFICATION CLAIMS
. All
claims for indemnification by any Indemnified Party under Section
9.2 shall be asserted and resolved as follows:
In the event any claim or demand in respect of
which an Indemnified Party might seek indemnity under Section 9.2
is asserted against or sought to be collected from such Indemnified
Party by a Person other than a party hereto or an affiliate thereof
(a “
Third Party
Claim
”), the Indemnified
Party shall deliver a written notification, enclosing a copy of all
papers served, if any, and specifying the nature of and basis for
such Third Party Claim and for the Indemnified Party’s claim
for indemnification that is being asserted under any provision of
Section 9.2 against an Indemnifying Party, together with the amount
or, if not then reasonably ascertainable, the estimated amount,
determined in good faith, of such Third Party Claim (a
“
Claim
Notice
”) with reasonable
promptness to the Indemnifying Party. If the Indemnified Party
fails to provide the Claim Notice with reasonable promptness after
the Indemnified Party receives notice of such Third Party Claim,
the Indemnifying Party shall not be obligated to indemnify the
Indemnified Party with respect to such Third Party Claim to the
extent that the Indemnifying Party’s ability to defend has
been prejudiced by such failure of the Indemnified Party. The
Indemnifying Party shall notify the Indemnified Party as soon as
practicable within the period ending thirty (30) calendar days
following receipt by the Indemnifying Party of either a Claim
Notice or an Indemnity Notice (as defined below) (the
“
Dispute
Period
”) whether the
Indemnifying Party disputes its liability or the amount of its
liability to the Indemnified Party under Section 9.2 and whether
the Indemnifying Party desires, at its sole cost and expense, to
defend the Indemnified Party against such Third Party
Claim.
If the Indemnifying Party notifies the Indemnified
Party within the Dispute Period that the Indemnifying Party desires
to defend the Indemnified Party with respect to the Third Party
Claim pursuant to this Section 9.3(a), then the Indemnifying Party
shall have the right to defend, with counsel reasonably
satisfactory to the Indemnified Party, at the sole cost and expense
of the Indemnifying Party, such Third Party Claim by all
appropriate proceedings, which proceedings shall be vigorously and
diligently prosecuted by the Indemnifying Party to a final
conclusion or will be settled at the discretion of the Indemnifying
Party (but only with the consent of the Indemnified Party in the
case of any settlement that provides for any relief other than the
payment of monetary damages or that provides for the payment of
monetary damages as to which the Indemnified Party shall not be
indemnified in full pursuant to Section 9.2). The Indemnifying
Party shall have full control of such defense and proceedings,
including any compromise or settlement
thereof
;
provided
,
however, that the Indemnified Party may, at the sole cost and
expense of the Indemnified Party, at any time prior to the
Indemnifying Party’s delivery of the notice referred to in
the first sentence of this clause (i), file any motion, answer or
other pleadings or take any other action that the Indemnified Party
reasonably believes to be necessary or appropriate to protect its
interests; and
provided
,
further
,
that if requested by the Indemnifying Party, the Indemnified Party
will, at the sole cost and expense of the Indemnifying Party,
provide reasonable cooperation to the Indemnifying Party in
contesting any Third Party Claim that the Indemnifying Party elects
to contest. The Indemnified Party may participate in, but not
control, any defense or settlement of any Third Party Claim
controlled by the Indemnifying Party pursuant to this clause (i),
and except as provided in the preceding sentence, the Indemnified
Party shall bear its own costs and expenses with respect to such
participation. Notwithstanding the foregoing, the Indemnified Party
may take over the control of the defense or settlement of a Third
Party Claim at any time if it irrevocably waives its right to
indemnity under Section 9.2 with respect to such Third Party
Claim.
If
the Indemnifying Party fails to notify the Indemnified Party within
the Dispute Period that the Indemnifying Party desires to defend
the Third Party Claim pursuant to Section 9.3(a), or if the
Indemnifying Party gives such notice but fails to prosecute
vigorously and diligently or settle the Third Party Claim, or if
the Indemnifying Party fails to give any notice whatsoever within
the Dispute Period, then the Indemnified Party shall have the right
to defend, at the sole cost and expense of the Indemnifying Party,
the Third Party Claim by all appropriate proceedings, which
proceedings shall be prosecuted by the Indemnified Party in a
reasonable manner and in good faith or will be settled at the
discretion of the Indemnified Party(with the consent of the
Indemnifying Party, which consent will not be unreasonably
withheld). The Indemnified Party will have full control of such
defense and proceedings, including any compromise or settlement
thereof; provided, however, that if requested by the Indemnified
Party, the Indemnifying Party will, at the sole cost and expense of
the Indemnifying Party, provide reasonable cooperation to the
Indemnified Party and its counsel in contesting any Third Party
Claim which the Indemnified Party is contesting. Notwithstanding
the foregoing provisions of this clause (ii), if the Indemnifying
Party has notified the Indemnified Party within the Dispute Period
that the Indemnifying Party disputes its liability or the amount of
its liability hereunder to the Indemnified Party with respect to
such Third Party Claim and if such dispute is resolved in favor of
the Indemnifying Party in the manner provided in clause (iii)
below, the Indemnifying Party will not be required to bear the
costs and expenses of the Indemnified Party’s defense
pursuant to this clause (ii) or of the Indemnifying Party’s
participation therein at the Indemnified Party’s request, and
the Indemnified Party shall reimburse the Indemnifying Party in
full for all reasonable costs and expenses incurred by the
Indemnifying Party in connection with such litigation. The
Indemnifying Party may participate in, but not control, any defense
or settlement controlled by the Indemnified Party pursuant to this
clause (ii), and the Indemnifying Party shall bear its own costs
and expenses with respect to such participation.
If the Indemnifying Party notifies the Indemnified
Party that it does not dispute its liability or the amount of its
liability to the Indemnified Party with respect to the Third Party
Claim under Section 9.2 or fails to notify the Indemnified Party
within the Dispute Period whether the Indemnifying Party disputes
its liability or the amount of its liability to the Indemnified
Party with respect to such Third Party Claim, the amount of Damages
specified in the Claim Notice shall be conclusively deemed a
liability of the Indemnifying Party under Section 9.2 and the
Indemnifying Party shall pay the amount of such Damages to the
Indemnified Party on demand. If the Indemnifying Party has timely
disputed its liability or the amount of its liability with respect
to such claim, the Indemnifying Party and the Indemnified Party
shall proceed in good faith to negotiate a resolution of such
dispute;
provided
,
however
,
that if the dispute is not resolved within thirty (30) days after
the Claim Notice, the Indemnifying Party shall be entitled to
institute such legal action as it deems
appropriate.
In the event any Indemnified Party should have a
claim under Section 9.2 against the Indemnifying Party that does
not involve a Third Party Claim, the Indemnified Party shall
deliver a written notification of a claim for indemnity under
Section 9.2 specifying the nature of and basis for such claim,
together with the amount or, if not then reasonably ascertainable,
the estimated amount, determined in good faith, of such claim (an
“
Indemnity
Notice
”) with reasonable
promptness to the Indemnifying Party. The failure by any
Indemnified Party to give the Indemnity Notice shall not impair
such party’s rights hereunder except to the extent that the
Indemnifying Party demonstrates that it has been irreparably
prejudiced thereby. If the Indemnifying Party notifies the
Indemnified Party that it does not dispute the claim or the amount
of the claim described in such Indemnity Notice or fails to notify
the Indemnified Party within the Dispute Period whether the
Indemnifying Party disputes the claim or the amount of the claim
described in such Indemnity Notice, the amount of Damages specified
in the Indemnity Notice will be conclusively deemed a liability of
the Indemnifying Party under Section 9.2 and the Indemnifying Party
shall pay the amount of such Damages to the Indemnified Party on
demand. If the Indemnifying Party has timely disputed its liability
or the amount of its liability with respect to such claim, the
Indemnifying Party and the Indemnified Party shall proceed in good
faith to negotiate a resolution of such dispute; provided, however,
that if the dispute is not resolved within thirty (30) days after
the Claim Notice, the Indemnifying Party shall be entitled to
institute such legal action as it deems
appropriate.
The
Indemnifying Party agrees to pay the Indemnified Party, promptly as
such expenses are incurred and are due and payable, for any
reasonable legal fees or other reasonable expenses incurred by them
in connection with investigating or defending any such
Claim.
The
indemnity provisions contained herein shall be in addition to (i)
any cause of action or similar rights of the Indemnified Party
against the Indemnifying Party or others, and (ii) any liabilities
the Indemnifying Party may be subject to.
MISCELLANEOUS
GOVERNING LAW;
JURISDICTION
. This Agreement
shall be governed by and interpreted in accordance with the laws of
the State of California without regard to the principles of
conflicts of law. Each of the Company and the Investor hereby
submits to the exclusive jurisdiction of the United States federal
and state courts located in California, County of Los Angeles, with
respect to any dispute arising under the Transaction Documents or
the transactions contemplated thereby.
JURY TRIAL
WAIVER
. The Company and the
Investor hereby waive a trial by jury in any action, proceeding or
counterclaim brought by either of the parties hereto against the
other in respect of any matter arising out of or in connection with
the Transaction Documents.
ASSIGNMENT
.
The Transaction Documents shall be binding upon and inure to the
benefit of the Company and the Investor and their respective
successors. Neither this Agreement nor any rights of the Investor
or the Company hereunder may be assigned by either party to any
other Person.
NO THIRD-PARTY
BENEFICIARIES
. This Agreement
is intended for the benefit of the Company and the Investor and
their respective successors, and is not for the benefit of, nor may
any provision hereof be enforced by, any other Person, except as
set forth in Section 9.3.
TERMINATION
.
The Company may terminate this Agreement at any time by written
notice to the Investor in the event of a material breach of this
Agreement by the Investor. In addition, this Agreement shall
automatically terminate on the earlier of (i) the end of the
Commitment Period; (ii) the date that the Company sells and the
Investor purchases the Commitment Amount; (iii) the date in which
the Registration Statement is no longer effective, or (iv) the date
that, pursuant to or within the meaning of any Bankruptcy Law, the
Company commences a voluntary case or any Person commences a
proceeding against the Company, a Custodian is appointed for the
Company or for all or substantially all of its property or the
Company makes a general assignment for the benefit of its
creditors; provided, however, that the provisions of Articles III,
IV, V, VI, IX and the agreements and covenants of the Company and
the Investor set forth in Article X shall survive the termination
of this Agreement.
ENTIRE
AGREEMENT
. The Transaction
Documents, together with the exhibits and schedules thereto,
contain the entire understanding of the Company and the Investor
with respect to the matters covered herein and therein 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.
FEES AND
EXPENSES
. Except as expressly
set forth in the Transaction Documents or any other writing to the
contrary, 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 any fees
required for same-day processing of any instruction letter
delivered by the Company), stamp taxes and other taxes and duties
levied in connection with the delivery of any Securities to the
Investor. A document preparation fee of $10,000 will be sent from
the Company to the Investor with three (3) business days of signing
of the legal documents.
COUNTERPARTS
.
The Transaction Documents may be executed in multiple counterparts,
each of which may be executed by less than all of the parties and
shall be deemed to be an original instrument which shall be
enforceable against the parties actually executing such
counterparts and all of which together shall constitute one and the
same instrument. The Transaction Documents may be delivered to the
other parties hereto by email of a copy of the Transaction
Documents bearing the signature of the parties so delivering this
Agreement.
SEVERABILITY
.
In the event that any provision of this Agreement becomes or is
declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force
and effect without said provision; provided that such severability
shall be ineffective if it materially changes the economic benefit
of this Agreement to any party.
FURTHER
ASSURANCES
. Each party shall do
and perform, or cause to be done and performed, all such further
acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as the other
party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of
the transactions contemplated hereby.
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.
EQUITABLE
RELIEF
. The Company recognizes
that in the event that it fails to perform, observe, or discharge
any or all of its obligations under this Agreement, any remedy at
law may prove to be inadequate relief to the Investor. The Company
therefore agrees that the Investor shall be entitled to temporary
and permanent injunctive relief in any such case without the
necessity of proving actual damages.
TITLE AND
SUBTITLES
. The titles and
subtitles used in this Agreement are used for the convenience of
reference and are not to be considered in construing or
interpreting this Agreement.
AMENDMENTS;
WAIVERS
. No provision of this
Agreement may be amended or waived by the parties from and after
the date that is one (1) Business Day immediately preceding the
initial filing of the Registration Statement with the SEC. Subject
to the immediately preceding sentence, (i) no provision of this
Agreement may be amended other than by a written instrument signed
by both parties hereto and (ii) no provision of this Agreement may
be waived other than in a written instrument signed by the party
against whom enforcement of such waiver is sought. No failure or
delay in the exercise of any power, right or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right or privilege preclude other or
further exercise thereof or of any other right, power or
privilege.
PUBLICITY
.
The Company and the Investor shall consult with each other in
issuing any press releases or otherwise making public statements
with respect to the transactions contemplated hereby and no party
shall issue any such press release or otherwise make any such
public statement, other than as required by law, without the prior
written consent of the other parties, which consent shall not be
unreasonably withheld or delayed, except that no prior consent
shall be required if such disclosure is required by law, in which
such case the disclosing party shall provide the other party with
prior notice of such public statement. Notwithstanding the
foregoing, the Company shall not publicly disclose the name of the
Investor without the prior written consent of the Investor, except
to the extent required by law. The Investor acknowledges that the
Transaction Documents may be deemed to be
“
material
contracts,
” as that term
is defined by Item 601(b)(10) of Regulation S-K, and that the
Company may therefore be required to file such documents as
exhibits to reports or registration statements filed under the
Securities Act or the Exchange Act. The Investor further agrees
that the status of such documents and materials as material
contracts shall be determined solely by the Company, in
consultation with its counsel.
[Signature Page Follows]
IN WITNESS
WHEREOF
, the parties have
caused this Agreement to be duly executed by their respective
officers thereunto duly authorized as of the day and year first
above written.
Investview Inc.
By:
__/s/ Ryan
Smith____________________
_
Name:
Ryan Smith
Title:
CEO
TRITON FUNDS LP
By:
__/s/ Nathan
Yee_____________________
Name:Nathan
Yee
Title:
Founder
[Signature Page to Agreement]
Exhibit 10.40
REGISTRATION RIGHTS AGREEMENT
REGISTRATION
RIGHTS AGREEMENT
(this
“
Agreement
”),
dated as of December 29, 2018, by and
between
Investview
Inc.
,
a Nevada corporation (the
“
Company
”),
and
TRITON
FUNDS LP
,
a Delaware limited partnership
(together with it permitted assigns, the “
Buyer
”).
Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings set forth in the common stock
purchase agreement by and between the parties hereto, dated as of
the date hereof (as amended, restated, supplemented or otherwise
modified from time to time, the “
Purchase
Agreement
”).
WHEREAS:
The One Million Dollars ($1,000,000) of Purchase
Notice Shares and to induce the Buyer to enter into the Purchase
Agreement, the Company has agreed to provide certain registration
rights under the Securities Act of 1933, as amended, and the rules
and regulations thereunder, or any similar successor statute
(collectively, the “
Securities
Act
”), and applicable
state securities laws.
NOW,
THEREFORE
, in consideration of
the promises and the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company and the Buyer hereby
agree as follows:
1.
DEFINITIONS
.
As
used in this Agreement, the following terms shall have the
following meanings:
a. “
Investor
”
means the Buyer, any transferee or assignee thereof to whom a Buyer
assigns its rights under this Agreement in accordance with Section
9 and who agrees to become bound by the provisions of this
Agreement, and any transferee or assignee thereof to whom a
transferee or assignee assigns its rights under this Agreement in
accordance with Section 9 and who agrees to become bound by the
provisions of this Agreement.
b. “
Person
”
means any individual or entity including but not limited to any
corporation, a limited liability company, an association, a
partnership, an organization, a business, an individual, a
governmental or political subdivision thereof or a governmental
agency.
c. “
Register
”,
“
registered
”,
and “
registration
”
refer to a registration effected by preparing and filing one or
more registration statements of the Company in compliance with the
Securities Act and/or pursuant to Rule 415 under the Securities Act
or any successor rule providing for offering securities on a
continuous basis (“
Rule
415
”), and the
declaration or ordering of effectiveness of such registration
statement(s) by the United States Securities and Exchange
Commission (the “
SEC
”).
d. “
Registrable
Securities
” means (a) an
aggregate of up to 100,000,000 Purchase Notice Shares and any
shares of common stock issued to the Investor as a result of any
stock split, stock dividend, recapitalization, exchange or similar
event or otherwise with respect thereto.
e. “
Registration
Statement
” means one or
more registration statements of the Company covering only the sale
of the Registrable Securities.
2.
REGISTRATION
.
a.
Mandatory
Registration
. The Company
shall, within fifteen (15) calendar days from the date hereof, file
with the SEC an initial Registration Statement covering the maximum
number of Registrable Securities (beginning with the Purchase
Notice Shares) as shall be permitted to be included thereon in
accordance with applicable SEC rules, regulations and
interpretations so as to permit the resale of such Registrable
Securities by the Investor, including but not limited to under Rule
415 under the Securities Act at then prevailing market prices (and
not fixed prices), as mutually determined by both the Company and
the Investor in consultation with their respective legal counsel,
subject to the aggregate number of authorized shares of the
Company’s Common Stock then available for issuance in its
Certificate of Incorporation. The initial Registration Statement
shall register only the Registrable Securities. The Investor and
its counsel shall have a reasonable opportunity to review and
comment upon such Registration Statement and any amendment or
supplement to such Registration Statement and any related
prospectus prior to its filing with the SEC, and the Company shall
give due consideration to all reasonable comments. The Investor
shall furnish all information reasonably requested by the Company
for inclusion therein. The Company shall use its reasonable best
efforts to have the Registration Statement and any amendment
declared effective by the SEC at the earliest possible date. The
Company shall use reasonable best efforts to keep the Registration
Statement effective, including but not limited to pursuant to Rule
415 promulgated under the Securities Act and available for the
resale by the Investor of all of the Registrable Securities covered
thereby at all times until the earlier of (i) the date as of which
the Investor may sell all of the Registrable Securities without
restriction pursuant to Rule 144 promulgated under the Securities
and (ii) the date on which the Investor shall have sold all the
Registrable Securities covered thereby and no Available Amount
remains under the Purchase Agreement (the
“
Registration
Period
”). The
Registration Statement (including any amendments or supplements
thereto and prospectuses contained therein) shall not contain any
untrue statement of a material fact or omit to state a material
fact required to be stated therein, or necessary to make the
statements therein, in light of the circumstances in which they
were made, not misleading.
b.
Rule
424 Prospectus.
The
Company shall, as required by applicable securities regulations,
from time to time file with the SEC, pursuant to Rule 424
promulgated under the Securities Act, the prospectus and prospectus
supplements, if any, to be used in connection with sales of the
Registrable Securities under the Registration Statement. The
Investor and its counsel shall have a reasonable opportunity to
review and comment upon such prospectus prior to its filing with
the SEC, and the Company shall give due consideration to all such
comments. The Investor shall use its reasonable best efforts to
comment upon such prospectus within one (1) Business Day from the
date the Investor receives the final pre-filing version of such
prospectus.
c.
Sufficient
Number of Shares Registered
. In
the event the number of shares available under the Registration
Statement is insufficient to cover all of the Registrable
Securities, the Company shall amend the Registration Statement or
file a new Registration Statement (a “
New
Registration Statement
”),
so as to cover all of such Registrable Securities (subject to the
limitations set forth in Section 2(a)) as soon as practicable, but
in any event not later than ten (10) Business Days after the
necessity therefor arises, subject to any limits that may be
imposed by the SEC pursuant to Rule 415 under the Securities Act.
The Company shall use it reasonable best efforts to cause such
amendment and/or New Registration Statement to become effective as
soon as practicable following the filing thereof. Unless the
Registration Period has ended, in the event that any of the
Purchase Notice Shares are not included in the Registration
Statement, or have not been included in any New Registration
Statement and the Company files any other registration statement
under the Securities Act (other than on Form S-4, Form S-8, or with
respect to other employee related plans or rights offerings)
(“
Other
Registration Statement
”) then the Company shall include in such
Other Registration Statement first all of such Purchase Notice
Shares that have not been previously registered, and second any
other securities the Company wishes to include in such Other
Registration Statement. Unless the Registration Period has ended,
the Company agrees that it shall not file any such Other
Registration Statement unless all of the Purchase Notice Shares
have been included in such Other Registration Statement or
otherwise have been registered for resale as described
above.
d.
Offering
.
If the staff of the SEC (the “Staff’) or the SEC seeks
to characterize any offering pursuant to a Registration Statement
filed pursuant to this Agreement as constituting an offering of
securities that does not permit such Registration Statement to
become effective and be used for resales by the Investor under Rule
415 at then-prevailing market prices (and not fixed prices), or if
after the filing of the initial Registration Statement with the SEC
pursuant to Section 2(a), the Company is otherwise required by the
Staff or the SEC to reduce the number of Registrable Securities
included in such initial Registration Statement, then the Company
shall reduce the number of Registrable Securities to be included in
such initial Registration Statement (with the prior consent, which
shall not be unreasonably withheld, of the Investor and its legal
counsel as to the specific Registrable Securities to be removed
therefrom) until such time as the Staff and the SEC shall so permit
such Registration Statement to become effective and be used as
aforesaid. Unless the Registration Period has ended, in the event
of any reduction in Registrable Securities pursuant to this
paragraph, the Company shall file one or more New Registration
Statements in accordance with Section 2(c) until such time as all
Registrable Securities have been included in Registration
Statements that have been declared effective and the prospectus
contained therein is available for use by the Investor.
Notwithstanding any provision herein or in the Purchase Agreement
to the contrary, the Company’s obligations to register
Registrable Securities (and any related conditions to the
Investor’s obligations) shall be qualified as necessary to
comport with any requirement of the SEC or the Staff as addressed
in this Section 2(d).
3.
RELATED
OBLIGATIONS
.
With
respect to the Registration Statement and whenever any Registrable
Securities are to be registered pursuant to Section 2 including on
any New Registration Statement, the Company shall use its
reasonable best efforts to effect the registration of the
Registrable Securities in accordance with the intended method of
disposition thereof and, pursuant thereto, the Company shall have
the following obligations:
a.
The Company shall prepare and file with the SEC such amendments
(including post-effective amendments) and supplements to any
registration statement and the prospectus used in connection with
such registration statement, which prospectus is to be filed
pursuant to Rule 424 promulgated under the Securities Act, as may
be necessary to keep the Registration Statement or any New
Registration Statement effective at all times during the
Registration Period, and, during such period, comply with the
provisions of the Securities Act with respect to the disposition of
all Registrable Securities of the Company covered by the
Registration Statement or any New Registration Statement until such
time as all of such Registrable Securities shall have been disposed
of in accordance with the intended methods of disposition by the
seller or sellers thereof as set forth in such registration
statement.
b.
The Company shall permit the Investor to review and comment upon
the Registration Statement or any New Registration Statement and
all amendments and supplements thereto at least two (2) Business
Days prior to their filing with the SEC, and not file any document
in a form to which Investor reasonably objects. The Investor shall
use its reasonable best efforts to comment upon the Registration
Statement or any New Registration Statement and any amendments or
supplements thereto within two (2) Business Days from the date the
Investor receives the final version thereof. The Company shall
furnish to the Investor, without charge any correspondence from the
SEC or the staff of the SEC to the Company or its representatives
relating to the Registration Statement or any New Registration
Statement.
c.
Upon request of the Investor, the Company shall furnish to the
Investor, (i) promptly after the same is prepared and filed with
the SEC, at least one copy of such registration statement and any
amendment(s) thereto, including financial statements and schedules,
all documents incorporated therein by reference and all exhibits,
(ii) upon the effectiveness of any registration statement, a copy
of the prospectus included in such registration statement and all
amendments and supplements thereto (or such other number of copies
as the Investor may reasonably request) and (iii) such other
documents, including copies of any preliminary or final prospectus,
as the Investor may reasonably request from time to time in order
to facilitate the disposition of the Registrable Securities owned
by the Investor. For the avoidance of doubt, any filing available
to the Investor via the SEC’s live EDGAR system shall be
deemed “furnished to the Investor”
hereunder.
d. The Company shall use reasonable best efforts
to (i) register and qualify the Registrable Securities covered by a
registration statement under such other securities or
“
blue
sky
” laws of California,
(ii) prepare and file in those jurisdictions, such amendments
(including post-effective amendments) and supplements to such
registrations and qualifications as may be necessary to maintain
the effectiveness thereof during the Registration Period, (iii)
take such other actions as may be necessary to maintain such
registrations and qualifications in effect at all times during the
Registration Period, and (iv) take all other actions reasonably
necessary or advisable to qualify the Registrable Securities for
sale in such jurisdictions; provided, however, that the Company
shall not be required in connection therewith or as a condition
thereto to (x) qualify to do business in any jurisdiction where it
would not otherwise be required to qualify but for this Section
3(d), (y) subject itself to general taxation in any such
jurisdiction, or (z) file a general consent to service of process
in any such jurisdiction. The Company shall promptly notify the
Investor who holds Registrable Securities of the receipt by the
Company of any notification with respect to the suspension of the
registration or qualification of any of the Registrable Securities
for sale under the securities or “blue sky” laws of
California or its receipt of actual notice of the initiation or
threatening of any proceeding for such
purpose.
e.
As promptly as practicable after becoming aware of such event or
facts, the Company shall notify the Investor in writing of the
happening of any event or existence of such facts as a result of
which the prospectus included in any registration statement, as
then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and
promptly prepare a supplement or amendment to such registration
statement to correct such untrue statement or omission, and deliver
a copy of such supplement or amendment to the Investor (or such
other number of copies as the Investor may reasonably request). The
Company shall also promptly notify the Investor in writing (i) when
a prospectus or any prospectus supplement or post-effective
amendment has been filed, and when a registration statement or any
post-effective amendment has become effective (notification of such
effectiveness shall be delivered to the Investor by email or
facsimile on the same day of such effectiveness and by overnight
mail), (ii) of any request by the SEC for amendments or supplements
to any registration statement or related prospectus or related
information, and (iii) of the Company’s reasonable
determination that a post-effective amendment to a registration
statement would be appropriate.
f.
The Company shall use its reasonable best efforts to prevent the
issuance of any stop order or other suspension of effectiveness of
any registration statement, or the suspension of the qualification
of any Registrable Securities for sale in any jurisdiction and, if
such an order or suspension is issued, to obtain the withdrawal of
such order or suspension at the earliest possible moment and to
notify the Investor of the issuance of such order and the
resolution thereof or its receipt of actual notice of the
initiation or threat of any proceeding for such
purpose.
g.
The Company shall (i) cause all the Registrable Securities to be
listed on each securities exchange on which securities of the same
class or series issued by the Company are then listed, if any, if
the listing of such Registrable Securities is then permitted under
the rules of such exchange, or (ii) secure designation and
quotation of all the Registrable Securities on the Principal
Market. The Company shall pay all fees and expenses in connection
with satisfying its obligation under this Section.
h.
The Company shall cooperate with the Investor to facilitate the
timely preparation and delivery of certificates (not bearing any
restrictive legend) representing the Registrable Securities to be
offered pursuant to any registration statement and enable such
certificates to be in such denominations or amounts as the Investor
may reasonably request and registered in such names as the Investor
may request.
i.
The Company shall at all times provide a transfer agent and
registrar with respect to its Common Stock.
j.
If reasonably requested by the Investor, the Company shall (i)
immediately incorporate in a prospectus supplement or
post-effective amendment such information as the Investor believes
should be included therein relating to the sale and distribution of
Registrable Securities, including, without limitation, information
with respect to the number of Registrable Securities being sold,
the purchase price being paid therefor and any other terms of the
offering of the Registrable Securities; (ii) make all required
filings of such prospectus supplement or post-effective amendment
as soon as practicable upon notification of the matters to be
incorporated in such prospectus supplement or post¬effective
amendment; and (iii) supplement or make amendments to any
registration statement.
k.
The Company shall use its reasonable best efforts to cause the
Registrable Securities covered by any registration statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to consummate the disposition of
such Registrable Securities.
l. Within three (3) Business Days after any
registration statement which includes the Registrable Securities is
ordered effective by the SEC, the Company shall deliver, and shall
cause legal counsel for the Company to deliver, to the transfer
agent for such Registrable Securities (with copies to the Investor)
confirmation that such registration statement has been declared
effective by the SEC in the form attached hereto
as
Exhibit
A
. Thereafter, if requested by
the Buyer at any time, the Company shall require its counsel to
deliver to the Buyer a written confirmation whether or not the
effectiveness of such registration statement has lapsed at any time
for any reason (including, without limitation, the issuance of a
stop order) and whether or not the registration statement is
current and available to the Buyer for sale of all of the
Registrable Securities.
m.
The Company shall take all other reasonable actions necessary to
expedite and facilitate disposition by the Investor of Registrable
Securities pursuant to any registration statement.
4.
OBLIGATIONS
OF THE INVESTOR
.
a.
The Company shall notify the Investor in writing of the information
the Company reasonably requires from the Investor in connection
with any registration statement hereunder. The Investor shall
furnish to the Company such information regarding itself, the
Registrable Securities held by it and the intended method of
disposition of the Registrable Securities held by it as shall be
reasonably required to effect the registration of such Registrable
Securities and shall execute such documents in connection with such
registration as the Company may reasonably request.
b.
The Investor agrees to cooperate with the Company as reasonably
requested by the Company in connection with the preparation and
filing of any registration statement hereunder.
c.
The Investor agrees that, upon receipt of any notice from the
Company of the happening of any event or existence of facts of the
kind described in Section 3(f) or the first sentence of 3(e), the
Investor will immediately discontinue disposition of Registrable
Securities pursuant to any registration statement(s) covering such
Registrable Securities until the Investor’s receipt of the
copies of the supplemented or amended prospectus contemplated by
Section 3(f) or the first sentence of 3(e). Notwithstanding
anything to the contrary, the Company shall cause its transfer
agent to promptly deliver shares of Common Stock without any
restrictive legend in accordance with the terms of the Purchase
Agreement in connection with any sale of Registrable Securities
with respect to which an Investor has entered into a contract for
sale prior to the Investor’s receipt of a notice from the
Company of the happening of any event of the kind described in
Section 3(f) or the first sentence of Section 3(e) and for which
the Investor has not yet settled.
5.
EXPENSES
OF REGISTRATION
.
All
reasonable expenses, other than sales or brokerage commissions,
incurred in connection with registrations, filings or
qualifications pursuant to Sections 2 and 3, including, without
limitation, all registration, listing and qualifications fees,
printers and accounting fees, and fees and disbursements of counsel
for the Company, shall be paid by the Company.
6.
INDEMNIFICATION
.
a. To the fullest extent permitted by law, the
Company will, and hereby does, indemnify, hold harmless and defend
the Investor, each Person, if any, who controls the Investor, the
members, the directors, officers, partners, employees, agents,
representatives of the Investor and each Person, if any, who
controls the Investor within the meaning of the Securities Act or
the Securities Exchange Act of 1934, as amended (the
“
Exchange
Act
”) (each, an
“
Indemnified
Person
”), against any
losses, claims, damages, liabilities, judgments, fines, penalties,
charges, costs, attorneys’ fees, amounts paid in settlement
or expenses, joint or several, (collectively,
“
Claims
”)
incurred in investigating, preparing or defending any action,
claim, suit, inquiry, proceeding, investigation or appeal taken
from the foregoing by or before any court or governmental,
administrative or other regulatory agency, body or the SEC, whether
pending or threatened, whether or not an indemnified party is or
may be a party thereto (“
Indemnified
Damages
”), to which any
of them may become subject insofar as such Claims (or actions or
proceedings, whether commenced or threatened, in respect thereof)
arise out of or are based upon: (i) any untrue statement or alleged
untrue statement of a material fact in the Registration Statement,
any New Registration Statement or any post-effective amendment
thereto or in any filing made in connection with the qualification
of the offering under the securities or other
“
blue
sky
” laws of any
jurisdiction in which Registrable Securities are offered
(“
Blue
Sky Filing
”), or the
omission or alleged omission to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, (ii) any untrue statement or alleged untrue statement
of a material fact contained in the final prospectus (as amended or
supplemented, if the Company files any amendment thereof or
supplement thereto with the SEC) or the omission or alleged
omission to state therein any material fact necessary to make the
statements made therein, in light of the circumstances under which
the statements therein were made, not misleading, (iii) any
violation or alleged violation by the Company of the Securities
Act, the Exchange Act, any other law, including, without
limitation, any state securities law, or any rule or regulation
thereunder relating to the offer or sale of the Registrable
Securities pursuant to the Registration Statement or any New
Registration Statement or (iv) any material violation by the
Company of this Agreement (the matters in the foregoing clauses (i)
through (iv) being, collectively, “
Violations
”).
The Company shall reimburse each Indemnified Person promptly as
such expenses are incurred and are due and payable, for any
reasonable legal fees or other reasonable expenses incurred by them
in connection with investigating or defending any such Claim.
Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in this Section 6(a): (i) shall
not apply to a Claim by an Indemnified Person arising out of or
based upon a Violation which occurs in reliance upon and in
conformity with information about the Investor furnished in writing
to the Company by such Indemnified Person expressly for use in
connection with the preparation of the Registration Statement, any
New Registration Statement or any such amendment thereof or
supplement thereto, if such prospectus was timely made available by
the Company pursuant to Section 3(c) or Section 3(e); (ii) with
respect to any superseded prospectus, shall not inure to the
benefit of any such person from whom the person asserting any such
Claim purchased the Registrable Securities that are the subject
thereof (or to the benefit of any person controlling such person)
if the untrue statement or omission of material fact contained in
the superseded prospectus was corrected in the revised prospectus,
as then amended or supplemented, if such revised prospectus was
timely made available by the Company pursuant to Section 3(c) or
Section 3(e), and the Indemnified Person was promptly advised in
writing not to use the incorrect prospectus prior to the use giving
rise to a violation and such Indemnified Person, notwithstanding
such advice, used it; (iii) shall not be available to the extent
such Claim is based on a failure of the Investor to deliver or to
cause to be delivered the prospectus made available by the Company,
if such prospectus was timely made available by the Company
pursuant to Section 3(c) or Section 3(e); and (iv) shall not apply
to amounts paid in settlement of any Claim if such settlement is
effected without the prior written consent of the Company, which
consent shall not be unreasonably withheld. Such indemnity shall
remain in full force and effect regardless of any investigation
made by or on behalf of the Indemnified Person and shall survive
the transfer of the Registrable Securities by the Investor pursuant
to Section 9.
b.
Promptly after receipt by an Indemnified Person or Indemnified
Party under this Section 6 of notice of the commencement of any
action or proceeding (including any governmental action or
proceeding) involving a Claim, such Indemnified Person or
Indemnified Party shall, if a Claim in respect thereof is to be
made against any indemnifying party under this Section 6, deliver
to the indemnifying party a written notice of the commencement
thereof, and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly
noticed, to assume control of the defense thereof with counsel
mutually satisfactory to the indemnifying party and the Indemnified
Person or the Indemnified Party, as the case may be; provided,
however, that an Indemnified Person or Indemnified Party shall have
the right to retain its own counsel with the fees and expenses to
be paid by the indemnifying party, if, in the reasonable opinion of
counsel retained by the indemnifying party, the representation by
such counsel of the Indemnified Person or Indemnified Party and the
indemnifying party would be inappropriate due to actual or
potential differing interests between such Indemnified Person or
Indemnified Party and any other party represented by such counsel
in such proceeding. The Indemnified Party or Indemnified Person
shall cooperate fully with the indemnifying party in connection
with any negotiation or defense of any such action or claim by the
indemnifying party and shall furnish to the indemnifying party all
information reasonably available to the Indemnified Party or
Indemnified Person which relates to such action or claim. The
indemnifying party shall keep the Indemnified Party or Indemnified
Person fully apprised at all times as to the status of the defense
or any settlement negotiations with respect thereto. No
indemnifying party shall be liable for any settlement of any
action, claim or proceeding effectuated without its written
consent, provided, however, that the indemnifying party shall not
unreasonably withhold, delay or condition its consent. No
indemnifying party shall, without the consent of the Indemnified
Party or Indemnified Person, consent to entry of any judgment or
enter into any settlement or other compromise which does not
include as an unconditional term thereof the giving by the claimant
or plaintiff to such Indemnified Party or Indemnified Person of a
release from all liability in respect to such claim or litigation.
Following indemnification as provided for hereunder, the
indemnifying party shall be subrogated to all rights of the
Indemnified Party or Indemnified Person with respect to all third
parties, firms or corporations relating to the matter for which
indemnification has been made. The failure to deliver written
notice to the indemnifying party within a reasonable time of the
commencement of any such action shall not relieve such indemnifying
party of any liability to the Indemnified Person or Indemnified
Party under this Section 6, except to the extent that the
indemnifying party is prejudiced in its ability to defend such
action.
c.
The indemnification required by this Section 6 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
Indemnified Damages are incurred.
d.
The indemnity agreements contained herein shall be in addition to
(i) any cause of action or similar right of the Indemnified Party
or Indemnified Person against the indemnifying party or others, and
(ii) any liabilities the indemnifying party may be subject to
pursuant to the law.
7.
CONTRIBUTION
.
To
the extent any indemnification by an indemnifying party is
prohibited or limited by law, the indemnifying party agrees to make
the maximum contribution with respect to any amounts for which it
would otherwise be liable under Section 6 to the fullest extent
permitted by law; provided, however, that: (i) no seller of
Registrable Securities guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any seller of Registrable
Securities who was not guilty of fraudulent misrepresentation; and
(ii) contribution by any seller of Registrable Securities shall be
limited in amount to the net amount of proceeds received by such
seller from the sale of such Registrable Securities.
8.
REPORTS
AND DISCLOSURE UNDER THE SECURITIES ACTS
.
With a view to making available to the Investor
the benefits of Rule 144 promulgated under the Securities Act or
any other similar rule or regulation of the SEC that may at any
time permit the Investor to sell securities of the Company to the
public without registration (“
Rule
144
”), the Company
agrees, at the Company’s sole expense,
to:
a.
make and keep public information available, as those terms are
understood and defined in Rule 144;
b.
use reasonable efforts to file with the SEC in a timely manner all
reports and other documents required of the Company under the
Securities Act and the Exchange Act so long as the Company remains
subject to such requirements and the filing of such reports and
other documents is required for the applicable provisions of Rule
144;
c.
furnish to the Investor so long as the Investor owns Registrable
Securities, promptly upon request, (i) a written statement by the
Company that it has complied with the reporting and or disclosure
provisions of Rule 144, the Securities Act and the Exchange Act,
(ii) a copy of the most recent annual or quarterly report of the
Company and such other reports and documents so filed by the
Company, and (iii) such other information as may be reasonably
requested to permit the Investor to sell such securities pursuant
to Rule 144 without registration; and
d.
take such additional action as is requested by the Investor to
enable the Investor to sell the Registrable Securities pursuant to
Rule 144, including, without limitation, delivering all such legal
opinions, consents, certificates, resolutions and instructions to
the Company’s Transfer Agent as may be requested from time to
time by the Investor and otherwise fully cooperate with Investor
and Investor’s broker to effect such sale of securities
pursuant to Rule 144.
9.
ASSIGNMENT
OF REGISTRATION RIGHTS
.
The
Company shall not assign this Agreement or any rights or
obligations hereunder without the prior written consent of the
Investor. The Investor may not assign its rights under this
Agreement without the written consent of the Company.
10.
AMENDMENT
OF REGISTRATION RIGHTS
.
No
provision of this Agreement may be amended or waived by the parties
from and after the date that is one Business Day immediately
preceding the initial filing of the Registration Statement with the
SEC. Subject to the immediately preceding sentence, no provision of
this Agreement may be (i) amended other than by a written
instrument signed by both parties hereto or (ii) waived other than
in a written instrument signed by the party against whom
enforcement of such waiver is sought. Failure of any party to
exercise any right or remedy under this Agreement or otherwise, or
delay by a party in exercising such right or remedy, shall not
operate as a waiver thereof.
11.
MISCELLANEOUS
.
a.
A Person is deemed to be a holder of Registrable Securities
whenever such Person owns or is deemed to own of record such
Registrable Securities. If the Company receives conflicting
instructions, notices or elections from two or more Persons with
respect to the same Registrable Securities, the Company shall act
upon the basis of instructions, notice or election received from
the registered owner of such Registrable Securities.
b.
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 or email (provided confirmation of transmission is
mechanically or electronically generated and kept on file by the
sending party); or (iii) one (1) Business Day after deposit with a
nationally recognized overnight delivery service, in each case
properly addressed to the party to receive the same. The addresses
for such communications shall be:
If
to the Company:
If
to the Investor:
TRITON
FUNDS LLC
1262
PROSPECT STREET
LA
JOLLA, CA 92037
E-mail:
tritonfunds@tritonfunds.com
or
at such other address and/or facsimile number and/or to the
attention of such other person as the recipient party has specified
by written notice given to each other party three (3) Business Days
prior to the effectiveness of such change. Written confirmation of
receipt (A) given by the recipient of such notice, consent, waiver
or other communication, (B) mechanically or electronically
generated by the sender’s facsimile machine or email account
containing the time, date, recipient facsimile number or email
address, as applicable, and an image of the first page of such
transmission or (C) provided by a nationally recognized overnight
delivery service, shall be rebuttable evidence of personal service,
receipt by facsimile or receipt from a nationally recognized
overnight delivery service in accordance with clause (i), (ii) or
(iii) above, respectively.
c. The corporate laws of the State of California
shall govern all issues concerning this Agreement. All other
questions concerning the construction, validity, enforcement and
interpretation of this Agreement shall be governed by the internal
laws of the State of California, without giving effect to any
choice of law or conflict of law provision or rule (whether of the
State of California or any other jurisdictions) that would cause
the application of the laws of any jurisdictions other than the
State of California. Each party hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts sitting the
State of California, County of Los Angeles, 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. 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.
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.
d.
This Agreement and the Purchase Agreement constitute the entire
agreement among the parties hereto with respect to the subject
matter hereof and thereof. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred
to herein and therein. This Agreement and the Purchase Agreement
supersede all prior agreements and understandings among the parties
hereto with respect to the subject matter hereof and
thereof.
e.
Subject to the requirements of Section 9, this Agreement shall
inure to the benefit of and be binding upon the successors and
permitted assigns of each of the parties hereto.
f.
The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning
hereof.
g. This Agreement may be executed in identical
counterparts, each of which shall be deemed an original but all of
which shall constitute one and the same agreement. This Agreement,
once executed by a party, may be delivered to the other party
hereto by email in a “
.pdf
”
format data file of a copy of this Agreement bearing the signature
of the party so delivering this Agreement.
h.
Each party shall do and perform, or cause to be done and performed,
all such further acts and things, and shall execute and deliver all
such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the
intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
i.
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.
j.
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.
IN
WITNESS WHEREOF
, the parties
have caused this Agreement to be duly executed as of day and year
first above written.
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THE COMPANY:
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Investview Inc.
By
:
___/s/ Ryan
Smith_
_______________________________________
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THE INVESTOR:
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TRITON FUNDS LP
By
: __
/s/ Nathan
Yee_____
_____________________________________
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EXHIBIT A
TO REGISTRATION RIGHTS AGREEMENT
FORM OF NOTICE OF EFFECTIVENESS
OF REGISTRATION STATEMENT
_____________,
2018
Re:
[__________]
Ladies
and Gentlemen:
We are counsel to
Investview
Inc.
, a Nevada corporation (the
“
Company
”),
and have represented the Company in connection with that certain
Purchase Agreement, dated as of December 29, 2018 (the
“
Purchase
Agreement
”), entered into
by and between the Company and TRITON FUNDS LP (the
“
Buyer
”)
pursuant to which the Company has agreed to issue to the Buyer
shares of the Company’s Common Stock, $0.0001 par value (the
“
Common
Stock
”), in an
amount up to One Million Dollars ($1,000,000) (the
“
Purchase
Notice Shares
”), in
accordance with the terms of the Purchase Agreement. In connection
with the transactions contemplated by the Purchase Agreement, the
Company has registered with the U.S. Securities & Exchange
Commission the following shares of Common
Stock:
(1)
Purchase Notice Shares to be issued to the Buyer upon purchase from
the Company by the Buyer from time to time in accordance with the
Purchase Agreement.
Pursuant to the Purchase Agreement, the Company
also has entered into a Registration Rights Agreement, of even date
with the Purchase Agreement with the Buyer (the
“
Registration
Rights Agreement
”)
pursuant to which the Company agreed, among other things, to
register the Purchase Notice Shares under the Securities Act of
1933, as amended (the “
Securities
Act
”). In connection with
the Company’s obligations under the Purchase Agreement and
the Registration Rights Agreement, on [__________], 2018, the
Company filed a Registration Statement (File No. 333-[__________])
(the “
Registration
Statement
”) with the
Securities and Exchange Commission (the “
SEC
”)
relating to the resale of the Purchase Notice
Shares.
In
connection with the foregoing, we advise you that a member of the
SEC’s staff has advised us by telephone that the SEC has
entered an order declaring the Registration Statement effective
under the Securities Act at [__________] [A.M./P.M.] on
[__________], 2018 and we have no knowledge, after telephonic
inquiry of a member of the SEC’s staff, that any stop order
suspending its effectiveness has been issued or that any
proceedings for that purpose are pending before, or threatened by,
the SEC and the Purchase Notice Shares are available for resale
under the Securities Act pursuant to the Registration Statement and
may be issued without any restrictive legend.
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Very
truly yours,
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[Company
Counsel]
By:
________________________________
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cc:
TRITON FUNDS LLC
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