UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of The Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): February 4, 2015
Global
Digital Solutions, Inc.
(Exact
name of registrant as specified in its charter)
New
Jersey |
|
000-26361 |
|
22-3392051 |
(State
or other jurisdiction
of
incorporation) |
|
(Commission
File
Number) |
|
(IRS
Employer
Identification
No.) |
777
South Flagler Drive, Suite 800 West
West
Palm Beach, Florida 33401
(Address
of principal executive offices, including zip code) |
Registrant’s
telephone number, including area code: (561) 515-6163
___________________________N/A___________________________
(Former
name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant
under any of the following provisions (see General Instruction A.2. below):
☐ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item
1.01 Entry Into a Material Definitive Agreement.
Convertible
Note due February 9, 2017 with Vista Capital Investments, LLC
On
February 4, 2015 (the “Issuance Date”), Global Digital Solutions, Inc. (the “Company”) entered into a
Convertible Note (the “Note”) with Vista Capital Investments, LLC (“Vista”) in the Original Principal
Amount of $250,000 (including a 10% Original Issue Discount (“OID”)). The Company and Vista agreed to an initial funding
under the Note of $55,000, including an OID of $5,000 (“Initial Funding”). Future advances under the Note are at the
sole discretion of Vista. The Company is only required to repay the amount funded, including the prorated portion of the OID.
On
February 9, 2015, the Company received $45,000 of proceeds under the Initial Funding, net of $5,000 OID and net of a $5,000 finders
fee. The Note matures twenty four months from the date funded, has a one-time 12% interest charge if not paid within 90 days,
and is convertible at the option of Vista into shares of the Company’s common stock at the lesser of $0.10 per share or
60% of the lowest trade occurring during the twenty five (25) consecutive trading days immediately preceding the applicable conversion
date on which the holder elects to convert all or part of the Note, subject to adjustment as provided for in the Note.
The
Note might be accelerated if an event of default occurs under the terms of the Note, including the Company’s failure
to pay principal and interest when due, certain bankruptcy events or if the Company is delinquent in its SEC filings. The Note
also contain certain representations, warranties, covenants and events of default, and increases in the amount of the principal
and interest rate under the Note in the event of such defaults.
The
foregoing description of the Note is qualified in its entirety by reference to such document, which is attached hereto as Exhibit
10.1, and is incorporated herein by reference.
Amendment
to Charter and Loppert Notes
On
December 8, 2014, the Company entered into 8% Convertible Redeemable Notes with Charter 804CS Solutions, Inc. (“Charter
Note”) and with David A. Loppert (“Loppert Note”). The Charter Note and the Loppert Note each provides that
the holder of the note is entitled, at its option, at any time after 180 days, to convert all or any amount of the principal face
amount of the note then outstanding into shares of the Company's common stock (the "Common Stock") at a conversion rate
equal to 70% of the lowest closing bid price of the Common Stock for the twelve prior trading
days including the day upon which a Notice of Conversion is received by the Company. On February 4, 2015 the Company and Charter
and the Company and Loppert each entered into a First Amendment to 8% Convertible Redeemable Note, effective as of December 8,
2014, to amend the conversion feature of the Charter Note and the Loppert Note into a fixed conversion price of $0.09 per share
of Common Stock.
The
foregoing description of the amendments to the Charter Note and the Loppert Note are qualified in their entirety by reference
to such documents, which are attached hereto as Exhibit 10.1 and Exhibit 10.2, respectively, and are incorporated herein by reference.
Item
2.03. Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement of a Registrant.
The information
set forth in Item 1.01 is incorporated herein by reference.
Item
3.02 Unregistered Sales of Equity Securities.
The
information contained in Item 1.01 is hereby incorporated by reference. Each of the notes issued by the Company as described
in Item 1.01 were offered and sold to accredited investors pursuant to an exemption from the registration requirements under Section
4(2) of the Securities Act of 1933, as amended, and Rule 506 of Regulation D promulgated thereunder.
Item
8.01. Other Events.
On
December 11, 2014 the Company and Merriellyn Kett Murphy (“Kett”) (Kett and the Company are collectively referred
to as the “Parties”) entered into a Confidential Settlement Agreement to settle their Disputes. The Parties filed
claims and counterclaims against one another in Global Digital Solutions, Inc. v. Merriellyn Kett Murphy, United States
District Court for the Southern District of Florida, Case No. 14-cv-80190 (the “Litigation”). The Litigation and the
claims and counterclaims asserted therein, and any other claims or disputes existing between the Parties including those relating
to the Airtronic USA, Inc. bankruptcy proceeding and/or the relationship between GDSI, Kett, or Airtronic USA, Inc. or its successor
are collectively referred to herein as the “Disputes”. The Disputes between the Parties have been resolved, with all
of the claims and counterclaims dismissed, with a payment by Kett of a confidential amount to the Company, which amount is in
keeping with recognition of the expense of litigation, the likely inability to collect any judgment due to financial status, and
the prior assignment to Airtronic of Kett’s proprietary rights to intellectual property relating to Airtronic. Accordingly
the Litigation has been dismissed by the Parties.
Item
9.01. Financial Statements and Exhibits.
(d) Exhibits
Exhibit
Number |
|
Description |
10.1 |
|
$250,000
Convertible Note, dated February 4, 2015, with Vista Capital Investments, LLC |
10.2 |
|
First
Amendment to 8% Convertible Redeemable Note dated February 4, 2015, with Charter 804CS Solutions, Inc. |
10.3 |
|
First
Amendment to 8% Convertible Redeemable Note dated February 4, 2015, with David A. Loppert |
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
|
Global Digital Solutions, Inc. |
|
|
Date: February 9, 2015 |
By: |
/s/ David A. Loppert |
|
|
David A. Loppert |
|
|
Chief Financial Officer |
|
|
|
Exhibit
Index
Exhibit
Number |
|
Description |
10.1 |
|
$250,000
Convertible Note, dated February 4, 2015, with Vista Capital Investments, LLC |
10.2 |
|
First
Amendment to 8% Convertible Redeemable Note dated February 4, 2015, with Charter 804CS Solutions, Inc. |
10.3 |
|
First
Amendment to 8% Convertible Redeemable Note dated February 4, 2015, with David A. Loppert |
5
Exhibit 10.1
NEITHER THIS NOTE NOR THE SECURITIES INTO
WHICH THIS NOTE IS CONVERTIBLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF
ANY STATE. THESE SECURITIES HAVE BEEN SOLD IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.
Global
Digital Solutions, Inc.
Convertible
Note
Issuance Date: February 4, 2015 |
Original
Principal Amount: $250,000 |
Note No. GDSI-1 |
Consideration Paid at Close: $50,000 |
FOR VALUE RECEIVED,
Global Digital Solutions, Inc., a New Jersey corporation (the "Company"), hereby promises to pay to the
order of Vista Capital Investments, LLC or registered assigns (the "Holder") the amount set out above as
the Original Principal Amount (as reduced pursuant to the terms hereof pursuant to redemption, conversion or otherwise, the "Principal")
when due, whether upon the Maturity Date (as defined below), acceleration, redemption or otherwise (in each case in accordance
with the terms hereof) and to pay interest ("Interest") on any outstanding Principal at the applicable Interest
Rate from the date set out above as the Issuance Date (the "Issuance Date") until the same becomes due and payable,
upon the Maturity Date or acceleration, conversion, redemption or otherwise (in each case in accordance with the terms hereof).
The Original Principal Amount
is $250,000 (two hundred fifty thousand) plus accrued and unpaid interest and any other fees. The Consideration is $225,000 (two
hundred twenty five thousand) payable by wire transfer (there exists a $25,000 prorated original issue discount (the “OID”)).
The Holder shall pay $50,000 of Consideration upon closing of this Note. The Holder may pay additional Consideration to the Company
in such amounts and at such dates as Holder may choose in its sole discretion. For purposes hereof, the term “Outstanding
Balance” means the Original Principal Amount, as reduced or increased, as the case may be, pursuant to the terms hereof for
conversion, breach hereof or otherwise, plus any accrued but unpaid interest, collection and enforcements costs, and any other
fees or charges incurred under this Note. The Original Principal Amount due to Holder shall be prorated based on the Consideration
paid by Holder (plus an approximate 10% Original Issue Discount that is prorated based on the Consideration paid by the Holder
as well as any other interest or fees) such that the Company is only required to repay the amount funded and the Company is not
required to repay any unfunded portion of this Note.
(1) GENERAL TERMS
(a) Payment of Principal.
The "Maturity Date" shall be two years from the date of each payment of Consideration, as may be extended at the
option of the Holder in the event that, and for so long as, an Event of Default (as defined below) shall not have occurred and
be continuing on the Maturity Date (as may be extended pursuant to this Section 1) or any event shall not have occurred and be
continuing on the Maturity Date (as may be extended pursuant to this Section 1) that with the passage of time and the failure to
cure would result in an Event of Default.
(b) Interest.
A one-time interest charge of twelve percent (12%) (“Interest Rate”) shall be applied on the Issuance Date to
the Original Principal Amount. Interest hereunder shall be paid on the Maturity Date (or sooner as provided herein) to the Holder
or its assignee in whose name this Note is registered on the records of the Company regarding registration and transfers of Notes
in cash or converted into Common Stock at the Conversion Price provided the Equity Conditions are satisfied.
(c) Security.
This Note shall not be secured by any collateral or any assets pledged to the Holder
(2) EVENTS OF DEFAULT.
(a) An “Event
of Default”, wherever used herein, means any one of the following events (whatever the reason and whether it shall be
voluntary or involuntary or effected by operation of law or pursuant to any judgment, decree or order of any court, or any order,
rule or regulation of any administrative or governmental body):
(i) The Company's failure
to pay to the Holder any amount of Principal, Interest, or other amounts when and as due under this Note (including, without limitation,
the Company's failure to pay any redemption payments or amounts hereunder) or any other Transaction Document;
(ii) A Conversion Failure
as defined in section 3(b)(ii)
(iii) The Company or any
subsidiary of the Company shall commence, or there shall be commenced against the Company or any subsidiary of the Company under
any applicable bankruptcy or insolvency laws as now or hereafter in effect or any successor thereto, or the Company or any subsidiary
of the Company commences any other proceeding under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction whether now or hereafter in effect relating to the Company or any
subsidiary of the Company or there is commenced against the Company or any subsidiary of the Company any such bankruptcy, insolvency
or other proceeding which remains undismissed for a period of 61 days; or the Company or any subsidiary of the Company is adjudicated
insolvent or bankrupt; or any order of relief or other order approving any such case or proceeding is entered; or the Company or
any subsidiary of the Company suffers any appointment of any custodian, private or court appointed receiver or the like for it
or any substantial part of its property which continues undischarged or unstayed for a period of sixty one (61) days; or the Company
or any subsidiary of the Company makes a general assignment for the benefit of creditors; or the Company or any subsidiary of the
Company shall fail to pay, or shall state that it is unable to pay, or shall be unable to pay, its debts generally as they become
due; or the Company or any subsidiary of the Company shall call a meeting of its creditors with a view to arranging a composition,
adjustment or restructuring of its debts; or the Company or any subsidiary of the Company shall by any act or failure to act expressly
indicate its consent to, approval of or acquiescence in any of the foregoing; or any corporate or other action is taken by the
Company or any subsidiary of the Company for the purpose of effecting any of the foregoing;
(iv) The Company or any
subsidiary of the Company shall default in any of its obligations under any other Note or any mortgage, credit agreement or other
facility, indenture agreement, factoring agreement or other instrument under which there may be issued, or by which there may be
secured or evidenced any indebtedness for borrowed money or money due under any long term leasing or factoring arrangement of the
Company or any subsidiary of the Company in an amount exceeding $100,000, whether such indebtedness now exists or shall hereafter
be created; and
(v) The Common Stock is suspended or delisted
for trading on the Over the Counter Bulletin Board market (the “Primary Market”).
(vi) The Company loses its ability to deliver
shares via “DWAC/FAST” electronic transfer.
(vii) The Company loses its status as “DTC
Eligible.”
(viii) The Company shall become late or delinquent
in its filing requirements as a fully-reporting issuer registered with the Securities & Exchange Commission.
(b) Upon the occurrence
of any Event of Default, the Outstanding Balance shall immediately increase to 120% of the Outstanding Balance immediately prior
to the occurrence of the Event of Default (the “Default Effect”). The Default Effect shall automatically apply upon
the occurrence of an Event of Default without the need for any party to give any notice or take any other action.
(3) CONVERSION
OF NOTE. This Note shall be convertible into shares of the Company's Common Stock, on the terms and conditions set forth
in this Section 3.
(a) Conversion Right.
Subject to the provisions of Section 3(c), at any time or times on or after the Issuance Date, the Holder shall be entitled to
convert any portion of the outstanding and unpaid Conversion Amount (as defined below) into fully paid and nonassessable shares
of Common Stock in accordance with Section 3(b), at the Conversion Price (as defined below). The number of shares of Common Stock
issuable upon conversion of any Conversion Amount pursuant to this Section 3(a) shall be equal to the quotient of dividing the
Conversion Amount by the Conversion Price. The Company shall not issue any fraction of a share of Common Stock upon any conversion.
If the issuance would result in the issuance of a fraction of a share of Common Stock, the Company shall round such fraction of
a share of Common Stock up to the nearest whole share. The Company shall pay any and all transfer agent fees, legal fees, costs
and any other fees or costs that may be incurred or charged in connection with the issuance of shares of the Company’s Common
Stock to the Holder arising out of or relating to the conversion of this Note.
(i) "Conversion
Amount" means the portion of the Original Principal Amount and Interest to be converted, plus any penalties, redeemed
or otherwise with respect to which this determination is being made.
(ii) "Conversion
Price" shall equal the lesser of (a) $0.10 or (b) 60% of the lowest trade occurring during the twenty five (25) consecutive
Trading Days immediately preceding the applicable Conversion Date on which the Holder elects to convert all or part of this Note,
subject to adjustment as provided in this Note.
(b) Mechanics of
Conversion.
(i) Optional Conversion.
To convert any Conversion Amount into shares of Common Stock on any date (a "Conversion Date"), the Holder shall
(A) transmit by email, facsimile (or otherwise deliver), for receipt on or prior to 11:59 p.m., New York, NY Time, on such date,
a copy of an executed notice of conversion in the form attached hereto as Exhibit A (the "Conversion Notice")
to the Company. On or before the third Business Day following the date of receipt of a Conversion Notice (the "Share Delivery
Date"), the Company shall (A) if legends are not required to be placed on certificates of Common Stock pursuant to the
then existing provisions of Rule 144 of the Securities Act of 1933 (“Rule 144”) and provided that the Transfer Agent
is participating in the Depository Trust Company's ("DTC") Fast Automated Securities Transfer Program, credit
such aggregate number of shares of Common Stock to which the Holder shall be entitled to the Holder's or its designee's balance
account with DTC through its Deposit Withdrawal Agent Commission system or (B) if the Transfer Agent is not participating in the
DTC Fast Automated Securities Transfer Program, issue and deliver to the address as specified in the Conversion Notice, a certificate,
registered in the name of the Holder or its designee, for the number of shares of Common Stock to which the Holder shall be entitled
which certificates shall not bear any restrictive legends unless required pursuant the Rule 144. If this Note is physically surrendered
for conversion and the outstanding Principal of this Note is greater than the Principal portion of the Conversion Amount being
converted, then the Company shall, upon request of the Holder, as soon as practicable and in no event later than three (3) Business
Days after receipt of this Note and at its own expense, issue and deliver to the holder a new Note representing the outstanding
Principal not converted. The Person or Persons entitled to receive the shares of Common Stock issuable upon a conversion of this
Note shall be treated for all purposes as the record holder or holders of such shares of Common Stock upon the transmission of
a Conversion Notice.
(ii) Company's Failure
to Timely Convert. If within two (2) Trading Days after the Company's receipt of the facsimile or email copy of a Conversion
Notice the Company shall fail to issue and deliver to Holder via “DWAC/FAST” electronic transfer the number of shares
of Common Stock to which the Holder is entitled upon such holder's conversion of any Conversion Amount (a "Conversion Failure"),
the Original Principal Amount of the Note shall increase by $2,000 per day until the Company issues and delivers a certificate
to the Holder or credit the Holder's balance account with DTC for the number of shares of Common Stock to which the Holder is entitled
upon such holder's conversion of any Conversion Amount (under Holder’s and Company’s expectation that any damages will
tack back to the Issuance Date). Company will not be subject to any penalties once its transfer agent processes the shares to
the DWAC system. If the Company fails to deliver shares in accordance with the timeframe stated in this Section, resulting
in a Conversion Failure, the Holder, at any time prior to selling all of those shares, may rescind any portion, in whole or in
part, of that particular conversion attributable to the unsold shares and have the rescinded conversion amount returned to the
Outstanding Balance with the rescinded conversion shares returned to the Company (under Holder’s and Company’s expectations
that any returned conversion amounts will tack back to the original date of the Note).
(iii) DWAC/FAST
Eligibility. If the Company fails for any reason to deliver to the Holder the Shares by DWAC/FAST electronic transfer
(such as by delivering a physical stock certificate), or if there is a Conversion Failure as defined in Section 3(b)(ii), and
if the Holder incurs a Market Price Loss, then at any time subsequent to incurring the loss the Holder may provide the
Company written notice indicating the amounts payable to the Holder in respect of the Market Price Loss and the Company must
make the Holder whole by either of the following options at Holder’s election:
Market Price Loss
= [(High trade price for the period between the day of conversion and the day the shares clear in the Holder’s brokerage
account) x (Number of shares receivable from the conversion)] – [(Net Sales price realized by Holder) x (Number of shares
receivable from the conversion)].
Option A –
Pay Market Price Loss in Cash. The Company must pay the Market Price Loss by cash payment, and any such cash payment must be made
by the third business day from the time of the Holder’s written notice to the Company.
Option B –
Add Market Price Loss to Outstanding Balance. The Company must pay the Market Price Loss by adding the Market Price Loss to the
Outstanding Balance (under Holder’s and the Company’s expectation that any Market Price Loss amounts will tack back
to the Issuance Date).
In the case that conversion
shares are not deliverable by DWAC/FAST electronic transfer an additional 10% discount to the Conversion Price will apply.
(iv) DTC Eligibility & Sub-Penny.
If the Company fails to maintain its status as “DTC Eligible” for any reason, or, if the Conversion Price is less than
$0.01, the Principal Amount of the Note shall increase by ten thousand dollars ($10,000) (under Holder’s and Company’s
expectation that any Principal Amount increase will tack back to the Issuance Date). In addition, the Conversion Price shall be
redefined to equal the lesser of (a) $0.08 or (b) 50% of the lowest trade occurring during the twenty five (25) consecutive Trading
Days immediately preceding the applicable Conversion Date on which the Holder elects to convert all or part of this Note, subject
to adjustment as provided in this Note.
(v) Book-Entry.
Notwithstanding anything to the contrary set forth herein, upon conversion of any portion of this Note in accordance with the terms
hereof, the Holder shall not be required to physically surrender this Note to the Company unless (A) the full Conversion Amount
represented by this Note is being converted or (B) the Holder has provided the Company with prior written notice (which notice
may be included in a Conversion Notice) requesting reissuance of this Note upon physical surrender of this Note. The Holder and
the Company shall maintain records showing the Principal and Interest converted and the dates of such conversions or shall use
such other method, reasonably satisfactory to the Holder and the Company, so as not to require physical surrender of this Note
upon conversion.
(c) Limitations on Conversions or Trading.
(i) Beneficial Ownership.
The Company shall not effect any conversions of this Note and the Holder shall not have the right to convert any portion of this
Note or receive shares of Common Stock as payment of interest hereunder to the extent that after giving effect to such conversion
or receipt of such interest payment, the Holder, together with any affiliate thereof, would beneficially own (as determined in
accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder) in excess of 4.99% of the number of shares
of Common Stock outstanding immediately after giving effect to such conversion or receipt of shares as payment of interest. Since
the Holder will not be obligated to report to the Company the number of shares of Common Stock it may hold at the time of a conversion
hereunder, unless the conversion at issue would result in the issuance of shares of Common Stock in excess of 4.99% of the then
outstanding shares of Common Stock without regard to any other shares which may be beneficially owned by the Holder or an affiliate
thereof, the Holder shall have the authority and obligation to determine whether the restriction contained in this Section will
limit any particular conversion hereunder and to the extent that the Holder determines that the limitation contained in this Section
applies, the determination of which portion of the principal amount of this Note is convertible shall be the responsibility and
obligation of the Holder. If the Holder has delivered a Conversion Notice for a principal amount of this Note that, without regard
to any other shares that the Holder or its affiliates may beneficially own, would result in the issuance in excess of the permitted
amount hereunder, the Company shall notify the Holder of this fact and shall honor the conversion for the maximum principal amount
permitted to be converted on such Conversion Date in accordance with Section 3(a) and, any principal amount tendered for conversion
in excess of the permitted amount hereunder shall remain outstanding under this Note. The provisions of this Section may be waived
at any time by Holder upon written notification to the Company.
(d) Other Provisions.
(i) Share
Reservation. The Company shall at all times reserve and keep available out of its authorized Common Stock a number of
shares equal to at least 3 (three) times the full number of shares of Common Stock issuable upon conversion of all
outstanding amounts under this Note; and within 3 (three) Business Days following the receipt by the Company of a Holder's
notice that such minimum number of Underlying Shares is not so reserved, the Company shall promptly reserve a sufficient
number of shares of Common Stock to comply with such requirement. The Company will at all times reserve at least
12,000,000 shares of Common Stock for conversion.
(ii) Prepayment.
At any time within the 90 day period immediately following the Issuance Date, the Company shall have the option, upon 10
business days’ notice to Holder, to pre-pay the entire remaining outstanding principal amount of this Note in cash,
provided that (i) the Company shall pay the Holder 145% of the Outstanding Balance, (ii) such amount must be paid in cash on
the next business day following such 10 business day notice period, and (iii) the Holder may still convert this Note pursuant
to the terms hereof at all times until such prepayment amount has been received in full. Except as set forth in this Section
the Company may not prepay this Note in whole or in part.
(iii) Terms of Future
Financings. So long as this Note is outstanding, upon any issuance by the Company or any of its subsidiaries of any security
with any term more favorable to the holder of such security or with a term in favor of the holder of such security that was not
similarly provided to the Holder in this Note, then the Company shall notify the Holder of such additional or more favorable term
and such term, at Holder’s option, shall become a part of the transaction documents with the Holder. The types of terms contained
in another security that may be more favorable to the holder of such security include, but are not limited to, terms addressing
conversion discounts, conversion lookback periods, interest rates, original issue discounts, stock sale price, private placement
price per share, and warrant coverage.
(iv) All calculations
under this Section 3 shall be rounded up to the nearest $0.00001 or whole share.
(v) Nothing herein shall
limit a Holder's right to pursue actual damages or declare an Event of Default pursuant to Section 2 herein for the Company's failure
to deliver certificates representing shares of Common Stock upon conversion within the period specified herein and such Holder
shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific
performance and/or injunctive relief, in each case without the need to post a bond or provide other security. The exercise of any
such rights shall not prohibit the Holder from seeking to enforce damages pursuant to any other Section hereof or under applicable
law.
(4) Section
3(a)(9) or 3(a)(10) Transaction. So long as this Note is outstanding, the Company shall not enter into any transaction
or arrangement structured in accordance with, based upon, or related or pursuant to, in whole or in part, either Section 3(a)(9)
of the Securities Act (a “3(a)(9) Transaction”) or Section 3(a)(10) of the Securities Act (a “3(a)(10) Transaction”).
In the event that the Company does enter into, or makes any issuance of Common Stock related to a 3(a)(9) Transaction or a 3(a)(10)
Transaction while this note is outstanding, a liquidated damages charge of 25% of the outstanding principal balance of this Note,
but not less than $25,000, will be assessed and will become immediately due and payable to the Holder at its election in the form
of cash payment or addition to the balance of this Note.
(5) PIGGYBACK REGISTRATION
RIGHTS. The Company shall include on the next registration statement the Company files with SEC (or on the subsequent registration
statement if such registration statement is withdrawn) all shares issuable upon conversion of this Note. Failure to do so will
result in liquidated damages of 25% of the outstanding principal balance of this Note, but not less than $25,000, being immediately
due and payable to the Holder at its election in the form of cash payment or addition to the balance of this Note.
(6) REISSUANCE OF THIS
NOTE.
(a) Assignability.
The Company may not assign this Note. This Note will be binding upon the Company and its successors and will inure to the benefit
of the Holder and its successors and assigns and may be assigned by the Holder to anyone of its choosing without Company’s
approval.
(b) Lost, Stolen
or Mutilated Note. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft, destruction
or mutilation of this Note, and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to
the Company in customary form and, in the case of mutilation, upon surrender and cancellation of this Note, the Company shall execute
and deliver to the Holder a new Note representing the outstanding Principal.
(7) NOTICES.
Any notices, consents, waivers or other communications required or permitted to be given under the terms hereof must be in
writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent
by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the
sending party) (iii) upon receipt, when sent by email; or (iv) one (1) Trading Day after deposit with a nationally recognized
overnight delivery service, in each case properly addressed to the party to receive the same. The addresses and facsimile
numbers for such communications shall be those set forth in the communications and documents that each party has provided the
other immediately preceding the issuance of this Note 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 (i) given by the recipient of such
notice, consent, waiver or other communication, (ii) mechanically or electronically generated by the sender's facsimile
machine containing the time, date, recipient facsimile number and an image of the first page of such transmission or (iii)
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.
The addresses for such communications shall
be:
If to the Company, to:
GLOBAL DIGITAL SOLUTIONS, INC.
777 South Flagler Drive, Suite 800W
West Palm Beach, FL 33401
Attn: Richard
J. Sullivan, CEO
Email: richardjsullivan@msn.com and
dloppert@gdsi.co
If to the Holder:
VISTA CAPITAL INVESTMENTS, LLC
406 9th Avenue, Suite 201
San Diego, CA 92101
Attn: David
Clark, Principal
Email: dclark@vci.us.com
(8) APPLICABLE LAW
AND VENUE. This Note shall be governed by and construed in accordance with the laws of the State of Nevada, without giving
effect to conflicts of laws thereof. Any action brought by either party against the other concerning the transactions contemplated
by this Agreement shall be brought only in the state courts of California or in the federal courts located in the city and county
of San Diego, in the State of California. Both parties and the individuals signing this Agreement agree to submit to the jurisdiction
of such courts.
(9) WAIVER. Any waiver by the Holder
of a breach of any provision of this Note shall not operate as or be construed to be a waiver of any other breach of such provision
or of any breach of any other provision of this Note. The failure of the Holder to insist upon strict adherence to any term of
this Note on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist upon
strict adherence to that term or any other term of this Note. Any waiver must be in writing.
[Signature Page Follows]
IN WITNESS WHEREOF,
the Company has caused this Convertible Note to be duly executed by a duly authorized officer as of the date set forth above.
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COMPANY: |
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Global
Digital Solutions, Inc. |
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By: |
/s/
David A. Loppert |
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Name: |
David
A. Loppert |
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Title: |
Chief
Financial Officer |
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HOLDER: |
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VISTA
CAPITAL INVESTMENTS, LLC. |
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By: |
/s/
David Clark |
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Name: |
David
Clark |
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Title: |
Principal |
[Signature Page to Convertible Note No. GDSI-1]
EXHIBIT A |
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NOTICE OF CONVERSION |
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[Company Contact, Position] |
Global Digital Solutions, Inc. |
[Company Address] |
[Contact Email Address] |
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The undersigned hereby elects to convert a portion of the $________ Convertible Note _______ issued to Vista Capital Investments, LLC on ____________ into Shares of Common Stock of ____________ according to the conditions set forth in such Note as of the date written below. |
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By accepting this notice of conversion, you are acknowledging that the number of shares to be delivered represents less than 10% (ten percent) of the common stock outstanding. If the number of shares to be delivered represents more than 9.99% of the common stock outstanding, this conversion notice shall immediately automatically extinguish and Note Holder must be immediately notified. |
Date of Conversion: |
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Conversion Amount: |
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Conversion Price: |
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Shares to be Delivered: |
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Shares delivered in name of: |
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VISTA CAPITAL INVESTMENTS, LLC |
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Signature: |
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By: |
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Title: |
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Vista Capital Investments, LLC |
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Exhibit 10.2
FIRST AMENDMENT TO 8% CONVERTIBLE REDEEMABLE
NOTE
This First Amendment (“Amendment”)
to 8% Convertible Redeemable Note Dated December 8, 2014 (“Note”) is made and entered into this 4th day
of February, 2015, but is effective as of December 8, 2014, by and between Global Digital Solutions, Inc. (the “Company”)
and Charter 804CS Solutions, Inc. and its authorized successors and permitted assigns ("Holder").
WHEREAS, as of December
8, 2014, the Company and the Holder entered into the Note and a Securities Purchase Agreement. The Note provided that the Holder
of the Note is entitled, at its option, at any time after 180 days, to convert all or any amount of the principal face amount of
the Note then outstanding into shares of the Company's common stock (the "Common Stock") at a conversion rate
equal to 70% of the lowest closing bid price of the Common Stock as reported on the OTCQB marketplace which
the Company’s shares are traded or any market upon which the Common Stock may be traded in the future ("Exchange"),
for the twelve prior trading days including the day upon which a Notice of Conversion is received
by the Company; and
WHEREAS, the Company
and the Holder wish to amend the conversion terms of the note effective as of December 8, 2014.
NOW, THEREFORE, in consideration of the
foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Company and the Holder hereby covenant and agree as follows:
1. Modification of the Note. The Note is modified as follows:
(a) Section
4. (a) of the Note is deleted and replaced with the following:
“4. (a)
The Holder of this Note is entitled, at its option, at any time after 180 days, to convert all or any amount of the principal face
amount of this Note then outstanding into shares of the Company's common stock (the "Common Stock") with a restrictive
legend, at a price ("Conversion Price") for each share of Common Stock equal to $0.09. If the shares have not
been delivered within 3 business days, the Notice of Conversion may be rescinded. Such conversion shall be effectuated by the Company
delivering the shares of Common Stock to the Holder within 3 business days of receipt by the Company of the Notice of Conversion.
Once the Holder has received such shares of Common Stock, the Holder shall surrender this Note to the Company, executed by the
Holder evidencing such Holder's intention to convert this Note or a specified portion hereof, and accompanied by proper assignment
hereof in blank. Accrued, but unpaid interest shall be subject to conversion. No fractional shares or scrip representing fractions
of shares will be issued on conversion, but the number of shares issuable shall be rounded to the nearest whole share. In the
event the Company experiences a DTC “Chill” on its shares, the conversion price shall be decreased to $0.078 instead
of $0.09 while that “Chill” is in effect.”
2. Ratification of Note and Security Purchase Agreement. All of the terms, provisions, covenants, representations and
warranties contained in the Note and the Securities Purchase Agreement are ratified and affirmed by the Company and the Holder
in all respects and will remain in full force and effect as modified by this Amendment. In the event there is a conflict between
any of the terms of any other document and the terms of this Amendment, then the terms of this Amendment shall be controlling.
3. General. The Note, the Securities Purchase Agreement, and this Amendment contain the entire agreement and understanding
of the parties hereto with respect to the subject matter hereof and may not be amended, modified or discharged, nor any of their
terms waived, except by an instrument signed in writing by the party to be bound thereby.
[Signature page follows]
IN WITNESS WHEREOF,
the Company and the Holder have executed this Amendment as of the date first written above.
COMPANY: |
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HOLDER: |
GLOBAL DIGITAL SOLUTIONS, INC. |
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CHARTER 804CS SOLUTIONS, INC. |
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BY: |
/s/ David A. Loppert |
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BY: |
/s/ Richard J. Sullivan |
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NAME: |
David A. Loppert |
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NAME: |
Richard J. Sullivan |
TITLE |
Chief Financial Officer |
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TITLE |
President |
2
Exhibit 10.3
FIRST AMENDMENT TO 8% CONVERTIBLE REDEEMABLE
NOTE
This First Amendment (“Amendment”)
to 8% Convertible Redeemable Note Dated December 8, 2014 (“Note”) is made and entered into this 4th day
of February, 2015, but is effective as of December 8, 2014, by and between Global Digital Solutions, Inc. (the “Company”)
and David A. Loppert, his authorized successors and permitted assigns ("Holder").
WHEREAS, as of December
8, 2014, the Company and the Holder entered into the Note and a Securities Purchase Agreement. The Note provided that the Holder
of the Note is entitled, at its option, at any time after 180 days, to convert all or any amount of the principal face amount of
the Note then outstanding into shares of the Company's common stock (the "Common Stock") at a conversion rate
equal to 70% of the lowest closing bid price of the Common Stock as reported on the OTCQB marketplace which
the Company’s shares are traded or any market upon which the Common Stock may be traded in the future ("Exchange"),
for the twelve prior trading days including the day upon which a Notice of Conversion is received
by the Company; and
WHEREAS, the Company
and the Holder wish to amend the conversion terms of the note effective as of December 8, 2014.
NOW, THEREFORE, in consideration of the
foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Company and the Holder hereby covenant and agree as follows:
1. Modification of the Note. The Note is modified as follows:
(a) Section
4. (a) of the Note is deleted and replaced with the following:
“4. (a)
The Holder of this Note is entitled, at its option, at any time after 180 days, to convert all or any amount of the principal face
amount of this Note then outstanding into shares of the Company's common stock (the "Common Stock") with a restrictive
legend, at a price ("Conversion Price") for each share of Common Stock equal to $0.09. If the shares have not
been delivered within 3 business days, the Notice of Conversion may be rescinded. Such conversion shall be effectuated by the Company
delivering the shares of Common Stock to the Holder within 3 business days of receipt by the Company of the Notice of Conversion.
Once the Holder has received such shares of Common Stock, the Holder shall surrender this Note to the Company, executed by the
Holder evidencing such Holder's intention to convert this Note or a specified portion hereof, and accompanied by proper assignment
hereof in blank. Accrued, but unpaid interest shall be subject to conversion. No fractional shares or scrip representing fractions
of shares will be issued on conversion, but the number of shares issuable shall be rounded to the nearest whole share. In the
event the Company experiences a DTC “Chill” on its shares, the conversion price shall be decreased to $0.078 instead
of $0.09 while that “Chill” is in effect.”
2. Ratification of Note and Security Purchase Agreement. All of the terms, provisions, covenants, representations and
warranties contained in the Note and the Securities Purchase Agreement are ratified and affirmed by the Company and the Holder
in all respects and will remain in full force and effect as modified by this Amendment. In the event there is a conflict between
any of the terms of any other document and the terms of this Amendment, then the terms of this Amendment shall be controlling.
3. General. The Note, the Securities Purchase Agreement, and this Amendment contain the entire agreement and understanding
of the parties hereto with respect to the subject matter hereof and may not be amended, modified or discharged, nor any of their
terms waived, except by an instrument signed in writing by the party to be bound thereby.
[Signature page follows]
IN WITNESS WHEREOF,
the Company and the Holder have executed this Amendment as of the date first written above.
COMPANY: |
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HOLDER: |
GLOBAL DIGITAL SOLUTIONS, INC. |
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DAVID A. LOPPERT |
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BY: |
/s/ Richard J. Sullivan |
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BY: |
/s/ David A. Loppert |
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NAME: |
Richard J. Sullivan |
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NAME: |
David A. Loppert |
TITLE |
Chief Executive Officer |
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2
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