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): March 10, 2015
RICH
PHARMACEUTICALS, INC.
(Exact
name of registrant as specified in its charter)
NEVADA |
|
000-54767 |
|
46-3259117 |
(State
or other jurisdiction of incorporation or organization) |
|
Commission
file number |
|
(IRS
Employer Identification No.) |
9595
Wilshire Blvd, Suite 900
Beverly
Hills, CA 90212
(Address
of principal executive offices)
(323)
424-3169
(Registrant’s
telephone number)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant
under any of the following provisions:
[ ] |
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.
On
March 11, 2015, Rich Pharmaceuticals, Inc. (the “Company”) completed a financing pursuant to a Securities Purchase
Agreement (the “SPA”) and Convertible Promissory Note in the original principal amount of $55,000 (the “Note”)
with Auctus Private Equity Fund, LLC (“Auctus”) pursuant to which Auctus funded $52,750 to the Company after the deduction
of fees of $2,250. The Note bears interest at the rate of 8% and must be repaid on or before December 9, 2015. The Note may be
converted by Auctus at any time after 180 days of the date of issuance into shares of Company common stock at a conversion price
equal to 55% of the market price (as determined in the Note). The SPA and Note also contain certain representations, warranties,
covenants and events of default, and increases in the amount of the principal and interest rates under the Note in the event of
such defaults. The foregoing is only a brief description of the material terms of the SPA and Note, and does not purport to be
a complete description of the rights and obligations of the parties thereunder, and such descriptions are qualified in their entirety
by reference to the agreements and their exhibits which are filed as an exhibit to this Current Report. The issuance of the Note
was made in reliance on the exemption provided by Section 4(2) of the Securities Act for the offer and sale of securities not
involving a public offering, and Regulation D promulgated under the Securities Act of 1933, as amended (the “Securities
Act”). The Company’s reliance upon Section 4(2) of the Securities Act in issuing the securities was based upon the
following factors: (a) the issuance of the securities was an isolated private transaction by us which did not involve a public
offering; (b) there was only one recipient; (c) there were no subsequent or contemporaneous public offerings of the securities
by the Company; (d) the securities were not broken down into smaller denominations; (e) the negotiations for the issuance of the
securities took place directly between the individual and the Company; and (f) the recipient of the Note was an accredited investor.
Item
3.02 Unregistered
Sales of Equity Securities
The
descriptions of the equity securities described in Item 1.01 issued by the Company are incorporated herein.
On
March 10, 2015, the Company issued 47,518,166 shares of Company common stock to satisfy the conversion of $33,899.46 of a convertible
note payable with LG Capital Funding, LLC. The issuance of the shares was made in reliance on the exemption provided by Section
4(2) of the Securities Act for the offer and sale of securities not involving a public offering. The Company's reliance upon Section
4(2) of the Securities Act in issuing the securities was based upon the following factors: (a) the issuance of the securities
was an isolated private transaction by us which did not involve a public offering; (b) there was only a one investor who was an
accredited investor; (c) there were no subsequent or contemporaneous public offerings of the securities by us; (d) the securities
were not broken down into smaller denominations; and (e) the issuance of shares was pursuant to a convertible note payable which
was negotiated directly between the investor and the Company.
The
total number of outstanding shares of common stock of the Company as of March 10, 2015 after the above described issuance is 1,458,902,139.
ITEM 9.01
FINANCIAL STATEMENTS AND EXHIBITS
(d)
Exhibits
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, thereunto duly authorized.
|
|
|
|
RICH
PHARMACEUTICALS, INC. |
|
|
|
|
|
|
|
|
|
Dated:
March 16, 2015 |
|
|
|
By: |
|
/s/ Ben Chang |
|
|
|
|
|
|
|
|
Ben
Chang
Chief
Executive Officer |
SECURITIES
PURCHASE AGREEMENT
This
SECURITIES PURCHASE AGREEMENT (the "Agreement"), dated as of March 9, 2015, by and between RICH PHARMACEUTICALS,
INC., a Nevada corporation, with headquarters located at 9595 Wilshire Blvd., Suite 900, Beverly Hills, CA 90212 (the "Company"),
and AUCTUS PRIVATE EQUITY FUND, LLC, a Delaware limited liability company, with its address at 101 Arch Street, 20th Floor,
Boston, MA 02110 (the "Buyer").
WHEREAS:
A.
The Company and the Buyer are executing and delivering this Agreement
in reliance upon the exemption from securities registration afforded by the rules and regulations as promulgated by the United
States Securities and Exchange Commission (the "SEC") under the Securities Act of 1933, as amended (the "1933 Act");
B.
Buyer desires to purchase and the Company desires to issue and sell,
upon the terms and conditions set forth in this Agreement an 8% convertible note of the Company, in the form attached hereto as
Exhibit A, in the aggregate principal amount of US.$55,000 (together with any note(s) issued in replacement thereof or as a dividend
thereon or otherwise with respect thereto in accordance with the terms thereof, the "Note"), convertible into shares
of common stock, $0.001 par value per share, of the Company (the "Common Stock"), upon the terms and subject to the limitations
and conditions set forth in such Note.
C.
The Buyer wishes to purchase, upon the terms and conditions stated
in this Agreement, such principal amount of Note as is set forth immediately below its name on the signature pages hereto; and
NOW
THEREFORE, the Company and the Buyer severally (and not jointly) hereby agree as follows:
1.
PURCHASE AND SALE OF NOTE.
a.
Purchase of Note. On the Closing Date (as defined below),
the Company shall issue and sell to the Buyer and the Buyer agrees to purchase from the Company such principal amount of Note as
is set forth immediately below the Buyer's name on the signature pages hereto.
b.
Form of Payment. On the Closing Date (as defined below), (i)
the Buyer shall pay the purchase price for the Note to be issued and sold to it at the Closing (as defined below) (the "Purchase
Price") by wire transfer of immediately available funds to the Company, in accordance with the Company's written wiring instructions,
against delivery of the Note in the principal amount equal to the Purchase Price as is set forth immediately below the Buyer 's
name on the signature pages hereto, and (ii) the Company shall deliver such duly executed Note on behalf of the Company, to the
Buyer, against delivery of such Purchase Price.
c.
Closing Date. Subject to the satisfaction (or written waiver)
of the conditions thereto set forth in Section 7 and Section 8 below, the date and time of the issuance and sale of the Note pursuant
to this Agreement (the "Closing Date") shall be 12:00 noon, Eastern Standard Time on or about March 9, 2015, or such
other mutually agreed upon time. The closing of the transactions contemplated by this Agreement (the "Closing") shall
occur on the Closing Date at such location as may be agreed to by the parties.
2.
REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer represents
and warrants to the Company that:
a.
Investment Purpose. As of the date hereof, the Buyer is purchasing
the Note and the shares of Common Stock issuable upon conversion of or otherwise pursuant to the Note (including, without limitation,
such additional shares of Common Stock, if any, as are issuable (i) on account of interest on the Note (ii) as a result of the
events described in Sections 1.3 and l .4(g) of the Note or (iii) in payment of the Standard Liquidated Damages Amount (as defined
in Section 2(t) below) pursuant to this Agreement, such shares of Common Stock being collectively referred to herein as the "Conversion
Shares" and, collectively with the Note, the "Securities") for its own account and not with a present view towards
the public sale or distribution thereof, except pursuant to sales registered or exempted from registration under the 1933 Act;
provided , however, that by making the representations herein, the Buyer does not agree to hold any of the Securities for any minimum
or other specific term and reserves the right to dispose of the Securities at any time in accordance with or pursuant to a registration
statement or an exemption under the 1933 Act.
b.
Accredited Investor Status. The Buyer is an "accredited
investor" as that term is defined in Rule 50l(a) of Regulation D (an "Accredited Investor").
c.
Reliance on Exemptions. The Buyer understands that the Securities
are being offered and sold to it in reliance upon specific exemptions from the registration requirements of United States federal
and state securities laws and that the Company is relying upon the truth and accuracy of, and the Buyer's compliance with, the
representations, warranties, agreements, acknowledgments and understandings of the Buyer set forth herein in order to determine
the availability of such exemptions and the eligibility of the Buyer to acquire the Securities.
d.
Information. The Buyer and its advisors, if any, have been,
and for so long as the Note remains outstanding will continue to be, furnished with all materials relating to the business, finances
and operations of the Company and materials relating to the offer and sale of the Securities which have been requested by the Buyer
or its advisors. The Buyer and its advisors, if any, have been, and for so long as the Note remains outstanding will continue to
be, afforded the opportunity to ask questions of the Company. Notwithstanding the foregoing, the Company has not disclosed to the
Buyer any material nonpublic information and will not disclose such information unless such information is disclosed to the public
prior to or promptly following such disclosure to the Buyer. Neither such inquiries nor any other due diligence investigation conducted
by Buyer or any of its advisors or representatives shall modify, amend or affect Buyer's right to rely on the Company's representations
and warranties contained in Section 3 below. The Buyer understands that its investment in the Securities involves a significant
degree of risk. The Buyer is not aware of any facts that may constitute a breach of any of the Company's representations and warranties
made herein.
e.
Governmental Review. The Buyer understands that no United
States federal or state agency or any other government or governmental agency has passed upon or made any recommendation or endorsement
of the Securities.
f.
Transfer or Re-sale. The Buyer understands that (i) the sale
or re-sale of the Securities has not been and is not being registered under the 1933 Act or any applicable state securities laws,
and the Securities may not be transferred unless (a) the Securities are sold pursuant to an effective registration statement under
the 1933 Act, (b) the Buyer shall have delivered to the Company, at the cost of the Buyer, an opinion of counsel that shall be
in form, substance and scope customary for opinions of counsel in comparable transactions to the effect that the Securities to
be sold or transferred may be sold or transferred pursuant to an exemption from such registration , which opinion shall be accepted
by the Company, (c) the Securities are sold or transferred to an "affiliate"(as defined in Rule 144promulgated under
the 1933 Act (or a successor rule) ("Rule 144'')) of the Buyer who agrees to sell or otherwise transfer the Securities only
in accordance with this Section 2(f) and who is an Accredited Investor, (d) the Securities are sold pursuant to Rule 144, or (e)
the Securities are sold pursuant to Regulation S under the 1933 Act (or a successor rule) ("Regulation S"), and the Buyer
shall have delivered to the Company, at the cost of the Buyer, an opinion of counsel that shall be in form, substance and scope
customary for opinions of counsel in corporate transactions, which opinion shall be accepted by the Company; (ii) any sale of such
Securities made in reliance on Rule 144 may be made only in accordance with the terms of said Rule and further, if said Rule is
not applicable, any re-sale of such Securities under circumstances in which the seller (or the person through whom the sale is
made) may be deemed to be an underwriter (as that term is defined in the 1933 Act) may require compliance with some other exemption
under the 1933 Act or the rules and regulations of the SEC thereunder; and (iii) neither the Company nor any other person is under
any obligation to register such Securities under the 1933 Act or any state securities laws or to comply with the terms and conditions
of any exemption thereunder (in each case). Notwithstanding the foregoing or anything else contained herein to the contrary, the
Securities may be pledged as collateral in connection with a bona fide margin accow1t or other lending arrangement. In the event
that the Company does not accept the opinion of counsel provided by the Buyer with respect to the transfer of Securities pursuant
to an exemption from registration, such as Rule 144 or Regulation S, within three (3) business days of delivery of the opinion
to the Company, the Company shall pay to the Buyer liquidated damages of five percent (5%) of the outstanding amount of the Note
per day plus accrued and unpaid interest on the Note, prorated for partial months, in cash or shares at the option of the Buyer
("Standard Liquidated Damages Amount"). If the Buyer elects to be pay the Standard Liquidated Damages Amount in shares
of Common Stock, such shares shall be issued at the Conversion Price (as defined in the Note) at the time of payment.
g.
Legends. The Buyer understands that the Note and, until such
time as the Conversion Shares have been registered under the 1933 Act may be sold pursuant to Rule 144 or Regulation S without
any restriction as to the number of securities as of a particular date that can then be immediately sold, the Conversion Shares
may bear a restrictive legend in substantially the following form (and a stop-transfer order may be placed against transfer of
the certificates for such Securities):
"NEITHER
THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WIDCH THESE SECURITIES ARE EXERCISABLE
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT
BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL (WHICH COUNSEL SHALL BE SELECTED BY THE HOLDER), IN
A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE
144A UNDER SAID ACT. NOTWIIBSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT
OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES."
The
legend set forth above shall be removed and the Company shall issue a certificate without such legend to the holder of any Security
upon which it is stamped, if, unless otherwise required by applicable state securities laws, (a) such Security is registered for
sale under an effective registration statement filed under the 1933 Act or otherwise may be sold pursuant to Rule 144 or Regulation
S without any restriction as to the number of securities as of a particular date that can then be immediately sold, or (b) such
holder provides the Company with an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable
transactions, to the effect that a public sale or transfer of such Security may be made without registration w1der the 1933 Act,
which opinion shall be accepted by the Company so that the sale or transfer is effected. The Buyer agrees to sell all Securities,
including those represented by a certificate(s) from which the legend has been removed, in compliance with applicable prospectus
delivery requirement s, if any. In the event that the Company does not accept the opinion of counsel provided by the Buyer with
respect to the transfer of Securities pursuant to an exemption from registration, such as Rule 144 or Regulation S, at the Deadline,
it will be considered an Event of Default pursuant to Section 3.2 of the Note.
h.
Authorization; Enforcement. This Agreement has been duly and
validly authorized. This Agreement has been duly executed and delivered on behalf of the Buyer, and this Agreement constitutes
a valid and binding agreement of the Buyer enforceable in accordance with its terms.
i.
Residency. The Buyer is a resident of the jurisdiction set
forth immediately below the Buyer's name on the signature pages hereto.
3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY. Except as disclosed
in the SEC Documents, the Company represents and warrants to the Buyer that:
a.
Organization and Qualification. The Company and each of its
Subsidiaries (as defined below), if any, is a corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction in which it is incorporated, with full power and authority (corporate and other) to own, lease, use and operate
its properties and to carry on its business as and where now owned, leased, used, operated and conducted. The Company and each
of its Subsidiaries is duly qualified as a foreign corporation to do business and is in good standing in every jurisdiction in
which its ownership or use of property or the nature of the business conducted by it makes such qualification necessary except
where the failure to be so qualified or in good standing would not have a Material Adverse Effect. "Material Adverse Effect"
means any material adverse effect on the business, operations, assets, financial condition or prospects of the Company or its Subsidiaries,
if any, taken as a whole, or on the transactions contemplated hereby or by the agreements or instruments to be entered into in
connection herewith. "Subsidiaries" means any corporation or other organization, whether incorporated or unincorporated
, in which the Company owns, directly or indirectly, any equity or other ownership interest.
b.
Authorization; Enforcement. (i) The Company has all reqms1te
corporate power and authority to enter into and perform this Agreement, the Note and to consummate the transactions contemplated
hereby and thereby and to issue the Securities, in accordance with the terms hereof and thereof, (ii) the execution and delivery
of this Agreement, the Note by the Company and the consummation by it of the transactions contemplated hereby and thereby (including
without limitation, the issuance of the Note and the issuance and reservation for issuance of the Conversion Shares issuable upon
conversion or exercise thereof) have been duly authorized by the Company's Board of Directors and no further consent or authorization
of the Company, its Board of Directors, or its shareholders is required, (iii) this Agreement has been duly executed and delivered
by the Company by its authorized representative, and such authorized representative is the true and official representative with
authority to sign this Agreement and the other documents executed in connection herewith and bind the Company accordingly, and
(iv) this Agreement constitutes, and upon execution and delivery by the Company of the Note, each of such instruments will constitute,
a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms.
c.
Capitalization. As of the date hereof, the authorized capital
stock of the Company consists of: (i) 37,503,000,000 shares of Common Stock, $0.001 par value per share, of which 1,405,383,973
shares are issued and outstanding; and (ii) 10,000,000 shares of preferred stock, $0.001 par value per share, of which 6,000,000
shares are issued and outstanding. Except as disclosed in the SEC Documents, no shares are reserved for issuance pursuant to the
Company's stock option plans, no shares are reserved for issuance pursuant to securities (other than the Note) exercisable for,
or convertible into or exchangeable for shares of Common Stock and 333,333,333 shares are reserved for issuance upon conversion
of the Note. All of such outstanding shares of capital stock are, or upon issuance will be, duly authorized, validly issued, fully
paid and non-assessable. No shares of capital stock of the Company are subject to preemptive rights or any other similar rights
of the shareholders of the Company or any Liens or encumbrances imposed through the actions or failure to act of the Company. Except
as disclosed in the SEC Documents, as of the effective date of this Agreement, (i) there are no outstanding options, warrants,
scrip, rights to subscribe for, puts, calls, rights of first refusal, agreements, understandings, claims or other commitments or
rights of any character whatsoever relating to, or securities or rights convertible into or exchangeable for any shares of capital
stock of the Company or any of its Subsidiaries, or arrangements by which the Company or any of its Subsidiaries is or may become
bound to issue additional shares of capital stock of the Company or any of its Subsidiaries, and (ii) there are no agreements or
arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of its or their securities
under the 1933 Act. The Company has filed in its SEC Documents true and correct copies of the Company's Certificate of Incorporation
as in effect on the date hereof ("Certificate of Incorporation"), the Company's By-laws, as in effect on the date hereof
(the "By-laws"), and the terms of all securities convertible into or exercisable for Common Stock of the Company and
the material rights of the holders thereof in respect thereto. The Company shall provide the Buyer with a written update of this
representation signed by the Company's Chief Executive on behalf of the Company as of the Closing Date.
d.
Issuance of Shares. The Conversion Shares are duly authorized
and reserved for issuance and, upon conversion of the Note in accordance with its respective terms, will be validly issued, fully
paid and non-assessable, and free from all taxes, liens, claims and encumbrances with respect to the issue thereof and shall not
be subject to preemptive rights or other similar rights of shareholders of the Company and will not impose personal liability upon
the holder thereof.
e.
Acknowledgment of Dilution. The Company understands and acknowledges
the potentially dilutive effect to the Common Stock upon the issuance of the Conversion Shares upon conversion of the Note. The
Company further acknowledges that its obligation to issue Conversion Shares upon conversion of the Note in accordance with this
Agreement, the Note is absolute and unconditional regardless of the dilutive effect that such issuance may have on the ownership
interests of other shareholders of the Company.
f.
No Conflicts. The execution, delivery and performance of this
Agreement, the Note by the Company and the consummation by the Company of the transactions contemplated hereby and thereby (including,
without limitation, the issuance and reservation for issuance of the Conversion Shares) will not (i) conflict with or result in
a violation of any provision of the Certificate of Incorporation or By-laws, or (ii) violate or conflict with, or result in a breach
of any provision of, or constitute a default (or an event which with notice or lapse of time or both could become a default) under,
or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture, patent, patent
license or instrument to which the Company or any of its Subsidiaries is a party, or (iii) result in a violation of any law, rule,
regulation, order, judgment or decree (including federal and state securities laws and regulations and regulations of any self-regulatory
organizations to which the Company or its securities are subject) applicable to the Company or any of its Subsidiaries or by which
any property or asset of the Company or any of its Subsidiaries 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). Neither the Company nor any of its Subsidiaries is in violation of its Certificate of Incorporation , By-laws or other
organizational documents and neither the Company nor any of its Subsidiaries is in default (and no event has occurred which with
notice or lapse of time or both could put the Company or any of its Subsidiaries in default) under, and neither the Company nor
any of its Subsidiaries has taken any action or failed to take any action that would give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Company or any of its Subsidiaries
is a party or by which any property or assets of the Company or any of its Subsidiaries is bound or affected, except for possible
defaults as would not, individually or in the aggregate, have a Material Adverse Effect. The businesses of the Company and its
Subsidiaries, if any, are not being conducted, and shall not be conducted so long as the Buyer owns any of the Securities, in violation
of any law, ordinance or regulation of any governmental entity. Except as specifically contemplated by this Agreement and as required
under the 1933 Act and any applicable state securities laws, the Company is not required to obtain any consent, authorization or
order of, or make any filing or registration with, any court, governmental agency, regulatory agency, self-regulatory organization
or stock market or any third party in order for it to execute, deliver or perform any of its obligations under this Agreement,
the Note in accordance with the terms hereof or thereof or to issue and sell the Note in accordance with the terms hereof and to
issue the Conversion Shares upon conversion of the Note. All consents, authorizations , orders, filings and registrations which
the Company is required to obtain pursuant to the preceding sentence have been obtained or effected on or prior to the date hereof.
The Company is not in violation of the listing requirements of the Over-the-Counter Bulletin Board (the "OTCBB"), the
OTCQB or OTC Markets any similar quotation system, and does not reasonably anticipate that the Common Stock will be delisted by
the OTCBB, the OTCQB, OTC Markets or any similar quotation system, in the foreseeable future. The Company and its Subsidiaries
are unaware of any facts or circumstances which might give rise to any of the foregoing.
g.
SEC Documents; Financial Statements. The Company has timely
filed all reports, schedules, forms, statements and other documents required to be filed by it with the SEC pursuant to the reporting
requirements of the Securities Exchange Act of 1934, as amended (the "1934 Act") (all of the foregoing filed prior to
the date hereof and all exhibits included therein and financial statements and schedules thereto and documents (other than exhibits
to such documents) incorporated by reference therein, being hereinafter referred to herein as the "SEC Documents'} The Company
has delivered to the Buyer true and complete copies of the SEC Documents, except for such exhibits and incorporated documents.
As of their respective dates, the SEC Documents complied in all material respects with the requirements of the 1934 Act and the
rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the
time they were filed with the SEC, 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. None of the statements made in any such SEC Documents is, or has been, required to be amended or updated
under applicable law (except for such statements as have been amended or updated in subsequent filings prior the date hereof).
As of their respective dates, the :financial statements of the Company included in the SEC Documents complied as to form in all
material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto.
Such financial statements have been prepared in accordance with United States generally accepted accounting principles, consistently
applied, during the periods involved and fairly present in all material respects the consolidated financial position of the Company
and its consolidated Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the
periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). Except as set forth in
the financial statements of the Company included in the SEC Documents, the Company has no liabilities, contingent or otherwise,
other than (i) liabilities incurred in the ordinary course of business subsequent to December 31, 2014, and (ii) obligations under
contracts and commitments incurred in the ordinary course of business and not required under generally accepted accounting principles
to be reflected in such financial statements, which, individually or in the aggregate, are not material to the financial condition
or operating results of the Company. The Company is subject to the reporting requirements of the 1934 Act. For the avoidance of
doubt, filing of the documents required in this Section 3(g) via the SEC's Electronic Data Gathering, Analysis, and Retrieval system
(''EDGAR") shall satisfy all delivery requirements of this Section 3(g).
h.
Absence of Certain Changes. Since December 31, 2014, there
has been no material adverse change and no material adverse development in the assets, liabilities, business, properties, operations,
financial condition, results of operations, prospects or 1934 Act reporting status of the Company or any of its Subsidiaries.
i.
Absence of Litigation. There is no action, suit, claim, proceeding,
inquiry or investigation before or by any court, public board, government agency, self-regulatory organization or body pending
or, to the knowledge of the Company or any of its Subsidiaries, threatened against or affecting the Company or any of its Subsidiaries,
or their officers or directors in their capacity as such, that could have a Material Adverse Effect. The Company and its Subsidiaries
are unaware of any facts or circumstances which might give rise to any of the foregoing.
j.
Patents. Copyrights, etc. The Company and each of its Subsidiaries
owns or possesses the requisite licenses or rights to use all patents, patent applications, patent rights, inventions, know-how,
trade secrets, trademarks, trademark applications, service marks, service names, trade names and copyrights ("Intellectual
Property") necessary to enable it to conduct its business as now operated (and, as presently contemplated to be operated in
the future). Except as disclosed in the SEC Documents, there is no claim or action by any person pertaining to, or proceeding pending,
or to the Company's knowledge threatened, which challenges the right of the Company or of a Subsidiary with respect to any Intellectual
Property necessary to enable it to conduct its business as now operated (and, as presently contemplated to be operated in the future);
to the best of the Company's knowledge, the Company's or its Subsidiaries' current and intended products, services and processes
do not infringe on any Intellectual Property or other rights held by any person; and the Company is unaware of any facts or circumstances
which might give rise to any of the foregoing. The Company and each of its Subsidiaries have taken reasonable security measures
to protect the secrecy, confidentiality and value of their Intellectual Property.
k.
No Materially Adverse Contracts, Etc. Neither the Company
nor any of its Subsidiaries is subject to any charter, corporate or other legal restriction , or any judgment , decree, order,
rule or regulation which in the judgment of the Company's officers bas or is expected in the future to have a Material Adverse
Effect. Neither the Company nor any of its Subsidiaries is a party to any contract or agreement which in the judgment of the Company's
officers bas or is expected to have a Material Adverse Effect.
l.
Tax Status. The Company and each of its Subsidiaries has made
or filed all federal, state and foreign income and all other tax returns, reports and declarations required by any jurisdiction
to which it is subject (unless and only to the extent that the Company and each of its Subsidiaries has set aside on is books provisions
reasonably adequate for the payment of all unpaid and unreported taxes) and has paid all taxes and other governmental assessments
and charges that are material in amount, shown or determined to be due on such returns, reports and declarations, except those
being contested in good faith and has set aside on its books provisions reasonably adequate for the payment of all taxes for periods
subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material amount
claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company know of no basis for any such claim.
The Company has not executed a waiver with respect to the statute of limitations relating to the assessment or collection of any
foreign, federal, state or local tax. None of the Company's tax returns is presently being audited by any taxing authority.
m.
Certain Transactions. Except for arm's length transactions
pursuant to which the Company or any of its Subsidiaries makes payments in the ordinary course of business upon terms no less favorable
than the Company or any of its Subsidiaries could obtain from third parties and other than the grant of stock options disclosed
on Schedule 3(c), none of the officers, directors, or employees of the Company is presently a party to any transaction with the
Company or any of its Subsidiaries (other than for services as employees, officers and directors), including any contract, agreement
or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or
from, or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of the Company, any
corporation, partnership, trust or other entity in which any officer, director, or any such employee has a substantial interest
or is an officer, director, trustee or partner.
n.
Disclosure. All information relating to or concerning the
Company or any of its Subsidiaries set forth in this Agreement and provided to the Buyer pursuant to Section 2(d) hereof and otherwise
in connection with the transactions contemplated hereby is true and correct in all material respects and the Company has not omitted
to state any material fact necessary in order to make the statements made herein or therein, in light of the circumstances under
which they were made, not misleading. No event or circumstance has occurred or exists with respect to the Company or any of its
Subsidiaries or its or their business, properties, prospects, operations or financial conditions, which, under applicable law,
rule or regulation, requires public disclosure or announcement by the Company but which has not been so publicly announced or disclosed
(assuming for this purpose that the Company's reports filed under the 1934 Act are being incorporated into an effective registration
statement filed by the Company under the 1933 Act).
o.
Acknowledgment Regarding Buyer' Purchase of Securities. The
Company acknowledges and agrees that the Buyer is acting solely in the capacity of arm's length purchaser s with respect to this
Agreement and the transactions contemplated hereby. The Company further acknowledges that the Buyer is not acting as a financial
advisor or fiduciary of the Company (or in any similar capacity) with respect to this Agreement and the transactions contemplated
hereby and any statement made by the Buyer or any of its respective representatives or agents in connection with this Agreement
and the transactions contemplated hereby is not advice or a recommendation and is merely incidental to the Buyer' purchase of the
Securities. The Company further represents to the Buyer that the Company's decision to enter into this Agreement has been based
solely on the independent evaluation of the Company and its representatives.
p.
No Integrated Offering. Neither the Company, nor any of its
affiliates, nor any person acting on its or their behalf, has directly or indirectly made any offers or sales in any security or
solicited any offers to buy any security under circumstances that would require registration under the 1933 Act of the issuance
of the Securities to the Buyer. The issuance of the Securities to the Buyer will not be integrated with any other issuance of the
Company's securities (past, current or future) for purposes of any shareholder approval provisions applicable to the Company or
its securities.
q.
No Brokers. The Company has taken no action which would give
rise to any claim by any person for brokerage commissions, transaction fees or similar payments relating to this Agreement or the
transactions contemplated hereby.
r.
Permits; Compliance. The Company and each of its Subsidiaries
is in possession of all franchises, grants, authorizations, licenses, permits, easements, variances, exemptions, consents, certificates,
approvals and orders necessary to own, lease and operate its properties and to carry on its business as it is now being conducted
(collectively, the "Company Permits"), and there is no action pending or, to the knowledge of the Company, threatened
regarding suspension or cancellation of any of the Company Permits. Neither the Company nor any of its Subsidiaries is in conflict
with, or in default or violation of, any of the Company Permits, except for any such conflicts, defaults or violations which, individually
or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. Since December 31, 2014, neither the Company
nor any of its Subsidiaries has received any notification with respect to possible conflicts, defaults or violations of applicable
laws, except for notices relating to possible conflicts, defaults or violations, which conflicts, defaults or violations would
not have a Material Adverse Effect.
s.
Environmental Matters.
(i)
There are, to the Company's knowledge, with respect to the Company
or any of its Subsidiaries or any predecessor of the Company, no past or present violations of Environmental Laws (as defined below),
releases of any material into the environment, actions, activities, circumstances, conditions, events, incidents, or contractual
obligations which may give rise to any common law environmental liability or any liability under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 or similar federal, state, local or foreign laws and neither the Company nor any
of its Subsidiaries bas received any notice with respect to any of the foregoing, nor is any action pending or, to the Company'
s knowledge, threatened in connection with any of the foregoing. The term "Environmental Laws" means all federal, state,
local or foreign laws relating to pollution or protection of human health or the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata), including, without limitation, Jaws relating to emissions,
discharges, releases or threatened releases of chemicals, pollutants contaminants, or toxic or hazardous substances or wastes (collectively,
"Hazardous Materials") into the environment, or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous Materials, as well as all authorizations, codes, decrees, demands
or demand letters, injunctions, judgments, licenses, notices or notice letters, orders, permits, plans or regulations issued, entered,
promulgated or approved thereunder.
(ii)
Other than those that are or were stored, used or disposed of in
compliance with applicable law, no Hazardous Materials are contained on or about any real property currently owned, leased or used
by the Company or any of its Subsidiaries, and no Hazardous Materials were released on or about any real property previously owned,
leased or used by the Company or any of its Subsidiaries during the period the property was owned, leased or used by the Company
or any of its Subsidiaries, except in the normal course of the Company's or any of its Subsidiaries' business.
(iii)
There are no underground storage tanks on or under any real property
owned, leased or used by the Company or any of its Subsidiaries that are not in compliance with applicable law.
t.
Title to Property. Except as disclosed in the SEC Documents
the Company and its Subsidiaries have good and marketable title in fee simple to all real property and good and marketable title
to all personal property owned by them which is material to the business of the Company and its Subsidiaries, in each case free
and clear of all liens, encumbrances and defects or such as would not have a Material Adverse Effect. Any real property and facilities
held under lease by the Company and its Subsidiaries are held by them under valid, subsisting and enforceable leases with such
exceptions as would not have a Material Adverse Effect.
u.
Internal Accounting Controls. Except as disclosed in the SEC
Documents the Company and each of its Subsidiaries maintain a system of internal accounting controls sufficient, in the judgment
of the Company' s board of directors, to provide reasonable assurance that (i) transactions are executed in accordance with management'
s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements
in conformity with generally accepted accounting principles and to maintain asset accountability, (iii) access to assets is permitted
only in accordance with management's general or specific authorization and (iv) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
v.
Foreign Corrupt Practices. Neither the Company, nor any of
its Subsidiaries, nor any director, officer, agent, employee or other person acting on behalf of the Company or any Subsidiary
has, in the course of his actions for, or on behalf of, the Company, used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expenses relating to political activity; made any direct or indirect unlawful payment to any foreign
or domestic government official or employee from corporate funds; violated or is in violation of any provision of the U.S. Foreign
Corrupt Practices Act of 1977, as amended, or made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment
to any foreign or domestic government official or employee.
w.
No Investment Company. The Company is not, and upon the issuance
and sale of the Securities as contemplated by this Agreement will not be an "investment company" required to be registered
under the Investment Company Act of 1940 (an "Investment Company"). The Company is not controlled by an Investment Company.
x.
Insurance. The Company and each of its Subsidiaries are insured
by insurers of recognized financial responsibility against such losses and risks and in such amounts as management of the Company
believes to be prudent and customary in the businesses in which the Company and its Subsidiaries are engaged. Neither the Company
nor any such Subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost
that would not have a Material Adverse Effect. Upon written request the Company will provide to the Buyer true and correct copies
of all policies relating to directors' and officers' liability coverage, errors and omissions coverage, and commercial general
liability coverage.
y.
Bad Actor. No officer or director of the Company would be
disqualified under Rule 506(d) of the Securities Act as amended on the basis of being a "bad actor" as that term is established
in the September 19, 2013 Small Entity Compliance Guide published by the SEC.
z.
Shell Status. The Company represents that it is not a "shell"
issuer and has never been a "shell" issuer, or that if it previously has been a ''shell" issuer, that at least twelve
(12) months have passed since the Company has reported Form 10 type information indicating that it is no longer a "shell"
issuer.
aa.
Breach of Representations and Warranties by the Company. If
the Company breaches any of the representations or warranties set forth in this Section 3, and in addition to any other remedies
available to the Buyer pursuant to this Agreement and it being considered an Event of Default under Section 3.5 of the Note the
Company shall pay to the Buyer the Standard Liquidated Damages Amount in cash or in shares of Common Stock at the option of the
Company, until such breach is cured. If the Company elects to pay the Standard Liquidated Damages Amounts in shares of Common
Stock, such shares shall be issued at the Conversion Price at the time of payment.
4.
COVENANTS.
a.
Best Efforts. The parties shall use their commercially reasonable
best efforts to satisfy timely each of the conditions described in Section 7 and 8 of this Agreement.
b.
Blue Sky Laws. The Company shall, on or before the Closing
Date, take such action as the Company shall reasonably determine is necessary to qualify the Securities for sale to the Buyer
at the applicable closing pursuant to this Agreement under applicable securities or "blue sky" laws of the states of
the United States (or to obtain an exemption from such qualification), and shall provide evidence of any such action so taken
to the Buyer on or prior to the Closing Date.
c. Use
of Proceeds. The Company shall use the proceeds from the sale of the Note for working capital and other general corporate
purposes and shall not, directly or indirectly, use such proceeds for any loan to or investment in any other corporation,
partnership, enterprise or other person (except in connection with its currently existing direct or indirect
Subsidiaries).
d.
Notice of Subsequent Transaction. While any amount remains
outstanding under the Note, the Company shall, prior to the closing of any convertible note financing up to Fifty-Five Thousand
and No/100 United States Dollars ($55,000) ("Future Offerings"), provide written notice to the Buyer describing the proposed
Future Offering, including the terms and conditions thereof. In the event the terms and conditions of a proposed Future Offering
are amended in any respect after delivery of the notice to the Buyer concerning the proposed Future Offering, the Company shall
deliver a new notice to the Buyer describing the amended terms and conditions of the proposed Future Offering. The foregoing sentence
shall apply to successive amendments to the terms and conditions of any proposed Future Offering.
e.
Expenses. The Closing, the Company shall reimburse Buyer for
all expenses incurred by them in connection with the negotiation, preparation , execution, delivery and performance of this Agreement
and the other agreements to be executed in connection herewith ("Documents"), including, without limitation, reasonable
attorneys' and consultants ' fees and expenses, transfer agent fees, fees for stock quotation services, fees relating to any amendments
or modifications of the Documents or any consents or waivers of provisions in the Documents, fees for the preparation of opinions
of counsel, escrow fees, and costs of restructuring the transactions contemplated by the Documents. When possible, the Company
must pay these fees directly, including, but not limited to, any and all wire foes, otherwise the Company must make immediate payment
for reimbursement to the Buyer for all fees and expenses immediately upon written notice by the Buyer or the submission of an invoice
by the Buyer. At Closing, the Company's initial obligation with respect to this transaction is to reimburse Buyer's legal expenses
shall be $2,750 plus the cost of wire fees.
f.
Financial Information. The Company agrees to send or make
available the following reports to the Buyer until the Buyer transfers, assigns, or sells all of the Securities: (i) within ten
(10) days after the filing with the SEC, a copy of its Annual Report on Form 10-K its Quarterly Reports on Form I 0-Q and any Current
Reports on Form 8-K; (ii) within one (1) day after release, copies of all press releases issued by the Company or any of its Subsidiaries;
and (iii) contemporaneously with the making available or giving to the shareholders of the Company, copies of any notices or other
information the Company makes available or gives to such shareholders. For the avoidance of doubt, filing the documents required
in (i) above via EDGAR or releasing any documents set forth in (ii) above via a recognized wire service shall satisfy the delivery
requirements of this Section 4(f).
g.
Listing. The Company shall promptly secure the listing of
the Conversion Shares upon each national securities exchange or automated quotation system, i f any, upon which shares of Common
Stock are then listed (subject to official notice of issuance) and, so long as the Buyer owns any of the Securities, shall maintain,
so long as any other shares of Common Stock shall be so listed, such listing of all Conversion Shares from time to time issuable
upon conversion of the Note. The Company will obtain and, so long as the Buyer owns any of the Securities, maintain the listing
and trading of its Common Stock on the OTCBB, OTCQB, OTC Markets or any equivalent replacement exchange, the Nasdaq National Market
("Nasdaq"), the Nasdaq SmallCap Market ("Nasdaq SmallCap"), the New York Stock Exchange ("NYSE"),
or the NYSE MKT and will comply in all respects with the Company's reporting, filing and other obligations under the bylaws or
rules of the Financial Industry Regulatory Authority (''FINRA") and such exchanges, as applicable. The Company shall promptly
provide to the Buyer copies of any material notices it receives from the OTCBB, OTCQB, OTC Markets and any other exchanges or quotation
systems on which the Common Stock is then listed regarding the continued eligibility of the Common Stock for listing on such exchanges
and quotation systems.
h.
Corporate Existence. So long as the Buyer beneficially owns
any Note, the Company shall maintain its corporate existence and shall not sell all or substantially all of the Company's assets,
except in the event of a merger or consolidation or sale of all or substantially all of the Company's assets, where the surviving
or successor entity in such transaction (i) assumes the Company's obligations hereunder and under the agreements and instruments
entered into in connection herewith and (ii) is a publicly traded corporation whose Common Stock is listed for trading on the OTCBB,
OTCQB, Nasdaq, Nasdaq SmallCap, NYSE or AMEX.
i.
No Integration. The Company shall not make any offers or sales
of any security (other than the Securities) under circumstances that would require registration of the Securities being offered
or sold hereunder under the 1933 Act or cause the offering of the Securities to be integrated with any other offering of securities
by the Company for the purpose of any stockholder approval provision applicable to the Company or its securities.
j.
Failure to Comply with the 1934 Act. So long as the Buyer
beneficially owns the Note, the Company shall comply with the reporting requirements of the 1934 Act; and the Company shall continue
to be subject to the reporting requirements of the 1934 Act.
k.
Trading Activities. Neither the Buyer nor its affiliates has
an open short position (or other hedging or similar transactions) in the common stock of the Company and the Buyer agree that it
shall not, and that it will cause its affiliates not to, engage in any short sales of or hedging transactions with respect to the
common stock of the Company.
l.
Breach of Covenants. If the Company breaches any of the covenants
set forth in this Section 4, and in addition to any other remedies available to the Buyer pursuant to this Agreement and it being
considered an Event of Default under Section 3.4 of the Note, the Company shall pay to the Buyer the Standard Liquidated Damages
Amount in cash or in shares of Common Stock at the option of the Company, until such breach is cured. If the Company elects to
pay the Standard Liquidated Damages Amounts in shares of Common Stock, such shares shall be issued at the Conversion Price at the
time of payment.
5.
Advance Fee. Upon Closing, the Company shall pay Two Thousand
Two Hundred Fifty and No/100 United States Dollars (US$2,250) to Auctus Private Equity Management, Inc. ("Auctus Management
"), as a fee for services rendered in connection herewith (the "Advance Fee"). The Advance Fee shall be offset against
the proceeds of the Note and shall be paid to Auctus Management upon the execution hereof.
6.
Transfer Agent Instructions. The Company shall issue irrevocable
instructions to its transfer agent to issue certificates, registered in the name of the Buyer or its nominee, for the Conversion
Shares 1n such amounts as specified from time to time by the Buyer to the Company upon conversion of the Note in accordance with
the terms thereof (the "Irrevocable Transfer Agent Instructions"). In the event that the Borrower proposes to replace
its transfer agent, 1he Borrower shall provide, prior to the effective date of such replacement, a fully executed Irrevocable Transfer
Agent Instructions in a form as initially delivered pursuant to the Purchase Agreement (including but not limited to the provision
to irrevocably reserve shares of Common Stock in the Reserved Amount) signed by the successor transfer agent to Borrower and the
Borrower. Prior to registration of the Conversion Shares under the 1933 Act or the date on which the Conversion Shares may be sold
pursuant to Rule 144 without any restriction as to the number of Securities as of a particular date that can then be immediately
sold, all such certificates shall bear the restrictive legend specified in Section 2(g) of this Agreement. The Company warrants
that: (i) no instruction other than the Irrevocable Transfer Agent Instructions referred to in this Section, and stop transfer
instructions to give effect to Section 2(t) hereof (in the case of the Conversion Shares, prior to registration of the Conversion
Shares under the 1933 Act or the date on which the Conversion Shares may be sold pursuant to Rule 144 without any restriction as
to the number of Securities as of a particular date that can then be immediately sold), will be given by the Company to its transfer
agent and that the Securities shall otherwise be freely transferable on the books and records of the Company as and to the extent
provided in this Agreement and the Note; (ii) it will not direct its transfer agent not to transfer or delay, impair, and/or hinder
its transfer agent in transferring (or issuing)(electronically or in certificated form) any certificate for Conversion Shares to
be issued to the Buyer upon conversion of or otherwise pursuant to the Note as and when required by the Note and this Agreement;
and (iii) it will not fail to remove (or directs its transfer agent not to remove or impairs, delays, and/or hinders its transfer
agent from removing) any restrictive legend (or to withdraw any stop transfer instructions in respect thereof) on any certificate
for any Conversion Shares issued to the Buyer upon conversion of or otherwise pursuant to the Note as and when required by the
Note and this Agreement. Nothing in this Section shall affect in any way the Buyer's obligations and agreement set forth in Section
2(g) hereof to comply with all applicable prospectus delivery requirements, if any, upon re-sale of the Securities. If the Buyer
provides the Company, at the cost of the Buyer, with (i) an opinion of counsel in form, substance and scope customary for opinions
in comparable transactions, to the effect that a public sale or transfer of such Securities may be made without registration under
the 1933 Act and such sale or transfer is effected or (ii) the Buyer provides reasonable assurances that the Securities can be
sold pursuant to Rule 144, the Company shall permit the transfer, and, in the case of the Conversion Shares, promptly instruct
its transfer agent to issue one or more certificates, free from restrictive legend, in such name and in such denominations as specified
by the Buyer. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Buyer,
by vitiating the intent and purpose of the transactions contemplated hereby. Accordingly, the Company acknowledges that the remedy
at Jaw for a breach of its obligations under this Section may be inadequate and agrees, in the event of a breach or threatened
breach by the Company of the provisions of this Section, that the Buyer shall be entitled, in addition to all other available remedies,
to an injunction restraining any breach and requiring immediate transfer, without the necessity of showing economic loss and without
any bond or other security being required.
7.
CONDITIONS PRECEDENT TO THE COMPANY'S OBLIGATIONS TO SELL.
The obligation of the Company hereunder to issue and sell the Note to the Buyer at the Closing is subject to the satisfaction,
at or before the Closing Date of each of the following conditions thereto, provided that these conditions are for the Company's
sole benefit and may be waived by the Company at any time in its sole discretion:
a.
The Buyer shall have executed this Agreement and delivered the same
to the Company.
b.
The Buyer shall have delivered the Purchase Price in accordance with
Section 1(b) above.
c.
The representations and warranties of the Buyer shall be true and
correct in all material respects as of the date when made and as of the Closing Date as though made at that time (except for representations
and warranties that speak as of a specific date), and the Buyer shall have performed, satisfied and complied in all material respects
with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Buyer
at or prior to the Closing Date.
d.
No litigation, statute, rule, regulation, executive order, decree,
ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of
competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits
the consummation of any of the transactions contemplated by this Agreement.
8.
CONDITIONS PRECEDENT TO THE BUYER'S OBLIGATION TO PURCHASE.
The obligation of the Buyer hereunder to purchase the Note at the Closing is subject to the satisfaction, at or before the Closing
Date of each of the following conditions, provided that these conditions are for the Buyer's sole benefit and may be waived by
the Buyer at any time in its sole discretion:
a.
The Company shall have executed this Agreement and delivered the
same to the Buyer.
b.
The Company shall have delivered to the Buyer duly executed Note
(in such denominations as the Buyer shall request) in accordance with Section l(b) above.
c.
The Irrevocable Transfer Agent Instructions, in form and substance
satisfactory to a majority-in-interest of the Buyer, shall have been delivered to and acknowledged in writing by the Company's
Transfer Agent.
d.
The representations and warranties of the Company shall be true and
correct in all material respects as of the date when made and as of the Closing Date as though made at such time (except for representations
and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied in all material respects
with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company
at or prior to the Closing Date. The Buyer shall have received a certificate or certificates, executed by the chief executive officer
of the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested
by the Buyer including, but not limited to certificates with respect to the Company's Certificate of Incorporation, By-laws and
Board of Directors' resolutions relating to the transactions contemplated hereby.
e.
No litigation, statute, rule, regulation, executive order, decree,
ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of
competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits
the consummation of any of the transactions contemplated by this Agreement.
f.
No event shall have occurred which could reasonably be expected to
have a Material Adverse Effect on the Company including but not limited to a change in the 1934 Act reporting status of the Company
or the failure of the Company to be timely in its 1934 Act reporting obligations.
g.
The Conversion Shares shall have been authorized for quotation on
the OTCBB, OTCQB, OTC Markets or any similar quotation system and trading in the Common Stock on the OTCBB; OTCQB, OTC Markets
or any similar quotation system shall not have been suspended by the SEC or the OTCBB, OTCQB,. OTC Markets or any similar quotation
system.
h.
The Buyer shall have received an officer's certificate described
m Section 3(c) above, dated as of the Closing Date.
9.
GOVERNING LAW: MISCELLANEOUS.
a.
Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Nevada without regard to principles of conflicts of laws. 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
Massachusetts or in the federal courts located in the state of Massachusetts. The parties to this Agreement hereby :irrevocably
waive any objection to jurisdiction and venue of any action instituted hereunder and shall not assert any defense based on lack
of jurisdiction or venue or based upon forum non conveniens. The Company and Buyer waive trial by jury. The prevailing party shall
be entitled to recover from the other party its reasonable attorney's fees and costs. In the event that any provision of this Agreement
or any other agreement delivered in connection herewith is invalid or unenforceable under any applicable statute or rule of law,
then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform
with such statute or rule of Jaw. Any such provision which may prove invalid or unenforceable under any law shall not affect the
validity or enforceability of any other provision of any agreement. Each party hereby irrevocably waives personal service of process
and consents to process being served in any suit, action or proceeding in connection with this Agreement or any other Transaction
Document by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party
at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process
in any other manner permitted by law.
b.
Counterparts; Signatures by Facsimile. This Agreement may
be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the
same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party. This
Agreement, once executed by a party, may be delivered to the other party hereto by facsimile transmission of a copy of this Agreement
bearing the signature of the party so delivering this Agreement.
c.
Headings. The headings of this Agreement are for convenience of reference
only and shall not form part of, or affect the interpretation of, this Agreement.
d.
Severability. In the event that any provision of this Agreement is
invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent
that it may conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any provision hereof which
may prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision hereof.
e.
Entire Agreement; Amendments. This Agreement and the instruments
referenced herein contain the entire understanding of the parties with respect to the matters covered herein and therein and, except
as specifically set forth herein or therein, neither the Company nor the Buyer makes any representation, warranty, covenant or
undertaking with respect to such matters. No provision of this Agreement may be waived or amended other than by an instrument in
writing signed by the majority in interest of the Buyer.
f.
Notices. All notices, demands, requests, consents, approvals,
and other communications required or permitted hereunder shall be in writing and, unless otherwise specified herein, shall be (i)
personally served, (ii) deposited in the mail, registered or certified, return receipt requested, postage prepaid, (iii) delivered
by reputable air courier service with charges prepaid, or (iv) transmitted by hand delivery, telegram, or facsimile, addressed
as set forth below or to such other address as such party shall have specified most recently by written notice. Any notice or other
communication required or permitted to be given hereunder shall be deemed effective (a) upon hand delivery or delivery by facsimile,
with accurate confirmation generated by the transmitting facsimile machine, at the address or number designated below (if delivered
on a business day during normal business hours where such notice is to be received), or the first business day following such delivery
(if delivered other than on a business day during normal business hours where such notice is to be received) or (b) on the second
business day following the date of mailing by express courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur. The addresses for such communications shall be:
If to the Company, to:
Rich
Pharmaceuticals, Inc.
9595
Wilshire Blvd., Suite 900
Beverly
Hills, CA 90212
Attn:
Ben Chang
Facsimile:
(424) 230-7003
With a copy by fax only to
(which copy shall not constitute notice):
Steven
James Davis,
A Professional
Corporation
6118
Paseo Delicias
Rancho
Santa Fe, California 92067
Attention:
Steven J. Davis, Esq.
Facsimile:
(858) 367-8138
If to the Buyer:
Auctus
Private Equity Fund, LLC
10l Arch
Street, 20th Floor
Boston,
MA 02110
Attn:
Lou Posner
Facsimile:
(617) 532-6420
With a copy by fax only to
(which copy shall not constitute notice):
Lucosky
Brookman LLP
101 Wood
Avenue South, 5th Floor
Woodbridge,
NJ 08830
Attn:
Joseph M. Lucosky, Esq.
Facsimile: (732) 395-4401
Each party shall provide notice
to the other party of any change in address.
g.
Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties and their successors and assigns. Neither the Company nor the Buyer shall assign this Agreement
or any rights or obligations hereunder without the prior written consent of the other. Notwithstanding the foregoing, subject to
Section 2(f), the Buyer may assign its rights hereunder to any person that purchases Securities in a private transaction from the
Buyer or to any of its "affiliates," as that term is defined under the 1934 Act, without the consent of the Company.
h.
Third Party Beneficiaries. This Agreement is intended for
the benefit of the parties hereto and their respective permitted successors and assigns, and is not for the benefit of, nor may
any provision hereof be enforced by, any other person.
i.
Survival. The representations and warranties of the Company
and the agreements and covenants set forth in this Agreement shall survive the closing hereunder not withstanding any due diligence
investigation conducted by or on behalf of the Buyer. The Company agrees to indemnify and hold harmless the Buyer and all their
officers, directors, employees and agents for loss or damage arising as a result of or related to any breach or alleged breach
by the Company of any of its representations, warranties and covenants set forth in this Agreement or any of its covenants and
obligations under this Agreement, including advancement of expenses as they are incurred.
j.
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.
k.
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.
l.
Remedies. The Company acknowledges that a breach by it of
its obligations hereunder will cause irreparable harm to the Buyer by vitiating the intent and purpose of the transaction contemplated
hereby. Accordingly, the Company acknowledges that the remedy at law for a breach of its obligations under this Agreement will
be inadequate and agrees, in the event of a breach or threatened breach by the Company of the provisions of this Agreement, that
the Buyer shall be entitled, in addition to all other available remedies at law or in equity, and in addition to the penalties
assessable herein, to an injunction or injunctions restraining, preventing or curing any breach of this Agreement and to enforce
specifically the terms and provisions hereof, without the necessity of showing economic loss and without any bond or other security
being required.
m.
Publicity. The Company, and the Buyer shall have the right
to review a reasonable period of time before issuance of any press releases, SEC, OTCQB or FINRA filings, or any other public statements
with respect to the transactions contemplated hereby; provided, however, that the Company shall be entitled, without the prior
approval of the Buyer, to make any press release or SEC, OTCQB (or other applicable trading market) or FINRA filings with respect
to such transactions as is required by applicable law and regulations (although the Buyer shall be consulted by the Company in
connection with any such press release prior to its release and shall be provided with a copy thereof and be given an opportunity
to comment thereon).
[signature
page follows]
IN WITNESS
WHEREOF, the undersigned Buyer and the Company have caused this Agreement to be duly executed as of the date first above written.
RICH PHARMACEUTICALS, INC.
By: /s/ Ben Chang
Name: Ben Chang
Title: Chief Executive Officer
AUCTUS PRIVATE EQUITY FUND,
LLC
By: /s/ Lou Posner
Name: Lou Posner
Title: Managing Director
AGGREGATE SUBSCRIPTION AMOUNT: |
|
Aggregate Principal Amount of Note: |
US$55,000 |
Aggregate Purchase Price: |
US$55,000 |
NEITHER
THE ISSUANCE
AND SALE
OF THE
SECURITIES REPRESENTED BY
THIS CERTIFICATE
NOR THE
SECURITIES INTO
WHICH THESE SECURITIES
ARE CONVERTIBLE
HAVE BEEN
REGISTERED UNDER
THE SECURITIES
ACT OF
1933, AS AMENDED,
OR APPLICABLE STATE
SECURITIES LAWS. THE
SECURITIES MAY
NOT BE OFFERED
FOR SALE,
SOLD, TRANSFERRED
OR ASSIGNED (I)
IN THE ABSENCE OF
(A) AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES
UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR (B)
AN OPINION OF COUNSEL (WHICH COUNSEL
SHALL BE SELECTED
BY THE HOLDER),
IN A GENERALLY
ACCEPTABLE FORM, THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT
OR (II) UNLESS SOLD
PURSUANT TO RULE
144 OR RULE
144A UNDER SAID
ACT. NOTWITHSTANDING
THE FOREGOING, THE SECURITIES MAY BE PLEDGED
IN CONNECTION WITH A BONA
FIDE MARGIN
ACCOUNT OR OTHER LOAN
OR FINANCING ARRANGEMENT SECURED
BY THE SECURITIES.
Principal Amount: US$55,000 |
Issue Date: March 9, 2015 Purchase |
Price: US$55,000 |
|
CONVERTIBLE
PROMISSORY NOTE
FOR
VALUE RECEIVED, RICH
PHARMACEUTICALS, INC., a Nevada
corporation (hereinafter called
the “Borrower”),
hereby promises to
pay to the
order of
AUCTUS PRIVATE
EQUITY FUND,
LLC, a Delaware
limited liability company,
or registered
assigns (the
“Holder”) the
sum of
US $55,000 together
with any interest
as set
forth herein,
on December 9,
2015 (the
“Maturity Date”),
and to
pay interest on
the unpaid
principal balance hereof
at the
rate of
eight percent
(8%) (the
“Interest Rate”)
per annum
from the
date hereof (the “Issue
Date”) until
the same
becomes due
and payable,
whether at
maturity or upon acceleration or
by prepayment
or otherwise. This
Note may
not be
prepaid in whole
or in
part except as
otherwise explicitly set forth herein
with the written
consent of the
Holder which may
be withheld
for any reason
or for
no reason. Any
amount of principal
or interest
on this Note
which is not paid when due shall bear interest at the rate of twenty two percent
(22%) per annum
from the
due date
thereof until the
same is
paid (“Default
Interest”). Interest
shall commence
accruing on the date that
the Note is
fully paid and
shall be computed on the
basis of
a 365-day year and the
actual number of days elapsed.
All payments due hereunder
(to the extent not
converted into common
stock, $0.001
par value
per share (the
“Common Stock”) in
accordance with the terms
hereof) shall be made in lawful money of the United States of America.
All payments
shall be
made at
such address
as the
Holder shall
hereafter give
to the
Borrower by written
notice made in accordance
with the provisions of this
Note. Whenever
any amount expressed to be
due by the terms
of this Note is
due on any day which is not a
business day, the same
shall instead be due on the next succeeding
day which is a business day and,
in the case of any interest
payment date
which is
not the
date on which
this Note
is paid in
full, the
extension of
the due date thereof shall not be taken
into account for purposes of determining the amount of interest
due on such date.
As used in this
Note, the term
“business day” shall mean
any day
other than
a Saturday,
Sunday or a day on
which commercial banks
in the city
of New
York, New York are
authorized or required by
law or executive
order to remain closed.
Each capitalized term used
herein, and not otherwise
defined, shall have the
meaning ascribed thereto
in that certain Securities Purchase
Agreement dated the date hereof, pursuant
to which this Note was originally issued
(the “Purchase Agreement”).
This
Note is
free from
all taxes,
liens, claims and
encumbrances with
respect to
the issue
thereof and
shall not be
subject to preemptive
rights or other
similar rights of
shareholders of
the Borrower and will not impose personal liability
upon the holder thereof.
The following terms shall apply
to this Note:
ARTICLE
I. CONVERSION
RIGHTS
1.1
Conversion
Right.
The Holder
shall have the
right from
time to time,
and at
any time during
the period
beginning on
the date
which is
one hundred
eighty (180)
days following
the date
of this
Note and
ending on
the later
of (i)
the Maturity Date
and (ii)
the date of payment of the Default
Amount (as defined in Article III) pursuant to Section 1.6(a) or Article III,
each in
respect of
the remaining
outstanding principal
amount of
this Note
to convert all
or any part of the outstanding
and unpaid principal amount of
this Note into fully
paid and non-
assessable shares of Common Stock,
as such Common
Stock exists on the
Issue Date, or any shares
of capital stock or
other securities of
the Borrower into which
such Common Stock shall
hereafter be changed
or reclassified
at the Conversion Price
(as defined below) determined
as provided herein (a “Conversion”);
provided, however, that
in no event shall the Holder be entitled to convert any portion of this Note in excess
of that portion of this Note upon conversion of which the
sum of (1) the number of shares of
Common Stock beneficially owned by the Holder
and its affiliates (other than shares
of Common Stock which may be deemed beneficially
owned through the
ownership of the unconverted portion
of the Notes
or the unexercised
or unconverted
portion of
any other
security of
the Borrower
subject to a limitation
on conversion or
exercise analogous to the
limitations contained herein)
and (2) the number
of shares of
Common Stock issuable upon the conversion of the
portion of this Note with respect to which the
determination of this
proviso is being made,
would result in beneficial
ownership by the
Holder and its affiliates
of more than
4.99% of the outstanding shares of
Common Stock. For purposes of
the proviso to the
immediately preceding sentence, beneficial
ownership shall be determined in accordance
with Section 13(d) of the
Securities Exchange Act of
1934, as amended (the
“Exchange Act”), and Regulations 13D-G
thereunder, except as otherwise provided
in clause (1) of such
proviso, provided, further,
however, that the limitations
on conversion may be waived by the Holder
upon, at the election
of the Holder, not less than
61 days’ prior notice
to the Borrower, and
the provisions of the
conversion limitation shall continue
to apply until such 61st day (or such
later date, as determined by the Holder,
as may be specified in such notice
of waiver). The
number of shares of Common Stock to be
issued upon each conversion of
this Note shall be determined by dividing
the Conversion Amount (as
defined below) by the
applicable Conversion Price then
in effect
on the date
specified in the notice
of conversion,
in the
form attached
hereto as
Exhibit A (the
“Notice of
Conversion”), delivered
to the Borrower by
the Holder in accordance with Section 1.4 below;
provided that the Notice of Conversion
is submitted by facsimile or e-mail
(or by other means
resulting in, or reasonably expected
to result in, notice)
to the Borrower
before 6:00 p.m., New
York, New
York time on such
conversion date (the
“Conversion Date”).
The term “Conversion
Amount” means, with respect
to any conversion of this Note,
the sum of (1)
the principal amount of this Note
to be converted in such conversion plus
(2) at the
Holder’s option, accrued and unpaid
interest, if any,
on such principal amount at
the interest rates provided in this Note to the
Conversion Date, provided
however, that
the Borrower
shall have the
right to pay
any or all interest
in cash plus (3)
at the Holder’s option, Default
Interest, if any, on the
amounts referred to in the immediately preceding
clauses (1) and/or (2) plus (4)
at the Holder’s
option, any amounts owed to the
Holder pursuant to Sections 1.3 and 1.4(g) hereof.
1.2
Conversion Price.
(a)
Calculation of
Conversion Price.
The conversion price
(the “Conversion
Price”) shall equal
the Base
Conversion Price
(as defined herein)
(subject to
equitable adjustments
for stock
splits, stock
dividends or
rights offerings by
the Borrower
relating to
the Borrower’s
securities or
the securities
of any
subsidiary of the Borrower, combinations,
recapitalization, reclassifications,
extraordinary distributions and similar
events). The
“Base Conversion Price”
shall mean 55%
multiplied by the Market
Price (as defined
herein) (representing a discount rate
of 45%). “Market Price”
means the average of
the lowest two (2)
Trading Prices
(as defined
below) for
the Common Stock
during the fifteen
(15) Trading
Day period ending
on the latest
complete Trading Day
prior to the
Conversion Date.
“Trading Price” means,
for any security as
of any
date, the closing bid price on the Over-the-Counter Bulletin
Board (the
“OTCBB”), OTCQB
or applicable
trading market
as reported
by a reliable
reporting service (“Reporting Service”) designated
by the Holder or, if
the OTCBB is not the principal trading
market for such
security, the
closing bid price
of such
security on the
principal securities exchange
or trading market where such security
is listed or traded or,
if no closing bid price of such
security is available
in any of
the foregoing manners,
the average
of the closing
bid prices of
any market makers for such security that
are listed in the “pink sheets”
by the National Quotation Bureau, Inc.
If the shares have not been delivered
within three (3) business days to the
Company, the Notice of Conversion
may be rescinded.
In the case that the Borrower’s
Common Stock is
not deliverable by
DWAC, an additional
10% discount will
apply. In the
case that the Borrower’s
Common Stock is “chilled” for deposit into the
DTC system and only
eligible for
clearing deposit, an
additional 15% discount
shall apply while
the “chill”
is in effect.
If the
Trading Price cannot
be calculated
for such security
on such date
in the manner
provided above, the
Trading Price
shall be
the fair
market value
as mutually
determined by
the Borrower and the holders of
a majority in interest of the Notes being converted for which the calculation of the Trading Price is required in order to determine
the Conversion Price of such Notes. “Trading Day”
shall mean any day
on which the
Common Stock is
tradable for
any period on the OTCBB, OTCQB
or on the principal securities exchange or other securities market on which the Common Stock is then being traded.
(b)
Conversion
Price
During Major Announcements.
Notwithstanding anything
contained in Section
1.2(a) to the
contrary, in
the event the
Borrower (i) makes
a public announcement
that it intends
to consolidate
or merge
with any other
corporation (other
than a
merger in
which the
Borrower is
the surviving or continuing
corporation and
its capital
stock is
unchanged) or sell or
transfer all or substantially all
of the assets
of the Borrower
or (ii) any
person, group or
entity (including the
Borrower) publicly announces
a tender offer to
purchase 50%
or more
of the
Borrower’s Common
Stock (or
any other
takeover scheme)
(the date
of the
announcement referred
to in clause
(i) or
(ii) is
hereinafter referred to
as the “Announcement Date”),
then the Conversion Price
shall, effective upon the Announcement
Date and continuing
through the Adjusted Conversion Price Termination Date
(as defined below), be equal to the
lower of (x) the Conversion
Price which would
have been applicable for
a Conversion occurring
on the Announcement
Date and (y)
the Conversion
Price that would
otherwise be in
effect. From and
after the Adjusted Conversion
Price Termination Date,
the Conversion Price
shall be determined
as set forth
in this Section 1.2(a). For purposes
hereof, “Adjusted Conversion
Price Termination Date”
shall mean, with respect to any proposed
transaction or tender offer
(or takeover scheme)
for which
a public announcement as
contemplated by
this Section 1.2(b)
has been made,
the date
upon which
the Borrower
(in the
case of
clause (i)
above) or
the person, group
or entity (in
the case
of clause
(ii) above)
consummates or
publicly announces the termination or
abandonment of the proposed transaction
or tender offer (or takeover scheme) which
caused this Section 1.2(b) to become operative.
1.3
Authorized Shares.
The Borrower
covenants that during
the period
the conversion
right exists, the
Borrower will
reserve from
its authorized and
unissued Common
Stock a sufficient
number of
shares, free
from preemptive
rights, to
provide for
the issuance
of Common Stock upon the full conversion of this Note issued pursuant to the
Purchase Agreement. The Borrower
is required at
all times to
have authorized and
reserved five times
the number
of shares
that is actually
issuable upon
full conversion of
the Note
(based on the
Conversion Price of
the Notes in effect
from time to time) (the “Reserved
Amount”). The Reserved
Amount shall be increased from time to time in accordance with the Borrower’s
obligations pursuant to Section 3(d) of
the Purchase Agreement. The
Borrower represents
that upon issuance,
such shares will
be duly and validly issued, fully paid and non-assessable. In addition, if the Borrower shall issue any
securities or make any
change to its capital structure
which would change the
number of shares of Common Stock
into which the
Notes shall be
convertible at the then
current Conversion
Price, the
Borrower shall
at the
same time
make proper
provision so that
thereafter there shall be a sufficient number of shares of Common Stock authorized
and reserved, free from preemptive rights, for
conversion of the outstanding
Notes. The
Borrower (i) acknowledges
that it has irrevocably instructed its transfer agent to issue certificates for the Common Stock issuable
upon conversion of
this Note, and (ii) agrees that
its issuance of this Note shall
constitute full authority to its officers
and agents who are
charged with the duty of executing
stock certificates to
execute and
issue the necessary certificates
for shares of Common Stock
in accordance with
the terms and conditions of this Note.
If,
at any
time the
Borrower does
not maintain the
Reserved Amount
it will be
considered an Event of Default under Section 3.2 of the Note.
1.4
Method of Conversion.
(a)
Mechanics
of
Conversion.
Subject to
Section 1.1,
this Note
may be
converted by the
Holder in whole
or in part
at any time
from time to
time after the
Issue Date, by
(A) submitting to
the Borrower
a Notice
of Conversion
(by facsimile,
e-mail or
other reasonable
means of communication
dispatched on
the Conversion
Date prior
to 5:00 p.m., New York,
New York time)
and (B) subject
to Section 1.4(b),
surrendering this Note at
the principal office
of the Borrower.
(b)
Surrender
of Note
Upon Conversion.
Notwithstanding anything
to the
contrary set
forth herein,
upon conversion
of this
Note in
accordance with
the terms
hereof, the
Holder shall
not be
required to
physically surrender
this Note
to the Borrower
unless the entire unpaid
principal amount of
this Note is
so converted. The
Holder and the
Borrower shall maintain records showing the principal amount so converted and the
dates of such conversions or shall use such
other method, reasonably satisfactory
to the Holder and the Borrower, so as
not to require physical surrender of this
Note upon each such conversion. In the event of any dispute or discrepancy,
such records of the
Borrower shall,
prima facie, be
controlling and
determinative in the absence
of manifest error. Notwithstanding
the foregoing, if
any portion of
this Note is converted
as aforesaid, the
Holder may not transfer
this Note unless the Holder
first physically surrenders this
Note to the Borrower,
whereupon the Borrower will forthwith
issue and deliver upon the order of the
Holder a new Note of like tenor, registered as the Holder (upon payment
by the Holder of any
applicable transfer taxes) may request,
representing in the aggregate the remaining
unpaid principal amount
of this Note. The
Holder and any
assignee, by acceptance of this
Note, acknowledge
and agree
that, by reason
of the
provisions of
this paragraph,
following conversion of
a portion of
this Note, the
unpaid and unconverted
principal amount of
this Note represented by
this Note may be less than the amount stated on the face hereof.
(c)
Payment
of Taxes.
The Borrower
shall not be
required to pay
any tax
which may
be payable
in respect
of any
transfer involved in
the issue
and delivery
of shares
of Common Stock or other securities
or property on conversion
of this Note
in a name
other than that
of the
Holder (or in
street name),
and the
Borrower shall
not be
required to
issue or deliver any
such shares
or other securities
or property
unless and
until the
person or
persons (other
than the Holder or
the custodian in whose
street name such
shares are to be
held for the
Holder’s account)
requesting the
issuance thereof
shall have
paid to
the Borrower
the amount of
any such tax or shall have
established to the satisfaction of the Borrower that such tax has been paid.
(d)
Delivery of
Common Stock Upon
Conversion.
Upon receipt
by the
Borrower from
the Holder
of a
facsimile transmission
or e-mail
(or other
reasonable means
of communication)
of a
Notice of
Conversion meeting
the requirements
for conversion
as provided
in this Section 1.4, the Borrower
shall issue and deliver or
cause to be issued and
delivered to or upon the
order of the
Holder certificates for
the Common Stock issuable upon
such conversion within three
(3) business days after
such receipt (the “Deadline”)
(and, solely in the
case of conversion of the
entire unpaid principal amount hereof, surrender of
this Note) in accordance
with the terms hereof and the Purchase Agreement.
(e)
Obligation
of Borrower
to Deliver
Common Stock.
Upon receipt by
the Borrower
of a
Notice of
Conversion, the Holder
shall be deemed
to be
the holder of
record of
the Common
Stock issuable
upon such conversion,
the outstanding
principal amount and
the amount
of accrued and
unpaid interest
on this Note
shall be
reduced to
reflect such conversion,
and, unless the Borrower defaults on
its obligations under this Article
I, all rights with respect to the portion
of this Note being
so converted shall forthwith terminate
except the right to receive the
Common Stock or other securities,
cash or other
assets, as herein provided, on such
conversion. If the Holder shall have given
a Notice of Conversion as provided herein,
the Borrower’s obligation
to issue and
deliver the certificates
for Common Stock shall be absolute and unconditional, irrespective of the absence
of any action by the Holder to
enforce the same,
any waiver or
consent with respect to any provision
thereof, the recovery of any
judgment against any person or any action
to enforce the same, any failure or delay
in the enforcement of any other obligation
of the Borrower to the
holder of record,
or any setoff,
counterclaim, recoupment,
limitation or
termination, or
any breach or
alleged breach by
the Holder
of any
obligation to the Borrower, and
irrespective of any other circumstance
which might otherwise limit such obligation
of the Borrower
to the Holder in connection with such conversion. The
Conversion Date specified in the
Notice of Conversion
shall be the Conversion
Date so long as
the Notice
of Conversion
is received by the
Borrower before
5:00 p.m., New
York, New
York time, on such date.
(f)
Delivery of
Common Stock
by Electronic
Transfer.
In lieu
of delivering
physical certificates
representing the
Common Stock
issuable upon
conversion, provided
the Borrower
is participating in
the Depository Trust
Company (“DTC”) Fast
Automated Securities
Transfer (“FAST”)
program, upon request of the Holder and
its compliance with the provisions contained
in Section 1.1 and in this Section 1.4, the
Borrower shall use its commercially reasonable
best efforts to cause its transfer agent
to electronically transmit the Common Stock issuable
upon conversion to the Holder by crediting
the account of Holder’s Prime Broker
with DTC through its
Deposit Withdrawal At Custodian (“DWAC”)
system.
(g)
Failure
to Deliver
Common Stock Prior
to Delivery Deadline.
Without in any way limiting the
Holder’s right to pursue other
remedies, including actual damages
and/or equitable
relief, the
parties agree
that if
delivery of the
Common Stock issuable
upon conversion
of this
Note is not
delivered by
the Deadline (other
than a failure due to the
circumstances described in
Section 1.3 above,
which failure
shall be governed by
such Section) the
Borrower shall
pay to the
Holder $2,000 per day
in cash, for each
day beyond the
Deadline that the Borrower
fails to deliver such
Common Stock. Such
cash amount shall be paid
to Holder by the fifth day of the month following the month in which it has accrued
or, at the option of the
Holder (by written
notice to the Borrower
by the first
day of the month following the
month in which
it has
accrued), shall
be added to the
principal amount of this
Note, in which
event interest
shall accrue thereon
in accordance
with the
terms of this
Note and
such additional principal amount
shall be convertible into
Common Stock in
accordance with
the terms
of this Note.
The Borrower agrees
that the right to convert is a valuable
right to the Holder.
The damages
resulting from a failure, attempt to frustrate, interference with such conversion right are difficult
if not
impossible to qualify.
Accordingly the
parties acknowledge
that the liquidated damages provision
contained in this Section 1.4(g) are justified.
1.5
Concerning
the
Shares.
The
shares
of Common
Stock issuable
upon conversion
of this Note
may not be
sold or transferred
unless (i) such
shares are sold
pursuant to an
effective registration
statement under
the Act
or (ii)
the Borrower
or its
transfer agent
shall have
been furnished with
an opinion
of counsel
(which opinion shall
be in
form, substance
and scope customary for opinions
of counsel in comparable
transactions) to the effect that the
shares to be sold or
transferred may be sold or transferred
pursuant to an exemption from
such registration or
(iii) such shares are
sold or transferred pursuant
to Rule 144 under
the Act (or
a successor rule) (“Rule 144”)
or (iv) such
shares are transferred to an
“affiliate” (as defined
in Rule 144) of
the Borrower who
agrees to sell or otherwise
transfer the shares only in accordance
with this Section 1.5 and who is an
Accredited Investor (as
defined in the Purchase
Agreement). Except as
otherwise provided
in the Purchase
Agreement (and
subject to
the removal
provisions set forth below), until such time as the shares of Common Stock
issuable upon conversion of this Note have been registered under
the Act or otherwise may be
sold pursuant to Rule 144 without any restriction
as to the number
of securities as
of a particular date
that can then be immediately
sold, each certificate for shares
of Common Stock
issuable upon conversion
of this Note
that has not been
so included in an
effective registration statement or
that has not been sold pursuant to
an effective registration statement or an
exemption that permits
removal of the
legend, shall bear a
legend substantially in the following form, as appropriate:
“NEITHER
THE ISSUANCE
AND SALE
OF THE
SECURITIES REPRESENTED
BY THIS
CERTIFICATE NOR
THE SECURITIES
INTO WHICH
THESE SECURITIES
ARE EXERCISABLE
HAVE BEEN
REGISTERED UNDER
THE SECURITIES
ACT OF
1933, AS
AMENDED, OR
APPLICABLE STATE
SECURITIES LAWS.
THE SECURITIES
MAY NOT BE
OFFERED FOR SALE,
SOLD, TRANSFERRED OR ASSIGNED
(I) IN THE
ABSENCE OF (A) AN EFFECTIVE
REGISTRATION STATEMENT FOR
THE SECURITIES UNDER
THE SECURITIES ACT OF 1933,
AS AMENDED, OR (B)
AN OPINION OF COUNSEL (WHICH COUNSEL
SHALL BE SELECTED BY
THE HOLDER),
IN A
GENERALLY ACCEPTABLE
FORM, THAT
REGISTRATION IS NOT REQUIRED
UNDER SAID ACT
OR (II) UNLESS SOLD
PURSUANT TO RULE
144 OR RULE 144A UNDER
SAID ACT. NOTWITHSTANDING
THE FOREGOING,
THE SECURITIES
MAY BE PLEDGED
IN CONNECTION WITH
A BONA FIDE MARGIN ACCOUNT
OR OTHER LOAN
OR FINANCING
ARRANGEMENT SECURED
BY THE SECURITIES.”
The
legend set
forth above shall
be removed
and the
Borrower shall
issue to the
Holder a
new certificate therefore
free of any
transfer legend if
(i) the Borrower
or its transfer
agent shall
have received an
opinion of
counsel, in form,
substance and
scope customary
for opinions of
counsel in comparable transactions,
to the effect
that a public
sale or transfer
of such Common Stock may be
made without registration under the
Act, which opinion shall be reasonably
accepted by the Borrower so that the
sale or transfer
is effected or (ii) in the case
of the Common Stock issuable upon conversion
of this Note, such
security is registered for sale by the
Holder under an
effective registration statement
filed under the Act
or otherwise may
be sold pursuant to Rule 144 without
any restriction as to the
number of securities as
of a particular date that can
then be immediately sold. In the event
that the Borrower does
not accept the opinion of counsel provided
by the Buyer with respect to the transfer of Securities
pursuant to an exemption from registration,
such as Rule
144 or Regulation
S, at the
Deadline, it will
be considered an
Event of Default pursuant to Section 3.2 of the Note.
1.6
Effect of Certain Events.
(a)
Effect
of
Merger, Consolidation,
Etc.
At the
option of
the Holder, the
sale, conveyance
or disposition
of all
or substantially
all of
the assets
of the
Borrower, the
effectuation by
the Borrower
of a
transaction or series
of related transactions
in which more
than 50% of
the voting power of the Borrower
is disposed of, or the consolidation, merger
or other business combination of
the Borrower with or into any
other Person (as defined
below) or Persons when
the Borrower is not the
survivor shall either:
(i) be deemed
to be an Event
of Default (as
defined in
Article III) pursuant to
which the
Borrower shall
be required
to pay to
the Holder
upon the consummation
of and
as a condition
to such
transaction an amount
equal to
the Default Amount (as defined
in Article III) or (ii) be
treated pursuant to Section 1.6(b)
hereof. “Person” shall mean
any individual, corporation, limited liability company, partnership, association,
trust or other entity or organization.
(b)
Adjustment Due
to Merger,
Consolidation, Etc.
If, at
any time
when this
Note is
issued and
outstanding and
prior to conversion
of all
of the
Notes, there
shall be
any merger,
consolidation, exchange
of shares,
recapitalization, reorganization,
or other
similar event, as
a result of
which shares of
Common Stock of
the Borrower shall
be changed into the same or a
different number of shares of another
class or classes of stock or securities
of the Borrower
or another
entity, or in case
of any sale or
conveyance of all or
substantially all of
the assets of
the Borrower other than in connection
with a plan of
complete liquidation of the Borrower,
then the Holder
of this Note
shall thereafter have
the right to
receive upon conversion
of this Note, upon the basis and
upon the terms and conditions specified
herein and
in lieu of the shares of Common
Stock immediately theretofore issuable
upon conversion, such stock, securities
or assets
which the Holder
would have been entitled
to receive in such
transaction had this Note
been converted in
full immediately prior
to such
transaction (without regard to
any limitations on conversion
set forth herein),
and in any such case
appropriate provisions shall be made
with respect
to the rights and
interests of the
Holder of this
Note to the
end that the provisions hereof
(including, without limitation, provisions for
adjustment of the Conversion Price
and of the number of
shares issuable upon conversion of
the Note)
shall thereafter be applicable, as nearly as
may be practicable in relation to any
securities or assets thereafter deliverable
upon the conversion
hereof. The
Borrower shall not
affect any transaction
described in this Section 1.6(b)
unless (a) it first
gives, to the extent practicable,
thirty (30) days
prior written
notice (but
in any
event at
least fifteen
(15) days
prior written
notice) of
the record
date of the special meeting
of shareholders
to approve, or if there is no
such record date, the
consummation of, such merger, consolidation,
exchange of shares, recapitalization, reorganization
or other
similar event
or sale
of assets (during
which time the
Holder shall be
entitled to convert this Note)
and (b) the
resulting successor or acquiring
entity (if not the Borrower)
assumes by written
instrument the obligations of
this Section 1.6(b). The above
provisions shall similarly apply to successive
consolidations, mergers, sales, transfers
or share exchanges.
(c)
Adjustment Due
to Distribution.
If the
Borrower shall declare
or make
any distribution of
its assets (or
rights to acquire
its assets) to
holders of Common
Stock as a
dividend, stock repurchase,
by way of
return of capital
or otherwise (including
any dividend or
distribution to the
Borrower’s shareholders in cash
or shares (or rights
to acquire shares)
of capital stock of a subsidiary
(i.e., a spin-off)) (a “Distribution”),
then the Holder of this Note shall be
entitled, upon any conversion of
this Note after
the date of
record for determining shareholders entitled
to such Distribution, to receive the amount of such assets which would have been payable
to the Holder with respect
to the shares of
Common Stock issuable upon such
conversion had such
Holder been the
holder of such
shares of Common
Stock on the
record date for the determination of
shareholders entitled to such Distribution.
(d)
Notice
of
Adjustments.
Upon the
occurrence of
each adjustment
or readjustment of the Conversion Price as a result of the events described in this Section 1.6, the Borrower,
at its
expense, shall promptly
compute such
adjustment or
readjustment and
prepare and
furnish to the
Holder a certificate
setting forth such
adjustment or readjustment and
showing in detail the
facts upon
which such
adjustment or
readjustment is based.
The Borrower
shall, upon the written
request at any time of the Holder, furnish
to such Holder a like certificate setting
forth (i)
such adjustment or
readjustment, (ii)
the Conversion
Price at
the time
in effect and
(iii) the
number of
shares of
Common Stock and
the amount, if
any, of other
securities or
property which at the time would be received upon conversion of the Note.
1.7
Trading
Market Limitations.
Unless permitted
by the
applicable rules
and regulations
of the
principal securities
market on which
the Common
Stock is then
listed or
traded, in
no event shall
the Borrower
issue upon conversion
of or
otherwise pursuant to
this Note and the other Notes issued pursuant to the
Purchase Agreement more than the
maximum number of shares of
Common Stock that the Borrower can
issue pursuant to any rule of the principal
United States securities
market on which the
Common Stock is
then traded
(the “Maximum Share Amount”), which shall be 4.99% of the total
shares outstanding on the Closing Date (as defined in the
Purchase Agreement), subject to equitable
adjustment from time to time for stock splits, stock dividends, combinations, capital
reorganizations and similar events relating to the
Common Stock occurring after
the date hereof. Once
the Maximum Share Amount has been
issued, if the Borrower fails to eliminate
any prohibitions under applicable law or the
rules or regulations
of any stock exchange, interdealer quotation
system or other self-regulatory
organization with jurisdiction over the Borrower or any of its securities on the Borrower’s ability to issue shares of
Common Stock in excess of the Maximum Share
Amount, in lieu of any further right
to convert this Note, this will
be considered an
Event of Default under
Section 3.2 of the Note.
1.8
Status as
Shareholder.
Upon submission
of a
Notice of
Conversion by
a Holder,
(i) the
shares covered
thereby (other
than the
shares, if
any, which cannot
be issued
because their
issuance would
exceed such
Holder’s allocated
portion of
the Reserved
Amount or Maximum
Share Amount) shall be
deemed converted
into shares of
Common Stock
and (ii) the
Holder’s rights as
a Holder of such
converted portion of
this Note shall
cease and terminate,
excepting only the
right to receive
certificates for such
shares of Common Stock
and to
any remedies provided
herein or
otherwise available
at law
or in
equity to such
Holder because
of a
failure by the Borrower
to comply with the terms
of this Note. Notwithstanding the foregoing,
if a Holder has
not received certificates for all shares
of Common Stock prior to the
tenth (10th) business day after the
expiration of the Deadline with respect
to a conversion of any portion of
this Note
for any reason, then
(unless the
Holder otherwise elects
to retain its
status as
a holder of Common Stock by so notifying the Borrower) the Holder shall regain
the rights of a Holder of this Note with
respect to such
unconverted portions of this Note
and the Borrower
shall, as soon as
practicable, return such unconverted
Note to the Holder
or, if the Note has not been
surrendered, adjust its records to reflect that such portion of this Note has
not been converted. In all cases, the Holder shall retain
all of its rights and remedies (including,
without limitation, (i) the right
to receive Conversion Default Payments
pursuant to Section 1.3 to the extent
required thereby for
such Conversion
Default and
any subsequent Conversion
Default and
(ii) the
right to
have the Conversion Price with respect to subsequent conversions determined in accordance with Section 1.3) for the Borrower’s
failure to convert this Note.
1.9
Prepayment.
Notwithstanding anything
to the contrary contained
in this Note,
the Borrower
may prepay
the amounts
outstanding hereunder
pursuant to
the following
terms and conditions:
(a)
At any
time during
the period
beginning on the
Issue Date
and ending on the date which is thirty
(30) days following the
Issue Date, the Borrower shall
have the right, exercisable on not less than three (3) Trading Days
prior written notice to the Holder of the Note
to prepay the
outstanding Note (principal
and accrued
interest), in full
by making
a payment
to the Holder of an
amount in cash equal to 125%, multiplied
by the sum of:
(w) the then outstanding principal amount of this Note plus
(x) accrued and unpaid interest on the unpaid principal
amount of this Note plus (y) Default Interest.
(b)
At any
time during the period beginning the day
which is thirty one (31)
days following
the Issue
Date and
ending on
the date
which is
sixty (60) days
following the
Issue Date,
the Borrower shall
have the right,
exercisable on not
less than three
(3) Trading Days
prior written
notice to the
Holder of
the Note
to prepay the
outstanding Note
(principal and accrued interest), in full by
making a payment to the Holder of an amount in cash equal to 130%, multiplied
by the sum of:
(w) the then
outstanding principal amount
of this Note plus (x)
accrued and unpaid interest on the unpaid principal amount of this Note plus
(y) Default Interest.
(c)
At any
time during the
period beginning
the day
which is
sixty one (61)
days following
the Issue
Date and
ending on
the date
which is
ninety (90)
days following
the Issue
Date, the
Borrower shall
have the
right, exercisable
on not less
than three
(3) Trading Days
prior written notice
to the Holder
of the
Note to
prepay the outstanding Note
(principal and accrued interest), in full
by making a
payment to the Holder of an amount in cash equal to 135%,
multiplied by the sum
of: (w) the
then outstanding principal
amount of this
Note plus (x)
accrued and unpaid interest on the unpaid principal amount of this Note
plus (y) Default Interest.
(d)
At any
time during
the period
beginning the day
which is
ninety one
(91) days
following the
Issue Date
and ending
on the
date which
is one
hundred twenty (120)
days following
the Issue
Date, the
Borrower shall
have the
right, exercisable on
not less
than three (3)
Trading Days prior written notice
to the Holder of the Note
to prepay the outstanding Note (principal
and accrued interest), in full
by making a payment
to the Holder of
an amount in cash equal to 140%,
multiplied by the sum of:
(w) the then outstanding principal amount
of this Note plus (x) accrued
and unpaid interest on the unpaid
principal amount of this Note plus (y)
Default Interest.
(e)
At any
time during
the period
beginning the
day which
is one
hundred twenty
one (121)
days following
the Issue
Date and
ending on
the date
which is
one hundred
fifty (150)
days following
the Issue
Date, the
Borrower shall
have the
right, exercisable on not less
than three (3) Trading Days
prior written notice to the
Holder of the Note to prepay the
outstanding Note
(principal and
accrued interest), in
full by making
a payment to
the Holder of an amount in cash
equal to 145%, multiplied by the sum of: (w) the then outstanding principal amount of
this Note plus (x) accrued and
unpaid interest on the unpaid principal
amount of this Note plus (y) Default
Interest.
(f)
At any
time during
the period
beginning the
day which
is one
hundred fifty
one (151) days
following the
Issue Date
and ending
on the
date which
is one
hundred eighty (180)
days following the Issue Date,
the Borrower shall have the
right, exercisable on
not less than
three (3) Trading Days
prior written notice
to the Holder of
the Note to prepay the outstanding
Note (principal and accrued interest),
in full by making a payment
to the
Holder of an amount in cash
equal to 150%, multiplied by the
sum of: (w)
the then outstanding
principal amount of
this Note
plus (x) accrued and
unpaid interest
on the
unpaid principal amount of this Note
plus (y) Default Interest.
(g)
After
the expiration
of one
hundred eighty
(180) days
following the date of the Note, the Borrower shall have no right of prepayment.
Any notice
of prepayment hereunder (an “Optional Prepayment
Notice”) shall be delivered to the Holder
of the
Note at
its registered
addresses and
shall state: (1)
that the
Borrower is
exercising its right
to prepay
the Note,
and (2)
the date
of prepayment
which shall
be not
more than
three (3) Trading
Days from
the date
of the
Optional Prepayment
Notice. On
the date
fixed for prepayment
(the “Optional Prepayment Date”),
the Borrower shall make
payment of the applicable
prepayment amount to or upon the order
of the Holder
as specified by the Holder in writing
to the
Borrower at
least one
(1) business day prior
to the
Optional Prepayment Date.
If the Borrower delivers
an Optional Prepayment Notice and fails
to pay the applicable prepayment amount
due to
the Holder
of the
Note within
two (2)
business days following
the Optional Prepayment
Date, the
Borrower shall
forever forfeit
its right
to prepay the Note
pursuant to
this Section 1.9.
ARTICLE
II. CERTAIN
COVENANTS
2.1
Restriction on
Stock Repurchases.
So long as
the Borrower
shall have any
obligation under
this Note, the
Borrower shall
not without the
Holder’s written consent
redeem, repurchase
or otherwise
acquire (whether
for cash
or in
exchange for
property or other
securities or otherwise) in any one transaction or series of related transactions
any shares of capital stock of the Borrower or any
warrants, rights or options to purchase or acquire any such shares.
2.2
Sale
of
Assets.
So long as
the Borrower
shall have any
obligation under this
Note, the
Borrower shall
not, without
the Holder’s
written consent,
sell, lease
or otherwise
dispose of
any significant
portion of
its assets
outside the
ordinary course
of business. Any consent to the
disposition of any assets may
be conditioned on a specified use of
the proceeds of
disposition.
2.3
Advances
and
Loans.
So long
as the
Borrower shall have
any obligation
under this
Note, the
Borrower shall
not, without the
Holder’s written
consent, lend
money, give
credit or
make advances to
any person,
firm, joint
venture or
corporation, including,
without limitation, officers, directors,
employees, subsidiaries and
affiliates of the Borrower,
except loans, credits or
advances (a) in existence or committed
on the date hereof
and which the
Borrower has informed
Holder in writing prior
to the date hereof,
(b) made
in the ordinary course of business or
(c) not in excess of $100,000.
2.4
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)(l0) of
the Securities
Act (a
“3(a)(l0) Transaction”).
In the
event that
the Borrower
does enter into,
or makes
any issuance of Common
Stock related to a 3(a)(9)
Transaction or a 3(a)(l0) Transaction
while this note
is outstanding, a liquidated
damages charge of 25% of
the outstanding principal balance
of this Note, but not less than Fifteen
Thousand Dollars $15,000, 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.
ARTICLE
III. EVENTS
OF DEFAULT
If
any of
the following
events of
default (each,
an “Event
of Default”)
shall occur
and shall continue to occur without being cured for a period of five (5) days:
3.1
Failure
to Pay
Principal or
Interest.
The Borrower
fails to pay
the principal hereof
or interest
thereon when
due on
this Note,
whether at
maturity, upon acceleration
or otherwise.
3.2
Conversion
and
the Shares.
The Borrower
fails to
issue shares of
Common Stock to
the Holder
(or announces
or threatens in
writing that
it will not
honor its
obligation to
do so)
upon exercise
by the
Holder of
the conversion
rights of
the Holder
in accordance
with the
terms of
this Note,
fails to
transfer or
cause its
transfer agent
to transfer
(issue) (electronically
or in certificated form)
any certificate for shares of
Common Stock issued to the Holder
upon conversion
of or otherwise pursuant to this Note
as and
when required by this Note,
the Borrower
directs its transfer agent
not to transfer or
delays, impairs, and/or
hinders its transfer
agent in transferring (or
issuing) (electronically or in certificated form) any
certificate for shares of
Common Stock to be issued to the
Holder upon
conversion of
or otherwise pursuant
to this Note
as and
when required by
this Note, or
fails to remove
(or directs
its transfer agent not to
remove or impairs, delays,
and/or hinders its transfer agent
from removing) any
restrictive legend (or to
withdraw any stop transfer
instructions in respect
thereof) on any certificate
for any
shares of
Common Stock issued
to the
Holder upon
conversion of
or otherwise
pursuant to this
Note as and when required by this Note
(or makes any written announcement,
statement or threat that it does not intend to honor
the obligations described in this paragraph)
and any
such failure shall
continue uncured
(or any written
announcement, statement
or threat not to
honor its
obligations shall not
be rescinded
in writing) for
three (3) business
days after the
Holder shall
have delivered a Notice of
Conversion. It is an
obligation of the
Borrower to remain current
in its obligations to its transfer
agent. It shall be an
event of default of this Note,
if a conversion of
this Note
is delayed,
hindered or frustrated
due to a
balance owed
by the
Borrower to
its transfer agent.
If at the
option of the Holder,
the Holder
advances any
funds to the Borrower’s
transfer agent in
order to process a conversion,
such advanced funds
shall be paid
by the Borrower
to the Holder within forty eight
(48) hours of a demand from the Holder.
3.3
Failure
to Deliver
Advance Fee.
The Borrower
fails to
deliver the
Advance Fee
(as defined
in the
Purchase Agreement)
to the
Holder within
three (3)
business days
of the
date such fee is due.
3.4
Breach
of
Covenants.
The
Borrower
breaches any
material covenant
or other
material term
or condition contained
in this Note
and any
collateral documents including
but not limited
to the
Purchase Agreement
and such
breach continues
for a period
of ten
(10) days
after written
notice thereof to the Borrower from the Holder.
3.5
Breach
of
Representations and
Warranties.
Any representation
or warranty
of the
Borrower made
herein or in
any agreement,
statement or certificate
given in
writing pursuant hereto
or in
connection herewith
(including, without limitation,
the Purchase
Agreement), shall
be false
or misleading
in any material respect
when made
and the
breach of
which has
(or with the passage of time will
have) a material adverse effect on the rights of the Holder with respect to this Note or
the Purchase Agreement.
3.6
Receiver
or Trustee.
The Borrower
or any
subsidiary of
the Borrower
shall make
an assignment
for the
benefit of
creditors or
commence proceedings
for its
dissolution, or
apply for
or consent
to the
appointment of
a receiver or
trustee for
it or
for a substantial
part of
its property or business, or
such a receiver or
trustee shall otherwise be appointed
for the Company or for
a substantial part of its property or
business without its consent and shall not be
discharged within sixty (60) days after such appointment.
3.7
Judgments. Except
with respect
to litigation
and claims disclosed
to the Buyer
in writing prior
to Closing,
any money judgment,
writ or
similar process shall
be entered
or filed
against the
Borrower or
any subsidiary of the
Borrower or
any of
its property or other assets
for more than
$50,000, and shall remain
unvacated, unbonded or
unstayed for
a period of
twenty (20) days
unless otherwise consented to by
the Holder, which consent
will not be
unreasonably withheld.
3.8
Bankruptcy.
Bankruptcy,
insolvency,
reorganization
or liquidation proceedings
or other
proceedings, voluntary or
involuntary, for
relief under any
bankruptcy law or
any law for
the relief
of debtors
shall be
instituted by
or against the
Borrower or
any subsidiary of the
Borrower, or
the Borrower
admits in writing
its inability to pay its debts generally
as they mature,
or have filed against
it an involuntary petition
for bankruptcy relief, all
under federal or state laws as applicable.
3.9
Delisting of Common Stock. The Borrower shall fail to maintain the listing of the
Common Stock on
at least
one of
the OTCBB.
OTCQB, OTC
Markets or
an equivalent
replacement exchange,
the Nasdaq
National Market,
the Nasdaq
Small Cap
Market, the
New York Stock Exchange, or the NYSE MKT.
3.10
Failure
to Comply
with the
Exchange Act.
The Borrower
shall fail
to comply with the reporting requirements
of the Exchange Act and such failure shall continue for a period
of five
(5) days
after the
extended filing date;
and/or the
Borrower shall
cease to be
subject to the reporting requirements of the Exchange Act.
3.11
Liquidation.
Any dissolution,
liquidation, or
winding up
of Borrower
or any
substantial portion of its business.
3.12
Cessation of
Operations.
Any cessation
of operations
by Borrower
or Borrower
admits it is
otherwise generally
unable to pay
its debts
as such
debts become
due, provided, however, that any disclosure
of the Borrower’s ability to continue as a “going concern” shall
not be an admission that the Borrower cannot pay its debts as they
become due.
3.13
Maintenance
of
Assets.
The
failure
by Borrower
to maintain
any material intellectual
property rights, personal, real property or other assets which are necessary to
conduct its business (whether now or in the future).
3.14
Financial Statement Restatement.
The restatement
of any
financial statements
filed by
the Borrower
with the SEC
for any date
or period from
two years
prior to the
Issue Date
of this
Note and
until this Note
is no
longer outstanding,
if the
result of
such restatement
would, by comparison
to the
unrestated financial
statement, have constituted
a material
adverse effect on
the rights
of the
Holder with
respect to
this Note or the
Purchase Agreement.
3.15
Reverse Splits. The
Borrower effectuates
a reverse split
of its
Common Stock without twenty
(20) days prior written notice
to the Holder.
3.16
Replacement of Transfer Agent.
In the event that the Borrower proposes to replace
its transfer
agent, the
Borrower fails
to provide,
prior to
the effective
date of such
replacement, a
fully executed
Irrevocable Transfer
Agent Instructions
in a form
as initially
delivered pursuant
to the
Purchase Agreement
(including but not
limited to the
provision to irrevocably
reserve shares
of Common
Stock in the
Reserved Amount)
signed by the
successor transfer agent to Borrower
and the Borrower.
3.17
Cessation of
Trading.
Any cessation
of trading
of the
Common Stock on
at least
one of
the OTCBB,
OTCQB, OTC
Markets or
an equivalent
replacement exchange,
the Nasdaq
National Market,
the Nasdaq
Small Cap
Market, the
New York
Stock Exchange,
or the
NYSE MKT,
and such
cessation of
trading shall continue
for a
period of
five consecutive
(5) Trading Days.
3.18
Cross-Default.
Notwithstanding
anything
to the
contrary contained
in this Note
or the
other related
or companion
documents, a breach
or default
by the
Borrower of
any covenant
or other
term or condition
contained in
any of the Other
Agreements, after
the passage of all applicable notice
and cure or grace periods, shall, at the option of the Holder,
be considered a default under this
Note and the
Other Agreements, in
which event the Holder
shall be entitled (but
in no event required) to apply
all rights and
remedies of the Holder under the
terms of this Note
and the Other Agreements
by reason of
a default under said Other Agreement
or hereunder. “Other
Agreements” means, collectively,
all agreements and instruments between,
among or by:
(1) the Borrower,
and, or for
the benefit of,
(2) the Holder and
any affiliate of
the Holder, including, without limitation,
promissory notes; provided, however,
the term “Other Agreements”
shall not include the
agreements and instruments
defined as the
Documents. Each of the loan transactions
will be cross-defaulted with each other loan transaction and with all other existing
and future debt of Borrower to the Holder.
3.19
Bid
Price.
The
Company shall lose
the “bid”
price for
its Common Stock
and/or a market (including the OTCBB,
OTCQB or an equivalent replacement exchange).
Upon the occurrence and during the continuation
of any Event of Default specified in Section 3.1
(solely with
respect to
failure to pay
the principal
hereof or
interest thereon when
due at
the Maturity Date),
the Note
shall become
immediately due
and payable
and the
Borrower shall
pay to
the Holder,
in full satisfaction
of its
obligations hereunder,
an amount
equal to
the Default
Sum (as defined herein). UPON
THE OCCURRENCE
AND DURING
THE CONTINUATION OF ANY
EVENT OF DEFAULT
SPECIFIED IN SECTION
3.2, THE NOTE
SHALL BECOME
IMMEDIATELY DUE AND PAYABLE AND THE BORROWER SHALL PAY TO THE
HOLDER, IN
FULL SATISFACTION
OF ITS OBLIGATIONS
HEREUNDER, AN
AMOUNT EQUAL TO: (Y) THE
DEFAULT SUM (AS DEFINED HEREIN);
MULTIPLIED BY (Z) TWO
(2). Upon
the occurrence
and during
the continuation
of any Event
of Default
specified in
Sections 3.1
(solely with respect
to failure
to pay the
principal hereof
or interest
thereon when due on this Note
upon acceleration), 3.3, 3.4, 3.6, 3.8, 3.9, 3.11, 3.12, 3.13, 3.14, 3.15, 3.16. 3.17,
3.18 and/or 3.19 exercisable through
the delivery of written notice to the
Borrower by such Holders (the “Default
Notice”), and upon the occurrence of
an Event of Default
specified the
remaining sections
of Article
III (other than
failure to pay
the principal
hereof or interest thereon at
the Maturity Date specified in
Section 3,1 hereof), the Note
shall become immediately
due and payable and
the Borrower shall pay to the
Holder, in full satisfaction of its obligations
hereunder, an amount equal to (i)
150% times the sum of (w)
the then outstanding principal amount of this Note plus (x) accrued
and unpaid interest on the unpaid principal amount of
this Note to the date of
payment (the “Mandatory Prepayment
Date”) plus (y) Default Interest,
if any,
on the
amounts referred
to in clauses
(w) and/or
(x) plus (z) any
amounts owed to the Holder
pursuant to Sections 1.3 and 1.4(g)
hereof (the then outstanding
principal amount
of this Note
to the
date of payment
plus the
amounts referred to
in clauses (x), (y) and (z) shall
collectively be known
as the “Default
Sum”) or (ii)
at the option of
the Holder, the
“parity value” of the Default
Sum to be prepaid, where parity value
means (a) the highest number
of shares of
Common Stock issuable upon conversion
of or otherwise
pursuant to such Default
Sum in accordance with Article
I, treating the
Trading Day immediately preceding
the Mandatory Prepayment Date
as the “Conversion Date”
for purposes of determining
the lowest applicable Conversion Price,
unless the Default Event arises as a result of a breach in respect of a specific
Conversion Date in
which case
such Conversion
Date shall be
the Conversion
Date), multiplied by (b) the
highest Closing Price for the Common Stock during the
period beginning on the date of first occurrence of the Event of Default and ending one day
prior to the Mandatory Prepayment Date (the
“Default Amount”) and all
other amounts payable hereunder shall
immediately become due and payable, all without demand,
presentment or notice, all of which hereby
are expressly waived, together
with all costs,
including, without limitation,
legal fees and
expenses, of
collection, and the
Holder shall be
entitled to exercise
all other rights and
remedies available at law or in equity.
If
the Borrower
fails to pay
the Default
Amount within five
(5) business
days of
written notice
that such
amount is due
and payable,
then the
Holder shall have
the right
at any
time, so long
as the Borrower remains in default
(and so long and to the extent that there are sufficient authorized shares),
to require the Borrower,
upon written notice,
to immediately issue, in lieu
of the Default Amount,
the number
of shares
of Common Stock of
the Borrower equal to
the Default
Amount divided by the Conversion Price then in effect.
ARTICLE
IV. MISCELLANEOUS
4.1
Failure
or Indulgence
Not Waiver.
No failure
or delay
on the part
of the
Holder 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 privileges.
All rights and
remedies existing
hereunder are
cumulative to,
and not
exclusive of,
any rights
or remedies
otherwise available.
4.2
Notices.
All
notices, demands,
requests, consents, approvals,
and other
communications required
or permitted
hereunder shall
be in
writing and,
unless otherwise specified
herein, shall be
(i) personally
served, (ii) deposited
in the
mail, registered
or certified,
return receipt requested, postage
prepaid, (iii) delivered
by reputable air courier
service with charges
prepaid, or (iv) transmitted by hand
delivery, telegram, or facsimile, addressed
as set forth
below or
to such other
address as
such party shall have
specified most recently
by written notice.
Any notice or
other communication required
or permitted to be given
hereunder shall
be deemed effective (a)
upon hand delivery or delivery by
facsimile, with accurate
confirmation generated by
the transmitting facsimile
machine, at the
address or number
designated below (if delivered
on a business day during normal business hours where such notice is to be received), or the
first business
day following
such delivery (if
delivered other than
on a business day during
normal business hours where
such notice is to be received)
or (b) on the
second business day following the
date of mailing
by express courier service,
fully prepaid, addressed to such address,
or upon actual
receipt of such mailing,
whichever shall first occur.
The addresses
for such communications shall be:
If to
the Borrower, to:
Rich
Pharmaceuticals, Inc.
9595
Wilshire Blvd., Suite 900
Beverly
Hills, CA 90212
Attention:
Ben Chang
Facsimile:
(424) 230-7003
With a copy
by fax only
to (which copy shall not constitute notice):
Steven J. Davis,
A Professional Corporation
6118
Paseo Delicias
Rancho
Santa Fe, California 92067
Attention: Steven J. Davis, Esq.
Facsimile:
(858) 367 - 8138
If to
the Holder:
Auctus Private Equity
Fund, LLC
101
Arch Street, 20th Floor
Boston,
MA 02110
Attn:
Lou Posner
Facsimile:
(617) 532-6420
With a copy
by fax only
to (which copy shall not constitute notice):
Lucosky
Brookman LLP
101 Wood Avenue South,
5th Floor
Woodbridge,
NJ 08830
Attn: Joseph M. Lucosky,
Esq.
Facsimile:
(732) 395-4401
4.3
Amendments.
This Note
and any
provision hereof
may only
be amended by
an instrument
in writing signed
by the
Borrower and
the Holder. The
term “Note”
and all
reference thereto, as used throughout
this instrument, shall mean this instrument
(and the other
Notes issued pursuant
to the Purchase
Agreement) as originally
executed, or if later
amended or supplemented, then as so amended
or supplemented.
4.4
Assignability. This
Note shall be
binding upon the
Borrower and
its successors
and assigns,
and shall
inure to
be the
benefit of
the Holder
and its
successors and
assigns. Each
transferee of this
Note must be
an “accredited investor”
(as defined in
Rule 501(a) of
the 1933
Act). Notwithstanding anything
in this Note
to the contrary,
this Note may
be pledged as collateral in connection
with a bona fide margin account
or other lending
arrangement.
4.5
Cost of
Collection.
If default
is made in the payment
of this Note, the
Borrower shall
pay the Holder
hereof reasonable
costs of
collection, including
reasonable attorneys’ fees.
4.6
Governing
Law.
This Note
shall be
governed by
and construed
in accordance with the laws of the
State of Nevada without regard to principles of conflicts
of laws. Any action
brought by
either party
against the
other concerning
the transactions
contemplated by
this Note shall
be brought
only in the
state courts
of Massachusetts or
in the federal
courts located
in the Commonwealth of Massachusetts.
The parties to this Note hereby irrevocably
waive any objection
to jurisdiction and venue of any
action instituted hereunder and shall not assert
any defense based on lack
of jurisdiction or venue
or based upon forum non conveniens.
The Borrower
and Holder waive
trial by
jury. The
prevailing party shall be
entitled to recover
from the other
party its reasonable
attorney's fees
and costs. In the
event that any
provision of
this Note or
any other agreement
delivered in connection
herewith is invalid
or unenforceable
under any applicable statute or
rule of law,
then such provision shall be deemed inoperative
to the extent that
it may conflict
therewith and
shall be
deemed modified
to conform with
such statute or
rule of
law. Any such provision which
may prove invalid
or unenforceable
under any law shall not affect
the validity or enforceability
of any other provision of
any agreement. Each
party hereby irrevocably waives personal
service of process and consents to process being served in any suit, action
or proceeding in connection with this
Agreement or any other Transaction Document
by mailing
a copy thereof
via registered or certified
mail or overnight delivery
(with evidence of
delivery) to such
party at the
address in effect
for notices
to it under
this Agreement
and agrees that such
service shall constitute good and sufficient
service of process
and notice thereof.
Nothing contained herein
shall be deemed
to limit in
any way any
right to serve
process in any other manner permitted
by law.
4.7
Certain Amounts. Whenever pursuant to this
Note the Borrower is required to pay an
amount in excess
of the
outstanding principal
amount (or
the portion
thereof required
to be
paid at
that time)
plus accrued
and unpaid
interest plus
Default Interest
on such
interest, the
Borrower and
the Holder
agree that
the actual
damages to
the Holder
from the
receipt of
cash payment
on this Note
may be difficult to
determine and
the amount
to be
so paid
by the Borrower represents
stipulated damages and not a penalty
and is intended to compensate the Holder
in part for loss
of the opportunity to convert this
Note and to
earn a return from
the sale of
shares of Common Stock
acquired upon conversion
of this
Note at
a price in excess
of the price
paid for such
shares pursuant to this Note.
The Borrower and
the Holder hereby agree that
such amount of stipulated
damages is not plainly disproportionate to the
possible loss to the
Holder from the receipt of
a cash payment without the
opportunity to convert this Note into
shares of Common Stock.
4.8
Purchase
Agreement.
By its acceptance
of this
Note, each
party agrees
to be bound by
the applicable terms of the Purchase Agreement.
4.9
Notice
of
Corporate Events.
Except as
otherwise provided
below, the
Holder of
this Note shall
have no rights
as a
Holder of
Common Stock unless
and only to
the extent that
it converts
this Note
into Common
Stock. The
Borrower shall
provide the
Holder with
prior notification
of any meeting
of the
Borrower’s shareholders (and
copies of
proxy materials and
other information sent to shareholders).
In the event of any
taking by the Borrower of
a record of its shareholders for
the purpose of determining shareholders who are entitled to receive
payment of any
dividend or other distribution,
any right to subscribe for, purchase
or otherwise acquire (including by way
of merger, consolidation, reclassification or recapitalization) any share of
any class or any other securities
or property, or to receive any other right, or for the purpose of
determining shareholders who
are entitled to vote in connection with
any proposed sale, lease or
conveyance of all or
substantially all of
the assets of
the Borrower or
any proposed liquidation, dissolution
or winding up of
the Borrower, the
Borrower shall mail a notice to the
Holder, at least twenty (20)
days prior to the record date
specified therein (or thirty (30) days
prior to the consummation of the transaction or
event, whichever is earlier), of the
date on which any such record is
to be taken
for the purpose
of such dividend,
distribution, right or other
event, and
a brief statement regarding the amount
and character of such dividend, distribution,
right or other event
to the extent
known at such
time. The Borrower
shall make a public announcement of
any event requiring notification
to the Holder hereunder
substantially simultaneously with
the notification to the Holder in accordance with the terms of this Section
4.9.
4.10
Usury.
If it
shall be
found that any
interest or other amount deemed
interest due
hereunder violates the applicable
law governing usury,
the applicable provision
shall automatically be
revised to equal
the maximum
rate of
interest or
other amount
deemed interest
permitted under
applicable law.
The Borrower
covenants (to
the extent that it may lawfully
do so) that it will not seek to
claim or take advantage of
any law that
would prohibit or forgive
the Borrower from paying all or a portion of the principal or interest
on this Note.
4.11
Remedies.
The Borrower
acknowledges
that a breach
by it
of its
obligations hereunder
will cause
irreparable harm
to the
Holder, by
vitiating the
intent and purpose
of the
transaction contemplated hereby.
Accordingly, the Borrower acknowledges
that the remedy at law for a breach of its obligations under this Note will be inadequate and agrees, in
the event of a breach or threatened breach by the Borrower of the provisions of this Note, that the Holder
shall be
entitled, in addition
to all other
available remedies
at law
or in equity,
and in
addition to the penalties assessable
herein, to an injunction or injunctions
restraining, preventing or
curing any breach
of this Note
and to enforce
specifically the terms and provisions
thereof, without
the necessity
of showing
economic loss and
without any bond or
other security
being required.
No provision of
this Note shall
alter or impair
the obligation of
the Borrower, which is
absolute and unconditional, to pay the principal
of, and interest on, this Note at the time, place, and
rate, and in the form, herein prescribed.
4.12
Severability.
In the
event
that any provision
of this Note
is invalid or
unenforceable under
any applicable
statute or
rule of
law, then
such provision
shall be
deemed inoperative
to the
extent that it may conflict
therewith and
shall be
deemed modified
to conform with such statute or
rule of law. Any provision hereof which may prove invalid or unenforceable under
any law shall not affect the validity or enforceability of
any other provision hereof.
[signature
page follows]
IN
WITNESS WHEREOF,
Borrower has
caused this Note
to be signed
in its name
by its
duly authorized officer
as of the date first above written.
RICH PHARMACEUTICALS, INC.
By: /s/ Ben Chang
Name: Ben Chang
Title: Chief Executive Officer
EXHIBIT
A
NOTICE
OF CONVERSION
The
undersigned hereby
elects to
convert $ principal
amount of
the Note
(defined below)
together with
$ of accrued
and unpaid
interest thereto,
totaling $ into
that number
of shares
of Common
Stock to be
issued pursuant to the
conversion of the
Note (“Common Stock”)
as set
forth below,
of Rich Pharmaceuticals,
Inc., a
Nevada corporation
(the “Borrower”),
according to
the conditions
of the
convertible note
of the
Borrower dated
as of
March 9,
2015 (the
“Note”), as
of the
date written
below. No
fee will be charged to the Holder for
any conversion, except for transfer taxes, if any.
Box Checked as to applicable instructions:
[ ]
The Borrower
shall electronically transmit
the Common
Stock issuable
pursuant to this Notice of Conversion
to the account of the undersigned or its nominee with DTC through its Deposit Withdrawal
At Custodian system (“DWAC Transfer”).
Name
of DTC Prime Broker: Account Number:
[ ]
The undersigned
hereby requests that
the Borrower
issue a certificate
or certificates
for the number
of shares of
Common Stock set
forth below (which
numbers are
based on
the Holder’s
calculation attached
hereto) in
the name(s)
specified immediately below or, if
additional space is
necessary, on
an attachment hereto:
Name:
[NAME]
Address: [ADDRESS]
Date
of Conversion: ____________________________
Applicable
Conversion Price: _____________________
Number
of Shares of Common Stock to be Issued
Pursuant
to Conversion of the Notes:______________________
Amount
of Principal Balance Due remaining
Under
the Note after this conversion:_______________________
Accrued
and unpaid interest remaining: ______________________
[HOLDER]
By:
______________________
Name:
[NAME]
Title:
[TITLE]
Date:
[DATE]