UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
FEBRUARY 18, 2016
Commission File Number: 000-53462
VNUE, INC.
(Exact name of registrant as specified in charter)
NEVADA
(State or other jurisdiction of incorporation or organization)
98-054-3851
(IRS Employer Identification Number)
3209 Utah
Ave S, Seattle, Washington 98134
(Address
of principal executive offices)
857-777-6190
(Registrant’s telephone number including area code)
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:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a -12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d -2(b)) |
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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
Equity Purchase Agreement with Tarpon Bay Partners, LLC
On February 18, 2016, VNUE, Inc. (the “Company”)
entered into an Equity Purchase Agreement (the “Purchase Agreement”) with Tarpon Bay Partners, LLC, a Florida limited
liability company (“Tarpon”). Under the terms of the Purchase Agreement, Tarpon will purchase, at the Company's
election, up to $10,000,000 of the Company's registered common stock (the “Shares”).
During the term of the Purchase Agreement, the Company may at
any time deliver a “put notice” to Tarpon thereby requiring Tarpon to purchase a certain dollar amount of the Shares.
Simultaneous with the delivery of such Shares, Tarpon shall deliver payment for the Shares. Subject to certain restrictions, the
purchase price for the Shares shall be equal to 90% of the lowest Closing Price during the Valuation Period as such capitalized
terms are defined in the Agreement.
The number of Shares sold to Tarpon shall not exceed the number
of such shares that, when aggregated with all other shares of common stock of the Company then beneficially owned by Tarpon, would
result in Tarpon owning more than 9.99% of all of the Company's common stock then outstanding. Additionally, Tarpon may not execute
any short sales of the Company's common stock. Further, the Company has the right, but never the obligation to draw down.
The Purchase Agreement shall terminate (i) on the date on which
Tarpon shall have purchased Shares pursuant to the Purchase Agreement for an aggregate Purchase Price of $10,000,000, or (ii) on
the date occurring 24 months from the date on which the Purchase Agreement was executed and delivered by the Company and Tarpon.
The February 18, 2016 Purchase Agreement for $10,000,000 effectively
supersedes and terminates the prior Equity Purchase Agreement with Tarpon dated June 15, 2015, which was for $5,000,000.
Registration Rights Agreement with Tarpon Bay Partners, LLC
In addition, on February 18, 2016, the Company and Tarpon entered
into a Registration Rights Agreement (the “Registration Agreement”). Under the terms of the Registration Agreement
the Company agreed to file a registration statement with the Securities and Exchange Commission with respect to the Shares within
120 days of February 18, 2016. The Company is obligated to keep such registration statement effective until (i) three months after
the last closing of a sale of Shares under the Purchase Agreement, (ii) the date when Tarpon may sell all the Shares under Rule
144 without volume limitations, or (iii) the date Tarpon no longer owns any of the Shares.
The February 18, 2016 Registration Agreement effectively supersedes
and terminates the prior Registration Agreement with Tarpon dated June 15, 2015.
Promissory Note
In addition, on February 18, 2016, as required by Section 2.1(b)
of the Purchase Agreement, the Company issued a Promissory Note to Tarpon in the principal amount of $25,000 with an interest rate
of 10% per annum, and a maturity date of August 31, 2016 (the “Note”). The Note does not have any registration rights.
The February 18, 2016 Note for $25,000 is in addition to, and
does not replace, the $50,000 Note issued to Tarpon on June 15, 2015, which remains a direct financial obligation of the Company.
The foregoing descriptions are qualified in their entirety by
reference to the Purchase Agreement, Rights Agreement, and Note, copies of which appear as Exhibits 10.1, 10.2, and 10.3 to this
Form 8-K and are incorporated by reference to this Item 1.01.
Item 2.03 – Creation of a Direct Financial Obligation
On February 18, 2016, the Company issued a Promissory Note to
Tarpon as described above in Item 1.01.
Item 9.01 – Financial Statements and Exhibits
(d) Exhibits:
10.1 – |
Equity Purchase Agreement between VNUE, Inc. and Tarpon Bay Partners, LLC entered into on February 18, 2016. |
10.2 – |
Registration Rights Agreement between VNUE, Inc. and Tarpon Bay Partners, LLC entered into on February 18, 2016. |
10.3 – |
Promissory Note for $25,000 issued to Tarpon Bay Partners, LLC on February 18, 2016 by VNUE, Inc. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: February 18, 2016 |
VNUE, INC. |
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By: |
/s/Matthew Carona |
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Matthew Carona |
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CEO |
EXHIBIT 10.1
EQUITY PURCHASE AGREEMENT
BY AND BETWEEN
VNUE, INC.
AND
TARPON BAY PARTNERS LLC
Dated
February 18, 2016
THIS EQUITY PURCHASE AGREEMENT entered
into as of the 18th day of February, 2016 (this "AGREEMENT"), by and between TARPON BAY PARTNERS LLC,
a Florida limited liability company ("INVESTOR"), and VNUE, INC., a Nevada corporation (the "COMPANY").
WHEREAS, the parties
desire that, upon the terms and subject to the conditions contained herein, the Company shall issue and sell to Investor, from
time to time as provided herein, and Investor shall purchase up to Ten Million Dollars ($10,000,000) of the Company’s Common
Stock (as defined below); and
NOW, THEREFORE, the
parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 DEFINED TERMS as used
in this Agreement, the following terms shall have the following meanings specified or indicated (such meanings to be equally applicable
to both the singular and plural forms of the terms defined)
"AGREEMENT"
shall have the meaning specified in the preamble hereof.
"BY-LAWS"
shall have the meaning specified in Section 4.7.
"CLAIM NOTICE"
shall have the meaning specified in Section 9.3(a).
“CLEARING DATE”
shall be the date in which the Estimated Put Shares (as defined in Section 2.2(a)) have been deposited into the Investor’s
brokerage account..
"CLOSING"
shall mean one of the closings of a purchase and sale of shares of Common Stock pursuant to Section 2.3.
"CLOSING CERTIFICATE"
shall mean the closing certificate of the Company in the form of Exhibit B hereto.
"CLOSING PRICE"
shall mean the closing bid price for the Company’s common stock on the Principal Market on a Trading Day as reported by Bloomberg
Finance L.P.
"COMMITMENT PERIOD"
shall mean the period commencing on the Effective Date, and ending on the earlier of (i) the date on which Investor shall have
purchased Put Shares pursuant to this Agreement for an aggregate Purchase Price of the Maximum Commitment Amount, or (ii) the date
occurring twenty four (24) months from the date of commencement of the Commitment Period.
"COMMON STOCK"
shall mean the Company's common stock, $0.0001 par value per share, and any shares of any other class of common stock whether now
or hereafter authorized, having the right to participate in the distribution of dividends (as and when declared) and assets (upon
liquidation of the Company).
"COMMON STOCK
EQUIVALENTS" shall mean any securities that are convertible into or exchangeable for Common Stock or any options or other
rights to subscribe for or purchase Common Stock or any such convertible or exchangeable securities.
"COMPANY"
shall have the meaning specified in the preamble to this Agreement.
"DAMAGES"
shall mean any loss, claim, damage, liability, cost and expense (including, without limitation, reasonable attorneys' fees and
disbursements and costs and expenses of expert witnesses and investigation).
"DISPUTE PERIOD"
shall have the meaning specified in Section 9.3(a).
"DOLLAR VOLUME"
shall mean the product of (a) the Closing Price multiplied by (b) the trading volume on the Principal Market on a Trading Day.
"DTC" shall
have the meaning specified in Section 2.3.
"DWAC" shall
have the meaning specified in Section 2.3.
"EFFECTIVE DATE"
shall mean the date that the Registration Statement is declared effective by the SEC.
“ESTIMATED PUT
SHARES” shall have the meaning specified in Section 2.2(a)
"EXCHANGE ACT"
shall mean the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder.
"FAST" shall
have the meaning specified in Section 2.3.
"FINRA" shall
mean the Financial Industry Regulatory Authority, Inc.
“FLOOR PRICE”
shall have the meaning specified in Section 2.2(c).
"INDEMNIFIED PARTY"
shall have the meaning specified in Section 9.3(a).
"INDEMNIFYING
PARTY" shall have the meaning specified in Section 9.3(a).
"INDEMNITY NOTICE"
shall have the meaning specified in Section 9.3(b).
"INVESTMENT AMOUNT"
shall mean the dollar amount to be invested by Investor to purchase Put Shares with respect to any Put as notified by the Company
to Investor in accordance with Section 2.2.
"INVESTOR"
shall have the meaning specified in the preamble to this Agreement.
"LEGEND"
shall have the meaning specified in Section 8.1.
"MARKET PRICE"
shall mean the lowest Closing Price on the Principal Market for any Trading Day during the Valuation Period, as reported by Bloomberg
Finance L.P.
"MATERIAL ADVERSE
EFFECT" shall mean any effect on the business, operations, properties, or financial condition of the Company that is material
and adverse to the Company and/or any condition, circumstance, or situation that would prohibit or otherwise materially interfere
with the ability of the Company to enter into and perform its obligations under any of this Agreement.
"MAXIMUM COMMITMENT
AMOUNT" shall mean Ten Million Dollars ($10,000,000).
“PAR VALUE PAYMENT”
shall have the meaning specified in Section 2.2(a).
"PERSON"
shall mean an individual, a corporation, a partnership, an association, a trust or other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
"PRINCIPAL MARKET"
shall mean any of the national exchanges (i.e. NYSE, NYSE AMEX, Nasdaq), OTCQB, the OTC Bulletin Board, or other principal exchange
which is at the time the principal trading exchange or market for the Common Stock.
"PURCHASE PRICE"
shall mean 90% of the Market Price on such date on which the Purchase Price is calculated in accordance with the terms and conditions
of this Agreement.
"PUT" shall
mean the right of the Company to require the Investor to purchase shares of Common Stock, subject to the terms and conditions of
this Agreement.
"PUT DATE"
shall mean any Trading Day during the Commitment Period that a Put Notice is deemed delivered pursuant to Section 2.2(b).
"PUT NOTICE"
shall mean a written notice, substantially in the form of Exhibit A hereto, to Investor setting forth the Investment Amount with
respect to which the Company intends to require Investor to purchase shares of Common Stock pursuant to the terms of this Agreement.
"PUT SHARES"
shall mean all shares of Common Stock issued or issuable pursuant to a Put that has been exercised or may be exercised in accordance
with the terms and conditions of this Agreement.
"REGISTERED SECURITIES"
shall mean the (a) Put Shares, and (b) any securities issued or issuable with respect to any of the foregoing by way of exchange,
stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization
or otherwise. As to any particular Registered Securities, once issued such securities shall cease to be Registrable Securities
when (i) a Registration Statement has been declared effective by the SEC and such Registrable Securities have been disposed of
pursuant to a Registration Statement, (ii) such Registrable Securities have been sold under circumstances under which all of the
applicable conditions of Rule 144 are met, (iii) such time as such Registrable Securities have been otherwise transferred to holders
who may trade such shares without restriction under the Securities Act or (iv) in the opinion of counsel to the Company, which
counsel shall be reasonably acceptable to Investor, such Registrable Securities may be sold without registration under the Securities
Act or the need for an exemption from any such registration requirements and without any time, volume or manner limitations pursuant
to Rule 144(b)(i) (or any similar provision then in effect) under the Securities Act.
"REGISTRATION
STATEMENT" shall mean the Company’s effective registration statement on file with the SEC, and any follow up registration
statement or amendment thereto.
"REGULATION D"
shall mean Regulation D promulgated under the Securities Act.
"RULE 144"
shall mean Rule 144 under the Securities Act or any similar provision then in force under the Securities Act.
"SEC" shall
mean the Securities and Exchange Commission.
"SECURITIES ACT"
shall have the meaning specified in the recitals of this Agreement.
"SEC DOCUMENTS"
shall mean, as of a particular date, all reports and other documents filed by the Company pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the Company's then most recently completed and reported fiscal year as of the time in question
(provided that if the date in question is within ninety days of the beginning of the Company's fiscal year, the term shall include
all documents filed since the beginning of the preceding fiscal year).
“SHORT SALES”
shall mean all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed
to include the location and/or reservation of borrowable shares of Common Stock).
"SUBSCRIPTION
DATE" shall mean the date on which this Agreement is executed and delivered by the Company and Investor.
"THIRD PARTY CLAIM"
shall have the meaning specified in Section 9.3(a).
“TRADING DAY” shall mean a day
on which the Principal Market shall be open for business.
“TRANSACTION
DOCUMENTS” shall mean this Agreement and the Registration Rights Agreement.
"TRANSFER AGENT"
shall mean the transfer agent for the Common Stock (and to any substitute or replacement transfer agent for the Common Stock upon
the Company's appointment of any such substitute or replacement transfer agent).
"UNDERWRITER"
shall mean any underwriter participating in any disposition of the Registered Securities on behalf of Investor pursuant to the
Registration Statement.
"VALUATION EVENT"
shall mean an event in which the Company at any time during a Valuation Period takes any of the following actions:
| (a) | subdivides or combines the Common Stock; |
(b) pays
a dividend in shares of Common Stock or makes any other distribution of shares of Common Stock, except for dividends paid with
respect to any series of preferred stock authorized by the Company, whether existing now or in the future;
(c) issues any options or other
rights to subscribe for or purchase shares of Common Stock other than pursuant to this Agreement, and other than options or stock
grants issued or issuable to directors, officers and employees pursuant to a stock option program, whereby the price per share
for which shares of Common Stock may at any time thereafter be issuable pursuant to such options or other rights shall be less
than the Closing Price in effect immediately prior to such issuance;
(d) issues
any securities convertible into or exchangeable for shares of Common Stock and the consideration per share for which shares of
Common Stock may at any time thereafter be issuable pursuant to the terms of such convertible or exchangeable securities shall
be less than the Closing Price in effect immediately prior to such issuance;
(e) issues shares of Common Stock
otherwise than as provided in the foregoing subsections (a) through (d), at a price per share less, or for other consideration
lower, than the Closing Price in effect immediately prior to such issuance, or without consideration; or
(f) makes
a distribution of its assets or evidences of indebtedness to the holders of Common Stock as a dividend in liquidation or by way
of return of capital or other than as a dividend payable out of earnings or surplus legally available for dividends under applicable
law or any distribution to such holders made in respect of the sale of all or substantially all of the Company's assets (other
than under the circumstances provided for in the foregoing subsections (a) through (e).
"VALUATION PERIOD"
shall mean the period of ten (10) Trading Days immediately following the Clearing Date associated with the applicable Put Notice
during which the Purchase Price of the Common Stock is valued; provided, however, that if a Valuation Event occurs during any
Valuation Period, a new Valuation Period shall begin on the Trading Day immediately after the occurrence of such Valuation Event
and end on the tenth (10th) Trading Day thereafter. Investor shall notify the Company in writing of the occurrence
of the Clearing Date associated with a Put Notice. The Valuation Period shall begin the first Trading Day following such written
notice from Investor.
ARTICLE II
PURCHASE AND SALE OF COMMON STOCK
Section
2.1 INVESTMENTS.
(a) PUTS.
Upon the terms and conditions set forth herein (including, without limitation, the provisions of Article VII), on any Put Date
the Company may exercise a Put by the delivery of a Put Notice. The number of Put Shares that Investor shall purchase pursuant
to such Put shall be determined by dividing the Investment Amount specified in the Put Notice by the Purchase Price with respect
to such Put Notice.
(b) PROMISSORY NOTE. As a condition
for the execution of this Agreement by the Investor, the Company shall issue to the Investor a 10% promissory note in the principal
amount equal to $25,000.00 (the “Note”) on the Subscription Date. The Note shall have no registration rights.
Section 2.2 MECHANICS.
(a) PUT
NOTICE. At any time and from time to time during the Commitment Period, the Company may deliver a Put Notice to Investor, subject
to the conditions set forth in Section 7.2; provided, however, that the Investment Amount identified in the applicable Put Notice,
when taken together with all prior Put Notices, shall not exceed the Maximum Commitment Amount. On the Put Date the Company shall
deliver to Investor’s brokerage account estimated put shares equal to the Investment Amount indicated in the Put Notice divided
by the Closing Price on the Trading Day immediately preceding the Put Date, multiplied by one hundred twenty five percent (125%)
(the “Estimated Put Shares”). On the Trading Date immediately following delivery of the Estimated Put Shares, Investor
shall deliver payment by check or wire transfer to the Company an amount equal to the par value of the Estimated Put Shares (“Par
Value Payment”).
(b) DATE
OF DELIVERY OF PUT NOTICE. A Put Notice shall be deemed delivered on (i) the Trading Day it is received by facsimile or otherwise
by Investor if such notice is received on or prior to 12:00 noon New York time, or (ii) the immediately succeeding Trading Day
if it is received by facsimile or otherwise after 12:00 noon New York time on a Trading Day or at any time on a day which is not
a Trading Day.
(c) FLOOR PRICE.
In the event that, during a Valuation Period, the Closing Price on any Trading Day falls to a price equal to seventy five percent
(75%) of the average of the closing trade prices for the ten (10) trading days immediately preceding the date of the Company’s
Put Notice (a “Low Bid Price”), then for each such Trading Day, the parties shall have no right to sell and shall be
under no obligation to purchase one tenth (1/10th) of the Investment Amount specified in the Put Notice, and the Investment Amount
shall accordingly be deemed reduced by such amount. In the event that during a Valuation Period there exists a Low Bid Price for
any three (3) Trading Days—not necessarily consecutive—then the balance of each party’s right and obligation
to sell and purchase the Investment Amount under such Put Notice shall terminate on such second Trading Day (“Termination
Day”), and the Investment Amount shall be adjusted to include only one-tenth (1/10th) of the initial Investment
Amount for each Trading Day during the Valuation Period prior to the Termination Day that the Bid Price equals or exceeds the Low
Bid Price.
Section 2.3 CLOSINGS.
At the end of the Valuation Period the Purchase Price shall be established and the number of Put Shares shall be determined for
a particular Put. If the number of Estimated Put Shares initially delivered to Investor is greater than the Put Shares purchased
by Investor pursuant to such Put, then immediately after the Valuation Period the Investor shall deliver to Company any excess
Estimated Put Shares associated with such Put. If the number of Estimated Put Shares delivered to Investor is less than the Put
Shares purchased by Investor pursuant to a Put, then immediately after the Valuation Period the Company shall deliver to Investor
the difference between the Estimated Put Shares and the Put Shares issuable pursuant to such Put. The Closing of a Put shall occur
upon the first Trading Day following the completion of the Valuation Period, whereby Investor shall deliver the Investment Amount
specified in the Put Notice, less the Par Value Payment, by wire transfer of immediately available funds to an account designated
by the Company. In lieu of delivering physical certificates representing the Common Stock issuable in accordance with clause (a)
of this Section 2.3, and provided that the Transfer Agent then is participating in the Depository Trust Company ("DTC")
Fast Automated Securities Transfer ("FAST") program, upon request of Investor, but subject to the applicable provisions
of Article VIII hereof, the Company shall use its commercially reasonable efforts to cause the Transfer Agent to electronically
transmit, prior to the applicable Closing Date, the applicable Put Shares by crediting the account of the Investor's prime broker
with DTC through its Deposit Withdrawal Agent Commission ("DWAC") system, and provide proof satisfactory to the Investor
of such delivery. In addition, on or prior to such Closing Date, each of the Company and Investor shall deliver to each other all
documents, instruments and writings required to be delivered or reasonably requested by either of them pursuant to this Agreement
in order to implement and effect the transactions contemplated herein.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF INVESTOR
Investor represents
and warrants to the Company that:
Section 3.1 INTENT.
Investor is entering into this Agreement for its own account and Investor has no present arrangement (whether or not legally binding)
at any time to sell the Registered Securities to or through any person or entity; provided, however, that Investor reserves the
right to dispose of the Registered Securities at any time in accordance with federal and state securities laws applicable to such
disposition.
Section 3.2 NO
LEGAL ADVICE FROM THE COMPANY. The Investor acknowledges that it has had the opportunity to review this Agreement and the transactions
contemplated by this Agreement with its own legal counsel and investment and tax advisors. The Investor is relying solely on such
counsel and advisors and not on any statements or representations of the Company or any of its representatives or agents for legal,
tax or investment advice with respect to this investment, the transactions contemplated by this Agreement or the securities laws
of any jurisdiction.
Section 3.3 SOPHISTICATED
INVESTOR. Investor is a sophisticated investor (as described in Rule 506(b)(2)(ii) of Regulation D) and an accredited investor
(as defined in Rule 501 of Regulation D), and Investor has such experience in business and financial matters that it is capable
of evaluating the merits and risks of an investment in the Registered Securities. Investor acknowledges that an investment in the
Registered Securities is speculative and involves a high degree of risk.
Section 3.4 AUTHORITY.
(a) Investor has the requisite power and authority to enter into and perform its obligations under this Agreement and the transactions
contemplated hereby in accordance with its terms; (b) the execution and delivery of this Agreement and the consummation by it of
the transactions contemplated hereby and thereby have been duly authorized by all necessary action and no further consent or authorization
of Investor or its partners is required; and (c) this Agreement has been duly authorized and validly executed and delivered by
Investor and constitutes a valid and binding obligation of Investor enforceable against it in accordance with its terms, subject
to applicable bankruptcy, insolvency, or similar laws relating to, or affecting generally the enforcement of, creditors' rights
and remedies or by other equitable principles of general application.
Section 3.5 NOT
AN AFFILIATE. Investor is not an officer, director or "affiliate" (as that term is defined in Rule 405 of the Securities
Act) of the Company.
Section 3.6 ORGANIZATION AND STANDING.
Investor is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Florida
and has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted.
Investor is duly qualified and in good standing in every jurisdiction in which the nature of the business conducted or property
owned by it makes such qualification necessary, other than those in which the failure so to qualify would not have a material adverse
effect on Investor.
Section 3.7 ABSENCE
OF CONFLICTS. The execution and delivery of this Agreement and any other document or instrument contemplated hereby, and the consummation
of the transactions contemplated hereby and thereby, and compliance with the requirements hereof and thereof, will not (a) violate
any law, rule, regulation, order, writ, judgment, injunction, decree or award binding on Investor, (b) violate any provision of
any indenture, instrument or agreement to which Investor is a party or is subject, or by which Investor or any of its assets is
bound, or conflict with or constitute a material default thereunder, (c) result in the creation or imposition of any lien pursuant
to the terms of any such indenture, instrument or agreement, or constitute a breach of any fiduciary duty owed by Investor to any
third party, or (d) require the approval of any third-party (that has not been obtained) pursuant to any material contract, instrument,
agreement, relationship or legal obligation to which Investor is subject or to which any of its assets, operations or management
may be subject.
Section 3.8 DISCLOSURE;
ACCESS TO INFORMATION. Investor had an opportunity to review copies of the SEC Documents filed on behalf of the Company and has
had access to all publicly available information with respect to the Company.
Section 3.9 MANNER
OF SALE. At no time was Investor presented with or solicited by or through any leaflet, public promotional meeting, television
advertisement or any other form of general solicitation or advertising.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents
and warrants to Investor that, except as disclosed in the SEC Documents:
Section 4.1 ORGANIZATION
OF THE COMPANY. The Company is a corporation duly organized and validly existing and in good standing under the laws of the State
of Nevada and has all requisite power and authority to own, lease and operate its properties and to carry on its business as now
being conducted. The Company is duly qualified as a foreign corporation to do business and is in good standing in every jurisdiction
in which the nature of the business conducted or property owned by it makes such qualification necessary, other than those in which
the failure so to qualify would not have a Material Adverse Effect.
Section 4.2 AUTHORITY.
(a) The Company has the requisite corporate power and authority to enter into and perform its obligations under this Agreement
and to issue the Put Shares; (b) the execution and delivery of this Agreement by the Company and the consummation by it of the
transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action and no further consent
or authorization of the Company or its Board of Directors or stockholders is required; and (c) each of this Agreement and has been
duly executed and delivered by the Company and constitutes a valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, or similar
laws relating to, or affecting generally the enforcement of, creditors' rights and remedies or by other equitable principles of
general application.
Section 4.3 CAPITALIZATION.
As of the date hereof, the authorized capital stock of the Company consists of 750,000,000 shares of Common Stock, $0.0001 par
value per share, of which 640,913,164 shares were issued and outstanding as of February 17, 2016, 2016, preferred stock, 20,000,000
shares authorized, 0 shares issued and outstanding; at February 17, 2016.
Except as otherwise
disclosed in the SEC Documents or on Schedule 4.3, there are no outstanding securities which are convertible into shares
of Common Stock, whether such conversion is currently exercisable or exercisable only upon some future date or the occurrence of
some event in the future.
All of the outstanding
shares of Common Stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable.
Section 4.4 COMMON
STOCK. The Company is in full compliance with all reporting requirements of the Exchange Act, and the Company has maintained all
requirements for the continued listing or quotation of the Common Stock, and such Common Stock is currently listed or quoted on
the Principal Market which is presently the OTCQB.
Section 4.5 SEC
DOCUMENTS. The Company may make available to Investor true and complete copies of the SEC Documents (including, without limitation,
proxy information and solicitation materials). To the Company’s knowledge, the Company has not provided to Investor any information
that, according to applicable law, rule or regulation, should have been disclosed publicly prior to the date hereof by the Company,
but which has not been so disclosed. As of their respective dates, the SEC Documents complied in all material respects with the
requirements of the Exchange Act, and other federal laws, rules and regulations applicable to such SEC Documents, and none of the
SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
The financial statements of the Company included in the SEC Documents comply as to form and substance in all material respects
with applicable accounting requirements and the published rules and regulations of the SEC or other applicable rules and regulations
with respect thereto. Such financial statements have been prepared in accordance with generally accepted accounting principles
applied on a consistent basis during the periods involved (except (a) as may be otherwise indicated in such financial statements
or the notes thereto or (b) in the case of unaudited interim statements, to the extent they may not include footnotes or may be
condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates
thereof and the results of operations and cash flows for the periods then ended (subject, in the case of unaudited statements,
to normal year-end audit adjustments).
Section 4.6 VALID
ISSUANCES. When issued and paid for as herein provided, the Put Shares shall be duly and validly issued, fully paid, and non-assessable.
The sales of the Put Shares pursuant to this Agreement, and the Company's performance of its obligations hereunder, shall not (a)
result in the creation or imposition of any liens, charges, claims or other encumbrances upon the Put Shares, or any of the assets
of the Company, or (b) entitle the holders of outstanding shares of Common Stock to preemptive or other rights to subscribe to
or acquire the Common Stock or other securities of the Company. The Put Shares shall not subject Investor to personal liability,
in excess of the subscription price by reason of the ownership thereof.
Section 4.7 NO
CONFLICTS. The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby, including without limitation the issuance of the Put Shares, do not and will not (a) result in
a violation of the Company’s Articles of Incorporation or By-Laws or (b) conflict with, or constitute a material default
(or an event that with notice or lapse of time or both would become a material default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any material agreement, indenture, instrument or any "lock-up"
or similar provision of any underwriting or similar agreement to which the Company is a party, or (c) result in a violation of
any federal, state or local law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations)
applicable to the Company or by which any property or asset of the Company is bound or affected (except for such conflicts, defaults,
terminations, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a Material
Adverse Effect) nor is the Company otherwise in violation of, conflict with or in default under any of the foregoing. The business
of the Company is not being conducted in violation of any law, ordinance or regulation of any governmental entity, except for possible
violations that either singly or in the aggregate do not and will not have a Material Adverse Effect. The Company is not required
under federal, state or local law, rule or regulation to obtain any consent, authorization or order of, or make any filing or registration
with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Agreement
or issue and sell the Common Stock in accordance with the terms hereof (other than any SEC, FINRA or state securities filings that
may be required to be made by the Company subsequent to any Closing, any registration statement that may be filed pursuant hereto);
provided that, for purposes of the representation made in this sentence, the Company is assuming and relying upon the accuracy
of the relevant representations and agreements of Investor herein.
Section 4.8 NO
MATERIAL ADVERSE CHANGE. Since September 30, 2015 no event has occurred that would have a Material Adverse Effect on the Company.
Section 4.9 LITIGATION
AND OTHER PROCEEDINGS. Except as disclosed in the Company’s SEC filings, there are no lawsuits or proceedings pending or
to the knowledge of the Company threatened, against the Company, nor has the Company received any written or oral notice of any
such action, suit, proceeding or investigation, which would have a Material Adverse Effect. No judgment, order, writ, injunction
or decree or award has been issued by or, so far as is known by the Company, requested of any court, arbitrator or governmental
agency which would have a Material Adverse Effect.
Section 4.10 DILUTION.
The number of shares of Common Stock issuable as Put Shares may increase substantially in certain circumstances, including, but
not necessarily limited to, the circumstance wherein the trading price of the Common Stock declines during the period between the
Effective Date and the end of the Commitment Period. The Company’s executive officers and directors have studied and fully
understand the nature of the transactions contemplated by this Agreement and recognize that they have a potential dilutive effect.
The board of directors of the Company has concluded in its good faith business judgment that such issuance is in the best interests
of the Company. The Company specifically acknowledges that, subject to Section 2.2(c), its obligation to issue the Put Shares is
binding upon the Company and enforceable regardless of the dilution such issuance may have on the ownership interests of other
shareholders of the Company.
ARTICLE V
COVENANTS OF INVESTOR
Section 5.1 COMPLIANCE
WITH LAW; TRADING IN SECURITIES. Investor's trading activities with respect to shares of the Common Stock will be in compliance
with all applicable state and federal securities laws, rules and regulations and the rules and regulations of FINRA and the Principal
Market on which the Common Stock is listed or quoted.
Section 5.2 SHORT SALES AND CONFIDENTIALITY.
Neither Investor nor any affiliate of the Investor acting on its behalf or pursuant to any understanding with it will execute any
Short Sales during the period from the date hereof to the end of the Commitment Period. For the purposes hereof, and in accordance
with Regulation SHO, the sale after delivery of a Put Notice of such number of shares of Common Stock reasonably expected to be
purchased under a Put Notice shall not be deemed a Short Sale.
Other than to other Persons party to this Agreement,
Investor has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence
and terms of this transaction).
ARTICLE VI
COVENANTS OF THE COMPANY
Section 6.1 RESERVATION
OF COMMON STOCK. The Company will, from time to time as needed in advance of a Closing Date, reserve and keep available until the
consummation of such Closing, free of preemptive rights sufficient shares of Common Stock for the purpose of enabling the Company
to satisfy its obligation to issue the Put Shares to be issued in connection therewith. The number of shares so reserved from time
to time, as theretofore increased or reduced as hereinafter provided, may be reduced by the number of shares actually delivered
hereunder.
Section 6.2 LISTING
OF COMMON STOCK. If the Company applies to have the Common Stock traded on any other Principal Market, it shall include in such
application the Put Shares, and shall take such other action as is necessary or desirable in the reasonable opinion of Investor
to cause the Common Stock to be listed on such other Principal Market as promptly as possible. The Company shall use its commercially
reasonable efforts to continue the listing and trading of the Common Stock on the Principal Market (including, without limitation,
maintaining sufficient net tangible assets) and will comply in all respects with the Company's reporting, filing and other obligations
under the bylaws or rules of the FINRA and the Principal Market.
Section 6.3 CERTAIN
AGREEMENTS. So long as this Agreement remains in effect, the Company covenants and agrees that it will not, without the prior written
consent of the Investor, enter into any other equity line of credit agreement with a third party during the Commitment Period having
terms and conditions substantially comparable to this Agreement. For the avoidance of doubt, nothing contained in the Transaction
Documents shall restrict, or require the Investor's consent for, any agreement providing for the issuance or distribution of (or
the issuance or distribution of) any equity securities pursuant to any agreement or arrangement that is not commonly understood
to be an "equity line of credit."
ARTICLE VII
CONDITIONS TO DELIVERY OF
PUT NOTICES AND CONDITIONS TO CLOSING
Section 7.1 CONDITIONS
PRECEDENT TO THE OBLIGATION OF THE COMPANY TO ISSUE AND SELL COMMON STOCK. The obligation hereunder of the Company to issue and
sell the Put Shares to Investor is subject to the satisfaction of each of the conditions set forth below.
(a) ACCURACY
OF INVESTOR'S REPRESENTATIONS AND WARRANTIES. The representations and warranties of Investor shall be true and correct in all material
respects as of the date of this Agreement and as of the date of each such Closing as though made at each such time.
(b) PERFORMANCE
BY INVESTOR. Investor shall have performed, satisfied and complied in all respects with all covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied with by Investor at or prior to such Closing.
(c) Principal
Market Regulation. The Company shall not issue any Put Shares, and the Investor shall not have the right to receive any
Put Shares, if the issuance of such shares would exceed the aggregate number of shares of Common Stock which the Company may issue
without breaching the Company’s obligations under the rules or regulations of the Principal Market (the “Exchange
Cap”).
Section 7.2 CONDITIONS
PRECEDENT TO THE RIGHT OF THE COMPANY TO DELIVER A PUT NOTICE AND THE OBLIGATION OF INVESTOR TO PURCHASE PUT SHARES. The right
of the Company to deliver a Put Notice and the obligation of Investor hereunder to acquire and pay for the Put Shares is subject
to the satisfaction of each of the following conditions:
(a) EFFECTIVE
REGISTRATION STATEMENT. The Registration Statement, and any amendment or supplement thereto, shall remain effective for the sale
by Investor of the Registered Securities subject to such Put Notice, and (i) neither the Company nor Investor shall have received
notice that the SEC has issued or intends to issue a stop order with respect to such Registration Statement or that the SEC otherwise
has suspended or withdrawn the effectiveness of such Registration Statement, either temporarily or permanently, or intends or has
threatened to do so and (ii) no other suspension of the use or withdrawal of the effectiveness of such Registration Statement or
related prospectus shall exist.
(b) ACCURACY
OF THE COMPANY'S REPRESENTATIONS AND WARRANTIES. The representations and warranties of the Company shall be true and correct in
all material respects (except for representations and warranties specifically made as of a particular date), except for any conditions
which have temporarily caused any representations or warranties herein to be incorrect and which have been corrected with no continuing
impairment to the Company or Investor.
(c) PERFORMANCE
BY THE COMPANY. The Company shall have performed, satisfied and complied in all material respects with all covenants, agreements
and conditions required by this Agreement to be performed, satisfied or complied with by the Company.
(d) NO
INJUNCTION. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated
or adopted by any court or governmental authority of competent jurisdiction that prohibits or directly and materially adversely
affects any of the transactions contemplated by this Agreement, and no proceeding shall have been commenced that may have the effect
of prohibiting or materially adversely affecting any of the transactions contemplated by this Agreement.
(e) ADVERSE
CHANGES. Since the date of filing of the Company's most recent SEC Document, no event that had or is reasonably likely to have
a Material Adverse Effect has occurred.
(f) NO
SUSPENSION OF TRADING IN OR DELISTING OF COMMON STOCK. The trading of the Common Stock shall not have been suspended by the SEC,
the Principal Market or the FINRA and the Common Stock shall have been approved for listing or quotation on and shall not have
been delisted from the Principal Market.
(g) [INTENTIONALLY
OMITTED]
(h) TEN
PERCENT LIMITATION. On each Closing Date, the number of Put Shares then to be purchased by Investor shall not exceed the number
of such shares that, when aggregated with all other shares of Common Stock then owned by Investor beneficially or deemed beneficially
owned by Investor, would result in Investor owning more than 9.99% of all of such Common Stock as would be outstanding on such
Closing Date, as determined in accordance with Section 16 of the Exchange Act and the regulations promulgated thereunder. For purposes
of this Section, in the event that the amount of Common Stock outstanding as determined in accordance with Section 16 of the Exchange
Act and the regulations promulgated thereunder is greater on a Closing Date than on the date upon which the Put Notice associated
with such Closing Date is given, the amount of Common Stock outstanding on such Closing Date shall govern for purposes of determining
whether Investor, when aggregating all purchases of Common Stock made pursuant to this Agreement, would own more than 9.99% of
the Common Stock following such Closing Date.
(i) Principal
Market Regulation. The Company shall not issue any Put Shares, and the Investor shall not have the right to receive any Put
Shares, if the issuance of such shares would exceed the Exchange Cap.
(j) NO
KNOWLEDGE. The Company shall have no knowledge of any event more likely than not to have the effect of causing such Registration
Statement to be suspended or otherwise ineffective (which event is more likely than not to occur within the fifteen (15) Trading
Days following the Trading Day on which such Put Notice is deemed delivered).
(k) NO
VIOLATION OF SHAREHOLDER APPROVAL REQUIREMENT. The issuance of shares of Common Stock with respect to the applicable Closing, if
any, shall not violate the shareholder approval requirements of the Principal Market.
(l) NO
VALUATION EVENT. No Valuation Event shall have occurred since the Put Date.
(m) OTHER.
On the date of delivery of each Put Notice, Investor shall have received a certificate in substantially the form and substance
of Exhibit B hereto, executed by an executive officer of the Company and to the effect that all the conditions to such Closing
shall have been satisfied as at the date of each such certificate.
ARTICLE VIII
LEGENDS
Section 8.1 NO STOCK LEGEND OR
STOCK TRANSFER RESTRICTIONS. No legend shall be placed on the share certificates representing the Put Shares.
Section 8.2 INVESTOR'S
COMPLIANCE. Nothing in this Article VIII shall affect in any way Investor's obligations under any agreement to comply with all
applicable securities laws upon the sale of the Common Stock.
ARTICLE IX
NOTICES; INDEMNIFICATION
Section 9.1 NOTICES. All notices,
demands, requests, consents, approvals, and other communications required or permitted hereunder shall be in writing and, unless
otherwise specified herein, shall be (a) personally served, (b) deposited in the mail, registered or certified, return receipt
requested, postage prepaid, (c) delivered by reputable air courier service with charges prepaid, or (d) transmitted by hand delivery,
telegram, facsimile, or email as a PDF, addressed as set forth below or to such other address as such party shall have specified
most recently by written notice given in accordance herewith. Any notice or other communication required or permitted to be given
hereunder shall be deemed effective (i) upon hand delivery or delivery by facsimile, with accurate confirmation generated by the
transmitting facsimile machine, or email as a PDF, 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 (ii) on the second business day following
the date of mailing by express courier service or on the fifth business day after deposited in the mail, in each case, fully prepaid,
addressed to such address, or upon actual receipt of such mailing, whichever shall first occur.
The addresses for such communications shall
be:
If to the Company:
VNUE, INC.
104 W. 29th
Street, 11th FloorNew York, NY 10001
Attn: Matthew Carona
Chief Executive Officer
Copy to (which shall not constitute
notice):
Matheau J. W. Stout, Esq.
400 E. Pratt Street, 8th
FloorBaltimore, MD 21202
Tel: (410) 429-7076
Fax: (888) 907-1740
If to Investor:
Tarpon Bay Partners
LLC
17210 Germano Court
Naples, FL 34110
Tel:
Fax:
Either party hereto may from time to time
change its address or facsimile number for notices under this Section 9.1 by giving at least ten (10) days' prior written notice
of such changed address or facsimile number to the other party hereto.
Section 9.2 INDEMNIFICATION.
Each party (an “Indemnifying Party”) agrees to indemnify and hold harmless the other party along with its officers,
directors, employees, and authorized agents, and each Person or entity, if any, who controls such party within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act (an “Indemnified Party”) from and against any Damages, joint
or several, and any action in respect thereof to which the Indemnified Party becomes subject to, resulting from, arising out of
or relating to (i) any misrepresentation, breach of warranty or nonfulfillment of or failure to perform any covenant or agreement
on the part of Indemnifying Party contained in this Agreement, (ii) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or any post-effective amendment thereof or supplement thereto, or the omission or
alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading,
(iii) any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus or contained
in the final prospectus (as amended or supplemented, if the Company files any amendment thereof or supplement thereto with the
SEC) or the omission or alleged omission to state therein any material fact necessary to make the statements made therein, in the
light of the circumstances under which the statements therein were made, not misleading, or (iv) any violation or alleged violation
by the Company of the Securities Act, the Exchange Act, any state securities law or any rule or regulation under the Securities
Act, the Exchange Act or any state securities law, as such Damages are incurred, except to the extent such Damages result primarily
from Indemnified Party's failure to perform any covenant or agreement contained in this Agreement or Indemnified Party's negligence,
recklessness or bad faith in performing its obligations under this Agreement; provided, however, that the foregoing indemnity agreement
shall not apply to any Damages of an Indemnified Party to the extent, but only to the extent, arising out of or based upon any
untrue statement or alleged untrue statement or omission or alleged omission made by an Indemnifying Party in reliance upon and
in conformity with written information furnished to the Indemnifying Party by the Indemnified Party expressly for use in the Registration
Statement, any post-effective amendment thereof or supplement thereto, or any preliminary prospectus or final prospectus (as amended
or supplemented).
Section 9.3 METHOD
OF ASSERTING INDEMNIFICATION CLAIMS. All claims for indemnification by any Indemnified Party (as defined below) under Section 9.2
shall be asserted and resolved as follows:
(a) In
the event any claim or demand in respect of which an Indemnified Party might seek indemnity under Section 9.2 is asserted against
or sought to be collected from such Indemnified Party by a person other than a party hereto or an affiliate thereof (a "THIRD
PARTY CLAIM"), the Indemnified Party shall deliver a written notification, enclosing a copy of all papers served, if any,
and specifying the nature of and basis for such Third Party Claim and for the Indemnified Party's claim for indemnification that
is being asserted under any provision of Section 9.2 against an Indemnifying Party, together with the amount or, if not then reasonably
ascertainable, the estimated amount, determined in good faith, of such Third Party Claim (a "CLAIM NOTICE") with reasonable
promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after
the Indemnified Party receives notice of such Third Party Claim, the Indemnifying Party shall not be obligated to indemnify the
Indemnified Party with respect to such Third Party Claim to the extent that the Indemnifying Party's ability to defend has been
prejudiced by such failure of the Indemnified Party. The Indemnifying Party shall notify the Indemnified Party as soon as practicable
within the period ending thirty (30) calendar days following receipt by the Indemnifying Party of either a Claim Notice or an Indemnity
Notice (as defined below) (the "DISPUTE PERIOD") whether the Indemnifying Party disputes its liability or the amount
of its liability to the Indemnified Party under Section 9.2 and whether the Indemnifying Party desires, at its sole cost and expense,
to defend the Indemnified Party against such Third Party Claim.
(i) If
the Indemnifying Party notifies the Indemnified Party within the Dispute Period that the Indemnifying Party desires to defend the
Indemnified Party with respect to the Third Party Claim pursuant to this Section 9.3(a), then the Indemnifying Party shall have
the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at the sole cost and expense of the Indemnifying
Party, such Third Party Claim by all appropriate proceedings, which proceedings shall be vigorously and diligently prosecuted by
the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party (but only with the
consent of the Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary
damages or that provides for the payment of monetary damages as to which the Indemnified Party shall not be indemnified in full
pursuant to Section 9.2). The Indemnifying Party shall have full control of such defense and proceedings, including any compromise
or settlement thereof; provided, however, that the Indemnified Party may, at the sole cost and expense of the Indemnified Party,
at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this clause (i), file
any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or
appropriate to protect its interests; and provided further, that if requested by the Indemnifying Party, the Indemnified Party
will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting
any Third Party Claim that the Indemnifying Party elects to contest. The Indemnified Party may participate in, but not control,
any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this clause (i), and except
as provided in the preceding sentence, the Indemnified Party shall bear its own costs and expenses with respect to such participation.
Notwithstanding the foregoing, the Indemnified Party may takeover the control of the defense or settlement of a Third Party Claim
at any time if it irrevocably waives its right to indemnity under Section 9.2 with respect to such Third Party Claim.
(ii) If
the Indemnifying Party fails to notify the Indemnified Party within the Dispute Period that the Indemnifying Party desires to defend
the Third Party Claim pursuant to Section 9.3(a), or if the Indemnifying Party gives such notice but fails to prosecute vigorously
and diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Dispute
Period, then the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party, the
Third Party Claim by all appropriate proceedings, which proceedings shall be prosecuted by the Indemnified Party in a reasonable
manner and in good faith or will be settled at the discretion of the Indemnified Party(with the consent of the Indemnifying Party,
which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings,
including any compromise or settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying
Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and
its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions
of this clause (ii), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying
Party disputes its liability or the amount of its liability hereunder to the Indemnified Party with respect to such Third Party
Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying
Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this clause (ii) or of
the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party shall reimburse the
Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation.
The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant
to this clause (ii), and the Indemnifying Party shall bear its own costs and expenses with respect to such participation.
(iii) If
the Indemnifying Party notifies the Indemnified Party that it does not dispute its liability or the amount of its liability to
the Indemnified Party with respect to the Third Party Claim under Section 9.2 or fails to notify the Indemnified Party within the
Dispute Period whether the Indemnifying Party disputes its liability or the amount of its liability to the Indemnified Party with
respect to such Third Party Claim, the amount of Damages specified in the Claim Notice shall be conclusively deemed a liability
of the Indemnifying Party under Section 9.2 and the Indemnifying Party shall pay the amount of such Damages to the Indemnified
Party on demand. If the Indemnifying Party has timely disputed its liability or the amount of its liability with respect to such
claim, the Indemnifying Party and the Indemnified Party shall proceed in good faith to negotiate a resolution of such dispute;
provided, however, that if the dispute is not resolved within thirty (30) days after the Claim Notice, the Indemnifying Party shall
be entitled to institute such legal action as it deems appropriate.
(b) In
the event any Indemnified Party should have a claim under Section 9.2 against the Indemnifying Party that does not involve a Third
Party Claim, the Indemnified Party shall deliver a written notification of a claim for indemnity under Section 9.2 specifying the
nature of and basis for such claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined
in good faith, of such claim (an "INDEMNITY NOTICE") with reasonable promptness to the Indemnifying Party. The failure
by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that
the Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Indemnified
Party that it does not dispute the claim or the amount of the claim described in such Indemnity Notice or fails to notify the Indemnified
Party within the Dispute Period whether the Indemnifying Party disputes the claim or the amount of the claim described in such
Indemnity Notice, the amount of Damages specified in the Indemnity Notice will be conclusively deemed a liability of the Indemnifying
Party under Section 9.2 and the Indemnifying Party shall pay the amount of such Damages to the Indemnified Party on demand. If
the Indemnifying Party has timely disputed its liability or the amount of its liability with respect to such claim, the Indemnifying
Party and the Indemnified Party shall proceed in good faith to negotiate a resolution of such dispute; provided, however, that
if the dispute is not resolved within thirty (30) days after the Claim Notice, the Indemnifying Party shall be entitled to institute
such legal action as it deems appropriate.
(c) The
Indemnifying Party agrees to pay the Indemnified Party, promptly as such expenses are incurred and are due and payable, for any
reasonable legal fees or other reasonable expenses incurred by them in connection with investigating or defending any such Claim.
(d) The
indemnity provisions contained herein shall be in addition to (i) any cause of action or similar rights of the Indemnified Party
against the Indemnifying Party or others, and (ii) any liabilities the Indemnifying Party may be subject to.
ARTICLE X
MISCELLANEOUS
Section 10.1 GOVERNING
LAW; JURISDICTION. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York without
regard to the principles of conflicts of law. Each of the Company and Investor hereby submit to the exclusive jurisdiction of the
United States Federal and state courts located in New York County, State of New York with respect to any dispute arising under
this Agreement, the agreements entered into in connection herewith or the transactions contemplated hereby or thereby.
Section 10.2 JURY
TRIAL WAIVER. The Company and the Investor hereby waive a trial by jury in any action, proceeding or counterclaim brought by either
of the parties hereto against the other in respect of any matter arising out of or in connection with the Transaction Documents.
Section 10.3 ASSIGNMENT.
This Agreement shall be binding upon and inure to the benefit of the Company and Investor and their respective successors. Neither
this Agreement nor any rights of Investor or the Company hereunder may be assigned by either party to any other person.
Section 10.4 THIRD
PARTY BENEFICIARIES. This Agreement is intended for the benefit of the Company and Investor and their respective successors, and
is not for the benefit of, nor may any provision hereof be enforced by, any other person.
Section 10.5 TERMINATION.
The Company may terminate this Agreement at any time by written notice to the Investor. Additionally, this Agreement shall terminate
at the end of Commitment Period or as otherwise provided herein; provided, however, that the provisions of Articles IX, and Sections
10.1 and 10.2 shall survive the termination of this Agreement for a period of twenty four (24) months.
Section 10.6 ENTIRE
AGREEMENT, AMENDMENT; NO WAIVER. This Agreement and the instruments referenced herein contain the entire understanding of the Company
and Investor with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither
the Company nor Investor makes any representation, warranty, covenant or undertaking with respect to such matters. This Agreement
may not be amended.
Section 10.7 FEES
AND EXPENSES. The Company agrees to pay its own expenses in connection with the preparation of this Agreement and performance of
its obligations hereunder. The Company shall pay all stamp or other similar taxes and duties levied in connection with issuance
of the Put Shares pursuant hereto.
Section 10.8 COUNTERPARTS.
This Agreement may be executed in multiple counterparts, each of which may be executed by less than all of the parties and shall
be deemed to be an original instrument which shall be enforceable against the parties actually executing such counterparts and
all of which together shall constitute one and the same instrument. This Agreement may be delivered to the other parties hereto
by facsimile transmission or email of a copy of this Agreement bearing the signature of the parties so delivering this Agreement.
Section 10.9 SEVERABILITY.
In the event that any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable
or void, this Agreement shall continue in full force and effect without said provision; provided that such severability shall be
ineffective if it materially changes the economic benefit of this Agreement to any party.
Section 10.10 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.
Section 10.11 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.
Section 10.12 EQUITABLE
RELIEF. The Company recognizes that in the event that it fails to perform, observe, or discharge any or all of its obligations
under this Agreement, any remedy at law may prove to be inadequate relief to Investor. The Company therefore agrees that Investor
shall be entitled to temporary and permanent injunctive relief in any such case without the necessity of proving actual damages.
Section 10.13 TITLE
AND SUBTITLES. The titles and subtitles used in this Agreement are used for the convenience of reference and are not to be considered
in construing or interpreting this Agreement.
Section 10.14 REPORTING
ENTITY FOR THE COMMON STOCK. The reporting entity relied upon for the determination of the Closing Price for the Common Stock on
any given Trading Day for the purposes of this Agreement shall be Bloomberg Finance L.P. or any successor thereto. The written
mutual consent of Investor and the Company shall be required to employ any other reporting entity.
Section 10.15 PUBLICITY.
The Company and Investor shall consult with each other in issuing any press releases or otherwise making public statements with
respect to the transactions contemplated hereby and no party shall issue any such press release or otherwise make any such public
statement without the prior written consent of the other parties, which consent shall not be unreasonably withheld or delayed,
except that no prior consent shall be required if such disclosure is required by law, in which such case the disclosing party shall
provide the other parties with prior notice of such public statement. Notwithstanding the foregoing, the Company shall not publicly
disclose the name of Investor without the prior written consent of such Investor, except to the extent required by law. Investor
acknowledges that this Agreement and all or part of the Transaction Documents may be deemed to be "material contracts"
as that term is defined by Item 601(b)(10) of Regulation S-K, and that the Company may therefore be required to file such documents
as exhibits to reports or registration statements filed under the Securities Act or the Exchange Act. Investor further agrees that
the status of such documents and materials as material contracts shall be determined solely by the Company, in consultation with
its counsel.
[SIGNATURE PAGE]
IN WITNESS WHEREOF,
the parties hereto have caused this Equity Purchase Agreement to be executed by the undersigned, thereunto duly authorized, as
of the date first set forth above.
|
TARPON BAY PARTNERS LLC |
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By: |
/s/ |
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Name: Stephen Hicks |
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Title: Manager |
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VNUE, INC. |
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By: |
/s/ |
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Name: Matthew Carona |
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Title: Chief Executive Officer |
Schedule 4.3 – Outstanding Securities
640,913,164 Common Shares
0 Preferred Shares
EXHIBITS
EXHIBIT A Put Notice
EXHIBIT B Closing Certificate
EXHIBIT A
FORM OF PUT NOTICE
TO: TARPON BAY PARTNERS LLC
We refer to the Equity Purchase Agreement dated February18,
2016 (the “Agreement”) entered into by VNUE, INC. (the “Company”) and you. Capitalized terms defined in
the Agreement shall, unless otherwise defined, have the same meaning when used herein.
We hereby:
1. Give
you notice that we require you to purchase $_________ (the “Investment Amount”) in Put Shares;
2. Determine
the Floor Price for this Put, as defined in Section 2.2(c) of the Agreement, to be $___________; and
3.
Certify that, as of the date hereof, to the best of our knowledge, the conditions set forth in Section 7.2 of the Agreement are
satisfied.
Date: _____________, 2016
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VNUE, INC. |
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By: |
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Name: Matthew Carona |
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Title: Chief Executive Officer |
EXHIBIT B
FORM OF
CERTIFICATE OF THE CHIEF EXECUTIVE OFFICER
OF
VNUE, INC.
Pursuant to Section 7.2(m) of that certain
Equity Purchase Agreement dated February 18, 2016 (the “Agreement”) by and between the Company and Tarpon Bay Partners
LLC (the “Investor”), the undersigned, in his capacity as the Chief Executive Officer of VNUE, INC. (the “Company”),
and not in his individual capacity, hereby certifies, as of the date hereof (such date, the “Condition Satisfaction Date”),
the
following:
1. The
representations and warranties of the Company are true and correct in all material respects as of the Condition Satisfaction Date
as though made on the Condition Satisfaction Date (except for representations and warranties specifically made as of a particular
date) with respect to all periods, and as to all events and circumstances occurring or existing to and including the Condition
Satisfaction Date, except for any conditions which have temporarily caused any representations or warranties of the Company set
forth in the Agreement to be incorrect and which have been corrected with no continuing impairment to the Company or Investor;
and
2. All
of the Company’s conditions to Closing set forth in Section 7.2 of the Agreement have been satisfied as of the Condition
Satisfaction Date.
Capitalized terms used
herein shall have the meanings set forth in the Agreement unless otherwise defined herein.
IN WITNESS WHEREOF,
the undersigned has hereunto affixed his hand as of the 18th day of February, 2016.
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By: |
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Matthew Carona, Chief Executive Officer |
EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights
Agreement ("Agreement"), dated February 18, 2016, is made by and between VNUE, INC., a Nevada corporation ("Company"),
and TARPON BAY PARTNERS LLC, a Florida limited liability company (the "Investor").
RECITALS
WHEREAS, upon the terms
and subject to the conditions of the Equity Purchase Agreement ("Purchase Agreement"), between the Investor and the Company,
the Company has agreed to issue and sell to the Investor shares (the "Put Shares") of its common stock, $0.0001 par value
per share (the "Common Stock") from time to time for an aggregate investment price of up to Ten Million Dollars ($10,000,000)
(the "Registered Securities"); and
WHEREAS, to induce
the Investor to execute and deliver the Purchase Agreement, the Company has agreed to provide certain registration rights under
the Securities Act of 1933, as amended, and the rules and regulations thereunder, or any similar successor statute (collectively,
the "Securities Act"), and applicable state securities laws with respect to the Registered Securities;
NOW, THEREFORE, in
consideration of the premises and the mutual covenants contained herein and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Company and the Investor hereby agree as follows:
1. Definitions.
(a) As
used in this Agreement, the following terms shall have the following meaning:
(i) "Subscription
Date" means the date of this Agreement.
(ii) "Investor"
has the meaning set forth in the preamble to this Agreement.
(iii) "Register,"
"registered" and "registration" refer to a registration effected by preparing and filing a Registration Statement
or Statements in compliance with the Securities Act and pursuant to Rule 415 under the Securities Act or any successor rule providing
for offering securities on a delayed or continuous basis ("Rule 415"), and the declaration or ordering of effectiveness
of such Registration Statement by the United States Securities and Exchange Commission (the "SEC").
(iv) "Registered
Securities" will have the same meaning as set forth in the Purchase Agreement.
(v) "Registration
Statement" means the Company’s registration statement on Form S-1, or any similar registration statement of the Company
filed with SEC under the Securities Act with respect to the Registered Securities.
(vi) "EDGAR"
means the SEC's Electronic Data Gathering, Analysis and Retrieval System.
(vii) “Exchange
Act” means the Securities Exchange Act of 1934, as amended, or any similar federal statute, and the rules and regulations
of the SEC thereunder, all as the same will then be in effect.
(b) Capitalized
terms used herein and not otherwise defined herein shall have the respective meanings set forth in the Purchase Agreement.
2. [RESERVED]
3. Obligation
of the Company. In connection with the registration of the Registered Securities, the Company shall do each of the following:
(a) Prepare
promptly and file with the SEC within one hundred twenty (120) days after the date hereof, a Registration Statement with respect
to not less than the maximum allowable under Rule 415 of Registered Securities, and thereafter use all commercially reasonable
efforts to cause such Registration Statement relating to the Registered Securities to become effective within five (5) business
days after notice from the Securities and Exchange Commission that such Registration Statement may be declared effective, and keep
the Registration Statement effective at all times prior to the termination of the Purchase Agreement until the earliest of (i)
the date that is three months after the completion of the last Closing Date under the Purchase Agreement, (ii) the date when the
Investor may sell all Registered Securities under Rule 144 without volume limitations, or (iii) the date the Investor no longer
owns any of the Registered Securities (collectively, the "Registration Period"), which Registration Statement (including
any amendments or supplements, thereto and prospectuses contained therein) shall not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(b) Prepare
and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the
prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective
at all times during the Registration Period, and to comply with the provisions of the Securities Act with respect to the disposition
of all Registered Securities of the Company covered by the Registration Statement until the expiration of the Registration Period.
(c) With
respect to the Registered Securities, permit counsel designated by Investor to review the Registration Statement and all amendments
and supplements thereto a reasonable period of time (but not less than two (2) business days) prior to their filing with the SEC,
and not file any document in a form to which such counsel reasonably objects.
(d) As
promptly as practicable after becoming aware of the following facts, the Company shall notify Investor and Investor’s legal
counsel identified to the Company and (if requested by any such person) confirm such notice in writing no later than one (1) business
day thereafter (i): (A) when a prospectus or any prospectus supplement or post-effective amendment to the Registration Statement
is filed; (B) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii)
of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement covering any or all of
the Registered Securities or the initiation of any proceedings for that purpose; and (iii) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption from qualification of any of the Registered Securities
for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose.
(e) Unless
available to the Investor without charge through EDGAR, the SEC's website or the Company's website, furnish to Investor, promptly
after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration
Statement, each preliminary prospectus and the prospectus, and each amendment or supplement thereto;
(f) Use
all commercially reasonable efforts to (i) register and/or qualify the Registered Securities covered by the Registration Statement
under such other securities or blue sky laws of such jurisdictions as the Investor may reasonably request and in which significant
volumes of shares of Common Stock are traded, (ii) prepare and file in those jurisdictions such amendments (including post-effective
amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof
at all times during the Registration Period, (iii) take such other actions as may be necessary to maintain such registrations
and qualification in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary
or advisable to qualify the Registered Securities for sale in such jurisdictions: provided, however, that the Company
shall not be required in connection therewith or as a condition thereto to (A) qualify to do business in any jurisdiction where
it would not otherwise be required to qualify but for this Section 3(f), (B) subject itself to general taxation in any such jurisdiction,
(C) file a general consent to service of process in any such jurisdiction, (D) provide any undertakings that cause more than nominal
expense or burden to the Company or (E) make any change in its charter or by-laws or any then existing contracts, which in each
case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its stockholders;
(g) As
promptly as practicable after becoming aware of such event, notify the Investor of the happening of any event of which the Company
has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes any untrue
statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading ("Registration Default"), and promptly
prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue
statement or omission, and take any other commercially reasonable steps to cure the Registration Default, and, unless available
to the Investor without charge through EDGAR, the SEC's website or the Company's website, deliver a number of copies of such supplement
or amendment to the Investor as the Investor may reasonably request.
(h) [INTENTIONALLY
OMITTED];
(i) Use
its commercially reasonable efforts, if eligible, either to (i) cause all the Registered Securities covered by the Registration
Statement to be listed on a national securities exchange and on each additional national securities exchange on which securities
of the same class or series issued by the Company are then listed, if any, if the listing of such Registered Securities is then
permitted under the rules of such exchange, or (ii) secure designation of all the Registered Securities covered by the Registration
Statement as a National Association of Securities Dealers Automated Quotations System ("Nasdaq”) security within the
meaning of Rule 11Aa2-1 of the SEC under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the
quotation of the Registered Securities on the Nasdaq Capital Market; or if, despite the Company’s commercially reasonable
efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in doing so, to use its commercially reasonable
efforts to secure authorization of the Financial Industry Regulatory Authority (“FINRA”) and quotation for such Registered
Securities on the over-the-counter bulletin board and, without limiting the generality of the foregoing;
(j) Provide
a transfer agent for the Registered Securities not later than the Subscription Date under the Purchase Agreement;
(k) Cooperate
with the Investor to facilitate the timely preparation and delivery of certificates for the Registered Securities to be offered
pursuant to the Registration Statement and enable such certificates for the Registered Securities to be in such denominations or
amounts as the case may be, as the Investor may reasonably request and registration in such names as the Investor may request;
and, within five (5) business days after a Registration Statement which includes Registered Securities is ordered effective by
the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the transfer agent for
the Registered Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, if so required
by the Company’s transfer agent; and
(l) Take
all other commercially reasonable actions necessary to expedite and facilitate distribution to the Investor of the Registered Securities
pursuant to the Registration Statement.
4. Obligations
of the Investor. In connection with the registration of the Registered Securities, the Investor shall have the following obligations;
(a) It
shall be a condition precedent to the obligations of the Company to complete the registration pursuant to this Agreement with respect
to the Registered Securities of the Investor that the Investor shall timely furnish to the Company such information regarding itself,
the Registered Securities held by it, and the intended method of disposition of the Registered Securities held by it, as shall
be reasonably required to effect the registration of such Registered Securities and shall timely execute such documents in connection
with such registration as the Company may reasonably request.
(b) The
Investor by such Investor’s acceptance of the Registered Securities agrees to cooperate with the Company as reasonably requested
by the Company in connection with the preparation and filing of the Registration Statement hereunder; and
(c) The
Investor agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section
3(d)(ii) or (iii) or 3(g) above, the Investor will immediately discontinue disposition of Registered Securities pursuant to the
Registration Statement covering such Registered Securities until the Investor receives the copies of the supplemented or amended
prospectus contemplated by Section 3(d)(ii) or (iii) or 3(g) and, if so directed by the Company, the Investor shall deliver to
the Company (at the expense of the Company) or destroy (and deliver to the Company a certificate of destruction) all copies in
the Investor’s possession, of the prospectus covering such Registered Securities current at the time of receipt of such notice.
5. Expenses
of Registration. All reasonable expenses incurred in connection
with registrations, filings or qualifications pursuant to Section 3, including, without limitation, all registration, listing,
and qualifications fees, printers and accounting fees, the fees and disbursements of counsel for the Company shall be borne by
the Company.
6. Indemnification. After
Registered Securities are included in a Registration Statement under this Agreement:
(a) To
the extent permitted by law, the Company will indemnify and hold harmless, the Investor, the directors, if any, of such Investor,
the officers, if any, of such Investor, each person, if any, who controls the Investor within the meaning of the Securities Act
or the Exchange Act (each, an "Indemnified Person"), against any losses, claims, damages, liabilities or expenses (joint
or several) incurred (collectively, "Claims") to which any of them may become subject under the Securities Act, the Exchange
Act or otherwise, insofar as such Claims (or actions or proceedings, whether commenced or threatened, in respect thereof) arise
out of or are based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement or any post-effective amendment thereof or the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading, (ii) any untrue statement or alleged untrue statement
of a material fact contained in any preliminary prospectus or contained in the final prospectus (as amended or supplemented, if
the Company files any amendment thereof or supplement thereto with the SEC) or the omission or alleged omission to state therein
any material fact necessary to make the statements made therein, in the light of the circumstances under which the statements therein
were made, not misleading or (iii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any
state securities law or any rule or regulation under the Securities Act, the Exchange Act or any state securities law (the matters
in the foregoing clauses (i) through (iii) being collectively referred to as "Violations"). Subject to Section 6(b) hereof,
the Company shall reimburse the Investor, promptly as such expenses are incurred and are due and payable, for any reasonable legal
fees or other reasonable expenses incurred by them in connection with investigating or defending any such Claim. Notwithstanding
anything to the contrary contained herein, the indemnification agreement contained in this Section 6(a) shall not (i) apply to
any Claims arising out of or based upon a Violation which occurs in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of any Indemnified Person expressly for use in connection with the preparation of the
Registration Statement or any such amendment thereof or supplement thereto, if such prospectus was timely made available by the
Company pursuant to Section 3(b) hereof; (ii) with respect to any preliminary prospectus, inure to the benefit of any such person
from whom the person asserting any such Claim purchased the Registered Securities that are the subject thereof (or to the benefit
of any person controlling such person) if the untrue statement or omission of material fact contained in the preliminary prospectus
was corrected in the prospectus, as then amended or supplemented, if such prospectus was timely made available by the Company pursuant
to Section 3(b) hereof; (iii) be available to the extent such Claim is based on a failure of the Investor to deliver or cause to
be delivered the prospectus made available by the Company; or (iv) apply to amounts paid in settlement of any Claim if such settlement
is effected without the prior written consent of the Company, which consent shall not be unreasonably withheld. The Investor will
indemnify the Company, its officers, directors and agents (including legal counsel) against any claims arising out of or based
upon a Violation which occurs in reliance upon and in conformity with information furnished in writing to the Company, by or on
behalf of the Investor, expressly for use in connection with the preparation of the Registration Statement, subject to such limitations
and conditions set forth in the previous sentence.
(b) Promptly
after receipt by an Indemnified Person under this Section 6 of notice of the commencement of any action (including any governmental
action), such Indemnified Person shall, if a Claim in respect thereof is to be made against any indemnifying party under this Section
6, deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right
to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed,
to assume control of the defense thereof with counsel mutually satisfactory to the indemnifying party and the Indemnified Person,
as the case may be; provided, however, that an Indemnified Person shall have the right to retain its own counsel
with the reasonable fees and expenses to be paid by the indemnifying party, if, in the reasonable opinion of counsel retained by
the indemnifying party, the representation by such counsel of the Indemnified Person and the indemnifying party would be inappropriate
due to actual or potential differing interests between such Indemnified Person and any other party represented by such counsel
in such proceeding. In such event, the Company shall pay for only one separate legal counsel for the Investor selected by the Investor.
The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action
shall not relieve such indemnifying party of any liability to the Indemnified Person under this Section 6, except to the extent
that the indemnifying party is prejudiced in its ability to defend such action. The indemnification required by this Section 6
shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as such expense, loss,
damage or liability is incurred and is due and payable.
7. Contribution. To
the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make
the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 6 to the fullest extent
permitted by law; provided, however, that (a) no contribution shall be made under circumstances where the maker would
not have been liable for indemnification under the fault standards set forth in Section 6; (b) no seller of Registered Securities
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution
from any seller of Registered Securities who was not guilty of such fraudulent misrepresentation; and (c) contribution by any seller
of Registered Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such
Registered Securities.
8. Reports
under Exchange Act. With a view to making available to the Investor the benefits of Rule 144 promulgated under the Securities
Act or any other similar rule or regulation of the SEC that may at any time permit the Investor to sell securities of the Company
to the public without registration ("Rule 144"), the Company agrees to use its commercially reasonable efforts to:
(a) make
and keep public information available, as those terms are understood and defined in Rule 144;
(b) file
with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act for so long as
the Company remains subject to such requirements, and the filing of such reports is required for sales under Rule 144;
(c) furnish
to the Investor so long as the Investor owns Registered Securities, promptly upon request, (i) a written statement by the Company
that it has complied with the reporting requirements of Rule 144, the Securities Act and the Exchange Act, (ii) unless available
to the Investor without charge through EDGAR, the SEC's website or the Company's website, a copy of the most recent annual or quarterly
report of the Company and such other reports and documents so filed by the Company, and (iii) such other information as may be
reasonably requested to permit the Investors to sell such securities pursuant to Rule 144 without registration; and
(d) at
the request of any Investor of Registered Securities, give its Transfer Agent instructions (supported by an opinion of Company
counsel, if required or requested by the Transfer Agent) to the effect that, upon the Transfer Agent’s receipt from such
Investor of:
(i) a certificate (a “Rule
144 Certificate”) certifying (A) that such Investor has held the shares of Registered Securities which the Investor proposes
to sell (the “Securities Being Sold”) for a period of not less than (6) months and (B) as to such other matters as
may be appropriate in accordance with Rule 144 under the Securities Act, and
(ii) an opinion of counsel acceptable
to the Company (for which purposes it is agreed that the initial Investor’s counsel shall be deemed acceptable if such opinion
is not given by Company counsel) that, based on the Rule 144 Certificate, Securities Being Sold may be sold pursuant to the provisions
of Rule 144, even in the absence of an effective Registration Statement,
the Transfer Agent is to effect the transfer
of the Securities Being Sold and issue to the buyer(s) or transferee(s) thereof one or more stock certificates representing the
transferred Securities Being Sold without any restrictive legend and without recording any restrictions on the transferability
of such shares on the Transfer Agent’s books and records (except to the extent any such legend or restriction results from
facts other than the identity of the Investor, as the seller or transferor thereof, or the status, including any relevant legends
or restrictions, of the shares of the Securities Being Sold while held by the Investor). If the Transfer Agent requires any additional
documentation at the time of the transfer, the Company shall deliver or cause to be delivered all such reasonable additional documentation
as may be necessary to effectuate the issuance of an unlegended certificate.
9. Miscellaneous.
(a) Registered
Owners. A person or entity is deemed to be a holder of Registered Securities whenever such person or entity owns of record
such Registered Securities. If the Company receives conflicting instructions, notices or elections from two or more persons or
entities with respect to the same Registered Securities, the Company shall act upon the basis of instructions, notice or election
received from the registered owner of such Registered Securities.
(b) Rights
Cumulative; Waivers. The rights of each of the parties under this Agreement are cumulative. The rights of each of the parties
hereunder shall not be capable of being waived or varied other than by an express waiver or variation in writing. Any failure to
exercise or any delay in exercising any of such rights shall not operate as a waiver or variation of that or any other such right.
Any defective or partial exercise of any of such rights shall not preclude any other or further exercise of that or any other such
right. No act or course of conduct or negotiation on the part of any party shall in any way preclude such party from exercising
any such right or constitute a suspension or any variation of any such right.
(c) Benefit;
Successors Bound. This Agreement and the terms, covenants, conditions, provisions, obligations, undertakings, rights, and benefits
hereof, shall be binding upon, and shall inure to the benefit of, the undersigned parties and their successors.
(d) Entire
Agreement. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof. There
are no promises, agreements, conditions, undertakings, understandings, warranties, covenants or representations, oral or written,
express or implied, between them with respect to this Agreement or the matters described in this Agreement, except as set forth
in this Agreement and in the other documentation relating to the transactions contemplated by this Agreement. Any such negotiations,
promises, or understandings shall not be used to interpret or constitute this Agreement.
(e) Amendment.
Any provision of this Agreement may be amended and the observance thereof may be waived (either generally or in a particular instance
and either retroactively or prospectively), only with the written consent of the Company and Investor. Any amendment or waiver
affected in accordance with this Section 9 shall be binding upon the Company.
(f) Severability.
Each part of this Agreement is intended to be severable. In the event that any provision of this Agreement is found by any court
or other authority of competent jurisdiction to be illegal or unenforceable, such provision shall be severed or modified to the
extent necessary to render it enforceable and as so severed or modified, this Agreement shall continue in full force and effect.
(g) Notices.
Notices required or permitted to be given hereunder shall be in writing and shall be deemed to be sufficiently given when personally
delivered (by hand, by courier, by telephone line facsimile transmission, receipt confirmed, email or other means) or sent by certified
mail, return receipt requested, properly addressed and with proper postage pre-paid (i) if to the Company, at its executive office
and (ii) if to the Investor, at the address set forth under its name in the Purchase Agreement, with a copy to its designated attorney,
or at such other address as each such party furnishes by notice given in accordance with this Section 9(g), and shall be effective,
when personally delivered, upon receipt and, when so sent by certified mail, five (5) business days after deposit with the United
States Postal Service.
(h) Governing
Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York without regard
to the principles of conflicts of law. Each of the Company and Investor hereby submit to the exclusive jurisdiction of the United
States Federal and state courts located in New York County, State of New York with respect to any dispute arising under this Agreement,
the agreements entered into in connection herewith or the transactions contemplated hereby or thereby.
(i) Consents.
The person signing this Agreement on behalf of each party hereby represents and warrants that he has the necessary power, consent
and authority to execute and deliver this Agreement on behalf of that party.
(j) Further
Assurances. In addition to the instruments and documents to be made, executed and delivered pursuant to this Agreement, the
parties hereto agree to make, execute and deliver or cause to be made, executed and delivered, to the requesting party such other
instruments and to take such other actions as the requesting party may reasonably require to carry out the terms of this Agreement
and the transactions contemplated hereby.
(k) Section
Headings. The Section headings in this Agreement are for reference purposes only and shall not affect in any way the meaning
or interpretation of this Agreement.
(l) Construction.
Unless the context otherwise requires, when used herein, the singular shall be deemed to include the plural, the plural shall be
deemed to include each of the singular, and pronouns of one or no gender shall be deemed to include the equivalent pronoun of the
other or no gender.
(m) Execution
in Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but
all of which shall constitute one and the same agreement. This Agreement, once executed by a party, may be delivered to the other
party hereto by email of a .pdf or telephone line facsimile transmission of a copy of this Agreement bearing the signature of the
party so delivering this Agreement. A facsimile transmission or email of a .pdf of this signed Agreement shall be legal and binding
on all parties hereto.
[SIGNATURES ON FOLLOWING PAGE]
[SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties have
caused this Agreement to be duly executed by their respective officers thereunto duly authorized as of the day and year first above
written.
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COMPANY: |
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VNUE, INC. |
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By: |
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Name: Matthew Carona |
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Title: Chief Executive Officer |
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INVESTOR: |
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TARPON BAY PARTNERS LLC |
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By: |
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Name: Stephen Hicks |
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Title: Manager |
EXHIBIT 10.3
THIS SECURITY HAS NOT BEEN REGISTERED
WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE OR UNDER THE SECURITIES ACT
OF 1933, AS AMENDED. THE SECURITIES ARE RESTRICTED AND MAY NOT BE OFFERED, RESOLD, PLEDGED OR TRANSFERRED EXCEPT AS PERMITTED UNDER
THE ACT PURSUANT TO REGISTRATION OR EXEMPTION OR SAFE HARBOR THEREFROM.
VNUE, INC.
PROMISSORY NOTE DUE AUGUST 31, 2016
THIS Note is a duly authorized issuance
of up to $25,000.00 of VNUE, INC., a Nevada corporation (the "Company") designated as its Note.
FOR VALUE RECEIVED,
the Company promises to pay to TARPON BAY PARTNERS LLC, the registered holder hereof (the "Holder"), the
principal sum of Twenty Five thousand and 00/100 Dollars (US $25,000.00) on August 31, 2016 (the “Maturity Date”).
The note shall carry an annual interest rate of 10%. This Note is payable in United States dollars, at the address last appearing
on the Note Register of the Company as designated in writing by the Holder. The Company will pay the outstanding principal amount
of this Note plus accrued interest in cash on the Maturity Date to the registered holder of this Note. The forwarding of such wire
transfer shall constitute a payment hereunder and shall satisfy and discharge the liability for principal on this Note to the extent
of the sum represented by such check or wire transfer plus any amounts so deducted.
This Note is subject to the following additional provisions:
1. The
Note is exchangeable for an equal aggregate principal amount of Note of different authorized denominations, as requested by the
Holder surrendering the same. No service charge will be made for such registration or transfer or exchange.
2. [RESERVED]
3. This
Note has been issued subject to investment representations of the original purchaser hereof and may be transferred or exchanged
only in compliance with the Securities Act of 1933, as amended (the "Act"), and other applicable state and foreign
securities laws. In the event of any proposed transfer of this Note, the Company may require, prior to issuance of a new Note in
the name of such other person, that it receive reasonable transfer documentation including legal opinions that the issuance of
the Note in such other name does not and will not cause a violation of the Act or any applicable state or foreign securities laws.
Prior to due presentment for transfer of this Note, the Company and any agent of the Company may treat the person in whose name
this Note is duly registered on the Company's Note Register as the owner hereof for the purpose of receiving payment as herein
provided and for all other purposes, whether or not this Note be overdue, and neither the Company nor any such agent shall be affected
by notice to the contrary.
4. No
provision of this Note shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal
of this Note at the time, place, and rate, and in the coin or currency, herein prescribed. This Note is a direct obligation of
the Company.
5. The
Holder of the Note, by acceptance hereof, agrees that this Note is being acquired for investment and that such Holder will not
offer, sell or otherwise dispose of this Note except under circumstances which will not result in a violation of the Act or any
applicable state Blue Sky or foreign laws or similar laws relating to the sale of securities.
6. This
Note shall be governed by and construed in accordance with the laws of the State of New York. Each of the parties consents to the
jurisdiction of the federal courts whose districts encompass any part of the City of New York or the state courts of the State
of New York sitting in the City of New York in connection with any dispute arising under this Note and hereby waives, to the maximum
extent permitted by law, any objection, including any objection based on forum non coveniens, to the bringing of any such
proceeding in such jurisdictions. Each of the parties hereby waives the right to a trial by jury in connection with any dispute
arising under this Note.
7. The
following shall constitute an "Event of Default":
a. The
Company shall default in the payment of principal on this Note and same shall continue for a period of five (5) days; or
b. Any
of the representations or warranties made by the Company herein, in any certificate or financial or other written statements heretofore
or hereafter furnished by the Company in connection with the execution and delivery of this Note shall be false or misleading in
any material respect at the time made; or
c. The
Company shall fail to perform or observe, in any material respect, any other covenant, term, provision, condition, agreement or
obligation of any Note and such failure shall continue uncured for a period of thirty (30) days after written notice from the Holder
of such failure; or
d. [RESERVED]
e. The
Company shall (1) make an assignment for the benefit of creditors or commence proceedings for its dissolution; or (2) apply for
or consent to the appointment of a trustee, liquidator or receiver for its or for a substantial part of its property or business;
or
f. A
trustee, liquidator or receiver shall 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; or
g. Any
governmental agency or any court of competent jurisdiction at the instance of any governmental agency shall assume custody or control
of the whole or any substantial portion of the properties or assets of the Company and shall not be dismissed within sixty (60)
days thereafter; or
h. Any
money judgment, writ or warrant of attachment, or similar process in excess of Two Hundred Thousand ($200,000) Dollars in the aggregate
shall be entered or filed against the Company or any of its properties or other assets and shall remain unpaid, unvacated, unbonded
or unstayed for a period of sixty (60) days or in any event later than five (5) days prior to the date of any proposed sale thereunder;
or
i. Bankruptcy,
reorganization, insolvency or liquidation proceedings or other proceedings for relief under any bankruptcy law or any law for the
relief of debtors shall be instituted by or against the Company and, if instituted against the Company, shall not be dismissed
within sixty (60) days after such institution or the Company shall by any action or answer approve of, consent to, or acquiesce
in any such proceedings or admit the material allegations of, or default in answering a petition filed in any such proceeding;
or
Then, or at any time thereafter, and in
each and every such case, unless such Event of Default shall have been waived in writing by the Holder (which waiver shall not
be deemed to be a waiver of any subsequent default) at the option of the Holder and in the Holder's sole discretion, the Holder
may consider all obligations under this Note immediately due and payable within five (5) days of notice, without presentment, demand,
protest or notice of any kinds, all of which are hereby expressly waived, anything herein or in any note or other instruments contained
to the contrary notwithstanding, and the Holder may immediately enforce any and all of the Holder's rights and remedies provided
herein or any other rights or remedies afforded by law.
IN WITNESS WHEREOF,
the Company has caused this instrument to be duly executed by an officer thereunto duly authorized.
Dated: February 18, 2016
VNUE, INC. |
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By: |
/s/ |
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Matthew Carona, Chief Executive Officer |
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ATTESTOR |
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By: |
/s/ |
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VNUE (PK) (USOTC:VNUE)
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