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) December 31, 2014
HOMELAND RESOURCES LTD.
(Exact
name of registrant as specified in its charter)
NEVADA
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000-55282
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26-0841675
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(State
or other jurisdiction of incorporation)
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(Commission
File Number)
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(IRS
Employer Identification No.)
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3395 S.
Jones Boulevard, Las Vegas, Nevada
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89146
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(Address
of principal executive offices)
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(Zip
Code)
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Registrant's
telephone number, including area code
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(877) 503-4299
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9120 Double Diamond Parkway H#269, Reno, NV 89521
(Former
name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
[ ] |
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
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On
December 31, 2014, Homeland Resources Ltd. (the “Company”) entered into a
Securities Purchase Agreement dated for reference December 29, 2014 (the
“Securities Purchase Agreement”) with KBM Worldwide, Inc. (“KBM”), a New
York corporation. Under the terms of the Securities Purchase
Agreement, KBM loaned $33,000 to the Company, which loan is secured by an 8%
convertible note of the Company (the “Convertible Note”). Although
the Securities Purchase Agreement is dated for reference December 29, 2014, it
was not effective until December 31, 2014 when it was executed by KBM. Details of
the Convertible Note are set out in Item 2.03 below.
ITEM 2.03
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CREATION OF A DIRECT FINANCIAL OBLIGATION OR AN OBLIGATION UNDER AN OFF-BALANCE SHEET ARRANGEMENT OF A REGISTRANT
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Homeland Resources Ltd. (the “Company”)
issued a convertible promissory note (the “Convertible Note”)
dated for reference December 29, 2014 in the principal amount of $33,000 to KBM
Worldwide, Inc. (“KBM”), a New York corporation, pursuant to the
terms of a Securities Purchase Agreement dated for reference December 29, 2014
(the “Securities Purchase Agreement”). Under the terms of the Convertible
Note,
the Company shall repay to KBM the principal amount of $33,000 plus interest at
a rate of 8% per annum on October 1, 2015 (the “Maturity Date”).
The Company has the right to prepay the
principal and accrued interest in full upon giving three trading days prior
written notice to KBM by paying a premium of 15% if paid within 30 days of the
issue date increasing by 5% per month to a maximum of 40% if paid within 180
days following the issue date, after which the Company has no further rights of
prepayment of the Convertible Note.
At any time commencing 180 days from the date
of issuance of the Convertible Note, KBM has the right to convert all or any
portion of the outstanding and unpaid principal amount and interest of the
Convertible Note into shares of the Company’s common stock at a conversion
price equal to 61% of the average of the lowest five closing bid prices for the
Company’s common stock during the 10 trading days prior to the conversion date,
subject to a limitation that KBM and its affiliates cannot at any time hold, as
a result of conversion, more than 4.99% of the outstanding common stock of the
Company.
The Convertible Note contains anti-dilutive
provisions and restrictions on the Company completing dilutive financing or sales
of all or substantially all of its assets, it also includes customary
conditions, representations and warranties.
In the event that the Company defaults in the
payment of any amount due under the Convertible Note, the unpaid amount shall
bear interest (“Default Interest”) at 22% per annum and defaults under certain
provisions of the agreement can result in additional penalties of 50% or 100%
of the amount outstanding with the higher amount applicable to situations where
the Company refuses or hinders the issuance of shares on conversion of the Note
or any portion thereof.
Although the Convertible Note is dated for
reference December 29, 2014, it was not effective until December 31, 2014 when
the funds were advanced to the Company.
ITEM 9.01
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FINANCIAL STATEMENTS AND EXHIBITS.
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The following exhibits are
either provided with this Current Report or are incorporated herein by
reference:
SIGNATURE
Pursuant to the
requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly
authorized.
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HOMELAND
RESOURCES LTD. |
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Date:
December 31, 2014 |
By: |
/s/
David St. James |
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David St. James, |
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Secretary and
Treasurer |
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (the
“Agreement”), dated as of
December 29, 2014, by and
between HOMELAND
RESOURCES LTD.,
a Nevada corporation,
with headquarters located at 3395 S. Jones Boulevard, Las
Vegas, NV 89146 (the “Company”), and KBM WORLDWIDE, INC., a New York corporation,
with its address
at 111 Great Neck Road – Suite 216, Great Neck,
NY 11021 (the “Buyer”).
WHEREAS:
A.
The
Company and the Buyer are executing
and delivering this Agreement in reliance upon the exemption from securities registration afforded by
the rules and regulations as promulgated by the United States Securities and Exchange Commission (the “SEC”) under the
Securities
Act of 1933, as amended (the “1933
Act”);
B. Buyer desires to purchase and the Company desires to issue and sell, upon the
terms and conditions set
forth in this Agreement an 8% convertible note of the Company, in the
form attached hereto as Exhibit A, in the aggregate principal amount of $33,000.00 (together
with any note(s) issued in replacement thereof or as a dividend thereon or otherwise with respect thereto in accordance with the
terms thereof, the “Note”), convertible into shares of common stock, $0.0001 par value per share, of the Company
(the “Common Stock”), upon the terms and subject
to the limitations and conditions
set forth in such Note.
C. The
Buyer wishes to purchase, upon the terms and conditions stated in this
Agreement, such principal amount of Note as is set forth immediately below its name on the signature pages
hereto;
and
NOW THEREFORE, the Company and the Buyer severally
(and not jointly) hereby agree as follows:
1. Purchase and Sale of Note.
a.
Purchase of Note. On the Closing Date (as defined below), the
Company shall issue and sell to the Buyer and the Buyer agrees to purchase from the Company such principal amount of Note as is set forth immediately below the Buyer’s name on the
signature pages hereto.
b. Form of Payment. On the Closing Date (as defined below), (i) the Buyer shall pay the purchase price for the Note to be issued and sold to it at the Closing (as defined below) (the “Purchase Price”) by wire transfer of immediately available funds to the
Company, in accordance with the Company’s written wiring instructions,
against delivery of the
Note in the principal amount equal to the Purchase Price as is set forth immediately
below the Buyer’s name on the
signature pages
hereto,
and
(ii) the Company shall deliver such
duly executed
Note on behalf of the Company,
to the Buyer,
against delivery of such Purchase Price.
c.
Closing
Date.
Subject to the satisfaction (or written waiver) of the
conditions thereto set forth in Section 6 and Section 7 below, the date and time of the issuance and sale of the Note pursuant to this Agreement (the “Closing Date”) shall be 12:00 noon, Eastern Standard Time on or about December 31, 2014, or such other mutually agreed upon time.
The
closing of the transactions contemplated by this Agreement (the “Closing”) shall occur on the
Closing Date at such
location as may be agreed
to by the parties.
2. Buyer’s
Representations and Warranties. The Buyer represents and warrants
to the Company that:
a.
Investment Purpose. As of the date
hereof,
the Buyer is
purchasing the Note and the shares of Common Stock issuable upon conversion of or otherwise
pursuant to the Note (including, without limitation, such additional shares of Common
Stock, if any, as are issuable (i) on account of interest on the Note, (ii) as a result of the events described in Sections 1.3 and 1.4(g) of the Note or (iii) in payment of the Standard Liquidated Damages Amount
(as defined in Section 2(f)
below)
pursuant to this Agreement, such shares of Common Stock being collectively referred to herein as the “Conversion Shares” and, collectively
with the Note, the “Securities”) for its own account and not with a
present view towards the public sale or distribution
thereof, except pursuant to sales registered or exempted from registration under the 1933 Act; provided,
however, that by making the representations herein, the Buyer does not agree to hold any
of the Securities for any
minimum or other specific term and reserves the right to dispose of the Securities at any time in accordance with or pursuant to a registration statement or
an exemption under the 1933 Act.
b. Accredited Investor Status.
The Buyer is an “accredited investor” as that
term is defined in Rule 501(a) of Regulation
D (an “Accredited Investor”).
c. Reliance on Exemptions. The Buyer understands that
the Securities are being offered and sold to it in reliance upon specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying upon the truth and accuracy of, and the Buyer’s compliance with, the representations,
warranties,
agreements, acknowledgments and
understandings of the Buyer set forth herein
in order to determine the availability of such exemptions and the eligibility of the Buyer to acquire
the Securities.
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d. Information. The Buyer and its advisors, if any, have been, and for
so long as the Note remain outstanding will continue
to be, furnished with all materials relating
to the business, finances and operations of the Company
and
materials relating to the offer and
sale of the Securities which have been requested by
the Buyer or its advisors. The Buyer and its
advisors, if any, have been, and for so long
as
the Note remain outstanding
will continue to be,
afforded the opportunity to ask questions of the Company. Notwithstanding the foregoing, the
Company has not
disclosed
to the
Buyer any
material nonpublic
information
and
will not disclose such information unless such information is disclosed to the public prior to or promptly
following such disclosure to the Buyer.
Neither such inquiries nor any
other due diligence investigation
conducted by Buyer or any of its
advisors or
representatives shall modify, amend
or affect Buyer’s right to
rely on the Company’s
representations
and
warranties
contained
in Section 3 below.
The
Buyer understands that its investment in the Securities involves a
significant degree of risk. The Buyer is not aware of any facts
that may constitute
a breach of any
of the Company's representations and
warranties made herein.
e.
Governmental Review.
The
Buyer understands
that no United States federal or state agency
or any other government or governmental agency has passed upon or
made any recommendation or
endorsement of the Securities.
f. Transfer or Re-sale. The Buyer understands that (i) the sale or re-
sale of the Securities has not been and is not being registered under the 1933 Act or any
applicable state securities laws,
and
the Securities may not be
transferred unless
(a)
the Securities are
sold pursuant to an effective registration statement under the 1933 Act, (b) the Buyer shall
have delivered to the Company, at the cost of the
Buyer, an opinion of counsel that shall be in form, substance and scope customary
for
opinions of counsel in comparable transactions to the
effect that the Securities to be sold or transferred may be sold or transferred pursuant to an
exemption
from such registration,
which opinion shall be accepted by the Company, (c) the Securities are sold or transferred to an “affiliate” (as defined in Rule 144 promulgated under the 1933 Act (or a successor rule) (“Rule 144”)) of the Buyer who agrees to sell or otherwise transfer the Securities only in accordance with
this Section 2(f) and who is an Accredited Investor, (d) the Securities are sold pursuant to Rule 144, or (e) the Securities are sold pursuant to Regulation S under
the 1933 Act (or a successor
rule)
(“Regulation S”), and the Buyer shall
have delivered to the Company, at the cost of the
Buyer, an opinion of counsel that shall be in form, substance and scope customary for opinions
of counsel in corporate transactions, which
opinion shall be accepted by the Company; (ii) any sale of such Securities made in reliance on
Rule
144 may be made only in accordance with the terms of said Rule and further, if said Rule is
not applicable, any re-sale of such Securities under circumstances in which the seller (or the person through whom the sale is made) may be deemed to be an underwriter (as that term is defined in the 1933 Act) may require compliance with some other exemption under the 1933 Act or the rules and regulations of the SEC thereunder; and (iii) neither the Company nor any
other person is under any obligation to register such
Securities under the 1933 Act or any state
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securities laws or to comply
with the terms and conditions
of any exemption thereunder (in each case). Notwithstanding the foregoing
or anything else contained herein to the contrary, the
Securities may
be pledged as collateral in connection with a bona fide margin account or other
lending arrangement.
g. Legends. The Buyer understands
that the Note and,
until such time as the Conversion Shares have been registered under the 1933 Act may be sold pursuant to Rule 144 or Regulation S without any restriction as to the number of securities as of a particular date that can then be immediately
sold, the Conversion Shares may bear a restrictive legend in
substantially the following form (and a stop-transfer order may be placed against transfer of the
certificates
for
such Securities):
“NEITHER
THE
ISSUANCE AND SALE OF THE SECURITIES
REPRESENTED
BY THIS CERTIFICATE NOR THE SECURITIES
INTO WHICH THESE SECURITIES ARE
EXERCISABLE HAVE BEEN REGISTERED UNDER
THE
SECURITIES ACT OF 1933,
AS AMENDED, OR APPLICABLE
STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE
OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE
REGISTRATION STATEMENT
FOR
THE SECURITIES UNDER
THE SECURITIES
ACT
OF 1933, AS AMENDED, OR (B) AN OPINION
OF
COUNSEL (WHICH COUNSEL SHALL
BE SELECTED BY
THE
HOLDER), IN
A GENERALLY ACCEPTABLE
FORM, THAT
REGISTRATION IS NOT REQUIRED UNDER SAID
ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144
OR RULE 144A UNDER SAID
ACT. NOTWITHSTANDING
THE
FOREGOING, THE SECURITIES MAY BE
PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR
OTHER
LOAN
OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.”
The legend set forth above shall be removed and the Company shall issue a certificate without
such legend to the holder of any Security upon which it is stamped, if, unless otherwise
required by applicable state securities laws, (a) such Security
is registered for sale under an effective registration statement filed under the 1933 Act or otherwise may be sold pursuant to Rule 144 or Regulation S without any restriction as to the number of securities as of a particular date that can then be immediately sold, or (b) such holder provides the Company with an opinion
of counsel, in form, substance and scope customary
for opinions
of counsel in comparable
transactions, to the effect that a public sale or transfer of such Security may be made without
registration under the 1933 Act, which opinion shall be accepted by the Company so that the sale or transfer is effected. The Buyer agrees to sell all Securities, including
those represented by a
certificate(s) from which the legend has been removed, in compliance with applicable prospectus
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delivery requirements, if any. In the event that the Company does not accept the opinion of counsel provided by the Buyer with respect to the transfer of Securities pursuant to an exemption
from registration,
such as Rule 144 or Regulation S, at the Deadline, it will be considered an Event
of Default pursuant
to Section
3.2 of the Note.
h.
Authorization; Enforcement. This Agreement has been duly
and validly authorized. This Agreement has been duly executed and delivered on behalf of the Buyer, and this Agreement constitutes a valid and binding
agreement of the Buyer enforceable in accordance with its terms.
i. Residency.
The
Buyer is a
resident of the jurisdiction set forth immediately below the
Buyer’s name on
the signature pages
hereto.
3. Representations and Warranties of
the Company. The Company
represents
and warrants to the Buyer that:
a.
Organization and Qualification.
The
Company , is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which
it is
incorporated, with full power and authority
(corporate and other) to own, lease, use and operate its properties and to carry on its business as and where now
owned, leased, used, operated and conducted.
The
Company is duly qualified as a foreign corporation to do business and is in good standing in every jurisdiction in which its ownership or use of property or the
nature of the business conducted by it makes such qualification necessary except where the failure to be so qualified
or in
good
standing would
not have a Material Adverse
Effect.
“Material Adverse Effect” means any material adverse effect on the business, operations,
assets, financial condition or prospects of
the Company, if
any, taken as a whole, or
on the transactions contemplated hereby or by
the agreements or instruments to be entered into in connection herewith.
b.
Authorization; Enforcement. (i) The Company
has
all requisite corporate power and authority to enter into and perform this Agreement, the Note and to
consummate the transactions contemplated hereby and thereby and to issue the Securities, in
accordance with the terms hereof and thereof, (ii) the execution and delivery of this Agreement,
the Note by the Company and the consummation by
it of the transactions
contemplated hereby
and
thereby (including without limitation, the issuance of the Note and the issuance and
reservation for
issuance of the Conversion
Shares issuable upon conversion or
exercise thereof) have been duly authorized by the Company’s Board of Directors and no further consent or authorization of
the Company, its Board of Directors, or
its shareholders is required, (iii)
this Agreement has been duly executed and delivered by the Company
by its authorized representative, and such authorized representative
is the true and official representative with
authority to sign this Agreement and the other documents executed in connection herewith and
bind the Company
accordingly, and (iv) this Agreement constitutes, and upon execution and
delivery by the Company of the Note, each of such instruments will constitute, a legal, valid and
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binding obligation of the Company enforceable against the Company in accordance with its terms.
c. Capitalization.
As
of the date hereof, the authorized capital stock of the Company
consists of: (i) 100,000,000 authorized shares of Common Stock, $0.0001 par value per
share, of which 32,471,828 shares are issued and outstanding; and (ii) 250,000,000 authorized shares of
Preferred Stock, $0.0001 par value
per share, of which no shares are
issued and outstanding; no shares are reserved for issuance
pursuant to the Company’s stock option
plans, no shares are reserved for issuance pursuant to securities (other than the Note
and
a prior convertible
promissory note in
favor of Buyer:
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(a)
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Prior convertible promissory note in favor of the Buyer dated September 8, 2014 in the amount of $88,500.00 for which 12,000,000 shares of Common Stock are presently reserved;
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exercisable
for, or convertible
into or exchangeable
for shares of Common Stock and the
present reserve
of 12,000,000 shares are reserved for issuance upon
conversion of the
Note as well as the prior note referenced above.
All of such outstanding shares of capital
stock are,
or upon issuance will
be, duly authorized, validly issued, fully paid and non-assessable. No shares of capital stock of the Company are subject to preemptive rights or any other similar rights of the shareholders of
the Company or any
liens or encumbrances imposed through the actions or failure to act of the Company. As of the effective date of this Agreement, (i) there are no outstanding options, warrants, scrip, rights to subscribe for, puts, calls, rights of
first refusal, agreements,
understandings, claims or other commitments or rights of any character whatsoever relating to, or securities or rights convertible into or exchangeable for any
shares of capital stock of the
Company , or arrangements by
which the Company is or may
become bound to issue additional
shares of capital stock
of the Company, (ii) there are no
agreements
or arrangements under which the Company is obligated to register the sale of any of its or their securities under the 1933 Act and (iii) there are no anti-dilution
or price adjustment provisions
contained in any security issued by
the Company
(or in any
agreement providing rights to security
holders) that will be triggered
by the issuance of the Note or the Conversion Shares.
The
Company has furnished to the Buyer true
and
correct copies of the Company’s Certificate
of Incorporation as in effect on the
date hereof (“Certificate
of Incorporation”), the Company’s By-laws, as in effect on the date
hereof
(the “By-laws”), and the terms of all securities convertible
into or exercisable for Common
Stock of the Company and the material rights of the holders thereof in respect thereto. The Company
shall provide the Buyer with a written update of this representation signed by the Company’s Chief Executive on behalf of the Company as
of the Closing Date.
d.
Issuance of Shares. The Conversion
Shares are duly authorized
and
reserved for issuance
and, upon conversion of the Note in accordance
with its respective
terms, will be validly
issued, fully paid and non-assessable, and free from all taxes, liens, claims
and
encumbrances with respect to the issue thereof and shall not be subject to preemptive rights
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or other similar rights of shareholders of the Company and will not impose personal liability
upon the holder thereof.
e. Acknowledgment of Dilution.
The
Company understands and
acknowledges the potentially dilutive effect to the Common Stock upon the issuance of the
Conversion Shares upon conversion
of the Note. The Company further acknowledges that its
obligation to issue Conversion Shares upon conversion of the Note
in accordance
with this Agreement, the Note is absolute and unconditional regardless of
the dilutive effect that such
issuance may have on the
ownership interests of
other shareholders
of the Company.
f.
No Conflicts.
The execution, delivery and performance of this Agreement, the Note by the Company and the consummation by the Company of the transactions
contemplated hereby and thereby (including, without limitation, the issuance and reservation for issuance of the
Conversion Shares) will not (i) conflict with or result in a violation of any provision of the Certificate of Incorporation or By-laws, or (ii) violate or conflict with, or result in
a breach of any provision of, or constitute a default (or an event which with notice or lapse of time or both could become a default) under, or give to others any
rights of termination,
amendment, acceleration or cancellation of, any
agreement, indenture, patent, patent license or
instrument to which the Company is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree
(including federal and state
securities laws and regulations and regulations of any
self-regulatory
organizations to which the Company
or its securities are
subject) applicable to the Company or 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). Neither the
Company is not in violation of its Certificate of Incorporation, By- laws or other organizational documents and the Company is not in default (and no event has occurred which with notice or lapse of time or both could
put the Company in
default) under, and
neither the Company has not taken any action or failed to take any action that would give to
others any rights of termination, amendment, acceleration or cancellation of, any
agreement, indenture or instrument to which the Company is a party or by which any property or assets of
the Company is bound or affected, except for possible defaults
as would not, individually or in the aggregate, have a Material Adverse Effect. The business of the Company, if any, are not being conducted, and shall not be conducted so long as the Buyer owns any
of the Securities, in violation of any
law, ordinance or regulation of any governmental entity.
Except as specifically contemplated by this Agreement and as required under the 1933 Act and any applicable state
securities laws, the Company is not required to obtain any consent, authorization or order of, or make any filing or registration
with, any court, governmental agency, regulatory agency, self- regulatory
organization or stock market or any
third party in order for it to execute, deliver or
perform any of its obligations under this Agreement, the Note in accordance with the terms
hereof or thereof or to issue and sell the Note in accordance with the terms hereof and to issue the Conversion Shares upon conversion of the Note.
All
consents, authorizations, orders, filings
and
registrations
which the Company is required to obtain pursuant to the preceding sentence
7
have been obtained or effected on or prior to the date hereof. If the Company is listed on the
OTCBB, the Company is not in violation of the listing requirements of the Over-the-Counter
Bulletin Board (the “OTCBB”) and does not reasonably anticipate that the Common Stock will
be delisted by
the OTCBB in the foreseeable future. The Company are unaware of any facts or
circumstances which
might give rise to any of the foregoing.
g. SEC Documents; Financial Statements. The Company has timely filed all reports, schedules, forms, statements and other documents required to be filed by it with
the SEC pursuant to the reporting requirements of the Securities Exchange Act of 1934, as
amended (the “1934 Act”) (all of
the foregoing filed prior to
the date hereof and all exhibits
included therein and
financial statements and schedules thereto and
documents (other
than
exhibits to such documents) incorporated by reference therein, being hereinafter referred to
herein as the “SEC Documents”).
Upon written request the Company will deliver to the Buyer true
and
complete copies of
the SEC Documents, except for
such exhibits and incorporated documents. As of their respective
dates, the SEC Documents complied in all material respects with
the requirements of the
1934 Act and the
rules and regulations of
the SEC promulgated thereunder applicable to
the SEC Documents, and none
of the SEC Documents, at the time they were filed with the SEC, contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they
were made, not misleading. None of the statements
made in any such SEC Documents is, or has been, required to be amended or updated under
applicable law (except for such statements as have been amended or updated in subsequent filings prior the date hereof).
As
of their respective
dates, the financial statements of
the Company included in the SEC Documents complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with
respect thereto. Such financial statements have been prepared in accordance
with United States generally accepted accounting principles, consistently applied, during the periods involved and fairly present
in all material
respects the financial position of the Company as of the dates
thereof and the results of their operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments).
Except as set forth in the
financial statements of the Company
included in the SEC Documents, the Company
has
no liabilities, contingent or otherwise, other than (i) liabilities incurred in the ordinary
course of
business subsequent to
October 31, 2014, and (ii) obligations under contracts and commitments
incurred in the ordinary course of business and not required under generally accepted accounting principles to be
reflected in
such financial statements,
which, individually or in the
aggregate, are not material to the financial condition
or operating results of the Company. The Company
is subject to the reporting requirements
of the 1934 Act.
h. Absence of Certain Changes. Except as may be disclosed in the Company’s filings in Form 8-K made since the date of filing of the Company’s Form 10-Q for the period ended October 31, 2014, there has been no material adverse change and no material adverse
development in the
assets,
liabilities, business, properties,
operations,
financial
8
condition, results of operations,
prospects or 1934 Act reporting status of the Company or any of
its Subsidiaries.
i.
Absence of Litigation.
There is no action, suit, claim, proceeding, inquiry
or investigation before or by
any
court, public board, government agency, self-regulatory organization or body
pending or, to the knowledge of the Company , threatened against or affecting the Company, or their officers or directors in their capacity
as
such, that could have a
Material Adverse Effect. Schedule 3(i) contains a complete list and summary description of any
pending or, to the knowledge of the Company, threatened proceeding against or affecting the Company
or any of its Subsidiaries, without regard to whether it would have a Material Adverse
Effect. The Company is unaware of any facts or circumstances which might give rise to any
of the foregoing.
j. Patents, Copyrights, etc.
The Company
owns or possesses the requisite
licenses or rights to use
all
patents, patent applications,
patent rights,
inventions, know- how, trade secrets, trademarks,
trademark applications, service
marks, service names, trade
names and copyrights (“Intellectual Property”) necessary
to enable it to conduct its business as now operated (and, as presently contemplated to be operated in the future); there is no claim or action by any person pertaining to, or proceeding pending, or to the Company’s knowledge threatened, which challenges the right of the Company with respect to any Intellectual Property necessary
to enable it to conduct its business as now operated (and, as presently
contemplated to be operated in the future); to the best of
the Company’s knowledge, the Company’s current and intended products, services and processes do not infringe on any Intellectual Property or other
rights held by any person; and the Company is unaware of any facts or circumstances which might give rise to any of the foregoing.
The
Company have taken reasonable security measures
to protect the
secrecy, confidentiality and value of their Intellectual Property.
k.
No Materially
Adverse Contracts,
Etc.
The Company
is not
subject to any
charter, corporate or other legal restriction, or any
judgment, decree, order, rule or
regulation which in the
judgment of
the Company’s officers has or
is expected in the future
to have a Material Adverse Effect. The Company is not a party to any
contract or agreement which
in the judgment of the Company’s officers has
or is expected
to have a Material
Adverse Effect.
l. Tax Status. The Company has made or filed all federal, state and foreign income and all other tax returns, reports and declarations
required by
any
jurisdiction to which it is subject (unless and only to the extent that the Company has set aside on its books
provisions reasonably
adequate for the payment of all unpaid and unreported taxes) and has paid all taxes and other governmental assessments and charges that are material in amount,
shown or determined to be
due on such returns, reports and declarations, except those
being contested in good faith and has set aside on its books provisions reasonably
adequate for the payment of all taxes for
periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material amount claimed to be due by the taxing authority of
9
any jurisdiction, and the officers of the Company know of no basis for any such claim.
The Company has not executed a waiver with respect to the statute of limitations relating to the assessment or collection of any foreign, federal, state or local tax.
None of the Company’s tax
returns is presently being audited by any taxing authority.
m.
Certain Transactions. Except for arm’s
length transactions pursuant to which the Company makes payments in the ordinary
course of business upon terms no less favorable than the Company could obtain from third parties and other than the grant of
stock options disclosed on Schedule
3(c), none of
the officers, directors, or
employees of the Company is presently a party to any transaction with the Company
(other than for services as employees, officers and directors), including any
contract, agreement or other arrangement
providing for the furnishing
of services to or by, providing for rental of real or personal property
to or from, or otherwise requiring payments to or from any officer, director or such employee or,
to the knowledge of the Company,
any corporation, partnership, trust
or other entity in which
any
officer, director, or any
such employee has a substantial interest or is an officer, director, trustee
or partner.
n. Disclosure. All information
relating to or concerning the Company set forth in this Agreement and provided to the
Buyer pursuant to Section 2(d) hereof and otherwise in connection with the transactions contemplated hereby
is true and correct in all
material respects and the Company has not omitted to state any material fact necessary in order to make the statements made herein or therein, in light of the circumstances under which they
were made, not misleading.
No
event or circumstance has occurred or exists with respect to the
Company or its business, properties, prospects, operations
or financial conditions,
which, under applicable law, rule or regulation, requires public disclosure or announcement by
the Company
but which has not been so publicly announced or disclosed (assuming for this purpose that the Company’s reports filed under the 1934 Act are being incorporated into an effective registration
statement filed
by
the Company under the 1933
Act).
o. Acknowledgment Regarding Buyer’ Purchase of Securities. The
Company acknowledges and agrees that the Buyer is acting
solely in the capacity of arm’s length
purchasers with respect to this Agreement and the
transactions contemplated hereby.
The Company
further acknowledges that the Buyer is not acting as a financial advisor or fiduciary
of the Company (or in any similar capacity) with respect to this Agreement and the transactions contemplated hereby
and
any statement
made by the Buyer
or any
of its
respective
representatives or agents in connection with this Agreement and the transactions contemplated hereby is not advice or a recommendation and is merely incidental to the Buyer’ purchase of the Securities. The Company further represents to the Buyer that the Company’s decision to enter into
this Agreement has been based solely
on the independent evaluation of the Company
and
its representatives.
10
p. No Integrated Offering.
Neither the Company, nor
any of its
affiliates, nor any person acting on its or their behalf, has directly or indirectly made any offers or sales
in any security or solicited any offers to buy any security under circumstances that
would require registration under the 1933 Act of the issuance
of the Securities to the Buyer. The
issuance of the Securities to the Buyer will not be integrated with any other issuance of the Company’s
securities (past,
current
or
future)
for
purposes of
any shareholder
approval provisions
applicable to the Company or its securities.
q. No Brokers. The Company has taken no action which would give
rise to any
claim by
any person for brokerage commissions, transaction fees or similar payments
relating to this Agreement or the transactions contemplated
hereby.
r. Permits; Compliance. The Company is
in possession of all franchises, grants,
authorizations, licenses, permits, easements,
variances, exemptions, consents, certificates, approvals and orders necessary to own, lease and operate its properties and to carry on its business as it is now being conducted (collectively, the “Company Permits”), and there is no action pending or, to the knowledge of the Company, threatened regarding
suspension or cancellation of any of the Company Permits. The Company is not in conflict with, or in default
or violation of, any
of the Company Permits,
except for any such conflicts, defaults or violations which, individually or in the aggregate, would not reasonably be expected to have a Material
Adverse Effect.
Since October 31, 2014, the Company has not received any notification with respect to possible
conflicts, defaults
or violations of applicable
laws, except for
notices relating to possible conflicts, defaults
or violations, which conflicts,
defaults
or violations would not have a Material Adverse Effect.
s. Environmental Matters.
(i)
There are, to the Company’s knowledge, with respect to
the Company or any predecessor of the Company, no past or present violations of Environmental Laws (as defined below), releases of any
material into the environment, actions,
activities, circumstances, conditions, events, incidents, or contractual obligations
which may give rise to any common law environmental liability
or any
liability under the
Comprehensive
Environmental Response, Compensation and Liability
Act of 1980 or similar federal, state, local or foreign
laws
and
the
Company has
not received any notice
with respect to
any of the
foregoing, nor is any
action pending or, to the Company’s knowledge, threatened in connection with any of the foregoing.
The
term “Environmental Laws” means all federal, state, local or
foreign laws relating to pollution or protection of human health or the environment (including,
without limitation, ambient air, surface
water, groundwater, land surface or
subsurface strata), including, without limitation, laws relating
to emissions, discharges, releases or threatened releases of chemicals, pollutants contaminants, or
toxic or hazardous substances or wastes
(collectively, “Hazardous Materials”) into the environment, or otherwise relating
to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of
11
Hazardous Materials, as well as all authorizations, codes, decrees, demands or
demand letters,
injunctions, judgments, licenses, notices or notice
letters, orders, permits, plans or regulations issued, entered, promulgated or
approved thereunder.
(ii) Other than those that are or were
stored, used or disposed of in compliance with applicable law, no Hazardous Materials are contained on or about any real
property currently owned, leased or used by the Company, and no Hazardous Materials were
released on or about any real property previously owned, leased or used by the Company during
the period the property was owned, leased or used by
the
Company, except in the normal course of
the Company’s or any of its Subsidiaries’ business.
(iii) There are no underground storage tanks on or under any real property owned, leased or used by
the Company
that are not in compliance with applicable
law.
t.
Title to Property. The Company has good and marketable title in fee simple to all real property and good and marketable title to all personal property
owned by them which is material to the business of the Company
, in
each case free and clear of all liens, encumbrances and defects except such as are described in Schedule 3(t) or such as would
not have a Material
Adverse Effect. Any real
property and facilities
held under lease by the Company
are held by them under valid, subsisting and enforceable leases with such exceptions as
would not have a Material
Adverse Effect.
u. [INTENTIONALLY DELETED].
v. Internal Accounting Controls.
The
Company maintains a system of internal accounting controls sufficient, in the judgment of the Company’s board of directors, to provide reasonable assurance
that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability, (iii) access to assets is permitted only
in accordance
with management’s general or specific authorization and (iv) the recorded
accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with respect
to any differences.
w. Foreign Corrupt Practices.
Neither
the
Company,
nor any
director, officer, agent, employee or other person acting on behalf of the Company has, in the
course of his actions for, or on behalf of, the Company, used any corporate funds for any unlawful contribution,
gift, entertainment or
other
unlawful expenses
relating to
political activity; made any direct or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; violated or is in violation of any provision
of the U.S. Foreign Corrupt Practices Act of 1977, as amended, or made any bribe, rebate, payoff, influence
12
payment, kickback or other unlawful payment to any foreign or domestic government official or employee.
x. Solvency. The Company
(after giving effect to the transactions contemplated by
this Agreement) is solvent (i.e., its assets have a fair market value in excess of
the amount required to pay
its probable liabilities on its existing debts as they
become absolute
and
matured) and currently the Company has no information that would lead it to reasonably
conclude that the Company would not, after giving effect to the transaction contemplated by
this Agreement, have the ability
to, nor does it intend to take any action that would impair its ability
to, pay its debts from time to time incurred in connection therewith
as such debts mature. The
Company did not receive a qualified opinion
from its auditors with respect to its most recent
fiscal year end and, after giving effect to the transactions contemplated by
this Agreement, does not anticipate or know of any basis upon which its auditors might issue a qualified opinion
in respect of
its current fiscal year.
y. No Investment Company. The Company is not, and upon the issuance and sale of the Securities as contemplated by this Agreement will not be an “investment company” required to be registered under the Investment Company
Act
of 1940 (an “Investment Company”). The
Company is not controlled
by
an Investment Company.
z.
Breach of Representations and Warranties by
the Company. If the
Company breaches any of the representations or warranties set forth in this Section 3, and in
addition to any
other remedies available to the Buyer pursuant to this Agreement, it will be considered an Event
of default under Section
3.4 of the Note.
4. COVENANTS.
a.
Best Efforts. The parties shall use their best efforts to satisfy
timely each of the conditions
described in Section 6
and 7 of this Agreement.
b.
Form D; Blue Sky Laws. The Company agrees to file a Form D with respect to the Securities as required under Regulation D and to provide a copy thereof to the Buyer promptly
after such filing.
The
Company shall, on or before the Closing Date, take such
action as the Company shall reasonably determine is necessary to qualify the Securities for sale
to the Buyer at the applicable closing pursuant to this Agreement under applicable securities or “blue
sky”
laws
of the states of the United States (or to obtain an exemption
from such qualification), and shall provide evidence of any such action so taken to the Buyer on or prior to the
Closing Date.
c. Use of Proceeds.
The Company shall use the proceeds for general working capital purposes.
13
d. [INTENTIONALLY DELETED].
e.
Expenses.
At the Closing, the Company shall reimburse Buyer for expenses incurred by
them in connection with the negotiation, preparation, execution, delivery
and
performance
of this Agreement and the other
agreements to be
executed in connection
herewith (“Documents”), including, without limitation, reasonable attorneys’ and consultants’ fees and expenses, transfer agent fees, fees for stock quotation services, fees relating
to any amendments or modifications of the Documents or any
consents or waivers of provisions
in the Documents,
fees
for
the
preparation of
opinions of counsel, escrow
fees,
and
costs
of restructuring the transactions contemplated by the Documents. When possible, the Company must pay these fees directly, otherwise the Company
must make immediate payment for
reimbursement to the Buyer for all fees and expenses immediately upon written notice by the
Buyer or the submission of an invoice by the Buyer. The Company’s maximum obligation with
respect to this transaction
is to reimburse Buyer’ expenses
shall be $3,000.
f. Financial Information.
Upon written request the Company agrees to send or make available the following
reports to the Buyer until the Buyer transfers, assigns, or
sells all of the Securities: (i) within ten (10) days after the filing
with the SEC, a copy of its Annual Report on Form 10-K its Quarterly
Reports on Form 10-Q and any Current Reports on
Form
8-K;
(ii) within one
(1)
day
after release,
copies of
all
press
releases
issued by the
Company; and (iii) contemporaneously with the making available or giving to the shareholders of
the Company, copies of any notices or other information the Company makes available or
gives
to such shareholders.
g. [INTENTIONALLY DELETED]
h. Listing. The Company shall promptly
secure the listing of the Conversion Shares upon
each national securities exchange or automated quotation system,
if any, upon which shares of Common Stock are then listed (subject to official notice of issuance) and, so
long as the Buyer owns any
of the Securities, shall maintain, so long as any other shares of Common Stock shall be so listed, such listing of all Conversion Shares from time to time
issuable upon conversion of the Note.
The Company will obtain and, so long as the Buyer owns
any of the Securities, maintain the listing
and trading of its Common Stock on the OTCBB or
any
equivalent replacement exchange or electronic quotation system (including
but not limited to the Pink Sheets electronic quotation system) and will comply
in all respects with the Company’s reporting, filing and other obligations under
the bylaws or
rules of the Financial Industry Regulatory Authority (“FINRA”) and such exchanges, as applicable. The Company
shall
promptly provide to the Buyer copies of any notices it receives from the OTCBB and any other
exchanges or electronic quotation systems on which the Common
Stock is then traded regarding the continued eligibility of the Common Stock for listing on
such exchanges and quotation systems.
14
i. Corporate Existence. So long as the Buyer beneficially owns any Note, the Company shall maintain its corporate existence and shall not sell
all
or substantially all of the Company’s assets, except in
the event of a merger or consolidation or sale of all or substantially
all
of the Company’s assets, where the surviving or successor entity in such transaction (i) assumes the
Company’s obligations hereunder
and
under the agreements and instruments entered into in connection herewith and (ii) is a publicly traded corporation whose Common Stock is listed for trading
on the Pink Sheets, OTCQX, OTCBB, Nasdaq, Nasdaq
SmallCap,
NYSE or AMEX.
j. No Integration. The Company shall not make any offers or sales of any
security
(other than the Securities) under circumstances that would require registration of the
Securities being
offered or sold hereunder under the 1933 Act or cause the offering
of the Securities to be integrated with any other offering of securities by the Company for the purpose
of any stockholder approval provision
applicable to the Company or its securities.
k.
Breach
of Covenants.
If
the Company
breaches
any of
the
covenants set forth in this Section 4, and in addition to any other remedies available to the Buyer pursuant to this Agreement, it will be considered an event of
default under Section 3.4 of
the Note.
l. Failure to Comply with the 1934 Act. So long as the Buyer beneficially owns the Note, the Company shall comply with the reporting requirements of the 1934 Act; and the Company shall continue to be subject to the reporting requirements of the 1934
Act.
m. Trading Activities.
Neither the Buyer nor its affiliates has an open short
position in the common stock of the Company and
the Buyer agree that it shall
not, and that it will cause its affiliates not to, engage in any short sales of or hedging transactions with respect to the common stock of the Company.
5. Transfer
Agent
Instructions. The Company shall issue
irrevocable
instructions to its transfer
agent to issue certificates, registered in the name of the Buyer or its nominee, for the Conversion Shares in such amounts as specified from time to time by the Buyer
to the Company
upon conversion of the Note in accordance with the terms thereof (the
“Irrevocable Transfer Agent Instructions”). In the event that the Borrower proposes to replace its
transfer agent, the Borrower shall provide, prior
to the effective
date
of such replacement, a
fully executed Irrevocable Transfer Agent Instructions in a form as initially
delivered pursuant to
the Purchase Agreement (including but not limited to the provision
to irrevocably reserve shares
of Common Stock in the Reserved Amount) signed by the successor transfer agent to Borrower and the Borrower. Prior to registration of the Conversion Shares under the 1933 Act or the date
on which the Conversion Shares may
be sold pursuant to Rule 144 without any
restriction as to the
number of Securities as of a particular date that can then be immediately sold, all such
15
certificates shall bear the restrictive legend specified in Section 2(g) of this Agreement. The Company warrants that: (i) no instruction other than the Irrevocable Transfer Agent Instructions referred to in this Section
5, and stop transfer instructions to give effect to Section 2(f) hereof (in the
case of the Conversion Shares, prior to registration of the Conversion Shares under the 1933
Act or the date on which the Conversion Shares may
be sold pursuant to Rule 144 without any restriction as to the number of Securities as of a particular date that can then be immediately
sold), will be given by the Company to its transfer agent and that the Securities shall otherwise
be freely transferable on the books and records of the Company as and to the extent provided in this
Agreement and the Note; (ii) it
will not direct its transfer agent not to transfer
or delay,
impair, and/or hinder its transfer agent in transferring (or issuing)(electronically
or in
certificated form) any
certificate for Conversion Shares to be issued to the Buyer upon conversion of or otherwise pursuant to the Note as and when required by the Note and this Agreement; and (iii) it
will not fail to remove (or directs its transfer agent not to remove
or impairs, delays, and/or
hinders its transfer agent from removing) any restrictive legend (or to withdraw any stop transfer
instructions in respect thereof) on any certificate for any
Conversion Shares issued to the Buyer upon conversion of or otherwise pursuant to the Note as and when required by the Note and this
Agreement. Nothing in
this Section shall affect in
any way the
Buyer’s obligations and agreement set forth in Section 2(g) hereof to comply with all applicable prospectus delivery
requirements, if any, upon re-sale of the
Securities. If the
Buyer
provides the
Company, at the cost of the Buyer, with (i) an opinion of counsel in form, substance and scope customary for
opinions in comparable transactions,
to the effect that a
public sale or transfer
of such Securities may
be made without registration under the 1933 Act and such sale or transfer is effected or (ii)
the Buyer provides reasonable assurances that the Securities can be sold pursuant to Rule 144,
the Company
shall permit the transfer, and, in the case of the Conversion Shares, promptly
instruct its transfer agent to issue
one or more certificates, free
from restrictive legend, in such name and in such denominations as specified by the Buyer.
The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Buyer, by vitiating the intent and purpose
of the
transactions contemplated hereby. Accordingly, the Company
acknowledges that the remedy at law for a breach of its obligations under this Section 5 may be inadequate and agrees, in the event of a breach or threatened breach by
the
Company of the provisions of this
Section, that the Buyer shall be entitled, in addition to all other available
remedies, to an injunction restraining any breach and requiring immediate transfer, without
the necessity of showing economic loss and
without any bond or other security being required.
6. Conditions to the Company’s Obligation to Sell.
The obligation of the Company
hereunder to issue and sell the Note to the Buyer at the Closing is subject to the
satisfaction, at or before the Closing Date of each of the following conditions thereto, provided
that these conditions are for the Company’s sole benefit and may
be waived by the Company at any time in its sole discretion:
16
a. The Buyer shall have executed this Agreement and delivered the same to
the Company.
b.
The Buyer shall have delivered the Purchase Price in accordance with Section 1(b) above.
c. The representations and warranties of the Buyer shall be true and correct in all material respects as of the date when made and as of the Closing Date as though
made at that time (except for representations and warranties that speak as of
a specific date), and the Buyer shall
have
performed,
satisfied and complied
in all material
respects with
the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Buyer at
or prior to the
Closing Date.
d. No litigation, statute,
rule, regulation,
executive
order, decree,
ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any
self-regulatory organization having authority
over
the matters contemplated hereby which prohibits
the consummation of any
of the
transactions contemplated by this Agreement.
7. Conditions to The Buyer’s Obligation to Purchase.
The
obligation of the
Buyer hereunder to purchase the Note at the Closing is subject to the satisfaction, at or before the Closing Date of each of the following conditions, provided that these conditions are for the Buyer’s sole
benefit and may be waived
by
the Buyer at any time in its sole discretion:
a. The Company shall have executed this Agreement and delivered the same to the Buyer.
b. The Company shall have delivered to the Buyer the duly executed Note (in such
denominations as the
Buyer shall request) in accordance with
Section
1(b) above.
c. The Irrevocable Transfer Agent Instructions, in form
and substance, shall have been
delivered to and
acknowledged in
writing by the Company’s Transfer Agent.
d.
The representations
and warranties of the Company shall be true and correct in all material respects as of the date when made and as of the Closing Date as though made at such time (except for representations and warranties that speak as of a specific
date) and the Company shall have performed, satisfied and complied in all material respects with
the covenants, agreements and conditions required by this Agreement to be performed, satisfied
or complied with by the Company at or prior to the Closing Date. The Buyer shall have received a certificate or certificates, executed by the chief executive officer of the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may
be reasonably
requested by the Buyer including, but not limited to certificates with respect to the Company’s
17
Certificate
of Incorporation, By-laws and Board of
Directors’ resolutions
relating to
the transactions contemplated
hereby.
e.
No litigation,
statute, rule,
regulation, executive order, decree, ruling
or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any
self-regulatory organization having authority
over
the matters contemplated hereby which prohibits
the consummation of any
of the
transactions contemplated by this Agreement.
f. No event shall have occurred which could reasonably be expected to have a Material Adverse Effect on the Company including but not limited to a change in the 1934 Act reporting status of the Company or the failure of the Company to be timely in its 1934 Act reporting obligations.
g. The Conversion
Shares shall have been authorized for quotation on
the OTCBB and trading in the Common Stock on the
OTCBB shall not have
been suspended by
the SEC or the OTCBB.
h. The Buyer shall have received an officer’s certificate described in Section
3(c) above, dated as of the Closing Date.
8. Governing Law; Miscellaneous.
a.
Governing Law. This Agreement
shall
be governed by and construed in accordance with the laws of the
State of New York without regard to principles of conflicts
of laws. Any action
brought
by
either
party against
the other concerning the
transactions contemplated by this Agreement shall be brought only in the state courts of New
York or in the federal courts located in the state and county of Nassau. The parties to this
Agreement hereby irrevocably waive any objection to jurisdiction and venue of any
action instituted hereunder and shall not assert any defense based on lack of jurisdiction or venue or
based upon forum non conveniens.
The Company
and
Buyer waive trial by
jury.
The
prevailing party shall be entitled to recover from the other party
its reasonable attorney's fees and costs. In the event that any provision of this Agreement or any
other agreement delivered in connection herewith is invalid or unenforceable under any
applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be
deemed modified to conform with such statute or rule of law. Any such provision which may
prove invalid or unenforceable under any law shall not affect the validity or enforceability of any
other provision of any agreement.
Each party hereby irrevocably waives personal service of
process and consents to process being served in any
suit, action or proceeding
in connection with
this Agreement or any other Transaction Document by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in
18
effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof.
Nothing contained herein
shall be deemed
to limit in any way any right
to serve process
in any other manner permitted
by law.
b.
Counterparts.
This Agreement may
be executed in one or more counterparts, each of
which shall be deemed an original but all of
which shall constitute one and the same agreement and shall become effective when counterparts have been signed by each party and
delivered to the other party.
c.
Headings. The headings of
this Agreement are for
convenience of reference only and shall not form part
of, or affect the interpretation of,
this Agreement.
d.
Severability. In the event that any provision of this Agreement is
invalid or unenforceable under any
applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may
conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any provision
hereof which may
prove invalid or unenforceable under any law shall not affect the validity
or enforceability of any
other provision hereof.
e.
Entire Agreement;
Amendments. This Agreement and the
instruments referenced herein contain the entire understanding
of the parties with respect to the matters covered herein and therein and, except as specifically
set forth herein or therein, neither
the Company
nor the Buyer makes any representation, warranty, covenant or undertaking with respect to such matters. No provision of this Agreement may be waived or amended other than by an
instrument in writing signed by the majority in interest
of the Buyer.
f. Notices. All notices, demands, requests, consents, approvals, and
other communications required or permitted hereunder shall be
in writing and, unless otherwise
specified herein, shall be (i) personally served, (ii) deposited in the mail, registered or certified,
return receipt requested, postage prepaid, (iii) delivered by
reputable air courier service with
charges prepaid, or (iv) transmitted by hand delivery, telegram, or facsimile, addressed as set forth below or to such other address as such party shall have specified most recently
by written
notice. Any notice or other communication required or permitted to be given hereunder shall be
deemed effective
(a) upon hand delivery or delivery by facsimile, with accurate confirmation
generated by
the transmitting facsimile machine, at the address or number designated below (if
delivered on a business
day during normal
business hours
where such notice is to be
received),
or the first business day
following such delivery (if delivered other than on a business day during normal business hours where such notice is to be received) or (b) on the second business day
following the date of
mailing
by express courier service, fully
prepaid, addressed to
such
address, or upon actual receipt of such mailing, whichever shall first occur. The addresses for such
communications shall be:
19
If to
the Company,
to:
|
HOMELAND RESOURCES LTD. 3395 S. Jones Boulevard Las Vegas, NV 89146 Attn: David St. James, Secretary Tfacsimile: [enter fax number] |
With a
copy by fax only to
(which copy shall not constitute notice):
|
Northwest Law Group Attn: Stephen O’Neill 595 Howe Street, Suite 704 Vancouver, BC V6C 2T5 facsimile: (604) 687-6560 e-mail: son@stockslaw.com |
If to
the Buyer:
|
KBM WORLDWIDE, INC. 111 Great Neck Road – Suite 216 Great Neck, NY 11021 Attn: Seth Kramer, President e-mail: info@kwbmlaw.com |
With a
copy by fax only to
(which copy shall not constitute notice):
|
Naidich Wurman Birnbaum & Maday LLP Attn: Judah A. Eisner, Esq. facsimile: 516-466-3555 |
Each party shall provide notice to the
other party of any change in
address.
g. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns. Neither the Company nor the
Buyer shall assign this Agreement or any
rights or obligations hereunder without the prior
written consent of the other.
Notwithstanding the foregoing, subject to Section
2(f), the Buyer
may
assign its rights hereunder to any person that purchases Securities in a private transaction
from the Buyer or to any of its “affiliates,” as that term is defined under the 1934 Act, without
the consent of the Company.
20
h. Third Party Beneficiaries. This Agreement is
intended for the
benefit of the parties hereto and their
respective permitted successors and assigns, and is not for
the benefit of, nor
may any provision
hereof be enforced
by, any other person.
i. Survival.
The representations and warranties of the Company and
the agreements and covenants set forth in this Agreement shall survive the closing hereunder notwithstanding any due diligence investigation conducted by or on behalf of the Buyer. The Company
agrees to indemnify
and
hold harmless the Buyer and all their officers, directors, employees and agents for loss or damage arising as a result of or related to any
breach or alleged breach by
the Company of any
of its representations, warranties and covenants set forth in this Agreement or any of its covenants and obligations under this Agreement, including advancement
of expenses as
they
are incurred.
j.
Publicity.
The Company, and the Buyer shall have the right to
review a reasonable period of time before issuance of any press releases, SEC, OTCBB or FINRA filings, or any other public statements with respect to the transactions contemplated hereby; provided,
however,
that the Company shall be entitled, without
the prior approval of the Buyer, to make any press release or SEC, OTCBB (or other applicable trading market) or
FINRA filings with respect to such transactions as is required by applicable law and regulations (although the Buyer shall be consulted by the Company in connection with any such press
release prior to its release and shall be provided with a copy
thereof and be given an opportunity to comment thereon).
k. 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.
l. 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.
m. Remedies. The Company acknowledges that a breach by it of its obligations hereunder will
cause irreparable harm to
the Buyer by vitiating the intent
and purpose of the transaction contemplated hereby.
Accordingly, the Company acknowledges that the
remedy at law for a breach of its obligations under this Agreement will be inadequate and agrees, in the
event of
a breach or
threatened breach
by
the Company
of the
provisions
of this
Agreement, that the Buyer shall be entitled, in addition to all other available remedies at law or in equity, and in addition to the penalties assessable herein, to an injunction or injunctions
restraining, preventing
or curing any breach of this Agreement and to enforce specifically the
21
terms and provisions
hereof, without the necessity of showing economic loss and without any bond or
other security being required.
IN WITNESS WHEREOF, the undersigned Buyer and the Company have caused this
Agreement
to be duly executed
as of the date first
above written.
HOMELAND RESOURCES LTD.
By: /s/
David
St. James
David St. James,
Secretary
KBM WORLDWIDE, INC.
By: /s/ Seth
Kramer
Name:
Seth
Kramer
Title: President
111 Great Neck Road – Suite 216
Great Neck, NY
11021
Aggregate Principal
Amount of Note: |
$33,000.00 |
|
|
Aggregate Purchase Price: |
$33,000.00 |
AGGREGATE SUBSCRIPTION
AMOUNT:
Tranche #2 K- 1524 (HMLA)
December 29, 2014
ryan@circadian-group.com
tcampbellhomeland@icloud.com
ginocardinal@yahoo.ca
22
NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO
WHICH THESE SECURITIES
ARE CONVERTIBLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY
NOT BE OFFERED FOR
SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR (B) AN
OPINION
OF COUNSEL (WHICH COUNSEL SHALL BE SELECTED BY
THE
HOLDER), IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER
SAID ACT OR (II) UNLESS SOLD PURSUANT
TO
RULE
144 OR
RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER
LOAN OR FINANCING ARRANGEMENT SECURED
BY THE SECURITIES.
Principal Amount: $33,000.00
|
Issue Date: December 29,
2014 |
Purchase Price: $33,000.00
|
|
CONVERTIBLE PROMISSORY NOTE
FOR VALUE RECEIVED, HOMELAND RESOURCES LTD., a Nevada corporation (hereinafter called the “Borrower”), hereby promises to pay
to the order of KBM WORLDWIDE, INC., a New York corporation,
or registered assigns (the “Holder”) the sum of
$33,000.00 together with any interest as set forth herein, on October 1, 2015 (the “Maturity Date”), and to pay interest on the unpaid principal balance hereof at the rate of eight percent
(8%) (the “Interest Rate”) per annum from the date hereof (the
“Issue Date”) until the same
becomes due and payable, whether at maturity or upon acceleration or by
prepayment or
otherwise. This Note may not be prepaid in whole or in part except as otherwise explicitly set
forth herein. Any
amount of principal or interest on this Note which is not paid when due shall
bear interest at the rate of twenty two percent (22%) per annum from the due date thereof until the
same is paid (“Default Interest”).
Interest shall commence accruing
on the date that the Note
is fully paid and shall be computed on the basis of a 365-day year and the actual number of days elapsed.
All
payments due hereunder (to the extent not converted into common stock, $0.0001 par value per share (the “Common Stock”) in accordance with the terms hereof) shall be made in
lawful money of the United States of America.
All
payments shall be made at such address as the Holder shall hereafter give to the Borrower by
written notice made in accordance with the
provisions of this Note.
Whenever any
amount expressed to be due by
the terms of this Note is
due on any day which is not a business day, the same shall instead be due on the next succeeding
day
which is a business day and, in the case of any
interest payment date which is not the date on
which this Note is paid in full, the extension of the due date thereof shall not be taken into
account for purposes of determining
the amount of interest due on such date.
As
used in this Note, the term “business day” shall mean any day other than a Saturday, Sunday or a day on
which commercial banks in the city of New York, New York are authorized or required by law or executive
order to remain closed.
Each capitalized term used herein, and not otherwise defined, shall have
the meaning ascribed thereto in that certain Securities Purchase Agreement
dated the date hereof, pursuant to which this Note was originally
issued (the “Purchase
Agreement”).
This Note is free from all taxes, liens, claims and encumbrances with respect to the issue thereof and shall not be
subject to preemptive rights or
other similar rights of shareholders of the
Borrower and
will not impose personal
liability upon the holder thereof.
The following terms shall apply to
this Note:
ARTICLE I. CONVERSION RIGHTS
1.1 Conversion Right.
The
Holder shall have the right from time to time, and at
any
time during the period beginning on the date which is one hundred eighty (180) days following the date of this Note and ending on the later of: (i) the Maturity Date and (ii) the date of payment of the
Default Amount (as defined in Article III) pursuant to Section 1.6(a) or Article III, each in respect of the remaining
outstanding principal amount of this Note to convert all or
any
part of the outstanding and unpaid principal amount of this Note into fully paid and non-
assessable shares of Common Stock, as such Common Stock exists on the Issue Date, or any shares of capital stock or other securities of the Borrower into which such Common Stock shall hereafter be
changed or reclassified at the conversion price
(the “Conversion Price”)
determined
as provided herein (a “Conversion”); provided,
however,
that in no event shall the Holder
be entitled to convert any portion of this Note in excess of that portion of this Note upon conversion of
which the sum of (1) the number of shares of Common Stock beneficially owned by the Holder and its affiliates (other than shares of Common Stock which may
be deemed beneficially
owned through the ownership of the unconverted portion of the Notes or the unexercised or
unconverted portion of any other security of the Borrower subject to a limitation on conversion or
exercise analogous to the limitations contained herein) and (2) the number of shares of Common Stock issuable upon the conversion of the portion of this Note with respect to which the determination of this proviso is being made, would result in beneficial ownership by the Holder and its affiliates of more than 4.99% of the outstanding shares of Common Stock.
For
purposes of the proviso to the immediately preceding sentence, beneficial ownership shall be determined
in accordance
with Section 13(d) of the Securities
Exchange Act of
1934, as amended
(the
“Exchange
Act”),
and
Regulations
13D-G
thereunder, except as otherwise
provided in clause (1) of such proviso, provided, further, however, that the
limitations on conversion may be waived by the Holder upon, at the election of the Holder, not less than 61
days’ prior notice to the Borrower, and the provisions of the conversion limitation shall continue
2
to apply until
such 61st day (or such later date, as determined by
the Holder, as may
be specified in such notice of waiver).
The number of shares of Common
Stock to be issued upon each
conversion of this Note shall be determined by dividing the Conversion Amount (as defined below) by
the applicable Conversion Price then in effect on the date specified in the notice of conversion,
in the form attached hereto as Exhibit A
(the “Notice of Conversion”), delivered to
the Borrower by the Holder in accordance with Section 1.4 below; provided that the Notice of Conversion
is submitted by facsimile
or e-mail (or by other means resulting
in, or reasonably
expected to result in, notice) to the
Borrower before
6:00 p.m., New York, New York time on such conversion date (the
“Conversion Date”).
The term “Conversion Amount”
means, with respect to any conversion of this Note, the sum of (1) the principal amount of this Note to be converted in such conversion plus (2)
at
the Holder’s option, accrued and unpaid interest, if
any, on such principal amount at the
interest rates provided in this Note
to the Conversion Date, plus (3) at the Holder’s option, Default Interest, if
any, on the amounts referred to in the immediately preceding clauses (1) and/or (2) plus (4) at the Holder’s option, any amounts owed to the Holder pursuant to Sections 1.3 and 1.4(g) hereof.
1.2 Conversion Price.
(a) Calculation
of Conversion Price. The conversion price
(the
“Conversion
Price”) shall equal the Variable Conversion Price (as defined herein) (subject to equitable adjustments
for
stock
splits, stock dividends
or rights offerings by the
Borrower relating to the Borrower’s securities or the securities of any
subsidiary of the Borrower,
combinations, recapitalization, reclassifications, extraordinary distributions and similar events).
The "Variable Conversion Price"
shall mean 61% multiplied by the Market Price (as defined herein) (representing a discount rate of 39%).
“Market Price” means the average of the lowest
five (5) Trading Prices (as defined below) for the Common Stock during the ten (10) Trading
Day period ending on the latest complete Trading Day prior to the Conversion Date.
“Trading Price” means, for any
security
as
of any date, the closing bid price on the Over-the-Counter Bulletin Board, Pink Sheets
electronic quotation system or
applicable
trading market (the
“OTC”) as reported by a reliable reporting service (“Reporting Service”) designated by
the Holder (i.e. Bloomberg) or, if the OTC is not the principal trading
market for such security, the closing bid price of such security on the principal securities exchange or trading market where such security is listed or traded or, if no closing bid price of such security is available in any of the foregoing manners, the average of the closing bid prices of any market makers for such security that are listed in the “pink sheets”. If the Trading Price cannot be calculated for such security on such date in the manner provided above, the Trading Price shall be the fair market value as mutually determined by the Borrower and the holders of a majority in interest of the Notes being converted for which the calculation of the Trading Price is required in order to
determine the Conversion Price of such Notes. “Trading Day” shall mean any day on which the
Common Stock is tradable for any
period on the OTC, or on the principal securities exchange or
other securities
market on
which the Common Stock is then
being traded.
3
(b) Conversion Price During
Major
Announcements.
Notwithstanding anything contained in Section 1.2(a) to the contrary, in the event the Borrower (i) makes a public announcement that it intends to consolidate or merge with any other corporation (other than a merger in which the Borrower is the surviving or continuing corporation and its capital stock is unchanged) or sell or transfer all or substantially
all
of the assets of the Borrower or (ii) any
person, group or entity (including the Borrower) publicly announces a tender offer to purchase 50% or more of the Borrower’s Common Stock (or any
other takeover scheme) (the date of the announcement referred to in clause (i) or (ii) is hereinafter referred to as the
“Announcement Date”), then the
Conversion Price
shall, effective upon the Announcement Date
and
continuing through the Adjusted Conversion
Price Termination Date (as defined below), be equal to the
lower of (x) the Conversion Price which would have
been applicable for a Conversion occurring on the
Announcement Date and (y) the Conversion Price that would otherwise
be in effect. From and after the Adjusted Conversion Price Termination Date, the Conversion Price shall be determined as set forth in this Section 1.2(a). For purposes hereof, “Adjusted Conversion
Price Termination Date” shall mean, with respect to any proposed transaction or tender offer (or
takeover scheme) for which a public announcement as contemplated by this Section 1.2(b) has been made, the date upon which the Borrower (in the case of clause (i) above) or the person,
group or entity
(in
the case of clause (ii) above) consummates or publicly announces the termination or abandonment of
the proposed transaction or tender offer
(or
takeover scheme) which
caused this Section
1.2(b) to become operative.
1.3 Authorized
Shares. The Borrower covenants
that
during the period
the conversion right exists, the
Borrower will reserve from its authorized and unissued Common
Stock a sufficient number
of shares, free
from preemptive rights, to provide
for the issuance of Common Stock upon the full conversion of
this Note issued
pursuant to the Purchase Agreement.
The Borrower is required at all times to have authorized and reserved eight times the number of
shares that is actually issuable upon full conversion of the Note (based on the Conversion Price
of the Notes in effect from time to time)(the “Reserved Amount”).
The Reserved Amount shall
be increased from time to time in accordance with the Borrower’s obligations hereunder.
The Borrower represents that upon issuance, such shares will be duly and validly issued, fully paid and non-assessable.
In addition, if the Borrower shall issue any securities or make any change to its capital structure which would change the number of shares of Common Stock into
which the Notes shall be convertible at the then current Conversion
Price, the Borrower
shall at the same time make
proper provision so that thereafter there shall be
a sufficient number of shares of
Common Stock authorized
and
reserved, free from preemptive rights,
for conversion
of the outstanding Notes. The Borrower (i) acknowledges that it has irrevocably
instructed its transfer
agent to issue certificates for the Common Stock issuable upon conversion of this Note, and
(ii) agrees that its issuance of this Note shall constitute full authority to its officers and agents who
are charged with the duty of executing stock certificates to execute and issue the necessary certificates for shares of Common Stock in accordance with the terms and conditions of this Note.
4
If, at any time the Borrower does not maintain the Reserved Amount
it will be considered an Event
of Default under Section
3.2 of the Note.
1.4 Method
of Conversion.
(a) Mechanics of Conversion. Subject to Section 1.1, this Note may be converted by the Holder in whole or in part at any time from time to time after the Issue Date, by
(A)
submitting to the Borrower a Notice of Conversion (by facsimile, e-mail or other reasonable
means of communication dispatched on the Conversion Date
prior to 6:00 p.m., New
York, New York time) and (B) subject to Section 1.4(b), surrendering this Note at the principal office of the Borrower.
(b) Surrender of Note Upon Conversion.
Notwithstanding anything to the
contrary set forth herein, upon conversion of this Note in accordance with the terms hereof, the Holder shall not be required to physically surrender this Note to the Borrower unless the entire unpaid principal amount of this Note is so converted. The Holder and the Borrower shall
maintain records
showing the principal amount
so converted and the
dates of such conversions
or shall use such other method, reasonably
satisfactory to the Holder and the Borrower, so as not to
require physical surrender of this Note upon each such conversion.
In
the event of any dispute
or discrepancy, such records of
the Borrower shall, prima facie, be controlling
and determinative in the absence of manifest error. Notwithstanding the foregoing, if any
portion of this Note is
converted as aforesaid, the Holder may not transfer this Note unless the Holder first physically surrenders this Note to the Borrower, whereupon the Borrower will forthwith
issue and deliver
upon the order of the
Holder a new Note of
like tenor, registered as the Holder (upon payment by
the Holder of any
applicable transfer taxes) may
request, representing in the aggregate the
remaining unpaid principal amount of this Note. The Holder and any assignee, by
acceptance of
this Note, acknowledge and agree that, by reason of the provisions of this paragraph, following conversion of a portion of
this Note, the unpaid and unconverted principal amount of this Note represented
by
this Note may be less than
the amount stated on the
face hereof.
(c) Payment of Taxes.
The
Borrower shall not be required to pay any tax
which may be payable in respect of any transfer involved in the issue and delivery of shares of
Common Stock or other securities or property on conversion of this Note in a name other than that of the Holder (or in street name), and the Borrower shall not be required to issue or deliver
any such shares or other securities or property unless and until the person or persons (other than the Holder or the custodian in whose street name
such shares are to be
held for the Holder’s account) requesting the issuance thereof shall have paid to the Borrower the amount of any
such
tax
or shall have established to the
satisfaction of the Borrower that
such tax has been
paid.
(d) Delivery of Common Stock Upon Conversion. Upon receipt by the
Borrower from the
Holder
of a
facsimile transmission or e-mail (or other reasonable
means of
communication) of a Notice of Conversion meeting the requirements for conversion as provided
5
in this Section 1.4, the Borrower
shall issue and deliver
or cause
to be
issued and delivered to or
upon the order of the Holder certificates for the Common Stock issuable upon
such conversion within three (3) business days after such receipt (the “Deadline”) (and, solely in the case of conversion of the entire unpaid principal amount hereof, surrender
of this Note) in accordance
with the terms hereof and the Purchase Agreement.
(e) Obligation of Borrower to Deliver Common Stock.
Upon receipt by
the Borrower of a Notice of Conversion,
the Holder shall be deemed to be the
holder of record of the
Common Stock issuable upon such conversion, the outstanding principal amount and the amount of accrued and unpaid interest on this Note shall be reduced to reflect such conversion, and, unless the Borrower defaults
on its obligations under this
Article I, all rights with respect to the portion of this Note being so converted shall forthwith terminate except the right to receive the Common Stock or other securities, cash or other assets, as herein provided, on such conversion. If the Holder
shall have given a Notice of Conversion as provided herein, the
Borrower’s obligation to issue
and
deliver the certificates for
Common Stock shall be absolute and unconditional, irrespective of the absence of any
action by
the Holder to enforce the same,
any waiver or consent with respect to any provision thereof, the recovery of any judgment against any
person or any action to enforce the same, any failure or delay in the enforcement of
any
other obligation of the Borrower to the holder of record, or any setoff, counterclaim,
recoupment, limitation or termination, or any
breach or alleged breach by the Holder of any obligation to the Borrower, and irrespective of any other circumstance which might otherwise
limit such obligation of the Borrower to the Holder in connection
with such conversion.
The
Conversion Date specified in the Notice of Conversion shall be the Conversion Date so long
as the Notice of Conversion is received by the Borrower before 6:00 p.m., New York, New York
time, on such date.
(f) Delivery
of
Common
Stock by Electronic Transfer. In lieu
of delivering physical certificates representing
the Common Stock issuable upon conversion, provided the
Borrower is
participating
in the Depository
Trust Company (“DTC”)
Fast
Automated Securities
Transfer
(“FAST”)
program,
upon request
of the
Holder and its
compliance with the
provisions contained in Section 1.1 and in this Section 1.4, the Borrower
shall use its best efforts to cause its transfer agent to electronically transmit the Common Stock issuable upon conversion to the Holder by crediting the account of Holder’s Prime Broker with DTC
through its Deposit Withdrawal
Agent Commission (“DWAC”) system.
(g) Failure to Deliver Common Stock Prior to Deadline.
Without in any
way limiting the Holder’s right to pursue other remedies, including actual damages and/or equitable relief, the parties agree that if delivery of the Common Stock issuable upon conversion
of this Note is not delivered by
the Deadline (other than a failure due to the circumstances described in Section 1.3 above, which failure shall be governed by such Section)
the Borrower
shall pay to the Holder $2,000 per day in cash, for each day
beyond the Deadline that the Borrower fails to deliver such Common Stock through willful or deliberate hindrances on the
6
part of the Borrower. Such cash amount shall be paid to Holder by the fifth day of the month
following the month in which it has accrued or, at the option of the Holder (by written notice to the Borrower by the first day
of the month following the month in which it has accrued), shall be
added to the principal amount of this Note, in which event interest shall accrue thereon in accordance
with the terms of this Note and such additional principal amount shall be
convertible into Common Stock in accordance with the terms of this Note. The Borrower agrees that the right to convert is a valuable right to the Holder.
The
damages resulting from a failure, attempt
to frustrate, interference with such conversion right are difficult if
not impossible to qualify.
Accordingly
the parties acknowledge that the liquidated damages provision contained in this
Section
1.4(g) are justified.
1.5
Concerning the Shares. The
shares
of Common Stock issuable upon
conversion of this Note may not be sold or transferred unless (i) such shares are sold pursuant to an effective
registration statement under
the Act or (ii) the Borrower
or its transfer agent shall have
been furnished with an opinion of counsel (which opinion shall be in form, substance and scope customary
for
opinions of counsel in comparable transactions)
to the effect that the shares to
be sold or transferred may be sold or transferred pursuant to an exemption from such
registration or (iii) such shares are sold or transferred pursuant to Rule 144 under the Act (or a successor rule) (“Rule 144”) or (iv) such shares are transferred to an “affiliate” (as defined in Rule 144) of the Borrower who agrees to sell or otherwise transfer the shares only in accordance with
this Section 1.5 and
who is an Accredited Investor (as defined in the Purchase Agreement).
Except as otherwise provided in the Purchase Agreement (and subject to the removal provisions
set
forth below), until such time
as
the shares of Common Stock issuable
upon conversion of this Note
have been registered under the Act or otherwise may be sold pursuant to Rule 144 without
any
restriction as to the number of securities as of a particular date that can then be immediately sold,
each certificate for shares of
Common Stock issuable
upon conversion of this
Note that has not been so included in an effective registration statement or that has not been sold pursuant to
an
effective registration statement or an exemption
that permits removal of the legend, shall bear a legend substantially in the
following form, as
appropriate:
“NEITHER
THE
ISSUANCE
AND SALE OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO
WHICH
THESE
SECURITIES
ARE
EXERCISABLE HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS.
THE SECURITIES MAY NOT BE
OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B)
AN OPINION
OF
COUNSEL (WHICH COUNSEL SHALL BE
SELECTED BY THE
HOLDER), IN
A GENERALLY ACCEPTABLE
FORM, THAT
REGISTRATION IS NOT
REQUIRED
UNDER
SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING
THE FOREGOING,
THE SECURITIES MAY BE
7
PLEDGED IN CONNECTION WITH A BONA
FIDE
MARGIN ACCOUNT OR
OTHER LOAN
OR
FINANCING ARRANGEMENT SECURED BY THE
SECURITIES.”
The legend set forth above shall be removed and the Borrower shall issue
to the Holder a new certificate therefore free of any
transfer legend if (i) the Borrower or its transfer
agent shall have received an opinion
of counsel, in form, substance and scope customary
for
opinions of counsel in comparable transactions,
to the effect that a public
sale
or transfer
of such
Common Stock may be made without registration
under the Act, which opinion
shall be accepted
by the Company
so that the sale or transfer is effected or (ii) in the case of the Common Stock
issuable upon conversion of this Note, such security is registered for sale by the Holder under an
effective registration statement filed under the Act or otherwise may be sold pursuant to Rule 144 without
any restriction as to the number of securities as of a particular date that can then be immediately sold.
In
the
event that the Company does not accept
the opinion of counsel provided by the Holder with respect to the transfer of Securities pursuant to an exemption from registration,
such as Rule 144 or Regulation S, at the
Deadline, it will be considered an Event of Default
pursuant to Section
3.2 of the Note.
1.6 Effect of Certain
Events.
(a) Effect of Merger,
Etc.
At
the option of the Holder, the sale,
conveyance or disposition
of all
or substantially all
of the assets of the Borrower, the effectuation
by the Borrower of a transaction or series of related transactions,
other than a private placement for cash consideration that is not a Dilutive Issuance, in which more than 50% of the voting power of the Borrower is disposed of, or the consolidation,
merger or other business combination
of the Borrower with or into any other Person (as defined below) or Persons when the Borrower is not the survivor shall either: (i) be
deemed to be
an
Event of Default (as defined in Article III)
pursuant to which the Borrower shall be required to pay to the Holder upon the consummation of and as a condition to such transaction an amount equal to the Default Amount (as defined in
Article III) or (ii) be
treated pursuant to Section 1.6(b) hereof.
“Person” shall mean any individual, corporation,
limited liability company, partnership, association, trust
or other entity or
organization.
(b) Adjustment Due to Merger, Etc. If, at any time when this Note is issued and outstanding and prior to conversion of all of the Notes, there shall be any merger, exchange of
shares, recapitalization, reorganization, or
other similar event, as a result of
which
shares of Common Stock of the Borrower shall be changed into the same or a different number of shares of
another class or
classes of stock or securities of
the Borrower or
another entity, or in case of any
sale or conveyance of all or substantially all of the assets of the Borrower other than in connection with a
plan
of complete liquidation of the Borrower, then the
Holder of this Note
shall thereafter have the right to receive upon conversion of this Note, upon the basis and upon
the terms and conditions
specified
herein
and in
lieu
of the shares of
Common
Stock
8
immediately
theretofore issuable upon conversion, such stock, securities or assets which the
Holder would have been entitled to receive in such transaction had this Note been converted in
full immediately prior to such transaction (without regard to any
limitations on conversion set forth herein), and in any such case appropriate provisions shall be made with respect to the rights
and
interests of the Holder
of this Note to the end that the provisions
hereof (including, without limitation, provisions for adjustment of
the Conversion Price
and
of the number of shares
issuable upon conversion of the Note) shall thereafter be applicable, as nearly
as
may be practicable in relation to any securities or assets thereafter deliverable upon the conversion
hereof. The Borrower shall not affect any transaction described in this Section 1.6(b) unless (a)
it first gives, to the extent practicable, thirty (30) days prior written notice (but in any event at least fifteen (15) days prior written notice) of the record date of the special meeting
of shareholders to approve, or if there is no
such record date, the consummation of, such merger,
exchange
of shares, recapitalization,
reorganization
or other similar
event or
sale
of assets (during which time the Holder shall be entitled to convert this Note) and (b) the resulting
successor or acquiring entity (if not the Borrower) assumes by written instrument the obligations of
this Section 1.6(b). The above provisions shall similarly apply to successive mergers, sales,
transfers or share exchanges.
(c) Adjustment Due to Distribution.
If the Borrower shall declare or make any distribution
of its assets (or rights to acquire its assets) to holders of Common Stock as a dividend, stock repurchase, by way of return of capital or otherwise (including any dividend or
distribution to the Borrower’s shareholders in cash or shares (or rights to acquire shares) of
capital stock of a subsidiary (i.e., a spin-off)) (a “Distribution”), then the Holder of this Note
shall be entitled, upon any
conversion of this Note after the date of record for determining
shareholders entitled
to such Distribution, to receive the amount
of
such assets
which would have been payable to the Holder with respect to the shares of Common Stock issuable upon such conversion had such Holder
been the holder of such shares of Common Stock on the
record date for the determination
of shareholders entitled to such
Distribution.
(d) Adjustment Due to Dilutive
Issuance. If, at any time when any Notes are issued and outstanding, the Borrower issues or sells, or in accordance with this Section 1.6(d) hereof is deemed to have issued or sold, any shares of Common Stock for no consideration or for
a consideration per share (before deduction of
reasonable expenses or commissions or underwriting
discounts or allowances in connection therewith) less than the Conversion Price in
effect on the date of such issuance (or deemed issuance) of such shares of Common Stock (a
“Dilutive Issuance”), then immediately
upon the Dilutive Issuance, the Conversion Price will be
reduced to the amount of the consideration per share received by
the
Borrower in such Dilutive
Issuance.
The
Borrower
shall be deemed to have issued or sold shares of
Common Stock if the Borrower in any
manner issues or grants any warrants, rights or options (not including employee stock option plans), whether or not immediately
exercisable, to subscribe for
9
or
to purchase Common Stock or
other securities convertible
into or exchangeable for
Common Stock (“Convertible Securities”) (such warrants,
rights and options to purchase Common Stock or Convertible Securities are hereinafter
referred to as “Options”) and the price per
share for which Common Stock is issuable upon the exercise of such Options is less than the Conversion Price then in effect, then the Conversion Price shall be equal to such price per share.
For
purposes of the preceding sentence, the “price per share for which Common Stock is issuable
upon the exercise of such Options” is determined by dividing
(i) the total amount, if any, received or receivable by
the Borrower as consideration
for the issuance or granting
of all such Options, plus the minimum aggregate amount of additional consideration, if any, payable to the
Borrower upon the exercise
of all such Options,
plus, in the case
of
Convertible Securities
issuable upon the exercise of such Options,
the minimum aggregate amount of
additional consideration
payable upon the
conversion or exchange
thereof at the time
such Convertible Securities first become convertible or exchangeable, by (ii) the maximum total number of shares of
Common Stock issuable upon the exercise of all such Options (assuming
full conversion of Convertible
Securities, if applicable).
No
further adjustment to the Conversion Price will be
made upon the actual issuance of such Common
Stock
upon the exercise of such Options or upon the conversion or
exchange of Convertible
Securities
issuable upon exercise of such Options.
Additionally, the Borrower shall be deemed to have issued or sold shares of Common Stock if the Borrower in any manner issues or sells any Convertible Securities, whether or
not immediately convertible
(other than where
the same
are
issuable upon the exercise
of Options), and the price per share for which Common Stock is issuable upon
such conversion or exchange is less than the Conversion Price then in effect, then the Conversion Price shall be equal to such price per share.
For the purposes of the preceding sentence, the “price
per share for which Common
Stock is issuable
upon such conversion or exchange”
is determined by dividing (i) the total amount, if any, received or receivable by the Borrower as consideration
for the issuance or sale of all such Convertible
Securities, plus the
minimum aggregate
amount of additional consideration,
if any, payable to the
Borrower
upon the conversion or exchange thereof at the time such Convertible Securities first become convertible
or exchangeable, by (ii) the maximum total number of shares of Common Stock issuable upon the conversion or exchange of
all
such Convertible Securities. No further adjustment to the Conversion
Price will be made upon
the actual issuance of such Common Stock upon conversion
or exchange of such Convertible
Securities.
(e) Purchase Rights. If, at any time when any Notes are issued and outstanding, the Borrower issues any
convertible securities or rights to purchase stock, warrants, securities or other property
(the “Purchase Rights”) pro rata to the record holders of any
class of Common
Stock, then the Holder
of this Note will be entitled
to acquire,
upon the terms applicable
to such Purchase
Rights, the aggregate Purchase Rights which such Holder could have acquired if
such Holder had held the number of shares of Common Stock acquirable upon complete conversion of this Note (without regard to any limitations on conversion contained
herein) immediately before the date on which a record is taken for the grant, issuance or sale of
10
such Purchase Rights or, if no such record is taken, the date as of which the record holders of Common Stock are to be
determined for the grant, issue or sale of such Purchase Rights.
(f) Notice
of Adjustments. Upon the
occurrence
of each adjustment or
readjustment of the Conversion Price as a result of the events described in this Section 1.6,
the Borrower, at its expense, shall promptly
compute such adjustment or readjustment and prepare and furnish to the Holder a certificate setting forth such adjustment or readjustment and showing
in detail the facts upon which such adjustment or readjustment is based. The Borrower shall, upon
the written request at any time of the Holder, furnish to such Holder a like certificate
setting forth (i) such adjustment or readjustment, (ii) the Conversion Price at the time in effect and (iii) the number of shares of Common Stock and the amount, if any, of other securities or
property which at
the time would be received upon
conversion of the Note.
1.7 Trading Market Limitations.
Unless permitted by the applicable rules and
regulations of the principal securities market on which the Common Stock is then listed or traded, in no event shall the Borrower issue upon conversion of or otherwise pursuant to this
Note and the other Notes issued pursuant to the Purchase Agreement more than the maximum number of shares of Common Stock that the Borrower can issue pursuant to any rule of the
principal United States securities market on which the
Common Stock is then traded (the
“Maximum Share Amount”), which shall be 4.99% of the total shares outstanding
on the Closing Date (as defined in the
Purchase Agreement), subject to equitable adjustment from time to time
for
stock splits, stock dividends, combinations, capital reorganizations and similar events relating
to the Common Stock occurring after the date hereof. Once the Maximum Share Amount
has been issued, if the Borrower fails to eliminate any prohibitions under applicable law or the rules or regulations of any
stock exchange, interdealer quotation system or other self-regulatory organization with jurisdiction over the Borrower or any of its securities on the Borrower’s ability to issue shares of Common Stock in excess of the Maximum Share Amount, in lieu of any further right to convert this Note, this will be considered an Event of Default under Section 3.3 of
the Note.
1.8 Status as Shareholder. Upon submission of a Notice of Conversion by a
Holder, (i) the shares covered thereby (other than the shares, if any, which cannot be issued
because their issuance
would
exceed such Holder’s allocated portion of the
Reserved Amount or
Maximum Share Amount) shall be deemed converted into shares of Common Stock and (ii)
the Holder’s rights as a Holder of such converted portion of this
Note shall cease and terminate,
excepting only the right to receive certificates for such shares of Common Stock and to any remedies provided herein or otherwise available at law or in equity
to such Holder because of a failure by the Borrower to comply with the terms of this Note. Notwithstanding the foregoing,
if a Holder has not received certificates for
all
shares of Common Stock prior to
the tenth (10th)
business day after the expiration of the Deadline with respect to a conversion of any portion of this
Note for any reason, then (unless the Holder otherwise elects to retain its status as a holder of Common Stock by so notifying the Borrower) the Holder shall regain the rights of a Holder of
11
this Note with respect to
such unconverted portions of this Note and the Borrower shall, as soon
as
practicable, return such unconverted Note to the
Holder or, if the
Note has not been surrendered, adjust its records to reflect that such portion of this Note has not been converted.
In
all
cases, the Holder shall retain all of its rights and remedies (including, without
limitation, (i)
the right to receive
Conversion Default Payments pursuant to Section 1.3 to the extent required thereby for such Conversion Default and any
subsequent Conversion Default and (ii) the right to have
the Conversion Price
with respect to subsequent conversions determined in accordance
with Section 1.3) for the Borrower’s
failure to
convert this
Note.
1.9 Prepayment. Notwithstanding anything to the contrary
contained in this Note,
at
any time during the periods set forth on the table immediately following this paragraph (the “Prepayment Periods”), the Borrower shall have
the right, exercisable on not less than three (3) Trading Days prior written notice to the Holder of the Note to prepay
the outstanding Note (principal and accrued interest), in full, in accordance with this Section 1.9. Any notice of
prepayment hereunder
(an “Optional Prepayment Notice”)
shall be delivered to the Holder
of the Note at its registered addresses and shall state: (1) that the Borrower is exercising its right to prepay the Note, and (2) the date of prepayment which shall be not more than three (3) Trading
Days from the date of the Optional Prepayment Notice.
On
the date fixed for prepayment (the “Optional Prepayment Date”), the Borrower shall make payment of the Optional Prepayment
Amount (as defined below) to Holder, or upon the order of the Holder as specified by the Holder
in writing to the Borrower, at least one (1) business day prior to the Optional Prepayment Date.
If
the Borrower exercises its right to prepay
the
Note, the Borrower shall make payment to the Holder
of an amount in cash (the “Optional Prepayment Amount”)
equal to the percentage
(“Prepayment Percentage”)
as
set
forth in
the table immediately
following this paragraph opposite the applicable Prepayment Period, multiplied by
the sum of: (w) the then outstanding
principal amount of this Note plus
(x) accrued and unpaid interest on
the unpaid principal
amount of this Note to the Optional Prepayment Date plus (y) Default Interest, if any, on the amounts referred to in clauses (w) and (x) plus (z) any amounts owed to the Holder pursuant to
Sections
1.3 and 1.4(g) hereof.
If the Borrower delivers an
Optional Prepayment
Notice and fails to
pay the Optional Prepayment Amount due to the Holder of the Note within two (2) business days following the Optional Prepayment Date, the Borrower shall forever forfeit its right to prepay the Note pursuant to
this Section 1.9.
Prepayment Period
|
Prepayment Percentage
|
1. The period beginning on the
Issue Date and ending
on the date which is thirty (30)
days following the Issue Date. |
115%
|
12
2. The period beginning on
the date which is thirty- one (31) days following the Issue Date and ending on the date which is sixty (60) days following the Issue Date |
120%
|
3. The period
beginning on
the date which is sixty-one (61) days following the Issue Date and ending on
the date which is ninety (90) days following the Issue Date |
125%
|
4. The period
beginning on
the date that is ninety-one (91) day from the Issue Date and ending one hundred twenty (120) days following the Issue Date |
130%
|
5. The period
beginning on
the date that
is one hundred twenty-one (121) day from the Issue Date and ending one hundred fifty (150) days following the Issue Date |
135%
|
6. The period
beginning on
the date that is one hundred fifty-one (151)
day from the Issue Date and
ending one hundred
eighty (180)
days following the Issue Date |
140%
|
After the expiration of one hundred eighty (180) following
the date of the Note, the
Borrower shall
have no right of prepayment.
ARTICLE II.
CERTAIN COVENANTS
2.1
Distributions on Capital Stock.
So long as
the Borrower shall have
any obligation under this Note, the
Borrower shall not without the
Holder’s written consent (a) pay,
declare or set apart for such payment, any dividend or other distribution (whether in cash, property or other securities) on
shares
of
capital stock other than dividends on shares
of
Common Stock solely in the form of additional shares of Common Stock or (b) directly
or indirectly or through any
subsidiary make any
other payment or distribution in respect of its capital stock
except for distributions
pursuant to any shareholders’ rights
plan which is approved by a majority of the Borrower’s
disinterested directors.
2.2
Restriction on Stock Repurchases.
So long as the Borrower shall have any obligation under this Note, the Borrower
shall not without the Holder’s written consent redeem,
repurchase or otherwise acquire (whether for cash or in exchange for property or other securities or otherwise) in any one transaction
or series
of related
transactions any shares of capital stock of the Borrower or any warrants, rights or
options to purchase or acquire any such
shares.
13
2.3 Borrowings. So long as the Borrower shall have any obligation under this Note, the Borrower
shall not, without the Holder’s written consent, create, incur, assume
guarantee, endorse,
contingently
agree
to purchase or
otherwise become
liable
upon the obligation of any person, firm, partnership, joint venture or corporation, except by the endorsement of negotiable instruments for deposit
or collection, or suffer to exist
any liability for
borrowed money, except (a)
borrowings in existence or committed on the
date hereof and of which the Borrower has informed Holder in writing prior to the date hereof, (b) convertible debt
issued in a private placement that is not a
Dilutive Issuance (c) indebtedness to trade creditors or
financial institutions incurred in the ordinary course of business or (d) borrowings, a portion of the
proceeds of
which shall
be used to repay this Note..
2.4 Sale of Assets.
So long as the Borrower shall have any obligation under this Note, the Borrower shall not, without the Holder’s written consent, sell, lease or otherwise dispose of all or substantially all of its assets outside the ordinary course of business.
Any
consent to the disposition of any assets may
be conditioned on a specified use of the proceeds of disposition.
2.5
Advances and Loans. So long as the Borrower shall have any obligation
under this Note, the Borrower shall not, without the Holder’s written consent, lend money, give credit or make advances to any person, firm, joint venture or corporation, including, without limitation, officers, directors, employees, subsidiaries and affiliates of the Borrower, except loans, credits or advances (a)
in existence or committed on the date
hereof and which the
Borrower has informed Holder in writing prior to the date hereof, (b) made in the ordinary
course of business or (c) not in excess
of $100,000.
ARTICLE III.
EVENTS OF DEFAULT
If any of the following
events
of default (each, an “Event of
Default”) shall occur:
3.1
Failure to Pay Principal or Interest.
The Borrower fails to pay the principal hereof or
interest thereon when due
on this Note, whether at maturity, upon acceleration or otherwise.
3.2
Conversion and the
Shares.
The Borrower through
willful
or deliberate
hindrances on the part of the Borrower, fails to issue shares of Common Stock to the Holder
(or
announces or threatens in writing that it will not honor
its obligation to do so) upon
exercise by
the Holder of the conversion rights of
the Holder in accordance with the terms of
this Note, fails to
transfer or cause its transfer agent to transfer (issue) (electronically or in certificated form) any certificate for
shares of Common Stock issued to the
Holder upon conversion of
or otherwise pursuant to this Note as and when required by this Note, the Borrower directs its transfer agent not
to transfer or delays, impairs, and/or
hinders its transfer agent in transferring (or issuing)
14
(electronically
or in
certificated form) any
certificate for shares of Common Stock to be issued to
the Holder upon conversion of or otherwise pursuant to this Note as and when required by
this Note, or fails to remove (or directs its transfer agent not to remove or impairs, delays, and/or
hinders its transfer agent from removing) any restrictive legend (or to withdraw any stop transfer
instructions in respect thereof) on any certificate for any
shares of Common Stock issued to the Holder upon conversion of or otherwise pursuant to this Note as and when required by
this Note (or makes any written announcement, statement or threat that it does not intend to honor the
obligations described in this paragraph) and any such failure shall continue
uncured (or any
written announcement, statement or
threat not to honor its
obligations shall not be
rescinded in writing) for three (3) business days after the
Holder
shall have delivered a Notice of Conversion.
It
is an obligation of the Borrower to remain current in its obligations to its
transfer agent. It shall
be an event of
default of this Note, if a conversion of
this Note is delayed, hindered or
frustrated due to a balance owed by the Borrower to its transfer agent. If at the option of the Holder, the Holder advances any funds to the Borrower’s transfer agent in order to process a conversion, such advanced funds shall be paid by the Borrower to the Holder within forty
eight (48) hours of a demand
from
the Holder.
3.3 Breach of Covenants.
The
Borrower breaches any material covenant or other material term or condition contained in this Note and any
collateral documents including
but not limited to the Purchase
Agreement and such breach continues for a period of
ten
(10) days after written notice thereof to the
Borrower from
the Holder.
3.4 Breach of Representations and Warranties.
Any representation or warranty of the Borrower made herein or in any
agreement, statement or certificate given in writing
pursuant hereto or in connection herewith (including, without limitation, the Purchase Agreement), shall be false or misleading in any material respect when made and the breach of which has (or with
the passage of time will have) a material adverse effect
on the rights of the Holder with
respect to this Note or the Purchase Agreement.
3.5 Receiver or Trustee. The Borrower or any subsidiary of the Borrower shall make an assignment for the benefit of creditors, or apply
for
or consent to the appointment of a receiver or trustee for it or for a substantial part of its property or business, or such a receiver or trustee shall otherwise be appointed.
3.6 Judgments.
Any money judgment, writ or similar process shall be entered or
filed against the Borrower or any subsidiary of the Borrower or any of its property or other assets for
more than $50,000,
and shall remain unvacated, unbonded or unstayed for
a period of
twenty (20) days unless otherwise consented to by
the Holder, which consent will not be unreasonably
withheld.
3.7
Bankruptcy.
Bankruptcy, insolvency, reorganization
or liquidation proceedings or other proceedings, voluntary or involuntary, for relief under any bankruptcy law
15
or any law for the relief of debtors shall
be instituted by or against
the Borrower or any
subsidiary of the Borrower.
3.8
Delisting of Common Stock. The Borrower shall fail
to maintain the
listing of the Common Stock on at least one of the OTC (which specifically
includes the Pink Sheets electronic
quotation system) or an
equivalent
replacement
exchange,
the Nasdaq National Market, the
Nasdaq SmallCap Market, the New York Stock Exchange, or the American Stock Exchange.
3.9 Failure to Comply with the Exchange Act. The Borrower shall fail to comply
with the reporting requirements of
the Exchange Act; and/or
the Borrower shall cease
to be subject to the reporting requirements of
the Exchange Act.
3.10
Liquidation. Any dissolution, liquidation, or winding up of Borrower or
any substantial portion
of its business.
3.11 Cessation
of Operations. Any cessation of operations by Borrower or Borrower admits it is otherwise generally
unable to pay
its debts as such debts become due,
provided, however,
that any disclosure of the Borrower’s ability to continue as
a “going concern” shall
not be an admission that the Borrower cannot pay its
debts as they become due.
3.12
Maintenance of Assets.
The failure by Borrower to
maintain any
material intellectual property rights, personal,
real property or other assets which
are necessary to conduct its business (whether now
or in the future).
3.13 Financial Statement Restatement. The restatement
of any financial statements filed by the Borrower with the SEC for any date or period from two years prior to the Issue Date of this Note and until this Note is
no longer outstanding, if the result of such restatement would, by comparison to the unrestated financial statement, have constituted a
material adverse effect on the
rights of the Holder with respect to this Note or the
Purchase
Agreement.
3.14 Reverse Splits. The Borrower effectuates a
reverse
split of its Common Stock without written notice to the
Holder on the date such news is made public.
3.15 Replacement of Transfer Agent.
In the event that
the
Borrower proposes
to replace its transfer
agent, the
Borrower fails to provide, prior
to the effective date of such replacement, a fully
executed Irrevocable Transfer Agent Instructions in a form as initially
delivered pursuant to the Purchase Agreement (including but not limited to the provision
to irrevocably reserve shares of Common Stock in the Reserved Amount) signed by the successor transfer agent to Borrower and the
Borrower.
16
3.16 Cross-Default. Notwithstanding anything to the contrary contained in this
Note or the other related or companion documents, a breach or default by
the Borrower of any
covenant or other term or condition
contained in any of the Other Agreements, after the passage of all
applicable notice and cure or grace periods, shall, at
the option of the Holder, be considered
a default under
this Note and the Other Agreements, in which event the Holder
shall be entitled
(but in no event required) to apply
all
rights and remedies of the Holder under the terms of this
Note and the Other Agreements by reason of
a default under said Other Agreement
or
hereunder. “Other Agreements” means, collectively, all agreements and instruments between, among or by: (1) the Borrower, and, or for the benefit of, (2) the Holder and any affiliate of the
Holder, including, without limitation, promissory notes; provided, however, the term “Other
Agreements” shall not include the related or companion documents to this Note.
Each of the loan transactions
will be cross-defaulted with each other
loan transaction and with all other
existing and
future debt of Borrower to
the Holder.
Upon the occurrence and during the continuation of any Event of Default specified in Section 3.1 (solely with respect to failure to pay the principal hereof or interest thereon when due
at
the Maturity Date), the Note shall become immediately due and payable and the Borrower shall pay
to the Holder, in full satisfaction
of its obligations hereunder, an amount equal to the Default Sum (as defined herein). UPON THE OCCURRENCE AND DURING THE CONTINUATION
OF
ANY EVENT OF DEFAULT
SPECIFIED
IN
SECTION 3.2,
THE NOTE SHALL BECOME IMMEDIATELY DUE AND PAYABLE
AND THE BORROWER
SHALL PAY TO THE HOLDER, IN FULL SATISFACTION OF ITS OBLIGATIONS
HEREUNDER, AN AMOUNT EQUAL
TO: (Y) THE DEFAULT SUM (AS DEFINED HEREIN); MULTIPLIED BY (Z) TWO (2). Upon the occurrence and during the continuation of
any Event of Default specified in Sections
3.1 (solely
with respect to failure to pay the principal
hereof or interest thereon when due on this Note
upon a Trading Market Prepayment Event pursuant to Section 1.7 or upon acceleration), 3.3, 3.4, 3.6, 3.8, 3.9, 3.11, 3.12, 3.13, 3.14, and/or 3. 15 exercisable through the delivery of written notice to the Borrower by such Holders (the “Default Notice”), and upon the occurrence of an Event of Default specified the remaining
sections of Articles III (other than failure to pay
the principal hereof or interest thereon at the Maturity Date specified in Section 3,1 hereof), the Note shall become immediately
due and
payable and the Borrower shall pay to the Holder, in full satisfaction of its
obligations hereunder, an amount equal to the greater of (i) 150% times the sum of (w) the then outstanding
principal amount of this Note
plus (x) accrued and unpaid interest on the unpaid principal amount of this
Note to the date of payment (the “Mandatory Prepayment Date”) plus (y) Default Interest, if any, on the amounts referred to in clauses (w) and/or (x) plus (z) any
amounts owed to the Holder
pursuant to Sections 1.3 and 1.4(g) hereof (the then outstanding
principal amount of this Note to
the date of payment plus the amounts
referred to in clauses (x), (y) and (z) shall collectively be known as the “Default Sum”) or (ii) the “parity value” of the Default Sum to be prepaid, where parity value means (a) the highest number of shares of Common Stock issuable upon conversion
17
of or otherwise pursuant to such Default Sum in accordance
with Article I, treating the
Trading Day
immediately preceding the Mandatory Prepayment Date as the “Conversion Date” for
purposes of determining
the lowest applicable Conversion Price, unless the Default Event arises as a result of a breach in respect of a specific Conversion Date
in which case
such Conversion Date shall be the Conversion Date), multiplied by (b) the highest Closing Price for the Common Stock during the period beginning on the date of first occurrence of the Event of Default and ending one day prior to the Mandatory Prepayment Date (the “Default Amount”) and all other
amounts payable hereunder shall immediately
become due and payable, all without demand,
presentment or notice, all of
which
hereby are expressly
waived, together with
all
costs,
including, without limitation, legal fees and expenses, of collection, and the
Holder shall be entitled to exercise all other rights and
remedies
available at
law or in equity.
If the Borrower fails to pay the Default Amount within five (5) business days of written notice that such amount is due and payable, then the Holder shall have the right at any
time, so long as the Borrower remains in default (and so long and to the extent that there are sufficient authorized shares), to require the Borrower, upon written notice, to immediately issue, in lieu of
the Default Amount, the number of shares of Common Stock of the Borrower equal to the
Default Amount divided by the Conversion Price then in effect.
ARTICLE IV. MISCELLANEOUS
4.1
Failure or Indulgence Not Waiver.
No
failure or delay on the part of the Holder in the exercise of any power, right or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power, right or privilege preclude
other or further exercise thereof or of any other right, power or privileges. All rights and remedies existing hereunder are cumulative to, and not exclusive of, any rights or remedies otherwise available.
4.2 Notices.
All notices, demands, requests, consents, approvals,
and
other communications
required or permitted hereunder shall be in writing and, unless otherwise specified herein, shall be (i) personally served, (ii) deposited in the mail, registered or certified,
return receipt requested, postage prepaid, (iii) delivered by
reputable air courier service with
charges prepaid, or (iv) transmitted by hand delivery, telegram, or facsimile, addressed as set forth below or to such other address as such party shall have specified most recently
by written
notice. Any
notice or other communication required or permitted to be given hereunder shall be deemed effective
(a) upon hand delivery or delivery by facsimile, with accurate confirmation
generated by
the transmitting facsimile machine, at the address or number designated below (if
delivered on a business
day during normal
business hours
where such notice is to be
received),
or the first business day
following such delivery (if delivered other than on a business day during normal business hours where such notice is to be received) or (b) on the second business day
following the date of
mailing
by express courier service, fully
prepaid, addressed to
such
18
address, or upon actual receipt of such mailing, whichever shall first occur. The addresses for such
communications shall be:
If to
the Borrower, to:
|
HOMELAND RESOURCES LTD. 3395 S. Jones Boulevard Las Vegas, NV 89146 Attn: David St. James, Secretary facsimile: |
With a
copy by fax only to
(which
copy shall not constitute notice):
|
Northwest Law Group Attn: Stephen O’Neill 595 Howe Street, Suite 704 Vancouver, BC V6C 2T5 facsimile: (604) 687-6560 e-mail: son@stockslaw.com |
If to
the Holder:
|
KBM WORLDWIDE, INC. 111 Great Neck Road – Suite 216 Great Neck, NY 11021 Attn: Seth Kramer, President e-mail: info@kbmworldwide.com |
With a
copy by fax only to
(which
copy shall not constitute notice):
|
Naidich Wurman Birnbaum & Maday, LLP Att: Judah A. Eisner, Esq. facsimile: 516-466-3555 |
4.3
Amendments. This Note and any provision hereof may only be amended by an instrument in writing signed by
the Borrower and the Holder. The term “Note” and all
reference
thereto, as used throughout this instrument, shall mean this instrument (and the
other Notes issued pursuant to the Purchase Agreement) as originally executed, or if later amended or supplemented,
then as so amended or supplemented.
4.4 Assignability. This Note shall
be binding upon the
Borrower and its
successors and assigns, and shall inure to be
the benefit of the Holder and its successors and assigns. Each transferee of this Note
must be an “accredited investor” (as defined in Rule
501(a)
of the 1933 Act). Notwithstanding
anything in this Note to the contrary, this Note may be
19
pledged
as
collateral in
connection with
a bona
fide margin account or
other
lending
arrangement.
4.5 Cost of
Collection. If default
is made in the payment
of this Note, the Borrower shall pay the Holder hereof costs of
collection, including reasonable attorneys’ fees.
4.6
Governing Law.
This
Note shall be governed by and construed in accordance with
the laws of the State of New York without
regard to principles of conflicts of laws.
Any
action brought by
either party against the other concerning the transactions contemplated by this Note shall be brought only
in the state courts of New York or in the federal courts located in the
state and county of Nassau. The parties to this Note hereby irrevocably waive any objection to jurisdiction and venue of any action instituted hereunder and shall not assert any defense based
on lack of jurisdiction or venue or based upon forum non conveniens. The Borrower and Holder waive trial by jury.
The prevailing party shall be entitled to recover from the other party its reasonable attorney's fees and costs.
In the event that any provision
of this Note or any other agreement delivered in connection herewith is invalid or unenforceable under any applicable
statute or rule of law, then such provision
shall be deemed inoperative
to the extent that it may
conflict therewith and shall be deemed modified to conform with such statute or rule of law.
Any such provision
which may prove invalid or unenforceable under any law shall not affect the validity or
enforceability of
any other provision
of any
agreement.
Each
party
hereby irrevocably waives personal service of process and consents to process being served in any suit, action or proceeding in connection with this Agreement or any other Transaction Document by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of
delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute
good
and sufficient service
of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law.
4.7 Certain Amounts. Whenever pursuant to this Note the Borrower is required to
pay
an amount in excess of the outstanding principal amount (or the portion thereof required to be paid at that time) plus accrued and unpaid interest plus Default Interest on such
interest, the Borrower and the
Holder agree that the actual damages to the
Holder from the receipt of cash payment on this Note may be difficult to determine
and the amount to be so paid by the Borrower represents stipulated damages and not a penalty
and
is intended to compensate the
Holder in part for loss of the opportunity to convert this Note and to earn a return from the sale
of shares of Common Stock acquired upon conversion of this Note at a price in excess of the price paid for such shares pursuant to this Note.
The
Borrower and the Holder hereby
agree that such amount of stipulated damages is not plainly
disproportionate to the possible loss to the
Holder from the receipt
of a cash payment without the opportunity to convert this Note into shares
of Common
Stock.
20
4.8
Purchase Agreement. By its acceptance of this Note, each party agrees to be
bound by the applicable terms of
the Purchase Agreement.
4.9 Notice of Corporate Events.
Except as otherwise provided below, the Holder
of this Note shall have no rights as a Holder of Common Stock unless and only to the extent that
it converts this Note into Common Stock. The
Borrower shall provide the Holder with prior
notification of any meeting of the Borrower’s shareholders (and copies of proxy
materials and
other information sent to shareholders). In the event of any taking by the Borrower of a record
of its shareholders for the purpose of determining shareholders who are entitled to receive payment of any dividend or other distribution,
any right to subscribe for, purchase or otherwise acquire (including by way of merger, consolidation,
reclassification or
recapitalization) any share of any class or any other securities or property, or to receive any other right, or for the purpose of determining
shareholders who are entitled to vote in connection with any
proposed sale, lease or
conveyance of all or substantially all of the assets of the Borrower or any proposed liquidation, dissolution or winding up of the Borrower, the Borrower shall mail a notice to the Holder, at least twenty (20) days prior to the record date specified therein (or thirty (30) days prior to the
consummation of the transaction or event, whichever is earlier), of the date on which any such
record is to be taken for the purpose of such dividend, distribution, right or other event, and a
brief statement regarding the amount and character of such dividend, distribution, right or other event to the extent known at such time. The Borrower shall make a public announcement of any event requiring notification to the Holder hereunder substantially
simultaneously with the
notification to the Holder in
accordance with the
terms of this Section 4.9.
4.10 Remedies. The Borrower acknowledges
that
a breach by it
of its obligations hereunder will cause irreparable harm to the Holder, by vitiating the intent and purpose of the transaction contemplated hereby.
Accordingly, the Borrower acknowledges that the remedy at law for a breach of its obligations under this Note will
be inadequate and agrees, in the
event of a breach or threatened
breach by the Borrower of the provisions
of this Note, that the Holder shall be entitled, in addition
to all other available remedies at law or in equity, and in addition to the penalties
assessable herein, to an injunction or injunctions restraining, preventing or
curing any breach of this Note and to enforce specifically
the terms and provisions
thereof, without the necessity of showing
economic loss and without
any bond or other security being required.
IN WITNESS WHEREOF, Borrower has caused this Note to be signed in its name by its duly authorized officer this
December 29, 2014.
HOMELAND RESOURCES LTD.
By: /s/
David St. James
David St. James
Secretary
21
22
EXHIBIT A -- NOTICE OF
CONVERSION
The undersigned hereby elects to convert $ _________________ principal amount of the Note (defined
below) into that
number
of shares
of Common Stock to
be issued pursuant to
the conversion of the Note (“Common Stock”) as set forth below, of HOMELAND RESOURCES LTD., a Nevada corporation (the “Borrower”) according to the conditions of the convertible note of the Borrower
dated as of December 29,
2014 (the “Note”), as of the date written below.
No fee will be charged to the
Holder for any conversion, except for transfer taxes, if any.
Box
Checked as to applicable instructions:
|
[ ] |
The Borrower shall electronically transmit the Common Stock issuable pursuant to this Notice of Conversion to the account of the undersigned or its nominee with DTC through its Deposit Withdrawal Agent Commission system (“DWAC Transfer”).
|
|
Name of DTC Prime Broker: Account Number: |
|
[ ]
|
The undersigned hereby requests that the Borrower issue a certificate or certificates for the number of shares of Common Stock set forth below (which numbers are based on the Holder’s calculation attached hereto) in the name(s) specified immediately below or, if additional space is necessary, on an attachment hereto:
|
|
KBM WORLDWIDE, INC. 111 Great Neck Road – Suite 216 Great Neck, NY 11021 Attention: Certificate Delivery e-mail: info@kbmworldwide.com |
|
Date of Conversion: _________________
Applicable Conversion Price: $ _________________
Number of Shares of Common Stock to be Issued
Pursuant to Conversion of the Notes: _________________
Amount of Principal Balance Due remaining
Under the Note after this conversion:
_________________ |
|
By: ________________________
Name: Seth Kramer Title: President Date: |
23
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