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): June 18, 2014
| Kogeto, Inc. |
| (Exact name of registrant as specified in its charter) |
| Nevada | 000-51997 | 65-0637308 |
|
(State or other jurisdiction of incorporation or organization) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
| 51 Wooster Street, 2nd Floor New York, New York |
10013 |
| (Address of principal executive offices) | (Zip Code) |
Registrant's telephone number, including area code: (646) 490-8169
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4 (c) under the Exchange Act (17 CFR 240.13e-4(c))
CURRENT REPORT ON FORM 8-K
KOGETO, INC.
June 18, 2014
| Item 3.02. | Unregistered Sales of Equity Securities. |
On June 18, 2014, we completed the initial closing of a private placement to accredited investors of 2,714,285 shares of our common stock, at a purchase price of $0.28 per share, for gross proceeds of $760,000. As part of the private placement, the investors were issued five-year warrants to purchase up to an aggregate of 542,857 shares of our common stock, at an initial exercise price of $0.32 per share.
The net proceeds from the private placement, following the payment of offering-related expenses, will be used by us for our capital expenditure requirements and for working capital and other general corporate purposes.
The placement agents in the private placement received cash commissions of $60,800 and warrants to purchase 260,571 shares of common stock at $0.32 per share.
The common stock, warrants and common stock issuable upon exercise of the warrants have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and were issued and sold in reliance upon the exemption from registration contained in Section 4(a)(2) of the Securities Act and Regulation D promulgated thereunder. These securities may not be offered or sold in the United States in the absence of an effective registration statement or exemption from the registration requirements under the Securities Act.
Copies of the definitive agreements relating to the issuance and sale of the common stock and warrants are filed herewith as Exhibits 4.1 and 10.1, and are incorporated herein by reference. The foregoing summary descriptions of the definitive agreements are qualified in their entirety by reference to the full texts of each of such exhibits.
| Item 9.01. | Financial Statements and Exhibits. |
| (d) | Exhibits. |
| Exhibit No. | Description | |
| 4.1 | Form of Warrant to Purchase Common Stock of Kogeto, Inc. for each investor. | |
| 10.1 | Form of Securities Purchase Agreement with Kogeto, Inc. for each investor. |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
| KOGETO, INC. | ||
| Date: June 24, 2014 | By: | /s/ Jeff Glasse |
| Jeff Glasse | ||
| Founder, Chairman and Chief Executive Officer | ||
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THIS WARRANT AND SHARES ISSUED UPON EXECISE HEREOF, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR EXEMPTION FROM REGISTRATION UNDER THE FOREGOING LAWS.
THIS WARRANT SHALL BE VOID AFTER 5:00 P.M., EASTERN TIME, ON JUNE __, 2019 (THE “EXPIRATION DATE”).
Warrant No. 2014-_____
KOGETO, INC.
WARRANT TO PURCHASE SHARES OF COMMON STOCK
FOR VALUE RECEIVED, _______________ (“Holder”), has the right to purchase, subject to and pursuant to the provisions of this Warrant, from Kogeto, Inc., a Nevada corporation (the “Company”), _______________ shares (“Shares”) of the Company’s shares of Common Stock, par value $0.001 per share (“Common Stock”). Such right may be exercised no later than 5:00 p.m., Eastern time, on the Expiration Date (as defined above), at an exercise price per share initially equal to $0.32 (the exercise price in effect being herein called the “Exercise Price”). The number of Shares purchasable upon exercise of this Warrant and the Exercise Price shall be subject to adjustment from time to time as described herein. This Warrant is issued pursuant to a Securities Purchase Agreement between the Company and original holder (the “Securities Purchase Agreement”) and is one of a series of Warrants issued to investors in an offering (the “Offering”) of units consisting of Common Stock and Warrants, as described in a Confidential Private Placement Memorandum dated May 19, 2014. All persons who hold Warrants shall collectively be referred to as the “Holders” or “Investors” and all Warrants issued in the Offering shall collectively be referred to as the “Warrants.”
Section 1. Registration. The Company shall maintain books for the transfer and registration of the Warrant. Upon the initial issuance of this Warrant, the Company shall issue and register the Warrant in the name of the Holder. Thereafter the Company, or such other agency of the Company as it may designate by notice to the Holder, shall maintain such records.
Section 2. Transfers. As provided herein, this Warrant may be transferred only pursuant to a registration statement filed under the Securities Act of 1933, as amended (the “Securities Act”), or an exemption from such registration. Subject to such restrictions, the Company shall transfer this Warrant from time to time upon the books to be maintained by the Company for that purpose, upon surrender thereof for transfer properly endorsed or accompanied by appropriate instructions for transfer and such other documents as may be reasonably required by the Company, including, if required by the Company, an opinion of its counsel to the effect that such transfer is exempt from the registration requirements of the Securities Act, to establish that such transfer is being made in accordance with the terms hereof, and a new Warrant shall be issued to the transferee and the surrendered Warrant shall be canceled by the Company.
Section 3. Exercise of Warrant.
(a) Subject to the provisions of Sections 3(b) and 15 hereof, the Holder may exercise this Warrant in whole or in part at any time prior to its expiration upon surrender of the Warrant, together with delivery of the duly executed Warrant exercise form attached hereto as Appendix A and payment by cash, certified check or wire transfer of funds for the aggregate Exercise Price for that number of Shares then being purchased, to the Company during normal business hours on any business day at the Company’s principal executive offices or such other office or agency of the Company as it may designate by notice to the holder hereof. (Such Company office or offices or such other office or agency of the Company as it may designate by notice to the Holder hereof shall be referred to as the “Administrative Office.”)
(b) The Shares so purchased shall be deemed to be issued to the holder hereof or such holder’s designee, as the record owner of such shares, as of the close of business on the date on which this Warrant shall have been surrendered (or “Loss Documentation” as defined in Section 6), the Exercise Price shall have been paid and the completed Exercise Agreement shall have been delivered. Certificates for the Shares so purchased pursuant to exercise pursuant to, representing the aggregate number of shares specified in the Exercise Agreement, shall be delivered to the holder hereof within a reasonable time, not exceeding three days, after this Warrant shall have been so exercised. All Shares so issued shall be fully paid, validly issued and non-assessable shares of Common Stock. The certificates so delivered shall be in such denominations as may be requested by the holder hereof and shall be registered in the name of such holder or such other name as shall be designated by such holder. If this Warrant shall have been exercised only in part, then, unless this Warrant has expired, the Company shall, at its expense, at the time of delivery of such certificates, deliver to the holder a new Warrant representing the number of Shares with respect to which this Warrant shall not then have been exercised. As used in this Agreement, “business day” means a day, other than a Saturday or Sunday, on which banks in New York City are open for the general transaction of business.
Section 4. Compliance with the Securities Act of 1933. The Company may cause the legend set forth on the first page of this Warrant to be set forth on each Warrant or similar legend on any security issued or issuable upon exercise of this Warrant, unless counsel for the Company is of the opinion as to any such security that such legend is unnecessary.
Section 5. Payment of Taxes. The Company will pay any documentary stamp taxes attributable to the initial issuance of Shares issuable upon the exercise of the Warrant; provided, however, that the Company shall not be required to pay any tax or taxes which may be payable in respect of any transfer involved in the issuance or delivery of any certificates for Shares in a name other than that of the registered holder of this Warrant in respect of which such shares are issued, and in such case, the Company shall not be required to issue or deliver any certificate for Shares or any Warrant until the person requesting the same has paid to the Company the amount of such tax or has established to the Company’s reasonable satisfaction that such tax has been paid. The holder shall be responsible for income taxes due under federal, state or other law, if any such tax is due.
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Section 6. Mutilated or Missing Warrants. In case this Warrant shall be mutilated, lost, stolen, or destroyed, the Company shall issue in exchange and substitution of and upon cancellation of the mutilated Warrant, or in lieu of and substitution for the Warrant lost, stolen or destroyed, a new Warrant of like tenor and for the purchase of a like number of Shares, but only upon receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction of the Warrant, and with respect to a lost, stolen or destroyed Warrant, reasonable indemnity or bond with respect thereto, if requested by the Company (“Loss Documentation”).
Section 7. Reservation of Shares. The Company hereby represents and warrants that there have been reserved, and the Company shall at all applicable times keep reserved until issued (if necessary) as contemplated by this Section 7, out of the authorized and unissued shares of shares of Common Stock, sufficient shares to provide for the exercise of the rights of purchase represented by this Warrant. The Company agrees that all Shares issued upon due exercise of the Warrant shall be, at the time of delivery of the certificates for such Shares, duly authorized, validly issued, fully paid and non-assessable shares of Common Stock of the Company.
Section 8. Adjustments Upon Stock Events and Stock Issuances. Subject and pursuant to the provisions of this Section 8, the Exercise Price and number of Shares subject to this Warrant shall be subject to adjustment from time to time as set forth hereinafter.
(a) If the Company shall, at any time or from time to time while this Warrant is outstanding, pay a dividend or make a distribution on its Common Stock, subdivide its outstanding Common Stock into a greater number of shares or combine its outstanding shares of Common Stock into a smaller number of Common Stock or issue by reclassification of its outstanding shares of Common Stock any shares of its capital stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing corporation), then the number of Shares purchasable upon exercise of the Warrant and the Exercise Price in effect immediately prior to the date upon which such change shall become effective, shall be adjusted by the Company so that the Holder thereafter exercising the Warrant shall be entitled to receive the number of Common Stock or other capital stock which the Holder would have received if the Warrant had been fully exercised immediately prior to such event upon payment of an Exercise Price that has been adjusted to reflect a fair allocation of the economics of such event to the Holder. Such adjustments shall be made successively whenever any event listed above shall occur.
(b) If any capital reorganization, reclassification of the capital stock of the Company, consolidation or merger of the Company with another corporation in which the Company is not the survivor, or sale, transfer or other disposition of all or substantially all of the Company’s assets to another corporation shall be effected, then, the Company shall use its best efforts to ensure that lawful and adequate provision shall be made whereby each Holder shall thereafter have the right to purchase and receive upon the basis and upon the terms and conditions herein specified and in lieu of the Shares immediately theretofore issuable upon exercise of the Warrant, such shares of stock, securities or assets as would have been issuable or payable with respect to or in exchange for a number of Shares equal to the number of Shares immediately theretofore issuable upon exercise of the Warrant, had such reorganization, reclassification, consolidation, merger, sale, transfer or other disposition not taken place, and in any such case appropriate provision shall be made with respect to the rights and interests of each Holder to the end that the provisions hereof (including, without limitation, provision for adjustment of the Exercise Price) shall thereafter be applicable, as nearly equivalent as may be practicable in relation to any shares of stock, securities or assets thereafter deliverable upon the exercise thereof. The Company shall not effect any such consolidation, merger, sale, transfer or other disposition unless prior to or simultaneously with the consummation thereof the successor corporation (if other than the Company) resulting from such consolidation or merger, or the corporation purchasing or otherwise acquiring such assets or other appropriate corporation or entity shall assume the obligation to deliver to the holder of the Warrant, at the last address of such holder appearing on the books of the Company, such shares of stock, securities or assets as, in accordance with the foregoing provisions, such holder may be entitled to purchase, and the other obligations under this Warrant. The provisions of this paragraph (b) shall similarly apply to successive reorganizations, reclassifications, consolidations, mergers, sales, transfers or other dispositions.
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(c) (i) In case the Company shall fix a payment date for the making of a distribution to all holders of Shares (including without limitation any distribution of shares of capital stock of any subsidiary of the Company and any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness or assets (other than cash dividends or cash distributions payable out of consolidated earnings or earned surplus or dividends or distributions referred to in Section 8(a)), or subscription rights or warrants, the Exercise Price to be in effect after such payment date shall be determined by multiplying the Warrant Price in effect immediately prior to such payment date by a fraction, the numerator of which shall be the total number of Shares outstanding multiplied by the Market Value (as defined below) per Share immediately prior to such payment date, less the fair market value (as determined by the Company’s Board of Directors in good faith) of said assets or evidences of indebtedness so distributed, or of such subscription rights or warrants, and the denominator of which shall be the total number of shares of Common Stock outstanding multiplied by such Market Value per Share immediately prior to such payment date (“Valuation Date”).
(ii) The following terms shall have the meanings set forth below:
“Trading Medium” shall be the primary market in which the Shares are traded, which may be a national securities exchange, tiers of the Nasdaq Stock Market, Inc., the OTC Bulletin Board or tiers of the OTC Markets Group, as applicable.
“Market Price” shall mean the closing sale price of the Shares as listed or quoted on the primary Trading Medium.
“Market Value” as of a particular Valuation Date shall be the Market Price of Shares as quoted in such Trading Medium on the last trading day prior to the Valuation Date, provided that if such stock has not quoted on such date in such Trading Medium, the Market Value shall be the average Market Price of Shares in the most recent ten (10) trading days during which the Shares have been traded.
(iii) The Board of Directors of the Company shall respond promptly, in writing, to an inquiry by the Holder prior to the exercise hereunder as to the Market Value of a share of Common Stock.
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(d) For the term of this Warrant, in addition to the provisions contained above, the Exercise Price shall be subject to adjustment as provided below. An adjustment to the Exercise Price shall become effective immediately after the payment date in the case of each dividend or distribution and immediately after the effective date of each other event which requires an adjustment.
(e) In the event that, as a result of an adjustment made pursuant to this Section 8, the holder of this Warrant shall become entitled to receive any shares of capital stock of the Company other than Common Stock, the number of such other shares so receivable upon exercise of this Warrant shall be subject thereafter to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Shares contained in this Warrant.
(f) Upon each adjustment in the Exercise Price pursuant to this Section 8, the number of Shares purchasable hereunder shall be adjusted, to the nearest whole share, to the product obtained by multiplying the number of Shares purchasable immediately prior to such adjustment by a fraction, (i) the numerator of which shall be the Exercise Price immediately prior to such adjustment, and (ii) the denominator of which shall be the Exercise Price immediately thereafter.
Section 9. Fractional Interest. The Company shall not be required to issue fractions of Shares upon the exercise of this Warrant. If any fractional Shares would, except for the provisions of the first sentence of this Section 9, be deliverable upon such exercise, the Company, in lieu of delivering such fractional share, shall pay to the exercising holder of this Warrant an amount in cash equal to the Market Value of such fractional Common Stock on the date of exercise.
Section 10. Notices of Adjustments. Upon the happening of any event requiring an adjustment of the Exercise Price or the number of Shares purchasable hereunder, the Company shall promptly give written notice thereof to the Holder at the address appearing in the records of the Company, stating the adjusted Exercise Price and/or the adjusted number of Shares resulting from such event and setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based. Failure to give such notice to the Holder or any defect therein shall not affect the legality or validity of the subject adjustment.
Section 11. Benefits. Nothing in this Warrant shall be construed to give any person, firm or corporation (other than the Company and the Holder) any legal or equitable right, remedy or claim, it being agreed that this Warrant shall be for the sole and exclusive benefit of the Company and the Holder.
Section 12. Identity of Transfer Agent. Upon the appointment of any transfer agent for the Common Stock or other shares of the Company’s capital stock issuable upon the exercise of the rights of purchase represented by the Warrant, the Company will mail to the Holder a statement setting forth the name and address of such transfer agent.
Section 13. Notice of Certain Events. The Company shall give the Holder at least 20 days’ prior written notice before the earlier of the establishment of any record date in connection with, or any closing or effective date for, any of the events described in Sections 8(a) - (c) hereof.
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Section 14. Notices. Unless otherwise specifically provided herein, all communications under this Warrant shall be in writing and shall be deemed to have been duly given (a) on the date personally delivered to the party to whom notice is to be given, (b) on the business day after delivery to Federal Express or similar overnight courier which utilizes a written form of receipt, or (c) on the third day after mailing, if mailed to the party to whom notice is to be given, by first class mail, registered or certified, postage prepaid, and properly addressed, return receipt requested. All notices shall be addressed as set forth below or at such other address as the Holder or the Company may designate by five days’ advance written notice to the other:
If to the Company:
Kogeto, Inc.
51 Wooster Street, 2nd Floor
New York, New York 10013
Attn: Mr. Jeff Glasse, Founder, Chairman and Chief Executive Officer
If to Holder:
At the address in the Securities Purchase Agreement or in any transfer document.
Section 15. Successors.
(a) All the covenants and provisions hereof by or for the benefit of the Holder shall bind and inure to the benefit of its respective successors and assigns hereunder.
(b) In the event the Company consummates any consolidation, merger, sale, transfer or other disposition of assets or shares, including any form of share exchange, unless prior to or simultaneously with the consummation thereof the successor corporation (if other than the Company) resulting from such consolidation or merger, or the corporation purchasing or otherwise acquiring such assets or other appropriate corporation or entity shall assume the Company’s continuing obligations hereunder.
Section 16. Governing Law. This Warrant shall be governed by, and construed in accordance with, the internal laws of the State of New York
Section 17. No Rights as Shareholder. Prior to the exercise of this Warrant, the Holder shall not have or exercise any rights as a shareholder of the Company by virtue of its ownership of this Warrant unless specifically set forth herein.
Section 18. Amendments. This Warrant shall not be amended without the prior written consent of the Company and the then current Holder.
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Section 19. Section Headings. The section headings in this Warrant are for the convenience of the Company and the Holder and in no way alter, modify, amend, limit or restrict the provisions hereof.
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed, as of June __, 2014.
| Kogeto, Inc. | ||
| By: | ||
| Name: | ||
| Title: | ||
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APPENDIX A
WARRANT EXERCISE FORM
To: Kogeto, Inc.
The undersigned hereby irrevocably elects to exercise the right of purchase represented by the within Warrant (“Warrant”) for, and to purchase thereunder by the payment of the Exercise Price and surrender of the Warrant, _______________ shares of Common Stock (“Shares”) provided for therein, and requests that certificates for the Shares be issued as follows:
| Name | ||
| Address | ||
| Federal Tax ID or Social Security No. |
and delivered by
¨ certified mail to the above address, or
¨ electronically (provide DWAC Instructions: _________________),
or
¨ Other (specify:
______________________________________________).
and, if the number of Shares shall not be all the Shares purchasable upon exercise of the Warrant, that a new Warrant for the balance of the Shares purchasable upon exercise of this Warrant be registered in the name of the undersigned Holder or the undersigned’s Assignee as below indicated and delivered to the address stated below.
Dated: ______________________, ______
| Note: The signature must correspond with the name of the registered holder as written on the first page of the Warrant in every particular, without alteration or enlargement or any change whatever, unless the Warrant has been assigned. |
Signature: ____________________________ _____________________________________ Name (please print) _____________________________________ _____________________________________ Address _____________________________________ Federal Identification or Social Security No.
Assignee: _____________________________________ _____________________________________ _____________________________________ |
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KOGETO, INC.
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (the “Agreement”) is dated as of ___________, 2014, by and among Kogeto, Inc., a Nevada corporation (the “Company”), and each purchaser identified on the signature pages hereto (individually, a “Purchaser” and collectively, the “Purchasers”).
WITNESSETH:
WHEREAS, the Company is conducting a private placement (the “Offering”) consisting of up to $2,520,000 of Units, with each Unit consisting of five shares (the “Shares”) of the Company’s common stock, par value $0.001 per share (the “Common Stock”), and a five-year warrant to purchase one share of Common Stock at an exercise price of $0.32 per share (the “Warrants”), pursuant to Section 4(2) of the Securities Act of 1933, as amended (the “Securities Act”), and Rule 506 promulgated under Regulation D (“Regulation D”) thereunder in accordance with the rules and regulations of the U.S. Securities and Exchange Commission (the “Commission”);
WHEREAS, the Offering is described in a Confidential Private Placement Memorandum dated May 19, 2014 (the “Memorandum”); and
WHEREAS, each Purchaser desires to purchase that number of Units set forth on such Purchaser’s signature page attached hereto on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual representations and covenants hereinafter set forth, the parties hereto do hereby agree as follows:
ARTICLE
I
PURCHASE AND SALE OF UNITS
Section 1.1 Purchase and Sale of Units; Form of Payment. Upon the terms and conditions set forth herein, at the Closing the Company shall issue and sell to each Purchaser, and each Purchaser severally, but not jointly, shall irrevocably purchase from the Company such number of Units as is set forth on such Purchaser’s signature page hereto in exchange for payment by such Purchaser of the amount (the “Purchase Price”) as is set forth on such Purchaser’s signature page hereto. Pending the sale of the Minimum Offering Amount of Units, all funds paid hereunder shall be deposited in an escrow account (“Escrow Account”) with Cross River Bank (the “Escrow Agent”). Each Purchaser shall deliver its respective Purchase Price for the Units to be issued and sold to such Purchaser at the Closing by wire transfer of immediately available funds to the Escrow Account in accordance with the following wiring instructions, such funds to be wired at the time such Purchaser executes this Agreement:
| Account Name: | Cross River Bank, as Escrow Agent for Kogeto, Inc. |
| Account No.: | 2000501723 |
| ABA Routing No.: | 021214273 |
| Address: | 885 Teaneck Road |
| Teaneck, New Jersey 07666 |
Section 1.2 Offering Period; Closing. The Units will be offered for sale until the earlier of (a) the date upon which subscriptions for all of the Units offered in the Offering have been accepted by the Company; (b) the date upon which the Company and the Placement Agent elect to terminate the Offering; or (c) June 30, 2014, subject to the right of the Company to extend the Offering through August 31, 2014, at its election (the “Termination Date”). Each Purchaser acknowledges and understands that the Offering is being made on “best efforts” basis for the Maximum Amount. Each Purchaser acknowledges and understands that the Closing hereunder shall be conducted only upon the receipt and acceptance by the Company of subscriptions for all of the Units offered in the Offering. The closing of the purchase and sale of the Units (the “Closing”) to be acquired by the Purchasers from the Company under this Agreement shall take place at the offices of Olshan Frome Wolosky LLP, counsel to the Company, at 10:00 a.m., Eastern time, on such date as the Placement Agent and the Company may agree upon; provided, that all of the conditions set forth in Article III hereof and applicable to the Closing shall have been fulfilled or waived in accordance herewith (the “Closing Date”).
Section 1.3 Deliveries at Closing. Subject to the terms and conditions of this Agreement, at the Closing (a) the Company shall issue that number of Units set forth on such Purchaser’s signature page hereto in the name of each such Purchaser; and (b) such Purchaser’s Purchase Price for the Units being purchased by such Purchaser will be delivered on behalf of each such Purchaser from the Escrow Account to the Company. Each Purchaser acknowledges and agrees that certificates evidencing the Common Stock and the Warrants will not be issued and delivered at the Closing and further acknowledges and agrees that the Company shall issue certificates evidencing the Common Stock and the Warrants within ten (10) days of the Closing.
ARTICLE
II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of the Company. The Company hereby makes the following representations and warranties to each Purchaser as of the Closing Date:
(a) Organization, Good Standing and Power. The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Nevada and has the requisite corporate power to own, lease and operate its properties and assets and to conduct its business as it is now being conducted. The Company does not have any operating subsidiaries except as set forth in the Offering Documents. The Company and each such subsidiary is duly qualified as a foreign corporation to do business and is in good standing in every jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary except for any jurisdiction(s) (alone or in the aggregate) in which the failure to be so qualified could not reasonably be expected to have a Material Adverse Effect (as defined in Section 2.1(c) hereof) on the Company’s financial condition.
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(b) Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and perform this Agreement and the Escrow Agreement by and among the Company, Placement Agent and the Escrow Agent (the “Escrow Agreement”) (collectively, the “Transaction Documents”) and to issue and sell the Units in accordance with the terms hereof. The execution, delivery and performance of the Transaction Documents by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action, and no further consent or authorization of the Company or its Board of Directors or stockholders is required. This Agreement has been duly executed and delivered by the Company. The other Transaction Documents will have been duly executed and delivered by the Company at the Closing. Each of the Transaction Documents constitutes, or shall constitute when executed and delivered, a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent conveyance, moratorium, liquidation, conservatorship, receivership or similar laws relating to, or affecting generally the enforcement of, creditor’s rights and remedies or by other equitable principles of general application.
(c) Capitalization. The authorized capital stock of the Company and the shares thereof issued and outstanding immediately prior to the Closing will be as set forth in the Memorandum. Except as set forth in the Company’s reports filed with the Commission or as contemplated by the Transaction Documents or the Memorandum, there are no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, securities or rights convertible into shares of capital stock of the Company. The Company has furnished or made available to the Purchasers true and correct copies of the Company’s Articles of Incorporation, as in effect on the date hereof (the “Articles”), and the Company’s Bylaws, as in effect on the date hereof (the “Bylaws”). For purposes of this Agreement, “Material Adverse Effect” means any material adverse effect on the business, operations, properties, or financial condition of the Company and its subsidiaries, taken as a whole and/or any condition, circumstance, or situation that would prohibit or otherwise materially interfere with the ability of the Company to perform any of its obligations under this Agreement in any material respect.
(d) Issuance of Securities. The Units have been duly and validly authorized and, when issued and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable, and shall be free and clear of all encumbrances and restrictions (other than those created by the Purchasers), except for restrictions on transfer set forth in the Transaction Documents or imposed by applicable securities laws. The Common Stock which are part of the Units will be validly issued, fully paid and non-assessable free and clear of all encumbrances and restrictions, except for restrictions imposed by applicable securities laws and except for those created by the Purchasers.
(e) No Conflicts. The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the Company of the transactions contemplated herein and therein do not and will not (i) violate any provision of the Company’s Articles or Bylaws, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, mortgage, deed of trust, indenture, note, bond, license, lease agreement, instrument or obligation to which the Company is a party or by which it or its properties or assets are bound, (iii) create or impose a lien, mortgage, security interest, charge or encumbrance of any nature on any property of the Company under any agreement or any commitment to which the Company is a party or by which the Company is bound or by which any of its respective properties or assets are bound, or (iv) result in a violation of any federal, state, local or foreign statute, rule, regulation, order, judgment or decree (including Federal and state securities laws and regulations) applicable to the Company or any of its subsidiaries or by which any property or asset of the Company or any of its subsidiaries are bound or affected, except, in all cases other than violations pursuant to clauses (i) and (iv) above, for such conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
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Section 2.2 Representations and Warranties of the Purchasers. Each Purchaser hereby makes the following representations and warranties to the Company as of the date hereof and Closing Date, with respect solely to itself and not with respect to any other Purchaser:
(a) Organization and Good Standing of the Purchasers. If the Purchaser is an entity, such Purchaser is a corporation, partnership or limited liability company duly incorporated or organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization.
(b) Authorization and Power. Each Purchaser which is an entity has the requisite power and authority to enter into and perform this Agreement and each of the other Transaction Documents to which such Purchaser is a party and to purchase the Units being sold to it hereunder. The execution, delivery and performance of this Agreement and each of the other Transaction Documents to which such Purchaser is a party by such Purchaser and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate or partnership action, and no further consent or authorization of such Purchaser or its Board of Directors, stockholders, or partners, as the case may be, is required. This Agreement and each of the other Transaction Documents to which such Purchaser is a party has been duly authorized, executed and delivered by such Purchaser and constitutes, or shall constitute when executed and delivered, a valid and binding obligation of such Purchaser enforceable against such Purchaser in accordance with the terms thereof. If the purchaser is an individual, such individual is over the age of 18 and has the legal capacity to enter into this Agreement.
(c) No Conflicts. The execution, delivery and performance of this Agreement and each of the other Transaction Documents to which such Purchaser is a party and the consummation by such Purchaser of the transactions contemplated hereby and thereby or relating hereto do not and will not (i) result in a violation of such Purchaser’s charter documents, bylaws, operating agreement, partnership agreement or other organizational documents (if such Purchaser is not a natural person) or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of any agreement, indenture or instrument or obligation to which such Purchaser is a party or by which its properties or assets are bound, or result in a violation of any law, rule, or regulation, or any order, judgment or decree of any court or governmental agency applicable to such Purchaser or its properties (except for such conflicts, defaults and violations as would not, individually or in the aggregate, have a material adverse effect on such Purchaser). Such Purchaser is not required to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Agreement or any other Transaction Document to which such Purchaser is a party or to purchase the Units in accordance with the terms hereof.
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(d) Acquisition for Investment. Such Purchaser is acquiring the Units proposed to be acquired by such Purchaser hereunder solely for its own account for the purpose of investment and not with a view to or for the resale or distribution of any part thereof. Such Purchaser does not have a present intention to sell such Units, nor a present arrangement (whether or not legally binding) or intention to effect any distribution of such Units to or through any person or entity; provided, however, that by making the representations herein and subject to Section 2.2(h) below, such Purchaser does not agree to hold such Units for any minimum or other specific term and reserves the right to dispose of such Units at any time in accordance with federal and state securities laws applicable to such disposition.
(e) Accredited Investor; Suitability. Such Purchaser is an “accredited investor” as defined in Regulation D. Such Purchaser is not required to be registered as a brokerdealer under Section 15 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and such Purchaser is not a broker-dealer, nor an affiliate of a broker-dealer. Such Purchaser has sufficient knowledge and experience in finance, securities, investments and other business matters to be able evaluate the risks and merits of its investment in the Company and to protect such Purchaser’s interests in connection with the transactions contemplated by this Agreement and such Purchaser has consulted, to the extent that it has deemed necessary, with its tax, legal, accounting and financial advisors concerning its investment in the Units and can afford to bear such risks for an indefinite period of time, including, without limitation, the risk of losing its entire investment in the Shares.
(f) Opportunities for Additional Information. Such Purchaser acknowledges that it has been given full access to such records of the Company and the officers of the Company and received such information as it has deemed necessary or appropriate to conduct its due diligence investigation. Such Purchaser acknowledges that such Purchaser has had the opportunity to ask questions of and receive answers from, or obtain additional information from, the executive officers of the Company concerning the financial and other affairs of the Company, and that all such questions have been answered to Purchaser’s full satisfaction. Except as expressly set forth in this Agreement, no oral or written representations or warranties have been made to Purchaser by the Company or by any agent, employee, or affiliate of the Company. In making the decision to invest in the Company and its business, such Purchaser hereby acknowledges that such Purchaser has relied solely upon the Memorandum and that the Memorandum supersedes any other information provided to such Purchaser.
(g) Risk Factors. Such Purchaser is aware that an investment in the Units involves substantial risks. Purchaser has reviewed and understands the risk factors contained in the Memorandum. The purchases of the Units offered hereby must be regarded as the placing of funds at high risk in a new venture with all of the unforeseen costs, expenses, problems and difficulties to which such ventures are subject. There can be no assurance that the Company will be able to successfully implement its business plan or develop into a successful or profitable business.
(h) No General Solicitation. Such Purchaser acknowledges that Units were not offered to such Purchaser by means of any form of general or public solicitation or general advertising, or publicly disseminated advertisements or sales literature, including (i) any advertisement, article, notice or other communication published in any newspaper, magazine, or similar media, or broadcast over television, radio or the Internet, or (ii) any seminar or meeting to which such Purchaser was invited by any of the foregoing means of communications.
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(i) Restricted Securities. Such Purchaser understands that the Shares and Warrants are “restricted securities” under the Securities Act and that the Shares must be held indefinitely unless such Shares are registered under the Securities Act or an exemption from registration is available. Such Purchaser acknowledges that such Purchaser is familiar with Rule 144 of the rules and regulations of the Commission, as amended, promulgated pursuant to the Securities Act (“Rule 144”), and that such person has been advised that Rule 144 permits resales only under certain circumstances. Such Purchaser understands that to the extent that Rule 144 is not available, such Purchaser will be unable to sell any Shares without either registration under the Securities Act or the existence of another exemption from such registration requirement. Such Purchaser will not transfer any or all of such Purchaser’s Shares or Warrants absent an effective registration statement under the Securities Act and applicable state securities law covering the disposition of such Purchaser’s Shares or Warrants without first providing the Company with an opinion of counsel (which counsel and opinion are reasonably satisfactory to the Company) to the effect that such transfer will be exempt from the registration and the prospectus delivery requirements of the Securities Act and the registration or qualification requirements of any applicable state securities laws. Such Purchaser understands and agrees that the Shares have not been registered under the Securities Act or the securities laws of any state of the United States.
(j) Independent Investment. No Purchaser has agreed to act with any other Purchaser for the purpose of acquiring, holding, voting or disposing of the Shares and Warrants compromising the Units purchased hereunder for purposes of Section 13(d) under the Exchange Act, and each Purchaser is acting independently with respect to its investment in the Units.
(k) Trading Activities and Confidentiality. Other than the transactions contemplated hereunder, such Purchaser has not directly or indirectly, nor has any person acting on behalf of or pursuant to any understanding with such Purchaser, executed any acquisition or disposition, including short sales or puts, in the securities of the Company during the period commencing from the time that such Purchaser first received any material, whether in writing or otherwise, from the Company or any other person setting forth the material terms of the transactions contemplated hereunder. Such Purchaser covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company, such Purchaser will maintain the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). Each Purchaser agrees that it shall not, directly or indirectly, engage in any short sales with respect to the Common Stock for a period of one (1) year following the Closing.
(l) No Governmental Review. Such Purchaser understands that no United States federal or state agency or any other governmental agency has passed on or made recommendations or endorsement of the Units or the suitability of the investment in the Units nor have such authorities passed upon or endorsed the merits of the offering of the Units.
(m) Participation by Affiliates. Such Purchaser acknowledges and agrees that the officers, directors, affiliates and other insiders of the Company are permitted to purchase Units in the Offering and that any such purchases shall be counted toward the amount of the Offering.
(n) Brokers. Other than to the Placement Agent, each Purchaser has no knowledge of any brokerage or finder’s fees or commissions that are or will be payable by the Company or any Subsidiary to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other person or entity with respect to the transactions contemplated by this Agreement.
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(o) Escrow Agent. Each Purchaser agrees that all funds for subscriptions for the Units will be held by the Escrow Agent pursuant to the Escrow Agreement in a non-interest bearing account and that the Escrow Agent shall be authorized to release such funds to the Company upon satisfaction of the conditions to Closing. Each Purchaser hereby authorizes and directs the Company and the Placement Agent to direct the Escrow Agent to return any funds for unaccepted subscriptions to the same account from which the funds were drawn, without interest. Each Purchaser agrees to be bound by the terms of the Escrow Agreement as if it is a signatory thereto.
(p) Correctness of Representation; Reliance. Such Purchaser understands that the Units are being offered and sold in reliance on a transactional exemption from the registration requirement of federal and state securities laws and the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of such Purchaser set forth herein and the Investor Questionnaire accompanying this Agreement in the form attached hereto as Exhibit A (the “Investor Questionnaire”) in order to determine the applicability of such exemptions and the suitability of such Purchaser to acquire the Units. Such Purchaser further represents and warrants that this Agreement and the Investor Questionnaire do not contain any untrue statement or a material fact or omit any material fact concerning such Purchaser. Such Purchaser agrees, acknowledges and understands that the Company and its counsel are entitled to rely on the representations, warranties and covenants made by such Purchaser herein.
(q) Residency. Such Purchaser represents and warrants that Purchaser is a bona fide resident of, and is domiciled in, the state so designated on the signature page hereto.
ARTICLE
III
CONDITIONS
Section 3.1 Conditions Precedent to the Obligation of the Company to Sell the Units. The obligation hereunder of the Company to issue and sell the Units to the Purchasers is subject to the satisfaction or waiver, at or before the Closing, of each of the conditions set forth below. These conditions are for the Company’s sole benefit and may be waived by the Company at any time in its sole discretion.
(a) Accuracy of Each Purchaser’s Representations and Warranties. The representations and warranties made by each Purchaser in this Agreement and each of the other Transaction Documents to which such Purchaser is a party qualified as to materiality shall be true and correct at all times prior to and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct as of such earlier date, and, the representations and warranties made by each Purchaser in this Agreement and each of the other Transaction Documents to which such Purchaser is a party not qualified as to materiality shall be true and correct in all material respects at all times prior to and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct in all material respects as of such earlier date.
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(b) Performance by the Purchasers. Each Purchaser shall have performed, satisfied and complied in all respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by such Purchaser at or prior to the Closing.
(c) No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement.
(d) Delivery of Purchase Price. The Purchase Price for all of the Units shall have been delivered to the Escrow Agent pursuant to the Escrow Agreement and the aggregate amount of such Purchase Price shall be equal to or greater than the amount of the Offering.
(e) Delivery of Transaction Documents. Each Purchaser shall have duly executed and delivered to the Company each of the Transaction Documents to which it is a party.
Section 3.2 Conditions Precedent to the Obligation of the Purchasers to Purchase the Units. The obligation hereunder of each Purchaser to acquire and pay for the Units is subject to the satisfaction or waiver, at or before the Closing, of each of the conditions set forth below. These conditions are for each Purchaser’s sole benefit and may be waived by such Purchaser at any time in its sole discretion.
(a) Accuracy of the Company’s Representations and Warranties. The representations and warranties made by the Company in this Agreement and each of the other Transaction Documents to which the Company is a party qualified as to materiality shall be true and correct at all times prior to and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct as of such earlier date, and, the representations and warranties made by the Company in this Agreement and each of the other Transaction Documents to which the Company is a party not qualified as to materiality shall be true and correct in all material respects at all times prior to and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct in all material respects as of such earlier date.
(b) Performance by the Company. The Company shall have performed, satisfied and complied in all respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Closing.
(c) No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement.
(d) No Proceedings or Litigation. No action, suit or proceeding before any arbitrator or any governmental authority shall have been commenced, and no investigation by any governmental authority shall have been threatened, against the Company or any subsidiary, or any of the officers, directors or affiliates of the Company or any subsidiary seeking to restrain, prevent or change the transactions contemplated by this Agreement, or seeking damages in connection with such transactions.
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(e) Material Adverse Effect. No Material Adverse Effect shall have occurred at or before the Closing Date.
(f) Delivery of Transaction Documents. The Company shall have duly executed and delivered to each Purchaser each of the Transaction Documents to which it is a party.
ARTICLE
IV
STOCK CERTIFICATE LEGEND
Section 4.1 Each certificate representing the Common Stock and the Warrants, and, if appropriate, securities issued upon conversion thereof, shall be stamped or otherwise imprinted with a legend substantially in the following form (in addition to any legend required by applicable state securities or “blue sky” laws):
THESE SECURITIES REPRESENTED BY THIS CERTIFICATE (THE “SECURITIES”) HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE STATE SECURITIES LAWS OR THE COMPANY SHALL HAVE RECEIVED AN OPINION OF COUNSEL THAT REGISTRATION OF SUCH SECURITIES UNDER THE SECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED.
ARTICLE
V
MISCELLANEOUS
Section 5.1 Fees and Expenses. Except as otherwise set forth in this Agreement and the other Transaction Documents, each party shall pay the fees and expenses of its advisors, counsel, accountants and other experts, if any, and all other expenses, incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement.
Section 5.2 Entire Agreement; Amendment. This Agreement and the other Transaction Documents contains the entire understanding and agreement of the parties with respect to the matters covered hereby and, except as specifically set forth herein or in the Transaction Documents, neither the Company nor any of the Purchasers makes any representations, warranty, covenant or undertaking with respect to such matters and they supersede all prior understandings and agreements with respect to said subject matter, all of which are merged herein. No provision of this Agreement nor any of the Transaction Documents may be waived or amended other than by a written instrument signed by the Company and at a majority of the Units and no provision hereof may be waived other than by an a written instrument signed by the party against whom enforcement of any such amendment or waiver is sought. No such amendment shall be effective to the extent that it applies to less than all of the holders of the Units, as the case may be, then outstanding. No consideration shall be offered or paid to any person to amend or consent to a waiver or modification of any provision of any of the Transaction Documents unless the same consideration is also offered to all of the parties to the Transaction Documents or holders of the Units, as the case may be.
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Section 5.3 Notices. Any notice, demand, request, waiver or other communication required or permitted to be given hereunder shall be in writing and shall be effective (a) upon hand delivery by telex (with correct answer back received), telecopy or facsimile at the address or number designated below (if delivered on a business day during normal business hours where such notice is to be received), or the first business day following such delivery (if delivered other than on a business day during normal business hours where such notice is to be received) or (b) on the second business day following the date of mailing by express courier service, fully prepaid, addressed to such address, or upon actual receipt of such mailing, whichever shall first occur. The addresses for such communications shall be:
If to the Company:
Kogeto, Inc.
51 Wooster Street, 2nd Floor
New York , New York 10013
Attn: Mr. Jeff Glasse, Founder, Chairman and Chief Executive Officer
With a required copy to:
Olshan Frome Wolosky LLP
Park Avenue Tower
65 East 55th Street
New York, New York 10022
Attn: Spencer G. Feldman, Esq.
If to any Purchaser:
At the address of such Purchaser set forth on such Purchaser’s signature page to this Agreement, with copies to Purchaser’s counsel as set forth on such Purchaser’s signature page to this Agreement or as specified in writing by such Purchaser.
Any party hereto may from time to time change its address for notices by giving at least ten (10) days written notice of such changed address to the other party hereto.
Section 5.4 Waivers. No waiver by either party of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any other provisions, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right accruing to it thereafter.
Section 5.5 Headings. The article, section and subsection headings in this Agreement are for convenience only and shall not constitute a part of this Agreement for any other purpose and shall not be deemed to limit or affect any of the provisions hereof.
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Section 5.6 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of each Purchaser. Following the Closing, any Purchaser may assign any or all of its rights under this Agreement to any person to whom such Purchaser assigns or transfers any Shares or Warrants comprising the Units, provided that such transferee agrees in writing to be bound, with respect to the transferred Shares or Warrants, by the provisions of the Transaction Documents that apply to the Purchasers.
Section 5.7 No 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.
Section 5.8 Governing Law. This Agreement and the other Transaction Documents shall be governed by the laws of the state of New York, without giving effect to principles of conflicts of laws. Each of the Company and the Purchasers (a) hereby irrevocably submits to the jurisdiction of the United States District Court sitting in the Southern District of New York and the courts of the State of New York located in New York county for the purposes of any suit, action or proceeding arising out of or relating to this Agreement or any of the other Transaction Documents or the transactions contemplated hereby or thereby and (b) hereby waives, and agrees not to assert in any such suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of such court, that the suit, action or proceeding is brought in an inconvenient forum or that the venue of the suit, action or proceeding is improper. Each of the Company and the Purchasers consents to process being served in any such suit, action or proceeding by mailing a copy thereof 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 in this Section 5.8 shall affect or limit any right to serve process in any other manner permitted by law. Each party hereto agrees that a final judgment in any action or proceeding so brought shall be conclusive and may be enforced by suit on the judgment or in any other manner provided by law or at equity.
Section 5.9 Survival. The representations and warranties of the Company and the Purchasers shall survive the execution and delivery hereof and the Closings hereunder for a period of one year following the Closing Date.
Section 5.10 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and, all of which taken together shall constitute one and the same Agreement and shall become effective when counterparts have been signed by each party and delivered to the other parties hereto, it being understood that all parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of such party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
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Section 5.11 Severability. The provisions of this Agreement and the Transaction Documents are severable and, in the event that any court of competent jurisdiction shall determine that any one or more of the provisions or part of the provisions contained in this Agreement or the Transaction Documents shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision or part of a provision of this Agreement or the Transaction Documents and such provision shall be reformed and construed as if such invalid or illegal or unenforceable provision, or part of such provision, had never been contained herein, so that such provisions would be valid, legal and enforceable to the maximum extent possible.
Section 5.12 Further Assurances. From and after the date of this Agreement, upon the request of any Purchaser or the Company, each of the Company and the Purchasers shall execute and deliver such instrument, documents and other writings as may be reasonably necessary or desirable to confirm and carry out and to effectuate fully the intent and purposes of this Agreement and the other Transaction Documents.
Section 5.13 Independent Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under this Agreement and the other Transaction Documents to which it is a party are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance of the obligations of any other Purchaser under this Agreement or any other Transaction Document. Nothing contained herein, and no action taken by any Purchaser pursuant hereto, shall be deemed to constitute the Purchasers as, and the Company acknowledges that the Purchasers do not so constitute, a partnership, an association, a joint venture or any other kind of group or entity, or create a presumption that the Purchasers are in any way acting in concert or as a group or entity with respect to such obligations or the transactions contemplated by this Agreement or any matters, and the Company acknowledges that the Purchasers are not acting in concert or as a group, and the Company shall not assert any such claim, with respect to such obligations or the transactions contemplated by this Agreement. The Company and each Purchaser confirms that each Purchaser has independently participated with the Company in the negotiation of the transaction contemplated hereby with the advice of its own counsel and advisors. Each Purchaser shall be entitled to independently protect and enforce its rights, including, without limitation, the rights arising out of this Agreement, and it shall not be necessary for any other Purchaser to be joined as an additional party in any proceeding for such purpose. It is expressly understood and agreed that each provision contained in this Agreement is between the Company and a Purchaser, solely, and not between the Company and the Purchasers collectively and not between and among the Purchasers.
Section 5.14 Construction. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party hereto by virtue of the authorship of any of the provisions of this Agreement. Any reference to any federal, state, local, or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. Unless otherwise expressly provided, the word “including” shall mean including without limitation. The parties hereto intend that each representation, warranty, and covenant contained herein shall have independent significance. If any party hereto has breached any representation, warranty, or covenant contained herein in any respect, the fact that there exists another representation, warranty, or covenant relating to the same subject matter (regardless of the relative levels of specificity) which such party has not breached shall not detract from or mitigate the fact that such party is in breach of such representation, warranty, or covenant. All words used in this Agreement will be construed to be of such gender or number as the circumstances require.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officer as of the date first above written.
| KOGETO, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR PURCHASER FOLLOWS]
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[PURCHASER SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
| Name of Purchaser: |
| Signature of Authorized Signatory of Purchaser: |
| Name of Authorized Signatory: |
| Title of Authorized Signatory: |
| Email Address of Authorized Signatory: |
| Facsimile Number of Authorized Signatory: |
| State of Residency / Domicile: |
Address for Notice of Purchaser:
| Attention: | ||
| Telephone No.: | ||
| Facsimile No.: | ||
Address for Delivery of Common Stock and Warrants for Purchaser (if not same as address for notice):
| Attention: | ||
Number of Units: ____________ x $1.40 = $____________ (the “Purchase Price”)
EIN Number or SSN: [PROVIDE THIS UNDER SEPARATE COVER]
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EXHIBIT A
Investor Questionnaire
See attached
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