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SERIES C PREFERRED STOCK PURCHASE AGREEMENT
This SERIES C PREFERRED STOCK
PURCHASE AGREEMENT (the
“Agreement”), dated as of December 10, 2019, by and
between FRIENDABLE,
INC., a Nevada corporation,
with its address at 1821 S Bascom Ave., Suite 353, Campbell,
California 95008 (the “Company”), and
GENEVA ROTH REMARK
HOLDINGS, 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”); and
B. Buyer
desires to purchase and the Company desires to issue and sell, upon
the terms and conditions set forth in this Agreement,58,300 shares
of Series C Preferred Stock of the Company (“Series C
Shares”) with the rights and preferences as set forth on the
Certificate of Designation of the Series C Preferred Stock attached
hereto as Exhibit
A (“Certificate of
Designation”).
NOW
THEREFORE, in
consideration of the mutual covenants and agreements contained
herein, the receipt and sufficiency of which are hereby
acknowledged, the Company and the
Buyer severally (and not jointly) hereby agree as
follows:
1. Purchase
and Sale of Series C Shares.
a. Purchase
of Series C Shares. 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
58,300 Series C Shares with the rights and preferences as set forth
in the Certificate of Designation.
b. Form
of Payment. On the Closing Date
(as defined below), the Buyer shall pay $53,000.00 for the Series C
Shares 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 Series C Shares, and the Company shall deliver such duly
executed and authorized Series C Shares 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 set forth in
Section 6 and Section 7 below, the date and time of the issuance
and sale of the Series C Shares pursuant to this Agreement (the
“Closing Date”) shall be 12:00 noon, Eastern Standard
Time on or about December 11,
2019, 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. The Buyer has full
power and authority to enter into this Agreement, the execution and
delivery of which has been duly authorized and this Agreement
constitutes a valid and legally binding obligation of the Buyer,
except as may be limited by bankruptcy, reorganization, insolvency,
moratorium and similar laws of general application relating to or
affecting the enforcement of rights of creditors, and except as
enforceability of the obligations hereunder are subject to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or law).
b. The Buyer
acknowledges its understanding that the offering and sale of the
Series C Shares and the shares of
common stock issuable upon conversion of the Series C Shares (such
shares of common stock being collectively referred to herein as the
“Conversion Shares” and, collectively with the Series C
Shares, the “Securities”) is intended to be
exempt from registration under the 1933 Act, by virtue of Rule
506(b) promulgated under the Securities Act of 1933, as amended,
and the provisions of Regulation D promulgated thereunder. In
furtherance thereof, the Buyer represents and warrants to the
Company and its affiliates as follows:
i. The
Buyer realizes that the basis for the exemption from registration
may not be available if, notwithstanding the Buyer’s
representations contained herein, the Buyer is merely acquiring the
Securities for a fixed or determinable period in the future, or for
a market rise, or for sale if the market does not rise. The Buyer
does not have any such intention.
ii. The
Buyer realizes that the basis for exemption would not be available
if the offering is part of a plan or scheme to evade registration
provisions of the 1933 Act or any applicable state or federal
securities laws, except sales pursuant to a registration statement
or sales that are exempted under the 1933 Act.
iii. The
Buyer is acquiring the Securities solely for the Buyer’s own
beneficial account, for investment purposes, and not with a view
towards, or resale in connection with, any distribution of the
Securities.
iv. The
Buyer has the financial ability to bear the economic risk of the
Buyer’s investment, has adequate means for providing for its
current needs and contingencies, and has no need for liquidity with
respect to an investment in the Company.
v. The
Buyer and the Buyer’s attorney, accountant, purchaser
representative and/or tax advisor, if any (collectively, the
“Advisors”) has such knowledge and experience in
financial and business matters as to be capable of evaluating the
merits and risks of a prospective investment in the Securities. The
Buyer also represents it has not been organized solely for the
purpose of acquiring the Securities.
vii. The
Buyer (together with its Advisors, if any) has received all
documents requested by the Buyer, if any, and has carefully
reviewed them and understands the information contained therein,
prior to the execution of this Agreement.
c. The Buyer is not
relying on the Company or any of its employees, agents, sub-agents
or advisors with respect to the legal, tax, economic and related
considerations involved in this investment. The Buyer has relied on
the advice of, or has consulted with, only its
Advisors.
d. The Buyer has
carefully considered the potential risks relating to the Company
and a purchase of the Securities, and fully understands that the
Securities are a speculative investment that involves a high degree
of risk of loss of the Buyer’s entire investment. Among other
things, the Buyer has carefully considered each of the risks
described under the heading “Risk Factors” in the
Company’s SEC ffilings.
e. The
Buyer will not sell or otherwise transfer any Securities without
registration under the 1933 Act or an exemption therefrom, and
fully understands and agrees that the Buyer must bear the economic
risk of its purchase because, among other reasons, the Securities
have not been registered under the 1933 Act or under the securities
laws of any state and, therefore, cannot be resold, pledged,
assigned or otherwise disposed of unless they are subsequently
registered under the 1933 Act and under the applicable securities
laws of such states, or an exemption from such registration is
available. In particular, the Buyer is aware that the Securities
are “restricted securities,” as such term is defined in
Rule 144, and they may not be sold pursuant to Rule 144 unless all
of the conditions of Rule 144 are met. The Buyer also understands
that the Company is under no obligation to register the Securities
on behalf of the Buyer. The Buyer understands that any sales or
transfers of the Securities are further restricted by state
securities laws and the provisions of this Agreement.
f. The
Buyer and its Advisors, if any, have had a reasonable opportunity
to ask questions of and receive answers from a person or persons
acting on behalf of the Company concerning the offering and the
business, financial condition, results of operations and prospects
of the Company, and all such questions have been answered to the
full satisfaction of the Buyer and its Advisors, if
any.
g. The
Buyer represents and warrants that: (i) the Buyer was contacted
regarding the sale of the Securities by the Company (or an
authorized agent or representative thereof) with whom the Buyer had
a prior substantial pre-existing relationship; and (ii) no
Securities were offered or sold to it by means of any form of
general solicitation or general advertising, and in connection
therewith, the Buyer did not: (A) receive or review any
advertisement, article, notice or other communication published in
a newspaper or magazine or similar media or broadcast over
television or radio, whether closed circuit, or generally
available; or (B) attend any seminar meeting or industry
investor conference whose attendees were invited by any general
solicitation or general advertising; or (C) observe any website or
filing of the Company with the SEC in which any offering of
securities by the Company was described and as a result learned of
any offering of securities by the Company.
h. The
Buyer has taken no action that would give rise to any claim by any
person for brokerage commissions, finders’ fees or the like
relating to this Agreement or the transactions contemplated
hereby.
i. The
Buyer is an “accredited investor” as that term is
defined in Rule 501(a) of Regulation D.
j. Legends.
The Buyer understands that until such time as the Securities have
been registered under the 1933 Act or may be sold pursuant to an
applicable exemption from registration, the Securities shall bear a
restrictive legend in substantially the following
form:
"THE
SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR UNDER ANY STATE SECURITIES LAWS, AND MAY NOT BE PLEDGED,
SOLD, ASSIGNED, HYPOTHECATED OR OTHERWISE TRANSFERRED UNLESS (1) A
REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE
SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR (2) THE
ISSUER OF SUCH SECURITIES RECEIVES AN OPINION OF COUNSEL TO THE
HOLDER OF SUCH SECURITIES, WHICH COUNSEL AND OPINION ARE REASONABLY
ACCEPTABLE TO THE ISSUER’S TRANSFER AGENT, THAT SUCH
SECURITIES MAY BE PLEDGED, SOLD, ASSIGNED, HYPOTHECATED OR
OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS."
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 an exemption from
registration 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 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, at the Deadline (as
defined in the Certificate of Designation), it will be considered
an Event of Default (as defined in the Certificate of
Designation).
3. Representations
and Warranties of the Company.
The Company represents and warrants to the Buyer
that:
a. Organization
and Qualification. The Company
and each of its Subsidiaries (as defined below), if any, is a
corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction in which it is incorporated,
with full power and authority (corporate and other) to own, lease,
use and operate its properties and to carry on its business as and
where now owned, leased, used, operated and conducted.
“Subsidiaries” means any corporation or other
organization, whether incorporated or unincorporated, in which the
Company owns, directly or indirectly, any equity or other ownership
interest.
b. Authorization;
Enforcement. (i) The Company
has all requisite corporate power and authority to enter into and
perform this Agreement 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 by the Company and the consummation
by it of the transactions contemplated hereby and thereby
(including without limitation, the issuance of the Series C Shares
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 Series C Shares, each
of such instruments will constitute, a legal, valid and binding
obligation of the Company enforceable against the Company in
accordance with its terms except as may be limited by
bankruptcy, reorganization, insolvency, moratorium and similar laws
of general application relating to or affecting the enforcement of
rights of creditors, and except as enforceability of the
obligations hereunder are subject to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or law).
c. Capitalization.
As of the date hereof, the authorized common stock of the Company
consists of 15,000,000,000
authorized shares of common stock,
$0.0001 par value per share, of which 2,468,144
shares are issued and outstanding and
10,000,000 shares of preferred stock, $0.0001 par value per share.
On or prior to the Closing Date, the Certificate of Designation
shall be filed with the Nevada Secretary of State authorizing
1,000,000 Series C Shares. All of such outstanding shares of
capital stock are duly authorized, validly issued, fully paid and
non-assessable.
d. Issuance
of Securities. The Securities
upon issuance will be validly issued, fully paid and
non-assessable, and free from all taxes, liens, claims and
encumbrances with respect to the issue thereof and shall not be
subject to preemptive rights or other similar rights of
shareholders of the Company and will not impose personal liability
upon the holder thereof.
e. No
Conflicts. The execution,
delivery and performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby
and thereby (including, without limitation, the issuance of the
Securities and reservation for issuance of the Conversion Shares)
will not (i) conflict with or result in a violation of any
provision of the Articles of Incorporation, as amended or By-laws,
or (ii) violate or conflict with, or result in a breach of any
provision of, or constitute a default (or an event which with
notice or lapse of time or both could become a default) under, or
give to others any rights of termination, amendment, acceleration
or cancellation of, any agreement, indenture, patent, patent
license or instrument to which the Company or any of its
Subsidiaries is a party, or (iii) result in a violation of any law,
rule, regulation, order, judgment or decree (including federal and
state securities laws and regulations and regulations of any
self-regulatory organizations to which the Company or its
securities are subject) applicable to the Company or any of its
Subsidiaries or by which any property or asset of the Company or
any of its Subsidiaries is bound or affected (except for such
conflicts, defaults, terminations, amendments, accelerations,
cancellations and violations as would not, individually or in the
aggregate, have a Material Adverse Effect (as defined herein)). The
businesses of the Company and its Subsidiaries, if any, are not
being conducted, and shall not be conducted so long as the Buyer
owns any of the Securities, in violation of any law, ordinance or
regulation of any governmental entity. “Material Adverse
Effect” means any material adverse effect on the business,
operations, assets or financial condition of the Company or its
Subsidiaries, if any, taken as a whole, or on the transactions
contemplated hereby or by the agreements or instruments to be
entered into in connection herewith.
f. SEC
Documents; Financial Statements. The Company has 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 or if amended,
as of the dates of the amendments, 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 or if amended, as of the dates of the amendments,
the financial statements of the Company included in the SEC
Documents complied as to form in all material respects with
applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto. Such financial
statements have been prepared in accordance with United States
generally accepted accounting principles, consistently applied,
during the periods involved and fairly present in all material
respects the consolidated financial position of the Company and its
consolidated Subsidiaries as of the dates thereof and the
consolidated results of their operations and cash flows for the
periods then ended (subject, in the case of unaudited statements,
to normal year-end audit adjustments). The Company is subject to
the reporting requirements of the 1934 Act.
g. Absence
of Certain Changes. Since
September 30, 2019, except as set forth in the SEC Documents, there
has been no material adverse change and no material adverse
development in the assets, liabilities, business, properties,
operations, financial condition, results of operations, prospects
or 1934 Act reporting status of the Company or any of its
Subsidiaries.
h. Absence
of Litigation. Except as set
forth in the SEC Documents, there is no action, suit, claim,
proceeding, inquiry or investigation before or by any court, public
board, government agency, self-regulatory organization or body
pending or, to the knowledge of the Company or any of its
Subsidiaries, threatened against or affecting the Company or any of
its Subsidiaries, or their officers or directors in their capacity
as such, that could have a Material Adverse Effect. The Company and
its Subsidiaries are unaware of any facts or circumstances which
might give rise to any of the foregoing.
i. 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.
j. 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.
4. COVENANTS.
a. Best
Efforts. The Company shall use
its commercially reasonable efforts to satisfy timely each of the
conditions described in Section 7 of this
Agreement.
b. Form
D; Blue Sky Laws. The Company
agrees to timely make any filings required by federal and state
laws as a result of the closing of the transactions contemplated by
this Agreement.
c. Use
of Proceeds. The Company shall
use the proceeds for general working capital
purposes.
d. Expenses.
At the Closing, the Company’s obligation with respect to the
transactions contemplated by this Agreement is to reimburse
Buyer’s expenses for Buyer’s legal fees and due
diligence fee in an amount not to exceed
$3,000.
e. Corporate
Existence. So long as the Buyer
beneficially owns any Series C Shares, the Company shall maintain
its corporate existence and shall not sell all or substantially all
of the Company’s assets, except with the prior written
consent of the Buyer.
f. Breach
of Covenants. If the Company
breaches any of the covenants set forth in this Section 4 and such
breach is not cured within five (5) days of written notice
thereof from Buyer, and in addition to
any other remedies available to the Buyer pursuant to this
Agreement, it will be considered an event of default under the
Certificate of Designation.
g. Failure
to Comply with the 1934 Act. So
long as the Buyer beneficially owns any Series C Shares, 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; any breach of the foreging shall be
considered an event of default under the Certificate of
Designation, provided that such breach is not cured within
five (5) days of written notice thereof from Buyer.
h. Trading
Activities. Neither the Buyer
nor its affiliates has an open short position in the common stock
of the Company and the Buyer agrees 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 Series C
Shares in accordance with the terms of the Certificate of
Designation (the “Irrevocable Transfer Agent
Instructions”). In the event that the Company proposes
to replace its transfer agent, the Company 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 this Agreement (including but not limited to
the provision to irrevocably reserve shares of common stock in the
Reserved Amount (as defined in the Certificate of
Designation) signed by the successor
transfer agent to Company and the Company. Prior to registration of
the Conversion Shares under the 1933 Act or the date on which the
Conversion Shares may be sold pursuant to an exemption from
registration, all such certificates shall bear the restrictive
legend specified in Section 2(j) of this Agreement. The
Company warrants that: (i) no instruction other than the
Irrevocable Transfer Agent Instructions referred to in this Section
5, 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 Certificate of Designation; (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 Certificate of Designation or this
Agreement as and when required by thereby; and (iii) it will not
fail to remove (or direct its transfer agent not to remove or
impair, delay, and/or hinder 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 the Series C Shares of or
otherwise pursuant to the Certificate of Designation or this
Agreement as and when required thereby. If the Buyer
provides the Company and the Company’s transfer, at the cost
of the Buyer, with 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, 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 5, 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 Series C Shares to the Buyer at the Closing is subject
to the satisfaction, at or before the Closing Date of each of the
following conditions thereto, provided that these conditions are
for the Company’s sole benefit and may be waived by the
Company at any time in its sole discretion:
a. The
Buyer shall have executed this Agreement and delivered the same to
the Company.
b. The
Buyer shall have delivered the Purchase Price in accordance with
Section 1(b) above.
c. The
representations and warranties of the Buyer shall be true and
correct in all material respects as of the date when made and as of
the Closing Date as though made at that time (except for
representations and warranties that speak as of a specific date),
and the Buyer shall have performed, satisfied and complied in all
material respects with the covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied
with by the Buyer at or prior to the Closing Date.
d. No
litigation, statute, rule, regulation, executive order, decree,
ruling or injunction shall have been enacted, entered, promulgated
or endorsed by or in any court or governmental authority of
competent jurisdiction or any self-regulatory organization having
authority over the matters contemplated hereby which prohibits the
consummation of any of the transactions contemplated by this
Agreement.
7. Conditions
to The Buyer’s Obligation to Purchase. The obligation of the Buyer hereunder to
purchase the Series C Shares 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 Series C Shares by
way of book entry as confirmed by the Company’s transfer
agent in accordance with Section 1(b) above.
c. The
Irrevocable Transfer Agent Instructions, in form and substance
satisfactory to the Buyer, shall have been delivered to and
acknowledged in writing by the Company’s Transfer
Agent.
d. The
representations and warranties of the Company shall be true and
correct in all material respects as of the date when made and as of
the Closing Date as though made at such time (except for
representations and warranties that speak as of a specific date)
and the Company shall have performed, satisfied and complied in all
material respects with the covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied
with by the Company at or prior to the Closing Date. The Buyer
shall have received a certificate or certificates, executed by the
chief executive officer of the Company, dated as of the Closing
Date, to the foregoing effect and as to such other matters as may
be reasonably requested by the Buyer including, but not limited to
certificates with respect to the 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
Company’s transfer agent shall be engaged to act as the
transfer agent for the Series C Preferred Shares.
h. The Certificate of
Designation shall be properly authorized and filed with the
Secretary of State of the State of Nevada and declared
effective.
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 Eastern District of New York. 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, the Series C Shares,
the Certificate of Designation or any related document or agreement
by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the
address in effect for notices to it under this Agreement and agrees
that such service shall constitute good and sufficient service of
process and notice thereof. Nothing contained herein shall be
deemed to limit in any way any right to serve process in any other
manner permitted by law.
b. Counterparts.
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
parties hereto.
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, email, 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 (1st)
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 (2nd)
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 as set forth in the heading of
this Agreement with a copy by fax only to (which copy shall not
constitute notice) to Naidich Wurman LLP, 111 Great Neck Road,
Suite 214, Great Neck, NY 11021, Attn: Allison Naidich,
facsimile: 516-466-3555, e-mail: allison@nwlaw.com. 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.
h. Survival
and Indemnification. The
representations and warranties 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 either party. 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.
The Buyer agrees to indemnify and hold harmless the Company 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 Buyer 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.
i. 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.
j. 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.
k. Remedies.
Each party acknowledges that a breach by it of its obligations
hereunder will cause irreparable harm to the other party by
vitiating the intent and purpose of the transaction contemplated
hereby. Accordingly, each party 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 other party of the provisions of this Agreement, that
the non-breaching party shall be entitled, in addition to all other
available remedies at law or in equity, and in addition to the
penalties assessable herein, to an injunction or injunctions
restraining, preventing or curing any breach of this Agreement and
to enforce specifically the terms and provisions hereof, without
the necessity of showing economic loss and without any bond or
other security being required.
IN
WITNESS WHEREOF, the undersigned Buyer and the Company have caused
this Agreement to be duly executed as of the date first above
written.
FRIENDABLE, INC.
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By:
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/s/Robert Rositano Jr.
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Name:
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Robert Rositano Jr.
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Title:
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Chief Executive Officer
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GENEVA ROTH REMARK HOLDINGS, INC.
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By:
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/s/Curt Kramer
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Name:
Curt Kramer
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Title:
Chief Executive Officer
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111
Great Neck Road, Suite 216
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Great
Neck, NY 11021
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AGGREGATE SUBSCRIPTION AMOUNT:
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Number of Series C Preferred Shares purchased
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58,300
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Aggregate Purchase Price:
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$53,000.00
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Price per Series C Preferred Share
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$0.91
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EXHIBIT A
Certificate of Designation
See attached.