Exhibit 4.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): December 29, 2017
GOPHER PROTOCOL INC.
(Exact name of registrant as specified in its charter)
(Former Name of Registrant)
| Nevada | 000-54530 | 27-0603137 | ||
| (State or Other Jurisdiction
of Incorporation) |
(Commission File Number) | (IRS Employer Identification Number) |
2500 Broadway, Suite F-125, Santa Monica, CA 90404
(Address of principal executive offices) (zip code)
424-238-4589
(Registrant's telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| ☐ | 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)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 1.01 | Entry into a Material Definitive Agreement |
| Item 3.02 | Unregistered Sales of Equity Securities |
On September 1, 2017, Gopher Protocol Inc. (the “Company”) entered into and closed an Asset Purchase Agreement (the “Purchase Agreement”) with RWJ Advanced Marketing, LLC (“RWJ”), a Georgia corporation, pursuant to which the Company purchased certain assets from RWJ, including inventory, terminals, licenses and permits and intangible assets, in consideration of $400,000, an aggregate 5,000,000 shares of common stock of the Company (the “RWJ Shares”), secured promissory note in the amount of $2,600,000 (the “RWJ Note”), warrants to purchase 9,000,000 shares of common stock (the “RWJ Warrants”) and the assumption of certain liabilities incurred by RWJ after the effective date as set forth in the RWJ Agreement (the “RWJ Assumed Liabilities”). RWJ assigned 3,000,000 RWJ Shares and 5,000,000 RWJ Warrants to Robert Warren Jackson and 2,000,000 RWJ Shares and 4,000,000 RWJ Warrants to Gregory Bauer, which such RWJ Shares were issued to Mr. Jackson and Mr. Bauer on December 29, 2017.
On September 13, 2017, the Company entered into a Securities Purchase Agreement with Eagle pursuant to which the Company issued Eagle two convertible notes. The first note, due September 18, 2018 in the principal amount of $50,000 (“Eagle Equities Note 1”), was issued in exchange for $50,000 in cash. The second note, due September 13, 2018 in the principal amount of $50,000 (“Eagle Equities Note 2”), was issued in exchange for a full-recourse, collateralized promissory note from Eagle Equities in the amount of $45,000 (“Eagle Equities Payment Note”). The Eagle Equities Payment Note was due on May 13, 2018. On December 29, 2017, as previously disclosed, Eagle converted the Eagle Equities Note 1 into 503,726 shares of common stock. In addition, on December 31, 2017, the Company and Eagle entered into a Rescission Agreement pursuant to which Eagle Equities Note 2 and the Eagle Equities Payment Note were cancelled and rescinded.
Since April 2016, Guardian Patch, LLC (:Guardian Patch) a non-affiliate- provided loans to the Company for the Company’s working capital purposes, outside of its commitment to develop the sticky patch package (“Patch”), in the aggregate amount of $660,131.80 (the “Loans”). On May 23, 2017, the Company entered into a Conversion Agreement with Guardian LLC pursuant to which the parties agreed to convert the Loans provided by Guardian LLC to the Company into a Convertible Promissory Note in the amount of $660,131.80 (the “Note”). On June 26, 2017, the Company and Guardian LLC entered into a Lock-Up and Leak-Out Agreement (“Guardian Lock-Up”) pursuant to which Guardian LLC agreed that for a period of nine months (the “Restricted Period”) to not convert the Note into common stock of the Company or in any way transfer the Note or any beneficial rights under the Note. During the period beginning at the end of the Restricted Period and ending 15 months from the date of the agreement, Guardian LLC will be permitted to sell an amount of shares of common stock equal to the lesser of 5% of the previous day’s traded volume or 5,000 shares of common stock. On December 29, 2017, Guardian Patch and the Company entered into an Amendment of Lock Up and Leak Out Agreement pursuant to which the lock up contained in the Guardian Lock-Up was terminated but the leak out provision shall remain in place. On December 29, 2017, Guardian Patch converted all of the principal and interest of the Note, into 2,000,000 shares of Series G Preferred Stock. The Series G Preferred Stock is entitled to vote on an as-converted basis, automatically converts to common stock upon any liquidation, dissolution or winding up and the Company may not declare a dividend until the Series G Preferred Stock has received a dividend. Each share of Series G Preferred Stock is convertible into one shares of common stock of the Company and contain standard anti-dilution rights. As long as at least 15% of the Series G Preferred Stock remain outstanding, without the consent of 67% of the Series G Preferred Stock, the Company may not incur indebtedness or liens, acquire its shares of common stock, enter into transactions with an affiliate or amend its Articles of Incorporation or Bylaws. Guardian LLC has agreed to restrict its ability to convert the Series G Preferred Stock and receive shares of common stock such that the number of shares of common stock held by them in the aggregate and its affiliates after such conversion does not exceed 4.9% of the then issued and outstanding shares of common stock.
On June 29, 2017, as previously disclosed, the Company and Stanley Hills, LLC (“Stanley”) entered into a Lock-Up and Leak-Out Agreement (the “Stanley Lock-Up”) pursuant to which Stanley agreed that during the Restricted Period to not convert its 10% Convertible Debenture in the amount of $28,635.55 (the “Stanley Note”) into common stock of the Company or in any way transfer the Stanley Note or any beneficial rights under the Stanley Note. During the period beginning at the end of the Restricted Period and ending 15 months from the date of the agreement, Stanley will be permitted to sell an amount of shares of common stock equal to the lesser of 5% of the previous day’s traded volume or 5,000 shares of common stock. On December 29, 2017, Stanley and the Company entered into an Amendment of Lock Up and Leak Out Agreement pursuant to which the lock up contained in the original Stanley Lock-Up was terminated but the leak out provision shall remain in place. On December 22, 2017, Stanley converted all of the principal and interest of the Stanley Note totaling to $31,775.25 payable the Stanley Note into 4,221,334 restricted shares of common stock of the Company.
The offers, sales and issuances of the securities listed above were made to accredited investors and the Company relied upon the exemptions contained in Section 4(2) of the Securities Act and/or Rule 506 of Regulation D promulgated there under with regard to those sales. No advertising or general solicitation was employed in offering the securities. The offers and sales were made to a limited number of persons, each of whom was an accredited investor and transfer of the common stock issued was restricted by the Company in accordance with the requirements of the Securities Act of 1933.
The foregoing information is a summary of each of the agreements involved in the transactions described above, is not complete, and is qualified in its entirety by reference to the full text of those agreements, each of which is attached an exhibit to this Current Report on Form 8-K. Readers should review those agreements for a complete understanding of the terms and conditions associated with this transaction.
| Item 9.01 | Financial Statements and Exhibits |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Gopher Protocol Inc. | ||
| By: | /s/ Gregory Bauer | |
| Name: Gregory Bauer | ||
| Title: CEO | ||
| Date: January 3, 2018 | ||
Exhibit 4.1
Exhibit 10.1
RESCISSION AGREEMENT
This RESCISSION Agreement (this “Agreement”) is made as of December 31, 2017 (the “Effective Date”), by and between Gopher Protocol, INC., a Nevada corporation (the “Company”), and EAGLE EQUITIES, LLC, a Nevada limited liability company (the “Lender”) (collectively referred to as the “Parties” or individually referred to as a “Party”).
W I T N E S S E T H:
WHEREAS, the Company issued to the Lender that certain 8% Convertible Promissory Note dated September 13, 2017 in the aggregate principal amount of $50,000 (the “Note”); and
WHEREAS, the Company and the Lender previously entered into that certain 8% Convertible Promissory Back End Note Due September 13, 2018 in the amount of $50,000.00 dated September 13, 2017 (the “Issuer Backend Note”), as well as that certain 8% Collateralized Secured Promissory Note Back End Note Due September 13, 2018 in the amount of $45,00.00 dated September 13, 2017 (the “Lender Backend Note”) (the Issuer Backend Note and Lender Backend Note shall collectively be referred to herein as the “Backend Note”), and the Parties have executed certain documents and instruments in connection therewith which is attached hereto as Exhibit “A”; and
WHEREAS, the Parties now desire to rescind the Backend Note issued on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the premises and mutual covenants contained hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties intending to be legally bound hereby, agree as follows:
Section 1. Recession of Assignment.
1.1 Rescission. For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged by the Parties, the Parties do hereby agree that the Backend Note is hereby cancelled and shall be treated for all purposes as cancelled and rescinded, effective as of the original date of such Backend Note (the “Rescission”) ab initio.
1.2 Further Assurances. The Parties shall from time to time after the date hereof at the request of either Party and without further consideration execute and deliver to either Party such additional instruments of transfer and assignment, including without limitation any bills of sale, assignments of documents, and other recordable instruments of assignment, transfer and conveyance, in addition to this Agreement, as either Party shall reasonably request to evidence more fully the rescission of the Backend Note.
1.3 For the avoidance of doubt, and notwithstanding anything to the contrary contained in this Agreement, the Company’s obligations under the Note shall not be affected in any way by this Agreement.
Section 2. Exclusions, Indemnification.
2.1 Excluded Assumed Liabilities. As of the date hereof and thereafter, it is acknowledged and agreed that the Parties shall not assume or be responsible for any tax liabilities, licensing liabilities, litigation or any other liabilities of the other Party resulting from this Agreement, whether known or unknown.
2.2. Indemnity of Parties. Each the Company and Lender agrees to defend, indemnify and hold harmless the other Party from and against, and to reimburse them with respect to, all liabilities, losses, costs and expenses, including, without limitation, reasonable attorneys’ fees and disbursements (collectively the “Losses”) asserted against or incurred by either Party by reason of, arising out of, or in connection with any material breach of any representation, warranty or covenant contained in this Agreement made by either Party or in any document or certificate delivered by either Party pursuant to the provisions of this Agreement.
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Section 3. Representations and Warranties of the Parties. The Parties hereto hereby represent and warrants to the other Party that:
(a) Each Party hereby represents and warrants to the other Party hereto that the execution, delivery and performance hereof by it are within its corporate powers, and have been duly authorized by all necessary corporate or other action and that this Agreement constitutes its legal, valid and binding obligation.
(b) No Governmental Prohibition. No order, statute, rule, regulation, executive order, injunction, stay, decree, judgment or restraining order shall have been enacted, entered, promulgated or enforced by any court or governmental or regulatory authority or instrumentality which prohibits the consummation of the transactions contemplated hereby.
Section 4. Miscellaneous.
4.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to conflicts of laws principles that would result in the application of the substantive laws of another jurisdiction. Any action brought by either Party against the other concerning the transactions contemplated by this Agreement must be brought only in the state or federal courts located in the County of New York or the Southern District of New York. Both Parties and the individuals signing this Agreement submit to the jurisdiction of such courts. If either Party commences an action arising out of this Agreement, the prevailing Party shall, in addition to any other damages and costs awarded, be entitled to all reasonable attorneys’ fees and costs incurred in connection with the prosecution or defense of such action.
4.2 Successors. This Agreement shall inure to the benefit of, and be binding upon, the permitted successors and assigns of the Parties hereto, provided that any assignment would require the signed written consent of the other Party.
4.3 Entire Agreement. This Agreement and any instruments and agreements to be executed pursuant to this Agreement, sets forth the entire agreement and understanding of the Parties with respect to its subject matter of this Agreement and supersedes, merges and replaces all prior and contemporaneous understandings, agreements, discussions and negotiations, oral or written, regarding the same subject matter which shall remain in full force and effect and may not be altered or modified, except in writing and signed by the Party to be charged thereby, and supersedes any and all previous agreements between the Parties relating to the subject matter thereof.
4.4 Headings. The descriptive headings contained in this Agreement are for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement.
4.5 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, and in pleading or proving any provision of this Agreement, it shall not be necessary to produce more than one such counterpart. In the event that any signature is delivered by facsimile transmission, by email in “portable document format” (“.pdf”), electronic signature or other similar electronic means intended to preserve the original graphic and pictorial appearance of this Agreement, such signature shall have the same effect as physical delivery of the paper document bearing original signature and create a valid and binding obligation of the Party executing (or on whose behalf such signature is executed) the same with the same force and effect as if such facsimile signature were an original thereof.
4.6 Counsel. The Parties expressly acknowledge that each has been advised to seek separate counsel for advice in this matter and has been given a reasonable opportunity to do so.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the Parties hereto as of the Effective Date as first above written.
| COMPANY: | |||
|
GOPHER PROTOCOL, INC., a Nevada corporation, | |||
| By: |  |
||
| Name: Greg Bauer | |||
| Title: Chief Executive Officer | |||
| LENDER: | |||
|
EAGLE EQUITIES, LLC, a Nevada limited liability company, | |||
| By: |  |
||
| Name: Yakov Borenstein | |||
| Title: Managing Member | |||
[SIGNATURE PAGE TO RESCISSION AGREEMENT]
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EXHIBIT “A”
(see attached)
Exhibit A
Exhibit 10.2
AMENDMENT OF LOCK-UP AND LEAK-OUT AGREEMENT
THIS AMENDMENT OF LOCK-UP AND LEAK-OUT AGREEMENT (this “Amendment”) is entered into and effective as of December 29, 2017 (the “Effective Date”) by and between Gopher Protocol Inc., a Nevada corporation with an address at 2500 Broadway, Suite F-125, Santa Monica, CA 90404 (the “Company”), and Stanley Hills, LLC, a Nevada limited liability company (the “Note Holder”) (each, a “Party”; and, collectively, the “Parties”).
W I T N E S S E T H:
WHEREAS, on January 22, 2015, the Company issued that certain 10% Convertible Note to the Note Holder in the amount of $75,273.43 (the “Note”); and
WHEREAS, on June 29, 2017, the Company and the Note Holder entered into that certain Lock-up and Leak-out Agreement (the “LULO”), whereby the Note Holder agreed, inter alia, not to convert the Note into Common Stock (the “Lock-Up”) and agreed to certain limitations in respect of sales of the Company’s Common Stock from and after the date on which conversions were no longer prohibited (the “Leak-Out”); and
WHEREAS, the Parties now wish to amend the LULO to permit conversion of the Note into shares of Common Stock and, thereby, eliminating the Lock-Up provisions of the LULO, but wish to keep the provisions of the Leak-Out and the other provisions of the LULO;
NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties, intending to be legally bound hereby, hereby agree as follows:
1. Incorporation of Recitals. The above-referenced Recitals are specifically incorporated into this Amendment as an integral part hereof, are true and accurate in all respects and are intended to bind the Parties hereto. For the avoidance of doubt, Recitals are not merely a statement of intention but are intended to be operative provisions of this Amendment.
2. Integrated Document. It is the intention of the parties hereto that this Amendment and the LULO, as so amended, shall be read as and considered to be an integrated document, setting forth the entire agreement of the Parties hereto with respect to its subject matter. There are no other terms, conditions, promises, understandings, statements or representations, express or implied, concerning this Agreement that are not included herein or in the LULO.
3. Release of Transfer Restrictions; Transfer Agent Instructions. The Note Holder is hereby released from the provisions of paragraph 1 of the LULO, and any related provisions thereof in respect of the termination of the Lock-Up provisions thereof and, accordingly, may, but need not, convert some or all of the Note into shares of Common Stock or transfer, assign, mortgage, hypothecate, or otherwise encumber or permit or suffer any encumbrance of all or any part of the Note. The Company shall revoke any “stop-transfer” or other instructions that may have been issued to its transfer agent (the “Stop Transfer Instructions”) in connection with the LULO.
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4. Representations and Warranties. Each Party hereto hereby represents and warrants to the other Party as follows:
(a) Authorization. Such Party has the full right, power and authority to enter into this Amendment and to have entered into the LULO and to perform the terms and provisions hereof and thereof. The execution, delivery, and performance of this Amendment and of the LULO by such Party have been duly authorized by all necessary action on the part of such Party, and this Amendment and the LULO constitute the valid and binding obligation of such Party, enforceable against such Party in accordance with their respective terms.
(b) No Conflicts. Neither the execution and delivery of this Amendment nor the previous execution and delivery of the LULO nor compliance with the terms and provisions hereof or thereof on the part of such Party shall breach any statutes or regulations of any governmental authority, domestic or foreign, or shall conflict with or result in a breach of such Party’s organizational document(s) (if applicable) or of any of the terms, conditions or provisions of any judgment, order, injunction, decree, agreement or instrument to which such Party is a party or by which it or its assets are or may be bound, or constitute a default thereunder or an event which with the giving of notice or passage of time or both would constitute a default thereunder, or require the consent of any person or entity.
(c) Consents and Approvals. No consent, waiver, approval, order, permit, or authorization of, or declaration or filing with, or notification to, any person or entity is required on the part of such Party in connection with the execution and delivery of this Amendment or was required in connection with the execution and delivery of the LULO or the consummation of the transactions contemplated hereby or thereby.
5. Miscellaneous.
(a) Superseding Clause. This Amendment supersedes any and all other agreements, and/or resolutions dealing with the subject matter of the LULO insofar as this Amendment purports to amend paragraph 1 of the LULO, and any related provisions thereof in respect of the termination of the Lock-Up provisions thereof.
(b) Notices. All notices or other communications required or permitted by this Agreement or by law to be served on or given to either Party to this Amendment by the other Party shall be in writing and shall be deemed duly served when personally delivered to the Party at an address agreed upon by both Parties.
(c) Governing Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of California, without giving effect to the principles of conflict 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 or in the federal courts located in the County and City of Los Angeles, California. The Parties to this Amendment hereby irrevocably waive any objection to jurisdiction and venue of any action instituted hereunder or in respect of the LULO and shall not assert any defense based on lack of jurisdiction or venue or based upon forum non conveniens. The Parties executing this Amendment, the LULO, and other agreements referred to herein or therein or delivered in connection herewith or therewith agree to submit to the in personam jurisdiction of such courts and, to the maximum extent permitted by law, hereby irrevocably waive trial by jury. If either Party commences an action arising out of this Amendment or the LULO, the prevailing Party shall, in addition to any other damages and costs awarded, be entitled to reasonable legal fees incurred in connection with the prosecution or defense of such action.
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(d) Headings. The headings preceding the text of the several sections of this Agreement are inserted for convenience and shall not affect the meaning, construction, scope or effect of this Amendment.
(e) Assignment. This Amendment and the LULO and all the provisions hereof and thereof will be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
(f) Severability. Whenever possible, each provision of this Amendment and the LULO will be interpreted in such manner as to be effective and valid under applicable law, but if any provision hereof or thereof is held to be prohibited by or invalid under applicable law, such provision will be ineffective only to the extent of such provision or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Amendment or the LULO.
(g) Amendment. Except as provided herein, the LULO has not been amended. In the event either party wishes to amend the LULO further, it may only be amended or waived in a writing executed by the both Parties.
(h) No Waiver of Rights. No failure or delay on the part of any Party in exercising any right, power or privilege under this Amendment or under the LULO shall operate as waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. The rights and remedies herein and therein provided shall be cumulative and not exclusive of any rights or remedies provided by applicable law.
(i) Complete Amendment. This Amendment contains the complete agreement between the Parties hereto to amend he LULO and supersedes any prior understandings, agreements or representations by or between the Parties, written or oral, that may have related to the subject matter hereof in any way.
(j) Counterparts. This Amendment may be executed in two or more identical counterparts, all of which shall be considered one and the same amendment and shall become effective when counterparts have been signed by each Party and delivered to the other Party. In the event that any signature is delivered by facsimile transmission or by an e-mail which contains a portable document format (.pdf) file of an executed signature page, such signature page shall create a valid and binding obligation of the Party executing (or on whose behalf such signature is executed) with the same force and effect as if such signature page were an original thereof.
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(k) Advice of Counsel. EACH PARTY ACKNOWLEDGES THAT, IN EXECUTING THIS AMENDMENT AND THE LULO, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND HAS (AND HAD) READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS HEREOF AND THEREOF. NEITHER THIS AMENDMENT NOR THE LULO SHALL BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF OR THEREOF.
[ Remainder of Page Intentionally Left Blank; Signature Page to Follow ]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment as of the Effective Date defined above.
company:
Gopher Protocol, INC. | ||
| By: | /s/ Greg Bauer | |
| Name: Greg Bauer | ||
| Title: Chief Executive Officer | ||
NOTE HOLDER:
STANLEY HILLS, LLC |
|||
| By: | /s/ Yossi Attia | ||
| Name: Yossi Attia | |||
| Title: Manager | |||
[ Signature Page to Amendment of LULO ]
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Exhibit 10.3
AMENDMENT OF LOCK-UP AND LEAK-OUT AGREEMENT
THIS AMENDMENT OF LOCK-UP AND LEAK-OUT AGREEMENT (this “Amendment”) is entered into and effective as of December 29, 2017 (the “Effective Date”) by and between Gopher Protocol Inc., a Nevada corporation with an address at 2500 Broadway, Suite F-125, Santa Monica, CA 90404 (the “Company”), and Guardian Patch, LLC, a California limited liability company (the “Note Holder”) (each, a “Party”; and, collectively, the “Parties”).
W I T N E S S E T H:
WHEREAS, on May 23, 2017, the Company issued that certain 6% Convertible Note to the Note Holder in the amount of $660,131.80 (the “Note”); and
WHEREAS, on June 26, 2017, the Company and the Note Holder entered into that certain Lock-up and Leak-out Agreement (the “LULO”), whereby the Note Holder agreed, inter alia, not to convert the Note into Common Stock (the “Lock-Up”) and agreed to certain limitations in respect of sales of the Company’s Common Stock from and after the date on which conversions were no longer prohibited (the “Leak-Out”); and
WHEREAS, the Parties now wish to amend the LULO to permit conversion of the Note into shares of Common Stock and, thereby, eliminating the Lock-Up provisions of the LULO, but wish to keep the provisions of the Leak-Out and the other provisions of the LULO;
NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties, intending to be legally bound hereby, hereby agree as follows:
1. Incorporation of Recitals. The above-referenced Recitals are specifically incorporated into this Amendment as an integral part hereof, are true and accurate in all respects and are intended to bind the Parties hereto. For the avoidance of doubt, Recitals are not merely a statement of intention but are intended to be operative provisions of this Amendment.
2. Integrated Document. It is the intention of the parties hereto that this Amendment and the LULO, as so amended, shall be read as and considered to be an integrated document, setting forth the entire agreement of the Parties hereto with respect to its subject matter. There are no other terms, conditions, promises, understandings, statements or representations, express or implied, concerning this Agreement that are not included herein or in the LULO.
3. Release of Transfer Restrictions; Transfer Agent Instructions. The Note Holder is hereby released from the provisions of paragraph 1 of the LULO, and any related provisions thereof in respect of the termination of the Lock-Up provisions thereof and, accordingly, may, but need not, convert some or all of the Note into shares of Common Stock or transfer, assign, mortgage, hypothecate, or otherwise encumber or permit or suffer any encumbrance of all or any part of the Note. The Company shall revoke any “stop-transfer” or other instructions that may have been issued to its transfer agent (the “Stop Transfer Instructions”) in connection with the LULO.
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4. Representations and Warranties. Each Party hereto hereby represents and warrants to the other Party as follows:
(a) Authorization. Such Party has the full right, power and authority to enter into this Amendment and to have entered into the LULO and to perform the terms and provisions hereof and thereof. The execution, delivery, and performance of this Amendment and of the LULO by such Party have been duly authorized by all necessary action on the part of such Party, and this Amendment and the LULO constitute the valid and binding obligation of such Party, enforceable against such Party in accordance with their respective terms.
(b) No Conflicts. Neither the execution and delivery of this Amendment nor the previous execution and delivery of the LULO nor compliance with the terms and provisions hereof or thereof on the part of such Party shall breach any statutes or regulations of any governmental authority, domestic or foreign, or shall conflict with or result in a breach of such Party’s organizational document(s) (if applicable) or of any of the terms, conditions or provisions of any judgment, order, injunction, decree, agreement or instrument to which such Party is a party or by which it or its assets are or may be bound, or constitute a default thereunder or an event which with the giving of notice or passage of time or both would constitute a default thereunder, or require the consent of any person or entity.
(c) Consents and Approvals. No consent, waiver, approval, order, permit, or authorization of, or declaration or filing with, or notification to, any person or entity is required on the part of such Party in connection with the execution and delivery of this Amendment or was required in connection with the execution and delivery of the LULO or the consummation of the transactions contemplated hereby or thereby.
5. Miscellaneous.
(a) Superseding Clause. This Amendment supersedes any and all other agreements, and/or resolutions dealing with the subject matter of the LULO insofar as this Amendment purports to amend paragraph 1 of the LULO, and any related provisions thereof in respect of the termination of the Lock-Up provisions thereof.
(b) Notices. All notices or other communications required or permitted by this Agreement or by law to be served on or given to either Party to this Amendment by the other Party shall be in writing and shall be deemed duly served when personally delivered to the Party at an address agreed upon by both Parties.
(c) Governing Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of California, without giving effect to the principles of conflict 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 or in the federal courts located in the County and City of Los Angeles, California. The Parties to this Amendment hereby irrevocably waive any objection to jurisdiction and venue of any action instituted hereunder or in respect of the LULO and shall not assert any defense based on lack of jurisdiction or venue or based upon forum non conveniens. The Parties executing this Amendment, the LULO, and other agreements referred to herein or therein or delivered in connection herewith or therewith agree to submit to the in personam jurisdiction of such courts and, to the maximum extent permitted by law, hereby irrevocably waive trial by jury. If either Party commences an action arising out of this Amendment or the LULO, the prevailing Party shall, in addition to any other damages and costs awarded, be entitled to reasonable legal fees incurred in connection with the prosecution or defense of such action.
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(d) Headings. The headings preceding the text of the several sections of this Agreement are inserted for convenience and shall not affect the meaning, construction, scope or effect of this Amendment.
(e) Assignment. This Amendment and the LULO and all the provisions hereof and thereof will be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
(f) Severability. Whenever possible, each provision of this Amendment and the LULO will be interpreted in such manner as to be effective and valid under applicable law, but if any provision hereof or thereof is held to be prohibited by or invalid under applicable law, such provision will be ineffective only to the extent of such provision or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Amendment or the LULO.
(g) Amendment. Except as provided herein, the LULO has not been amended. In the event either party wishes to amend the LULO further, it may only be amended or waived in a writing executed by the both Parties.
(h) No Waiver of Rights. No failure or delay on the part of any Party in exercising any right, power or privilege under this Amendment or under the LULO shall operate as waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. The rights and remedies herein and therein provided shall be cumulative and not exclusive of any rights or remedies provided by applicable law.
(i) Complete Amendment. This Amendment contains the complete agreement between the Parties hereto to amend he LULO and supersedes any prior understandings, agreements or representations by or between the Parties, written or oral, that may have related to the subject matter hereof in any way.
(j) Counterparts. This Amendment may be executed in two or more identical counterparts, all of which shall be considered one and the same amendment and shall become effective when counterparts have been signed by each Party and delivered to the other Party. In the event that any signature is delivered by facsimile transmission or by an e-mail which contains a portable document format (.pdf) file of an executed signature page, such signature page shall create a valid and binding obligation of the Party executing (or on whose behalf such signature is executed) with the same force and effect as if such signature page were an original thereof.
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(k) Advice of Counsel. EACH PARTY ACKNOWLEDGES THAT, IN EXECUTING THIS AMENDMENT AND THE LULO, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND HAS (AND HAD) READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS HEREOF AND THEREOF. NEITHER THIS AMENDMENT NOR THE LULO SHALL BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF OR THEREOF.
[ Remainder of Page Intentionally Left Blank; Signature Page to Follow ]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment as of the Effective Date defined above.
company:
Gopher Protocol, INC. | ||
| ||
| By: | /s/ Greg Bauer | |
| Name: Greg Bauer | ||
| Title: Chief Executive Officer | ||
NOTE HOLDER:
Guardian Patch, LLC |
||
|
||
| By: | /s/ Randolph Ben Clymer | |
| Name: Randolph Ben Clymer | ||
| Title: Manager | ||
[ Signature Page to Amendment of LULO ]
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