American Picture House Corp 10-Q for FY2025 Q3
American Picture House Corp (APHP)
About this 10-Q
American Picture House Corp filed this 10-Q on November 6, 2025, covering the quarter ended September 30, 2025 (FY2025 Q3).
Headline figures
Quarter ended September 30, 2025, as reported in this filing, compared with the same period a year earlier where the filing states it.
- Revenue
- $0
- Net loss
- $105.56K
- compared with a net loss of $326.51K a year earlier
- Diluted EPS
- $0.00
- compared with $0.00 a year earlier
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
OF THE SECURITIES EXCHANGE ACT OF 1934
For
the quarterly period ended
OF THE SECURITIES EXCHANGE ACT OF 1934
Commission
File No.
(Exact name of registrant as specified in its charter)
(State or other jurisdiction of incorporation or organization)
(IRS. Employer Identification No.)
(Address and telephone number of registrant’s executive office) Securities registered pursuant to Section 12(b) of the Act.
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
| None | N/A | N/A |
Indicate
by check mark whether the registrant (1.) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2.)
has been subject to such filing requirements for the past 90 days.
Indicate
by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule
405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer ☐ | Accelerated filer ☐ |
| Smaller
reporting company |
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. ☐
Indicate
by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No
As of October 27, 2025, the Registrant had shares of common stock issued and outstanding.
AMERICAN PICTURE HOUSE CORPORATION
FORM 10-Q
AS OF SEPTEMBER 30, 2025
TABLE OF CONTENTS
TABLE OF CONTENTS
General and Where You Can Find More Information
Unless otherwise indicated (or the context otherwise requires), references in this Quarterly Report on Form 10-Q to the “Company,” “we,” “us,” “our,” and “APHP” refer to American Picture House Corporation, a Wyoming corporation. References to “revenues” are to net revenues. References to “U.S. dollars,” “dollars,” and “$” are to the lawful currency of the United States of America.
| 1 |
PART I — FINANCIAL INFORMATION
Item 1. Financial Statements (Unaudited)
AMERICAN PICTURE HOUSE CORPORATION
CONDENSED CONSOLIDATED FINANCIAL STATEMENTS AS OF SEPTEMBER 30, 2025
INDEX TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
| F-1 |
AMERICAN PICTURE HOUSE CORPORATION
CONDENSED CONSOLIDATED BALANCE SHEETS
| September 30, 2025 | December 31, 2024 | |||||||
| (Unaudited) | * | |||||||
| ASSETS | ||||||||
| Current Assets | ||||||||
| Cash and cash equivalents | $ | $ | ||||||
| Accounts receivable | ||||||||
| Prepaid expenses | ||||||||
| Receivable - related party | ||||||||
| Total Current Assets | ||||||||
| Produced and licensed content costs | ||||||||
| Loans receivable, film financing arrangements | ||||||||
| Intangible assets, net of accumulated amortization of $ | ||||||||
| TOTAL ASSETS | ||||||||
| LIABILITIES AND STOCKHOLDERS’ DEFICIT | ||||||||
| Current Liabilities | ||||||||
| Cash overdraft | ||||||||
| Accounts payable and accrued expenses | ||||||||
| Deferred revenue, current portion | ||||||||
| Interest payable - related party | ||||||||
| Interest payable - EIDL loan | ||||||||
| Note payable | ||||||||
| Note payable - related party | ||||||||
| Commercial Line of Credit | ||||||||
| Total Current Liabilities | ||||||||
| Economic injury disaster loan, non-current | ||||||||
| Total Liabilities | ||||||||
| Stockholders’ Equity (Deficit): | ||||||||
| Common Stock $ par value. authorized. and issued and outstanding as of September 30, 2025 and December 31, 2024, respectively. | ||||||||
| Preferred Stock $ par value. authorized. and issued and outstanding as of September 30, 2025 and December 31, 2024, respectively. | ||||||||
| Additional paid in capital | ||||||||
| Accumulated deficit | ( | ) | ( | ) | ||||
| Total Stockholders’ Equity (Deficit) | ( | ) | ( | ) | ||||
| TOTAL LIABILITIES AND STOCKHOLDERS’ EQUITY (DEFICIT) | $ | $ | ||||||
| * |
The accompanying notes are an integral part of these unaudited interim consolidated financial statements.
| F-2 |
AMERICAN PICTURE HOUSE CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
| 2025 | 2024 | 2025 | 2024 | |||||||||||||
| Three months ended September 30, | Nine months ended September 30, | |||||||||||||||
| 2025 | 2024 | 2025 | 2024 | |||||||||||||
| Revenues | $ | $ | $ | $ | ||||||||||||
| Cost of revenues | ||||||||||||||||
| Gross profit | ||||||||||||||||
| Operating Expenses: | ||||||||||||||||
| General and administrative | ||||||||||||||||
| Research and development | ||||||||||||||||
| Sales and marketing | ||||||||||||||||
| Total Operating Expenses | ||||||||||||||||
| Net Operating Loss | ( | ) | ( | ) | ( | ) | ( | ) | ||||||||
| Other Income (Expenses): | ||||||||||||||||
| Interest income | ||||||||||||||||
| Interest expense | ( | ) | ( | ) | ( | ) | ( | ) | ||||||||
| Net Other Income (Expenses) | ( | ) | ( | ) | ( | ) | ( | ) | ||||||||
| Loss before income taxes | ( | ) | ( | ) | ( | ) | ( | ) | ||||||||
| Income taxes | ||||||||||||||||
| Net loss | $ | ( | ) | $ | ( | ) | $ | ( | ) | $ | ( | ) | ||||
| Net loss per common share - Basic and Diluted | $ | ) | $ | ) | $ | ) | $ | ) | ||||||||
| Weighted average shares used in per share computation - Basic and Diluted | ||||||||||||||||
The accompanying notes are an integral part of these unaudited interim consolidated financial statements.
| F-3 |
AMERICAN PICTURE HOUSE CORPORATION
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS’ EQUITY (DEFICIT)
For the nine months ended September 30, 2025 and 2024
(Unaudited)
| Shares | Par Value | Shares | Amount | Capital | Deficit | (Deficit) | ||||||||||||||||||||||
| Common Stock | Preferred Stock | Additional Paid In | Accumulated | Total Stockholders’ Equity | ||||||||||||||||||||||||
| Shares | Par Value | Shares | Amount | Capital | Deficit | (Deficit) | ||||||||||||||||||||||
| Balance, December 31, 2023 | $ | $ | $ | $ | ( | ) | $ | |||||||||||||||||||||
| Issuance of Common Stock | - | |||||||||||||||||||||||||||
| Stock option compensation | - | - | ||||||||||||||||||||||||||
| Net Loss | - | - | ( | ) | ( | ) | ||||||||||||||||||||||
| Balance, March 31, 2024 | $ | $ | $ | $ | ( | ) | $ | |||||||||||||||||||||
| Common Stock issued for services | - | |||||||||||||||||||||||||||
| Issuance of Common Stock | - | |||||||||||||||||||||||||||
| Net Loss | - | - | ( | ) | ( | ) | ||||||||||||||||||||||
| Balance, June 30, 2024 | $ | $ | $ | $ | ( | ) | $ | |||||||||||||||||||||
| Net Loss | - | - | ( | ) | ( | ) | ||||||||||||||||||||||
| Balance, September 30, 2024 | $ | $ | $ | $ | ( | ) | $ | ( | ) | |||||||||||||||||||
| Common Stock | Preferred Stock | Additional Paid In | Accumulated | Total Stockholders’ Equity | ||||||||||||||||||||||||
| Shares | Par Value | Shares | Amount | Capital | Deficit | (Deficit) | ||||||||||||||||||||||
| Balance, December 31, 2024 | $ | $ | $ | $ | ( | ) | $ | ( | ) | |||||||||||||||||||
| Preferred stock redeemed in exchange for assets | ( | ) | ( | ) | ( | ) | ||||||||||||||||||||||
| Stock option compensation | - | - | ||||||||||||||||||||||||||
| Net Loss | - | - | ( | ) | ( | ) | ||||||||||||||||||||||
| Balance, March 31, 2025 | $ | $ | $ | $ | ( | ) | $ | ( | ) | |||||||||||||||||||
| Common Stock issued for services | ||||||||||||||||||||||||||||
| Stock option compensation | - | - | ||||||||||||||||||||||||||
| Net Loss | - | - | ( | ) | ( | ) | ||||||||||||||||||||||
| Balance, June 30, 2025 | $ | $ | $ | $ | ( | ) | $ | ( | ) | |||||||||||||||||||
| Balance | $ | $ | $ | $ | ( | ) | $ | ( | ) | |||||||||||||||||||
| Stock option compensation | - | - | ||||||||||||||||||||||||||
| Net Loss | - | - | ( | ) | ( | ) | ||||||||||||||||||||||
| Balance, September 30, 2025 | $ | $ | $ | $ | ( | ) | $ | ( | ) | |||||||||||||||||||
| Balance | $ | $ | $ | $ | ( | ) | $ | ( | ) | |||||||||||||||||||
The accompanying notes are an integral part of these unaudited interim consolidated financial statements.
| F-4 |
AMERICAN PICTURE HOUSE CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
| 2025 | 2024 | |||||||
| Nine months ended September 30, | ||||||||
| 2025 | 2024 | |||||||
| Cash Flows from Operating Activities: | ||||||||
| Net Income (Loss) | $ | ( | ) | $ | ( | ) | ||
| Adjustments to Reconcile Net Income (Loss) to Net Cash Flows from Operating Activities: | ||||||||
| Expiration of produced and licensed costs | ||||||||
| Impairment of loan receivable, film financing arrangements | ||||||||
| Stock option expense | ||||||||
| Commons stock issued for services | ||||||||
| Preferred stock redeemed in exchange for assets | ( | ) | ||||||
| Amortization expense | ||||||||
| Change in operating assets and liabilities: | ||||||||
| Accounts receivable | ( | ) | ||||||
| Prepaid expenses | ( | ) | ||||||
| Receivables - related party | ( | ) | ||||||
| Loans receivable, film financing arrangements | ( | ) | ||||||
| Produced and licensed costs | ( | ) | ( | ) | ||||
| Cash overdraft | ( | ) | ||||||
| Accounts payable and accrued expenses | ||||||||
| Payable to related party | ||||||||
| Interest payable | ||||||||
| Interest payable - related parties | ||||||||
| Interest payable - EIDL loan | ( | ) | ( | ) | ||||
| Deferred revenue | ||||||||
| Net Cash Flows from Operating Activities | ( | ) | ( | ) | ||||
| Cash Flows from Investing Activities: | ||||||||
| Intangible assets | ( | ) | ||||||
| Net Cash Flows from Investing Activities | ( | ) | ||||||
| Cash Flows from Financing Activities: | ||||||||
| Proceeds from issuance of note payable | ||||||||
| Proceeds from debt borrowings - related parties | ||||||||
| Repayment of debt borrowings - related parties | ( | ) | ( | ) | ||||
| Proceeds from commercial line of credit | ||||||||
| Repayments on commercial line of credit | ( | ) | ||||||
| Proceeds from sale of Common Stock | ||||||||
| Net Cash Flows from Financing Activities | ||||||||
| Net Increase in Cash and Cash Equivalents | ( | ) | ||||||
| Cash and Cash Equivalents, Beginning of Period | ||||||||
| Cash and Cash Equivalents, End of Period | $ | $ | ||||||
The accompanying notes are an integral part of these unaudited interim consolidated financial statements.
| F-5 |
Notes to (Unaudited) Condensed Consolidated Financial Statements
Note 1 — Organization and Description of Business
American Picture House Corporation. (“the Company,” “we,” “APHP”, and “us”) was incorporated in the State of Nevada on September 21, 2005, originally under the corporate name of Servinational, Inc. The Company subsequently changed its name to Shikisai International, Inc. in November 2005 and then to Life Design Station, Intl., Inc. in August 2007. The Company changed its state of domicile from Nevada to Wyoming on October 13, 2020. On December 4, 2020, the Company changed its name to American Picture House Corporation.
APHP is focused on the development, financing and production of feature films and related content. There were no changes to the Company’s organizational structure during the three months ended September 30, 2025. (As previously disclosed, the Company dissolved Devil’s Half-Acre, LLC and Ask Christine Productions, LLC on May 12, 2025.)
The Company’s year-end is December 31.
Note 2 — Summary of Significant Accounting Policies
Basis of Presentation
The accompanying unaudited consolidated financial statements are presented in conformity with accounting principles generally accepted in the United States of America (“U.S. GAAP”) and pursuant to the rules and regulations of the Securities and Exchange Commission (“SEC”).
Our interim financial statements are unaudited, and in our opinion, include all adjustments of a normal recurring nature necessary for the fair presentation of the periods presented. The results for the interim periods are not necessarily indicative of the results to be expected for any subsequent period or for the year ending December 31, 2025. These unaudited consolidated financial statements and related notes should be read in conjunction with our financial statements for the year ended December 31, 2024.
Principles of Consolidation
The condensed consolidated financial statements of the Company include the accounts of American Picture House Corporation and its wholly owned subsidiaries, Devil’s Half-Acre, LLC and Ask Christine Productions, LLC. Devil’s Half-Acre, LLC and Ask Christine Productions, LLC were both dissolved on May 12, 2025.
Use of Estimates
The preparation of financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. The most significant estimates relate to income taxes and contingencies. The Company bases its estimates on historical experience, known or expected trends, and various other assumptions that are believed to be reasonable given the quality of information available as of the date of these financial statements. The results of these assumptions provide the basis for making estimates about the carrying amount of assets and liabilities that are not readily apparent from other sources. Actual results could differ from these estimates.
| F-6 |
Cash and cash equivalents
Cash
equivalents are short-term highly liquid investments which include short term bank deposits (up to three months from date of deposit),
that are not restricted as to withdrawals or use that are readily convertible to cash with maturities of three months or less as of the
date acquired. The Company’s policy is to maintain its cash balances with financial institutions with high credit ratings and in
accounts insured by the Federal Deposit Insurance Corporation (the “FDIC”) and/or by the Securities Investor Protection Corporation
(the “SIPC”). The Company may periodically have cash balances in financial institutions in excess of the FDIC and SIPC insurance
limits of $
Accounts receivable
Accounts
receivable primarily consist of trade receivables due from fees derived from licensing of IP to content providers worldwide. As of December
31, 2024,
Schedule of Accounts Receivable
September 30, 2025 | December 31, 2024 | |||||||
| Accounts receivable, CAMA | $ | $ | ||||||
| Accounts receivable | $ | $ | ||||||
Allowance for doubtful accounts
The allowance for doubtful accounts is determined with respect to amounts the Company has determined to be doubtful of collection. In determining the allowance for doubtful accounts, the Company considers, among other things, its past experience with customers, the length of time that the balance is past due, the customer’s current ability to pay and available information about the credit risk on such customers. Management determined that no allowance for doubtful accounts is necessary at September 30, 2025 or December 31, 2024.
Prepaid expenses
At
September 30, 2025, prepaid expenses consisted of prepaid insurance, prepaid licenses, and prepaid services. Prepaid expenses are amounts
paid to secure the use of assets or the receipt of services at a future date or continuously over one or more future periods. When the
prepaid expenses are eventually consumed, they are charged to expense. The Company had $
| F-7 |
Produced and Licensed Content Costs
The Company capitalizes certain costs related to film project rights, options and other development-stage investments, as well as loans and receivables related to film productions. Long-lived assets, including film rights and options, are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount may not be recoverable, in accordance with ASC 360-10-35. Receivables and loans are assessed for collectability based on the credit quality of counterparties, project progress, and other qualitative and quantitative factors. When it is determined that an asset’s carrying value exceeds its estimated future economic benefit and no reasonable expectation exists of recovery, the asset is either impaired (adjusted to its recoverable amount) or written off in full. Impairment losses and write-offs are recognized in the period in which the determination is made and are recorded in the consolidated statements of operations as impairment expense.
Capitalized production costs, whether produced or acquired/ licensed rights, include development costs, direct costs and production overhead. These amounts and licensed content are included in “Produced and Licensed Content Costs” on the balance sheet as follows:
Schedule of Produced and Licensed Content Costs
September 30, 2025 | December 31, 2024 | |||||||
| Films in development and pre-production stage | $ | $ | ||||||
| Produced and licensed content cost | $ | $ | ||||||
On
March 11, 2025, an agreement was executed between the Company’s past president, Alfred John Luessenhop, Jr. (“Luessenhop”)
and APHP, along with its affiliated entities Devil’s Half-Acre, LLC and Ask Christine Productions, LLC. Under the terms of the
agreement, Luessenhop agreed to transfer shares of APHP common stock, valued at $
On April 29, 2025, The Noah Morgan Private Family Trust retired ten Preferred shares of the Company in lieu of Mr. Luessenhop retiring one million shares of APHP as Mr. Luessenhop was required to do by the APHP Luessenhop Agreement dated March 11, 2025.
Impairment Assessment for Investment in Films and Licensed Program Right
On
June 12, 2025, the Company’s Chief Executive Officer reported to the Board of Directors that the Company will not pursue production
of Coyote Sleeps and the underlying option rights have expired. Management concluded that no future economic benefit is expected
from this project and, accordingly, the remaining carrying value was written off in full during the quarter. The write-off was recorded
as an impairment loss of $
As
of September 30, 2025, the Company has one property, TURN UP THE SUN!, which is completed and is awaiting a release date. and continues
to be actively marketed through its sales agent, The Syndicate, including at film festivals, and is pursuing distribution
arrangements with potential streaming partners. Although the original option to acquire a
| F-8 |
During
the nine months ended September 30, 2024, the Company allowed options to two screenplays to expire and wrote-off $
Assigned rights to the feature film, BUFFALOED.
In
November 2022, the Company obtained certain limited rights to the feature film BUFFALOED from Bold Crayon, Inc. (“BC”),
including a secured position of a one million three hundred eighty-thousand-dollar ($
As
partial consideration for the BC Assets acquired by APHP, APHP paid BC the first one hundred thirty thousand dollars ($
Intangible assets
The Company’s intangible assets include in-service and under-development websites and licensed internal use software.
The
capitalized costs of the Company’s websites placed into service were subject to straight-line amortization over a three-year
As noted above, on March 11, 2025, the Company’s past president, Alfred John Luessenhop, Jr was assigned APHP’s rights under a Software License Agreement dated November 16, 2023, and a Microsoft Azure Cloud Services Agreement.
Deferred Revenue
Deferred
revenue represents the amount billed to clients that has not yet been earned, pursuant to agreements entered into in current and prior
periods. As of September 30, 2025 and December 31, 2024, total net deferred revenue was $
Revenues
and Costs from Services and Products – Historically, Company’s revenue comes from contracts with customers
for consulting services and from the licensing and distribution of film and other entertainment rights. The consulting services typically
relate to development of business strategy and monetization of intellectual property rights. The Company accounts for a contract with
a customer when there is an enforceable contract between the Company and the customer, the rights of the party are identified, the contract
has economic substance, and collectability of the contract is considered probable. Historically, the term of these consulting agreements
has been approximately three to six months in duration. The Company’s revenue is measured based on considerations specified in
the contract with each customer. Accounting Standards Codification (“ASC”) 606 allows for adoption of an “as invoiced”
practical expedient that allows companies to recognize revenue in the amount to which the entity has a right to invoice when they have
a right to consideration from a customer in an amount that corresponds directly with the value to the customer of the entity’s
performance completed to date. The Company has elected to adopt this practical expedient with regards to its consulting services revenue.
Revenues for the three months and nine months ended September 30, 2025 and 2024 totaled $
| F-9 |
Revenues from Films and Licensed Rights, are calculated based on expected ultimate revenues estimated over a period not to exceed ten years following the date of initial release of the motion picture. For an episodic television series, the period over which ultimate revenues are estimated cannot exceed ten years following the date of delivery of the first episode, or, if still in production, five years from the date of delivery of the most recent episode, if later. For titles included in acquired libraries, ultimate revenue includes estimates over a period not to exceed twenty years following the date of acquisition.
Revenue
derived from the BUFFALOED CAMA totaled $
Fair Value Measurements – The Company measures and discloses fair value in accordance with the ASC Topic 820, Fair Value Measurements and Disclosures which defines fair value, establishes a framework and gives guidance regarding the methods used for measuring fair value, and expands disclosures about fair value measurements. Fair value is an exit price, representing the amount that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. As such, fair value is a market-based measurement that should be determined based on assumptions that market participants would use in pricing an asset or liability. As a basis for considering such assumptions there exists a three-tier fair-value hierarchy, which prioritizes the input used in measuring fair value as follows:
Level 1 - unadjusted quoted prices are available in active markets for identical assets or liabilities that the Company has the ability to access as of the measurement date.
Level 2 - pricing inputs are other than quoted prices in active markets that are directly observable for the asset or liability or indirectly observable through corroboration with observable market data.
Level 3 - pricing inputs are unobservable for the non-financial asset or liability and only used when there is little, if any, market activity for the non-financial asset or liability at the measurement date. The inputs into the determination of fair value require significant management judgment or estimation. Level 3 inputs are considered as the lowest priority within the fair value hierarchy. The valuation of the right to obtain control over affiliated company, right to acquire shares of other companies, contingent consideration to be paid upon achieving of performance milestone, certain convertible bridge loans (following the maturity date and thereafter) and certain freestanding stock warrants and bifurcated convertible feature of convertible bridge loans issued to the units’ owners, fall under this category.
This hierarchy requires the Company to use observable market data, when available, and to minimize the use of unobservable inputs when determining fair value.
The fair value of cash and cash equivalents is based on its demand value, which is equal to its carrying value. Additionally, the carrying value of all other short- term monetary assets and liabilities are estimated to be equal to their fair value due to the short-term nature of these instruments.
| F-10 |
Valuation of Long-Lived Assets – The Company evaluates whether events or circumstances have occurred which indicate that the carrying amounts of long- lived assets (principally produced and licensed content costs) may be impaired or not recoverable. The significant factors that are considered that could trigger an impairment review include: changes in business strategy, market conditions, or the manner of use of an asset; underperformance relative to historical or expected future operating results; and negative industry or economic trends. In evaluating an asset for possible impairment, management estimates that asset’s future undiscounted cash flows and appraised values to measure whether the asset is recoverable. The Company measures the impairment based on the projected discounted cash flows of the asset over its remaining life.
Income taxes
The Company accounts for income taxes under FASB ASC 740, “Accounting for Income Taxes”. Under FASB ASC 740, deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. Under FASB ASC 740, the effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date. FASB ASC 740-10-05, “Accounting for Uncertainty in Income Taxes” prescribes a recognition threshold and a measurement attribute for the financial statement recognition and measurement of tax positions taken or expected to be taken in a tax return. For those benefits to be recognized, a tax position must be more-likely-than-not to be sustained upon examination by taxing authorities.
The amount recognized is measured as the largest amount of benefit that is greater than 50 percent likely of being realized upon ultimate settlement. The Company assesses the validity of its conclusions regarding uncertain tax positions quarterly to determine if facts or circumstances have arisen that might cause it to change its judgment regarding the likelihood of a tax position’s sustainability under audit.
Basic (loss) income per share is computed by dividing net (loss) income available to Common Stockholders by the weighted average number of common shares outstanding during the period. Diluted (loss) income per share reflects the potential dilution, using the treasury stock method that could occur if securities or other contracts to issue Common Stock were exercised or converted into Common Stock or resulted in the issuance of Common Stock that then shared in the (loss) income of the Company. In computing diluted (loss) income per share, the treasury stock method assumes that outstanding instruments are exercised/converted, and the proceeds are used to purchase Common Stock at the average market price during the period. Instruments may have a dilutive effect under the treasury stock method only when the average market price of the Common Stock during the period exceeds the exercise price/conversion rate of the instruments.
| F-11 |
Schedule of Anti-dilutive Securities Excluded from Computation of Weighted Average Common Shares Outstanding
September 30,
2025 | December 31,
2024 | |||||||
| Convertible Preferred Stock | ||||||||
| Stock options | ||||||||
Segment Information
Operating
segments are defined as components of an enterprise about which separate discrete information is available for evaluation by the chief
operating decision maker (“CODM”), or decision-making group, in deciding how to allocate resources and in assessing performance.
For the period of these financial statements, the CEO of the Company was the CODM. The Company views its operations and manages its business
as
New accounting standards
The Company’s management has evaluated all the recently issued, but not yet effective, accounting standards and guidance that have been issued or proposed by the FASB or other standards-setting bodies through the filing date of these financial statements and does not believe the future adoption of any such pronouncements will have a material effect on the Company’s financial position and results of operations.
Note 3 — Liquidity and Going Concern
The
Company’s financial statements are prepared using account principles generally accepted in the United States (“U.S. GAAP”)
applicable to a going concern, which contemplates the realization of assets and liquidation of liabilities in the normal course of business.
As of September 30, 2025, the Company had a working capital deficit of approximately ($
The
Company has a limited operating history, which makes it difficult to evaluate current business and future prospects. During the first
nine months of 2025, the Company reported $
| F-12 |
Note 4 — Film Production Loans and Receivables
Senior Mezzanine Loan Agreement with Barron’s Cove Movie, LLC
In
February 2024, the Company loaned $
APHP maintains a first-priority recoupment/loan position against BARRON’S COVE, acquired August 1, 2025, from SSS Entertainment, LLC. Under the applicable agreements and security filings (UCC-1), APHP is entitled to receive first-priority distributions from specified project receipts after sales fees, distribution expenses, participations, residuals and other senior deductions (see Note 5 “Produced & Licensed Content”). As of the date of this report, APHP is evaluating the exercise of remedies under Article 9 of the New York Uniform Commercial Code, including potential foreclosure on collateral, which may result in APHP obtaining greater control over project revenues and/or related assets. There can be no assurance as to, if, or when any such remedies will be exercised or the outcome thereof.
Senior Loan Agreement with PNP Movie, LLC
PNP
Movie, LLC senior loan (default; written off). In February 2024, the Company agreed to lend $
The
loan has been in default for more than 120 days, and management believes there is significant uncertainty regarding completion or release
of the film. Accordingly, during the quarter ended June 30, 2025, the Company recorded a full write-off of $
Note 5 — Produced & Licensed Content Costs (Film Projects)
| F-13 |
BARRON’S COVE — Completed; Released.
BARRON’S COVE. On August 1, 2025, APHP acquired from SSS Entertainment, LLC a first-priority recoupment/loan position related to this title (see Note 4 “Film Production Loans and Receivables”). APHP also holds an “in Association with” credit, and Bannor Michael MacGregor holds a Producer credit. The film premiered at the Hamptons International Film Festival in October 2024 and was released in the U.S. on June 6, 2025 by Well Go USA. As reported by the producer/sales agent, a three-year U.S. streaming license with Paramount+ was executed in early October 2025 (see Note 12 “Subsequent Events”).
TURN UP THE SUN! (aka POSE) — Completed; Awaiting Release Date.
TURN
UP THE SUN! (aka POSE). APHP earned an “in Association with” credit; Mr. MacGregor holds a producer
credit. The film was completed and awaiting release as of September 30, 2025. APHP currently holds an option
to purchase a
Accounting:
The Company carries this asset on the balance sheet at $
Related-party note: The producer credit is held by Mr. MacGregor, the Company’s CEO. See Note 11 “Related Party Transactions”.
PROTECTOR — Completed; Awaiting Release Date.
PROTECTOR. The film was completed and awaiting release as of September 30, 2025. APHP anticipates earning an “in Association with” credit and issuing shares to Mr. Sanghani (or an assignee), of SSS Entertainment LLC, a producer of the film, as consideration attributed to this title. To date APHP has not issued such shares, pending final negotiations and anticipates issuing the shares in Q4; APHP does not own an equity interest in the film.
Accounting: No revenue was recognized as of quarter-end.
Related-party note: A producer credit may also be granted to Mr. MacGregor, the Company’s CEO. See Note 11 “Related Party Transactions”.
| F-14 |
THIEVES HIGHWAY — Completed; Awaiting Release Date.
THIEVES HIGHWAY. The film was completed and awaiting release as of September 30, 2025. APHP anticipates earning an “in association with” credit. APHP anticipates issuing common shares to Mr. Sanghani (or an assignee), of SSS Entertainment, a producer of the film, as consideration attributed to this title. To date APHP has not issued such shares and is in final negotiations and anticipates issuing the shares in Q4; APHP does not own an equity interest in the film.
Accounting: No revenue was recognized as of quarter-end.
Related-party note: A producer credit may also be issued to Mr. MacGregor, the Company’s CEO. See Note 11 “Related Party Transactions”.
MOTION (aka GET DA BAG) — In Pre-Production.
MOTION (aka GET DA BAG). As of September 30, 2025, the project was in pre-production, with principal photography planned for mid-December 2025 in New Orleans, Louisiana, subject to financing, production and talent conditions. APHP expects to co-produce with SSS Entertainment and Mr. MacGregor is expected, but subject to final negotiations, to receive a Producer credit. APHP anticipates owning an ownership stake in the film subject to future investment.
Accounting: No revenue was recognized as of quarter-end.
Related-party note: A producer credit may also be issued to Mr. MacGregor, the Company’s CEO. See Note 11 “Related Party Transactions”.
Note 6 — Intangible Assets
The identifiable intangible assets consist of the following assets:
Schedule of Intangible Assets
| September 30, 2025 | December 31, 2024 | |||||||
| Website placed in service | $ | $ | ||||||
| Software – predeployment | ||||||||
| Intangible assets, gross | ||||||||
| Accumulated amortization | ( | ) | ( | ) | ||||
| Intangible assets, net | $ | $ | ||||||
| F-15 |
As noted above, on March 11, 2025, the Company’s past president, Alfred John Luessenhop, Jr was assigned APHP’s rights under a Software License Agreement dated November 16, 2023, and a Microsoft Azure Cloud Services Agreement.
There
were no impairment charges associated with the Company’s identifiable intangible assets during the three and nine months ended
September 30, 2025 and 2024. Amortization expense totaled $
Note 7 — Notes Payable and Line of Credit
Related-party notes (CEO and Noah Morgan Private Family Trust), commercial lines of credit, EIDL loan; activity during Q3.
Note Payable – Mr. MacGregor
During
the nine months ended September 30, 2025, the Company borrowed $
During
the nine months ended September 30, 2024, the Company borrowed $
Noah Morgan Private Family Trust Loan Agreement (“NMPFT”)
During
the nine months ended September 30, 2025, the Company borrowed $
Note Payable – Board Member
During
the quarter ended September 30, 2024, the Company borrowed $
Economic Injury Disaster Loan
In
March 2021, the Company executed an Economic Injury Disaster Loan (“EIDL”) secured loan with the U.S. Small Business
Administration under the EIDL program in the amount of $
Commercial Line of Credit
During
April 2024, the Company entered into a line of credit agreement with American Express. During the nine months ended September 30, 2024,
the Company borrowed a total of $
Labrys Fund II Loan
Labrys
Fund II, L.P. Promissory Note (Sept 22, 2025). The Company issued an unsecured $
| F-16 |
Equity Line of Credit.
On
September 12, 2025, the Company entered into an Equity Line of Credit Agreement (“ELOC”) with RH2 Equity Partners, L.P.,
and a related Registration Rights Agreement. The ELOC provides the Company the right, at its discretion and subject to specified
conditions, to sell shares of its common stock to the investor over a 24-month period for aggregate gross purchase price up to the
lesser of $
Note 8 — Equity and Equity-Based Compensation
SSS
Entertainment — POSE. As previously disclosed, under a November 11, 2024 agreement the Company agreed to issue
common shares and to pay $
Common Stock
The Company has common shares authorized. As of October 27, 2025, the Company has shares issued and outstanding. As of October 27, 2025, the total number of shareholders of record was .
The Common Stock has a one share, one voting right, with no other rights. There are no provisions in the Company’s Articles of Incorporation, Articles of Amendment, or By-laws that would delay or prevent a change of control. The Board may from time to time declare, and the Company may pay, dividends on its shares in cash, property, or its own shares, except when the Corporation is insolvent, when the payment thereof would render the Company insolvent, subject to any preferential dividend rights of outstanding shares of Preferred shares or when the declaration or payment thereof would be contrary to any other state law restrictions.
Preferred Stock
The
Preferred Stock consists of Preferred shares authorized, of which Preferred shares have been designated as Series A
Convertible Preferred Stock (“Series A Preferred shares” herein). At present, Series A Preferred shares are issued
and outstanding.
| F-17 |
The
“Liquidation Preference” with respect to a share of Series A Preferred stock means an amount equal to the ratio of (i.) the
total amount of the Company’s assets and funds available for distribution to the Series A Preferred shares to (ii.) the number
of shares of Series A Preferred stock outstanding. The Series A Preferred stock has a liquidation preference equal to $
Dividend Provisions
Subject to preferential dividend rights, if any, of the holders of Preferred Stock, dividends on the Common Stock may be declared by the Board of Directors and paid out of any funds legally available therefor at such times and in such amounts as the Board of Directors shall determine.
Common Stock Activity
During
the nine months ended September 30, 2024, the Company sold shares of Common Stock resulting in total proceeds of $
Preferred Stock Activity
On April 29, 2025, The Noah Morgan Private Family Trust retired Preferred shares of the Company in lieu of Mr. Luessenhop retiring one million shares of APHP as Mr. Luessenhop was required to do by the APHP Luessenhop Agreement dated March 11, 2025.
The American Picture House Corporation 2023 Directors, Employees and Advisors Stock Incentive and Compensation Plan (the “Plan”) was established in January 2023 to create an additional incentive to promote the financial success and progress of the Company. The Plan shall be administered by the Board of Directors and may grant options to purchase shares of the authorized but unissued Common Stock of the Company. The options may be either incentive stock options or nonqualified stock options.
The options granted under the Plan expire on the date determined by the Board of Directors and may not extend more than years.
Under the Plan, unless the board specifies otherwise, stock options must be granted at an exercise price not less than the fair value of the Company’s Common Stock on the grant date. The aggregate fair value of incentive stock options held by any optionee shall not exceed $.
The Board of Directors shall determine the terms and conditions of the options.
| F-18 |
During
the quarters ended September 30, 2025 and 2024, the Company recorded $
Stock Option Grants
On February 8, 2024, the Company’s Board of Directors authorized the issuance of options to each of its nine board members, options to advisors, options to Mr. Macgregor, and options to Mr. Blanchard for an aggregate of options with the rights to purchase common shares of the Company at an exercise price of $ per share. As all of the options vested % upon grant, the Company recorded $ of stock option compensation expense in the quarter ended March 31, 2024. Share-based compensation expense is reported within General and Administrative expenses. Also during 2024, two of the directors resigned from the Board and forfeited options to purchase an aggregate of shares of Common Stock. In November 2024, the Board granted management the right to issue options to purchase an aggregate of shares of Common Stock to two consultants.
Note 10 — Commitments and Contingencies
Potential JAMS arbitrations — consulting agreements (Sanger; Jones). Subsequent to quarter-end, JAMS administratively opened two matters styled Jonathan Sanger v. American Picture House Corporation (JAMS Case No. 5220010741) and Michael Jones v. American Picture House Corporation (JAMS Case No. 5220010727). APHP has not been served in accordance with the consulting agreements’ notice provisions and, on November 5, 2025, requested that JAMS defer arbitrator selection/administration pending proof of contract-compliant service and reserved all rights (including consolidation if properly commenced). No arbitrator has been appointed and no schedule has issued. Based on current information, management cannot conclude that a loss is probable and is unable to reasonably estimate a possible loss or range of loss, if any, at this time. APHP intends to evaluate any claims and defend its interests as appropriate,
Risks and Uncertainties – The Company’s operations are subject to significant risks and uncertainties including financial, operational, and regulatory risks, including the potential risk of business failure. The Company does not have employment contracts with its key employees, including the controlling shareholders who are officers of the Company.
Note 11 — Related Party Transactions
On August 1, 2025, Bannor Michael MacGregor, the Company’s Chief Executive Officer and Chairperson, entered into a Pledge and Agreement Not to Convert Preferred Shares with the Company. Under the terms of this agreement, Mr. MacGregor has irrevocably agreed not to convert any Preferred shares under his control into common stock for a period of ninety (90) days from the date of the agreement, unless such restriction is released earlier by the prior written consent of a majority of the Company’s Board of Directors. The agreement was entered into to provide stability to the Company’s capital and voting structure.
During
the three months ended September 30, 2025 and 2024, the Company incurred approximately $
| F-19 |
The
Company has consulting services relationships with members of the Board whereby they were compensated a total of $
Bannor Michael MacGregor, the Company’s Chief Executive Officer, has irrevocably waived, and has not received, the compensation otherwise payable to him under his consulting agreement for the year to date, including the quarter ended September 30, 2025.
Officer credits on third-party productions. Mr. MacGregor expects to received “Producer” credits on certain third-party titles, including PROTECTOR and THIEVES HIGHWAY. These credits do not entitle Mr. MacGregor to any cash compensation or revenue participation separate from APHP’s arrangements, and APHP does not have an ownership interest in those films. See Note 5 “Produced & Licensed Content”.
Note 12 — Subsequent Events
In accordance with FASB ASC 855-10, Subsequent Events, the Company has analyzed its operations subsequent to September 30, 2025, to the date these consolidated financial statements were issued. Except as noted below, management has determined that it does not have any material subsequent events, other than those listed below, to disclose in these consolidated financial statements.
BARRON’S COVE — Paramount+ License. In early October 2025, the producer/sales agent reported execution of a three-year U.S. streaming license with Paramount+. APHP is not the counterparty to this license; the timing and amount of any distributions to APHP, if any, cannot be estimated at this time. See Note 5 “Produced & Licensed Content” and Note 4 “Film Production Loans and Receivables”.
Potential JAMS Arbitration. After the close of this quarter, the Company became aware that Mr. Sanger and Mr. Jones may assert claims relating to their consulting agreements and may initiate a JAMS arbitration. See Item 1 — Legal Proceedings and Note 10 “Commitments & Contingencies”.
As of October 27, 2025, APHP anticipates issuing common shares to Mr. Sanghani (or an assignee), of SSS Entertainment, in Q4 related to APHP’s involvement in PROTECTOR and THIEVES HIGHWAY.
As of October 27, 2025, APHP had not sold any shares under the ELOC and had not received proceeds. We may elect to draw in future periods subject to the conditions in the agreements.
JAMS administrative openings; service objection. On November 5, 2025, APHP requested that JAMS defer administration in Sanger v. APHP (JAMS Case No. 5220010741) and Jones v. APHP (JAMS Case No. 5220010727) pending proof of contract-compliant service. APHP designated a service email, reserved all rights (including potential consolidation), and no arbitrator has been appointed.
| F-20 |
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations
Forward-Looking Statements
The following discussion and analysis should be read in conjunction with our condensed financial statements and related notes included elsewhere in this report. This discussion contains forward-looking statements that involve risks and uncertainties. Our actual results could differ materially from those discussed in these forward-looking statements due to various factors, including those described in the section titled “Risk Factors” and elsewhere in this Quarterly Report on Form 10-Q.
Recent Developments
SSS Entertainment Agreement – TURN UP THE SUN Option Extension and Barron’s Cove Acquisition
On August 1, 2025, the Company entered into an agreement with SSS Entertainment, LLC (“SSS”) to (i.) extend to December 31, 2025 its option to acquire a 24% ownership interest in the feature film TURN UP THE SUN! (aka POSE) for $725,000 and (ii.) acquire all rights, title, and interest in the feature film Barron’s Cove and related secured assets, including liens, loans, UCC-1 filings, and security interests.
As consideration, the Company issued 500,000 shares of its common stock to SSS’s principal, allocated equally between the option extension and the asset acquisition. The Company will pay to SSS the first 85% of revenues from exploitation of BARRON’S COVE until SSS has recouped $2 million, after which all such revenues will be retained by the Company. SSS may elect to convert future revenue entitlements into shares of the Company’s common stock at a conversion rate of 2.5 times the retained revenue, subject to a $1.00 per share floor. The Company will also assume up to $50,000 in costs to enforce and perfect the secured rights.
Leadership updates. On August 30, 2025, Jonathan Sanger resigned as President. As disclosed in our Current Report on Form 8-K/A filed September 19, 2025, Mr. Sanger’s resignation followed a dispute regarding certain compensation matters under his consulting agreement and did not involve any disagreement with the Company on any other matter relating to operations, policies, or practices. Our Board has initiated a process to evaluate and implement any necessary adjustments to management responsibilities.
On September 16, 2025, Donald J. Harris resigned from our Board of Directors, effective immediately. As disclosed in our Current Report on Form 8-K filed September 19, 2025, Mr. Harris’s resignation was not the result of any disagreement with the Company on any matter relating to operations, policies, or practices. The Board is evaluating its composition following his resignation.
Capital markets update. On September 12, 2025, we entered into an Equity Line of Credit (“ELOC”) with RH2 Equity Partners, L.P., and a related Registration Rights Agreement. Under the ELOC, we may, at our election and subject to specified conditions, sell newly issued shares of our common stock to the investor over a 24-month period in an amount up to the lesser of $100 million or the “Maximum Common Stock Issuance” (as defined in the ELOC). Proceeds, if any, may be used for general corporate purposes. See “Liquidity and Capital Resources” for additional detail.
| 2 |
As of September 30, 2025. APHP has participated in a number of feature films at or near delivery: BARRON’S COVE, TURN UP THE SUN! (aka POSE), PROTECTOR, THIEVES HIGHWAY, and MOTION (aka GET DA BAG). Participation varies by title (first-priority recoupment/loan position, “in Association with” and Producer credits, options, and development/co-production roles). We have not recognized revenue from these projects as of September 30, 2025, unless otherwise disclosed. See Note 5 “Produced & Licensed Content” and Note 4 “Film Production Loans and Receivables” for rights, status, and accounting by title.
As of September 30, 2025, we had not sold any shares under the ELOC and had not received proceeds. We may elect to draw in future periods subject to the conditions in the agreements.
Organizational History of the Company and Overview
Corporate History
American Picture House Corporation was incorporated in Nevada on September 21, 2005 under the name Servinational, Inc. The Company subsequently changed its name to Shikisai International, Inc. in November 2005 and then to Life Design Station, Intl., Inc. in August 2007. The Company changed its state of domicile from Nevada to Wyoming on October 13, 2020. On December 4, 2020, the Company changed its name to American Picture House Corporation.
The Board of Directors approved a 50:1 reverse stock split that became effective in the marketplace on October 11, 2021.
Following the reverse stock split, on September 13, 2021, the Company also adopted an amendment, which was independent of the above-mentioned reverse stock split, to the Company’s Articles of Incorporation to reduce the number of authorized shares from 4,700,000,000 shares of Common Stock at $0.0001 par value to 1,000,000,000 shares of Common Stock at $0.0001 par value.
On October 16, 2024 the shareholders approved our Second Amended and Restated Articles of Incorporation, which amends Article VI, paragraph A. (1.) of our current Amended and Restated Articles of Incorporation to grant authorization to our Board of Directors to determine, without shareholder approval, the designations, preferences, limitations, restrictions, and relative rights of any additional classes of Preferred Stock, and variations in the relative rights and preferences as between different series. The Company filed the Second Amended and Restated Articles of Incorporation with the State of Wyoming in April 2025.
As of October 27, 2025, the Company has 1,001,000,000 shares authorized, including 1,000,000,000 common shares and 1,000,000 Preferred shares.
Common Shares - As of October 27, 2025, APHP has 1,000,000,000 common shares authorized of which 112,899,325 shares issued and outstanding. As of October 27, 2025, the total number of shareholders of record was 332. All common shares are entitled to participate in any distributions or dividends that may be declared by the Board of Directors, subject to any preferential dividend rights of outstanding shares of Preferred shares.
| 3 |
Preferred Shares - As of October 27, 2025, the Company had 1,000,000 Preferred shares authorized, of which 100,000 Preferred shares have been designated as Series A Convertible Preferred Stock (“Series A Preferred shares” herein). At present, 3,839 Series A Preferred shares are issued and outstanding. The Series A Preferred shares do not have any rights to dividends; voting - each share of Series A Preferred shares carries a superior voting right to the Company’s common shares, each Series A Preferred share shall be counted as 1,000,000 votes in any Company vote. Each Series A Preferred share is convertible at a ratio of 1 to 100,000 so that each one share of Series A Preferred shares may be exchanged for 100,000 common shares. Series A Preferred shares hold a first position lien against all of the Company’s assets including but not limited to the Company’s IP (“Intellectual Property”). The Preferred shares do not have any specific redemption rights or sinking fund provisions.
Voting Control – October 27, 2025, Mr. Bannor Michael MacGregor, the Company’s Chief Executive Officer and Chairperson, beneficially owned 24,413,041 shares of the Company’s common stock (including options exercisable within 60 days), representing approximately 21.62% of the outstanding common shares. In addition, Mr. MacGregor directly and indirectly beneficially owns and controls all 3,839 issued and outstanding shares of the Company’s Series A Preferred Stock, representing 100% of that class. Each Series A Preferred Share has voting rights equal to 1,000,000 votes per share, for an aggregate of 3,839,000,000 votes. When combined with the voting rights associated with his common stock ownership, Mr. MacGregor controls voting rights equivalent to 3,863,163,041 shares of common stock, or approximately 97.75% of the Company’s total voting power.
Business Overview
American Picture House Corporation (“APHP”), also known as American Picture House Pictures, is an entertainment company focused on the development, packaging, financing and production of feature films and limited series. During 2025, APHP pivoted away from third-party consulting to concentrate on internally developed projects and selective strategic partnerships. Our objective over time is to build a disciplined slate and the organizational capabilities of a scaled independent (“mini-major”); however, there can be no assurance that we will achieve this objective.
APHP’s strategy emphasizes mid-budget projects where a substantial portion of production costs may be supported by project-level structures (e.g., pre-sales, distribution advances, production incentives/tax credits, and, where available, completion guarantees). We aim to mitigate equity exposure by assembling packages that combine bankable creative elements (script/IP, producers, directors, cast) with cost-efficient production plans (including incentive-eligible jurisdictions). We may co-produce and/or co-finance with third parties when appropriate.
As part of this approach, we acquire or option IP at a stage where prior owners/creators have already invested meaningful development effort, enabling APHP to advance the material with targeted spend (e.g., WGA rewrites/polish, packaging, schedules and budgets) while maintaining financial discipline. Where appropriate, original developers may retain a contingent participation in future project revenues. We also intend to leverage industry-standard financing tools and to engage reputable third-party advisors (agencies, legal, sales agents, banks) on a project-by-project basis.
| 4 |
Execution focus across the filmmaking lifecycle. APHP participates principally in:
| ● | Development & packaging: rights acquisition/optioning, story development, and attaching key creative elements; | |
| ● | Financing: structuring pre-sales and other project-level funding sources; and | |
| ● | Production planning: detailed budgets, schedules, incentive analysis, and risk mitigation (including completion bond evaluation where applicable). |
As of the date of this report, APHP continues to develop and evaluate projects in various stages of the pipeline. Initiatives described above are subject to market conditions, third-party approvals, availability of financing, and execution risks, and there can be no assurance that any specific project will be packaged, financed, produced, or commercially successful.
Organizational Structure
At present, the Company has no employees. We do, however, utilize the services of consultants. The Company is managed by its officers. Bannor Michael MacGregor is the CEO/President, Michael Blanchard is the Secretary, and Daniel Hirsch is the Treasurer, all report to a Board of Directors. At present, only Bannor Michael MacGregor is under a Consulting Agreement.
Our Offices
The Company maintains three virtual offices in New York, NY, Raleigh, NC, and Los Angeles, CA.
Critical Accounting Policies and Estimates
Our management’s discussion and analysis of our financial condition and results of operations are based on our financial statements, which have been prepared in accordance with U.S. generally accepted accounting principles, or “GAAP.” The preparation of these financial statements requires us to make estimates and assumptions that affect the reported amounts of assets and liabilities, disclosure of contingent assets and liabilities at the date of the financial statements, and the reported amounts of revenue and expenses during the reported period. In accordance with GAAP, we base our estimates on historical experience and on various other assumptions that we believe are reasonable under the circumstances. Actual results may differ from these estimates under different assumptions or conditions.
Our significant accounting policies are fully described in Note 2 to our financial statements appearing elsewhere in this Quarterly Report, and we believe those accounting policies are critical to the process of making significant judgments and estimates in the preparation of our financial statements.
Cybersecurity Update
APHP’s risk management program remains unchanged; see “Item 8. Cybersecurity” in our Annual Report on Form 10-K for a full discussion of our risk management and governance framework.
COVID-19 Update
To date, the COVID-19 pandemic has not had a material impact on the Company, particularly due to our current lack of operations. The pandemic may, however, have an impact on our ability to evaluate and acquire an operating entity through a reverse merger or otherwise.
Off-Balance Sheet Arrangements
None.
| 5 |
Results of Operations — Three Months Ended September 30, 2025 vs. 2024
| Three months ended September 30, | ||||||||||||
| 2025 | 2024 | Change $ | ||||||||||
| Revenues | $ | - | $ | - | $ | - | ||||||
| Cost of revenues | - | - | - | |||||||||
| - | - | - | ||||||||||
| Operating Expenses: | ||||||||||||
| General and administrative | 67,743 | 315,570 | (247,827 | ) | ||||||||
| Research and development | - | - | - | |||||||||
| Sales and marketing | 7,027 | - | 7,027 | |||||||||
| Total Operating Expenses | 74,770 | 315,570 | (240,800 | ) | ||||||||
| Net Operating Loss | (74,770 | ) | (315,570 | ) | 240,800 | |||||||
| Other Income (Expenses): | ||||||||||||
| Interest income | - | 1,332 | (1,332 | ) | ||||||||
| Interest expense | (30,787 | ) | (12,276 | ) | (18,511 | ) | ||||||
| Net Other Income (Expenses) | (30,787 | ) | (10,944 | ) | (19,843 | ) | ||||||
| Loss before income taxes | (105,557 | ) | (326,514 | ) | 220,957 | |||||||
| Income taxes | - | - | - | |||||||||
| Net loss | $ | (105,557 | ) | $ | (326,514 | ) | $ | 220,957 | ||||
Revenues and Cost of Revenues
The Company had no revenue during the three months ended September 30, 2025 and September 30, 2024.
General and Administrative Expenses
General and administrative expenses for the three months ended September 30, 2025 were approximately $67,000 compared to approximately $316,000 for the three months ended September 30, 2024, a decrease of approximately $248,000 as management sought to significantly reduce operational spend to conserve cash resources.
Sales and Marketing Expenses
Sales and marketing expenses for the three months ended September 30, 2025 were approximately $7,000 compared to approximately $0 for the three months ended September 30, 2024, an increase of approximately $7,000.
Other Income (Expense)
Interest Income. Interest income for the three months ended September 30, 2025 and 2024 was minimal and consisted of interest earned on invested cash balances.
| 6 |
Interest Expense. Interest expense for the three months ended September 30, 2025 and 2024 was $30,787 and $12,276, respectively, and was primarily related to our Economic Injury Disaster Loan (“EIDL”), commercial line of credit, related party working capital loans, and a loan a new promissory note entered into during the quarter.
Liquidity and Capital Resources
We had an accumulated deficit of approximately $8.7 million, incurred a net loss of approximately $106,000, and had cash outflows from operations of approximately $81,000 as of and for the three months ended September 30, 2025. Further, we expect to continue to incur significant costs in the pursuit of our business plans. We cannot assure you that our plans to raise capital or to complete our film development and production activities will be successful. These factors, among others, raise substantial doubt about our ability to continue as a going concern.
Since our inception, we have incurred significant operating losses. We expect to incur significant expenses and operating losses for the foreseeable future as we develop and produce feature films. To date, we have funded our operations with proceeds from sales of Common Stock and borrowings from related parties under promissory notes. As of September 30, 2025, our cash and cash equivalents were approximately $102,00 and we were not able to meet our current obligations as they became due and payable.
Potential project distributions. Certain titles, including BARRON’S COVE, may generate future cash inflows to APHP under applicable distribution waterfalls. The timing and amount of any such inflows are uncertain and have not been assumed in our near-term liquidity plan. See Note 5 “Produced & Licensed Content” and Note 4 “Film Production Loans and Receivables”.
Operating Activities
During the three months ended September 30, 2025 and 2024, operating activities consumed approximately $81,000 and $34,000 of cash, respectively.
Investing Activities
During the three months ended September 30, 2025 and 2024, investing activities were $0.
Financing Activities
During the three months ended September 30, 2025, net cash provided by financing activities was $182,000 which was comprised of $115,000 of new debt financing and $312,000 of net new related party borrowings.
During the three months ended September 30, 2024, net cash provided by financing activities was approximately $25,000 which and was comprised primarily of related party borrowings.
| 7 |
Results of Operations — Nine Months Ended September 30, 2025 vs. 2024
| Nine months ended September 30, | ||||||||||||
| 2025 | 2024 | Change $ | ||||||||||
| Revenues | $ | - | $ | 23,003 | $ | (23,003 | ) | |||||
| Cost of revenues | - | - | - | |||||||||
| - | 23,003 | (23,003 | ) | |||||||||
| Operating Expenses: | ||||||||||||
| General and administrative | 1,293,606 | 2,197,584 | (903,978 | ) | ||||||||
| Research and development | - | 703 | (703 | ) | ||||||||
| Sales and marketing | 8,857 | 25,325 | (16,468 | ) | ||||||||
| Total Operating Expenses | 1,302,463 | 2,223,612 | (921,149 | ) | ||||||||
| Net Operating Loss | (1,302,463 | ) | (2,200,609 | ) | 898,146 | |||||||
| Other Income (Expenses): | ||||||||||||
| Interest income | 44 | 1,818 | (1,774 | ) | ||||||||
| Interest expense | (52,603 | ) | (28,281 | ) | (24,322 | ) | ||||||
| Net Other Income (Expenses) | (52,559 | ) | (26,463 | ) | (26,096 | ) | ||||||
| Loss before income taxes | (1,355,022 | ) | (2,227,072 | ) | 872,050 | |||||||
| Income taxes | - | - | - | |||||||||
| Net loss | $ | (1,355,022 | ) | $ | (2,227,072 | ) | $ | 872,050 | ||||
Revenues and Cost of Revenues
The Company had no revenue during the three months ended September 30, 2025 and September 30, 2024.
The Company had no revenue during the nine months ended September 30, 2025. During the nine months ended September 30, 2024, the Company had revenues totaling $23,000 all of which were from the BUFFALOED CAMA.
General and Administrative Expenses
General and administrative expenses for the nine months ended September 30, 2025 were approximately $1,294,000 compared to approximately $2,198,000 for the nine months ended September 30, 2024, a decrease of approximately $904,000. The 2025 period included $379,000 of stock-based compensation expense compared to $1,258,000 in the 2024 period. The 2025 period also included the write-off of $196,200 of loans receivable that management determined were uncollectible, and the expiration of rights to a screenplay carried on the books at $150,834.
Sales and Marketing Expenses
Sales and marketing expenses for the nine months ended September 30, 2025 were approximately $9,000 compared to approximately $25,000 for the nine months ended September 30, 2024, a decrease of approximately $16,000.
| 8 |
Other Income (Expense)
Interest Income. Interest income for the nine months ended September 30, 2025 and 2024 was minimal and consisted of interest earned on invested cash balances.
Interest Expense. Interest expense for the nine months ended September 30, 2025 and 2024 was $21,816 and $16,005, respectively, and was primarily related to our Economic Injury Disaster Loan (“EIDL”), commercial line of credit and related party working capital loans.
Liquidity and Capital Resources
Going concern, liquidity and plan. As of and for the nine months ended September 30, 2025, we had an accumulated deficit of approximately $8.6 million, incurred a net loss of approximately $1.4 million, and used approximately $325,000 of net cash in operating activities. Since inception, we have incurred significant operating losses and expect to continue to incur substantial expenses and operating losses as we develop and produce feature films. To date, we have funded operations primarily through sales of common stock and related-party borrowings under promissory notes. As of September 30, 2025, our cash and cash equivalents were approximately $102,000, we had current liabilities of approximately $1.7 million, and we have experienced a build in payables as certain expenditures have been deferred pending project financing and capital raises. We expect near-term cash requirements over the next 12 months to increase significantly, primarily for production development, G&A, and working capital. To address these requirements, we intend to utilize a combination of (i.) our Equity Line of Credit (“ELOC”) with RH2 Equity Partners, L.P., which permits, at our election and subject to conditions, sales of common stock over a 24-month period up to the lesser of $100.0 million or the “Maximum Common Stock Issuance”; (ii.) potential bridge financing and/or commercial credit lines; and (iii.) equity issuances or project-level financing. Availability under the ELOC is not assured and is subject to specified conditions and limitations; any issuances would be dilutive and could place downward pressure on our stock price. As of September 30, 2025, we had not sold any shares under the ELOC. We cannot assure you that our plans to raise capital or to complete our film development and production activities will be successful. These factors raise substantial doubt about our ability to continue as a going concern. Management believes that, if executed as planned, the actions described above would provide sufficient liquidity to fund operations; however, if we are unable to access the ELOC or other financing on acceptable terms, we may be unable to continue as a going concern. (See Note 7 “Notes Payable and Lines of Credit” for additional information regarding the ELOC).
Operating Activities
During the nine months ended September 30, 2025, operating activities consumed approximately $326,000 of cash.
During the nine months ended September 30, 2024, operating activities used approximately $783,000 of cash, including providing a $396,000 of financing to film production companies.
Investing Activities
During the nine months ended September 30, 2025 and 2024, investing activities included approximately $0 and $22,000 of costs related to development of the Company’s website.
Financing Activities
During the nine months ended September 30, 2025, net cash provided by financing activities was $428,000 which was comprised of $312,000 of related party borrowings and $115,000 of new debt financing.
| 9 |
During the nine months ended September 30, 2024, net cash provided by financing activities was approximately $601,000 including $169,000 of proceeds from the sale of Common Stock and $454,000 of net working capital financing under a master loan agreement from a related party and a commercial line of credit.
Impairment loss.
Results for the nine months ended September 30, 2025 include a $196,200 non-cash impairment charge recorded in the second quarter of 2025 to write off the PNP Movie, LLC loan following extended default and uncertainty regarding the film’s completion. (See Note 4 “Film Production Loans and Receivables”
Other Material Developments and Trends
Ongoing Concerns.
We continue to face significant liquidity challenges and have concluded that substantial doubt exists about our ability to continue as a going concern through the next 12 months. We plan to address this by seeking additional funding sources like a short-term bridge loan, a medium-term credit-line, and a significant longer-term financial raise and the Company has reduced operating costs, but there is no assurance we will succeed.
We are aware of potential claims by two former consultants; see Note 10 and Item 1 — Legal Proceedings. At this time we cannot estimate a possible loss or range of loss.
Liquidity and Capital Resources
Equity Line of Credit. On September 12, 2025, we entered into an Equity Line of Credit Agreement with RH2 Equity Partners, L.P. providing us the right, but not the obligation, to direct the investor to purchase newly issued shares of our common stock over a 24-month term in an aggregate amount up to the lesser of $100.0 million or the Maximum Common Stock Issuance, subject to customary conditions and a related Registration Rights Agreement. The shares issuable under the facility, if and when issued, are to be offered and sold in reliance on Section 4(a)(2) and/or Rule 506 of Regulation D. As of September 30, 2025, we [had/had not] sold any shares pursuant to the ELOC and [had/had not] received proceeds. We filed the Agreements as exhibits to our Form 8-K on September 19, 2025.
We believe the ELOC, together with other financing options, enhances our liquidity and financial flexibility; however, any issuances under the facility would dilute existing stockholders and could exert downward pressure on our stock price. Availability is also subject to specified conditions and limitations described in the Agreements.
Loans and recoverability. Following the Q2 2025 write-off of the PNP Movie, LLC loan, we do not expect near-term cash inflows from this source. Our liquidity plan continues to rely on project-level receipts and financing, as discussed elsewhere in this report. See Note 4 “Film Production Loans and Receivables”.
Critical Accounting Policies and Estimates
Reference to the significant policies in the Notes and any material updates specific to Q3 2025 (e.g., impairment judgments, fair-value measurements).
Off-Balance Sheet Arrangements
None
Cybersecurity Update
Refer to 10-K Item 8 disclosures and note any changes during Q3 2025.
| 10 |
Item 3. Quantitative and Qualitative Disclosures About Market Risk
Not required for a smaller reporting company.
Item 4. Controls and Procedures
(a) Disclosure Controls and Procedures
Our management, with the participation of our Chief Executive Officer and Chief Financial Officer, evaluated the effectiveness of our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) as of September 30, 2025. Based on this evaluation, our Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures were not effective as of that date.
The conclusion above reflects material weaknesses in our control environment, including (i.) insufficient accounting and financial reporting personnel, (ii.) inadequate segregation of duties, and (iii.) insufficiently designed and documented controls (including certain IT general controls) at the entity and transaction levels to ensure timely identification, documentation, and review of complex or non-routine transactions and equity and insider-trading/Section 16 information.
Remediation status. During the third quarter of 2025, we implemented a quarterly reconciliation of officer and director brokerage records to the Company’s stock ownership records and enhanced Section 16 monitoring procedures. Planned remediation activities include adding qualified accounting personnel, formalizing and documenting key controls, and strengthening systems supporting the financial close and reporting process, subject to funding and hiring timelines. These measures are ongoing, and there can be no assurance that they will fully remediate the material weaknesses on the anticipated timeline.
Management changes. The resignations of Jonathan Sanger (President, effective August 30, 2025) and Donald J. Harris (Director, effective September 16, 2025) did not materially affect and are not reasonably likely to materially affect our internal control over financial reporting or our disclosure controls and procedures.
(b) Changes in Internal Control over Financial Reporting
Except for the changes described above, there were no changes in our internal control over financial reporting that occurred during the quarter ended September 30, 2025 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting. As noted, during the quarter we implemented a quarterly reconciliation of officer and director brokerage records and enhanced Section 16 monitoring procedures; management believes these steps enhance our internal control over financial reporting but do not by themselves remediate the material weaknesses described above.
Item 5. Other Information
Section 16(a) Beneficial Ownership Reporting Compliance
As previously disclosed, certain transactions by executive officers were not timely reported on Forms 4 earlier in 2025. No additional untimely filings occurred during the quarter ended September 30, 2025. Subsequent to quarter-end, on October 27, 2025, the Company filed late and amended Forms 4 for certain executive officers to report previously unreported transactions. The beneficial ownership presentation in this Form 10-Q reflects these updates.
| 11 |
PART II — OTHER INFORMATION
Item 1. Legal Proceedings
Potential JAMS arbitrations — consulting agreements. After quarter-end, JAMS administratively opened Jonathan Sanger v. American Picture House Corporation (JAMS Case No. 5220010741) and Michael Jones v. American Picture House Corporation (JAMS Case No. 5220010727). APHP has objected that it has not been served under the agreements’ notice clauses and requested that JAMS defer arbitrator selection/administration pending proof of contract-compliant service. No arbitrator has been appointed and no scheduling order has issued. APHP reserves all rights and defenses, including a request to consolidate if both matters are properly commenced.
Item 1A. Risk Factors
There have been no material changes to the risk factors described in our Annual Report on Form 10-K for the year ended December 31, 2024.
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds
Unregistered Sales of Equity Securities. None. As previously disclosed in our Form 10-Q for the quarter ended June 30, 2025, the Company issued 500,000 shares of common stock to SSS Entertainment, LLC in Q2 2025 pursuant to the November 11, 2024 agreement. No unregistered sales occurred during the quarter ended September 30, 2025.
Issuer Purchases. The Company made no purchases of its equity securities during the quarter.
Item 3. Defaults Upon Senior Securities
None.
Item 4. Mine Safety Disclosures
Not applicable.
Item 5. Other Information
1) Section 16(a) — Beneficial Ownership Reporting Compliance (Q3 update)
Section 16(a) Beneficial Ownership Reporting Compliance. Section 16(a) of the Securities Exchange Act of 1934 requires the Company’s officers, directors and holders of more than ten percent of a registered class of the Company’s equity securities to file reports of ownership and changes in ownership with the SEC. Based solely on our review of copies of such reports furnished to us and written representations from our officers and directors, we believe that all such filing requirements were complied with during the quarter ended September 30, 2025.
| 12 |
Board Nominating Procedures. There were no changes to the procedures by which shareholders may recommend nominees to the Board of Directors during the quarter ended September 30, 2025.
Trading
Arrangements (Rule 10b5-1 and non-Rule 10b5-1). During the quarter ended September 30, 2025, no director or officer
On August 1, 2025, Bannor Michael MacGregor delivered a pledge and agreement not to convert any Series A Preferred shares under his control into common stock for ninety (90) days, unless earlier released by the Board. See Note 10 “Equity/Related Parties”.
Security Ownership. There have been no material changes to the security ownership of management or certain beneficial owners since the table presented in our Quarterly Report on Form 10-Q for the quarter ended September 30, 2025, other than as reflected in any Forms 4 filed during the quarter ended September 30, 2025, as discussed above.
Item 6. Exhibits
| 13 |
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) 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.
| AMERICAN PICTURE HOUSE CORPORATION | ||
| By: | /s/ Bannor Michael MacGregor | |
| Name: | Bannor Michael MacGregor | |
| Title: | Chief Executive Officer | |
| Dated: | November 6, 2025 | |
| By | /s/ Daniel Hirsch | |
| Name | Daniel Hirsch | |
| Title: | Treasurer | |
| Dated: | November 6, 2025 | |
| 14 |
Exhibit 3.1
SECOND AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
AMERICAN PICTURE HOUSE CORPORATION
ARTICLE I – NAME OF THE CORPORATION
The name of the corporation shall be: American Picture House Corporation (the “Corporation”).
ARTICLE II – NAME AND ADDRESS OF REGISTERED AGENT
The address of the registered office of the Corporation in the State of Wyoming is 1910 Thomas Ave., Cheyenne, Wyoming 82001. The name of the Corporation’s registered agent at the address is InCorp Services, Inc. Either the registered office or the registered agent may be changed in the manner provided by law.
ARTICLE III – PRINCIPAL OFFICE AND MAILING ADDRESS OF CORPORATION
The principal office address and mailing address of Corporation is 477 Madison Avenue 6FL, New York, NY 10022.
ARTICLE IV – PERPETUAL DURATION OF THE CORPORATION
The period of this Corporation’s duration is perpetual.
ARTICLE V – PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the Wyoming Business Corporation Act other than the banking business, the trust Corporation business or the practice of a profession permitted to be incorporated by the Wyoming Business Corporation Act
ARTICLE VI – AUTHORIZED CAPITAL
A. Authorized Capital. The aggregate number of shares of all classes of capital stock which this Corporation shall have authority to issue is 1,100,000,000 shares, of which 1,000,000 shares shall be shares of preferred stock, par value of $.0001 per share as described herein (“Preferred Stock”), and 1,000,000,000 shares shall be shares of common stock, par value of $.0001 per share (“Common Stock”).
(1) Preferred Stock. Notwithstanding the designation of the class of Series A Preferred Stock designated in Article XIV, the designations, preferences, limitations, restrictions, and relative rights of any additional classes of Preferred Stock, and variations in the relative rights and preferences as between different series, shall be established by the Corporation’s Board of Directors (“Board of Directors”) without shareholder approval in accordance with Section 17-16-702 of the Wyoming Business Corporation Act.
(2) Common Stock. The holders of Common Stock shall have and possess all rights as shareholders of the Corporation, including such rights as may be granted elsewhere by these Articles of Incorporation, except as such rights may be limited by the preferences, privileges and voting powers, and the restrictions and limitations of the Preferred Stock.
The Common Stock shall have voting rights such that each share of Common Stock duly authorized, issued and outstanding shall entitle its holder to one vote.
B. Dividends. Subject to preferential dividend rights, if any, of the holders of Preferred Stock, dividends on the Common Stock may be declared by the Board of Directors and paid out of any funds legally available therefor at such times and in such amounts as the Board of Directors shall determine.
C. No Assessment. The capital stock, after the amount of the subscription price has been paid in, shall not be subject to assessment to pay the debts of the Corporation.
D. Value. Any stock of the Corporation may be issued for money, property, services rendered, labor done, cash advances for the Corporation, or for any other assets of value in accordance with the action of the Board of Directors, whose judgment as to value received in return therefor shall be conclusive and said stock when issued shall be fully paid and non-assessable.
E. Restrictions. The Board of Directors shall have the authority to impose restrictions upon the transfer of the capital stock of the Corporation as it deems necessary in the best interests of the corporation or as required by law.
ARTICLE VII - CUMULATIVE VOTING
Cumulative voting for the election of directors shall not be permitted.
ARTICLE VIII - PREEMPTIVE RIGHTS
No holder of any stock of the Corporation shall be entitled, as a matter of right, to purchase, subscribe for or otherwise acquire any new or additional shares of stock of the Corporation of any class, or any options or warrants to purchase, subscribe for or otherwise acquire any such new or additional shares, or any shares, bonds, notes, debentures or other securities convertible into or carrying options or warrants to purchase, subscribe for or otherwise acquire any such new or additional shares unless specifically authorized by the governing board of the Corporation.
ARTICLE IX - GOVERNING BOARD
The governing board of this Corporation shall be known as directors, and the number of the directors may from time to time be increased or decreased in such manner as shall be permitted by the bylaws of this Corporation. There shall not be fewer than one member of the Board of Directors.
ARTICLE X – SHAREHOLDER VOTING ON CORPORATE ACTIONS
Notwithstanding the requirements of Wyoming law, the affirmative vote or concurrence of the holders of a majority of the outstanding shares of the Corporation entitled to vote thereon are required to make effective all transactions that require shareholder approval under applicable law.
ARTICLE XI – INDEMNIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES, FIDUCIARIES AND AGENTS
A. Liability for Monetary Damages. The liability of the directors of the Corporation for monetary damages shall be eliminated to the fullest extent permissible under Wyoming law provided, however, that the liability of directors is not limited or eliminated (a) for acts or omissions that involve intentional misconduct or a knowing and culpable violation of law, or (b) any of the acts set forth in Section 17-16-202 of the Wyoming Business Corporations Act
The Corporation shall indemnify, to the fullest extent permitted by applicable law, any person, and the estate and personal representative of any such person, against all liability and expense (including attorneys’ fees) incurred by reason of the fact that he is or was a director or officer of the Corporation or, while serving at the request of the Corporation as a director, officer, partner, trustee, employee, fiduciary, or agent of, or in any similar managerial or fiduciary position of, another domestic or foreign corporation or other individual or entity or of an employee benefit plan. The Corporation also shall indemnify any person who is serving or has served the Corporation as director, officer, employee, fiduciary, or agent, and that person’s estate and personal representative, to the extent and in the manner provided in any bylaw, resolution of the shareholders or directors, contract, or otherwise, so long as such provision is legally permissible.
B. Expenses. The Corporation may, at its discretion, advance expenses in advance of the final disposition of the case to or for the benefit of a director, officer, employee, fiduciary, or agent, who is party to a proceeding such as described in the preceding paragraph A to the maximum extent permitted by applicable law.
C. Repeal or Modification. Any repeal or modification of the foregoing paragraph by the shareholders of the Corporation shall not adversely affect any right or protection of a director or officer of the Corporation or other person entitled to indemnification existing at the time of such repeal or modification.
ARTICLE XII - LIMITATIONS OF LIABILITY
A. Limitation of Liability. Notwithstanding Wyoming law, specifically Section 17-16-202 of the Wyoming Business Corporations Act, or the provisions of these Articles of Incorporation, a director of the Corporation shall not be personally liable to the Corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the Corporation or to its shareholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, or (iii) for any transaction from which the director derived an improper personal benefit. If the Wyoming Business Corporations Act is amended after this Article is adopted to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Wyoming Business Corporations Act, as so amended.
B. Repeal or Modification. Any repeal or modification of the foregoing paragraph by the shareholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification.
ARTICLE XIII – ACTIONS OF SHAREHOLDERS
A. Meetings. Meetings of shareholders shall be held at such time and place as provided in the bylaws of the Corporation or by resolution of the board of directors.
B. Quorum. A quorum for the conduct of any meeting of stockholders, whether special or annual, shall be one-third (1/3) of all votes entitled to be cast at such meeting; provided, that if any class or series of securities of the Corporation is entitled to vote as a separate voting group, then a quorum of class or series shall be one-third of such class or series but only with respect to such matters and issues on which such class or series is entitled to vote as a separate group.
C. Required Approval. Notwithstanding the provisions of these Articles, any action for which the Wyoming Business Corporations Act requires the approval of two-thirds of the shares or any class or series or voting group entitled to vote with respect thereto, unless otherwise provided in the Articles of Incorporation, shall require for approval, the affirmative vote of a majority of the shares or any class or series or voting group outstanding and entitled to vote thereon.
D. Vote Procedure. Any vote of the shareholders of the Corporation may be taken either:
(1) at a meeting called for such purpose or,
(2) by the written consent of the shareholders in lieu of a meeting provided that shareholders holding shares having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted consent to such action in writing.
ARTICLE XIV – DESIGNATION OF SERIES A CONVERTIBLE PREFERRED STOCK
A. Designation. The designation of said series of preferred stock shall be “Series A Convertible Preferred Stock,” $0.0001 par value per share (the “Series A Preferred Stock”).
B. Number of Shares. The number of shares of Series A Preferred Stock authorized shall be one hundred thousand (100,000,) shares. Each share of Series A Preferred Stock shall have a par value equal to $0.0001 (as may be adjusted for any stock dividends, combinations or splits with respect to such shares).
C. Dividends. Initially, there will be no dividends due or payable on the Series A Preferred Stock. Any future terms with respect to dividends shall be determined by the Board consistent with the Corporation’s Certificate of Incorporation. Any and all such future terms concerning dividends shall be reflected in an amendment to this Certificate, which the Board shall promptly file or cause to be filed.
D. Liquidation Preference. The Holders of shares of Series A Preferred Stock shall have a first position lien against all of the Corporation’s assets, including but not limited to its intellectual property. If the Corporation shall commence a voluntary case under the U.S. Federal bankruptcy laws or any other applicable bankruptcy, insolvency or similar law, or consent to the entry of an order for relief in an involuntary case under any law or to the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator (or other similar official) of the Corporation or of any substantial part of its property, or make an assignment for the benefit of its creditors, or admit in writing its inability to pay its debts generally as they become due, or if a decree or order for relief in respect of the Corporation shall be entered by a court having jurisdiction in the premises in an involuntary case under the U.S. Federal bankruptcy laws or any other applicable bankruptcy, insolvency or similar law resulting in the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator (or other similar official) of the Corporation or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and any such decree or order shall be unstayed and in effect for a period of sixty (60) consecutive days and, on account of any such event, the Corporation shall liquidate, dissolve or wind up, or if the Corporation shall otherwise liquidate, dissolve or wind up, including, but not limited to, the sale or transfer of all or substantially all of the Corporation’s assets in one transaction or in a series of related transactions (a “Liquidation Event”), no distribution shall be made to the holders of any shares of capital stock of the Corporation (other than Senior Securities and Pari Passu Securities) upon liquidation, dissolution or winding up unless prior thereto the Holders of shares of Series A Preferred Stock shall have received the Liquidation Preference (as defined below) with respect to each share. If, upon the occurrence of a Liquidation Event, the assets and funds available for distribution among the Holders of the Series A Preferred Stock and Holders of Pari Passu Securities shall be insufficient to permit the payment to such holders of the preferential amounts payable thereon, then the entire assets and funds of the Corporation legally available for distribution to the Series A Preferred Stock and the Pari Passu Securities shall be distributed ratably among such shares in proportion to the ratio that the Liquidation Preference payable on each such share bears to the aggregate Liquidation Preference payable on all such shares. The purchase or redemption by the Corporation of stock of any class, in any manner permitted by law, shall not, for the purposes hereof, be regarded as a liquidation, dissolution or winding up of the Corporation. Neither the consolidation or merger of the Corporation with or into any other entity nor the sale or transfer by the Corporation of substantially all of its assets shall, for the purposes hereof, be deemed to be a liquidation, dissolution or winding up of the Corporation. The “Liquidation Preference” with respect to a share of Series A Preferred Stock means an amount equal to the ratio of (a) the total amount of the Corporation’s assets and funds available for distribution to the Series A Preferred Stock to (b) the number of shares of Series A Preferred Stock outstanding.
E. Conversion.
(1) Each outstanding share of Series A Preferred Stock shall be convertible into one hundred thousand (100,000) shares (“Conversion Ratio”) of the Corporation’s common stock (“Common Stock”), at the option of the Holder in whole or in part, at any time commencing after the Issuance Date; The Holder shall effect conversions by sending a conversion notice (the “Notice of Conversion”) in the manner set forth herein. Each Notice of Conversion shall specify the number of shares of Series A Preferred Stock to be converted. The date on which such conversion is to be effected (the “Conversion Date”) shall be on the date the Notice of Conversion is delivered pursuant to this section. Except as provided herein, each Notice of Conversion, once given, shall be irrevocable. Upon the entire conversion of the Series A Preferred Stock, the certificates for such Series A Preferred Stock shall be returned to the Corporation for cancellation.
(2) Not later than ten (10) Business Days after the Conversion Date, the Corporation will deliver to the Holder (a) a certificate or certificates representing the number of shares of Common Stock being acquired upon the conversion of the Series A Preferred Stock and (b) once received from the Corporation, the Series A Preferred Stock in principal amount equal to the principal amount of the Series A Preferred Stock not converted; provided, however, that the Corporation shall not be obligated to issue certificates evidencing the shares of Common Stock issuable upon conversion of any Series A Preferred Stock until the Series A Preferred Stock are either delivered for conversion to the Corporation or any transfer agent for the Series A Preferred Stock or Common Stock, or the Holder notifies the Corporation that such Series A Preferred Stock certificates have been lost, stolen or destroyed and provides an agreement reasonably acceptable to the Corporation to indemnify the Corporation from any loss incurred by it in connection therewith. In the case of a conversion pursuant to a Notice of Conversion, if such certificate or certificates are not delivered by the date required under this section, the Holder shall be entitled, by providing written notice to the Corporation at any time on or before its receipt of such certificate or certificates thereafter, to rescind such conversion, in which event the Corporation shall immediately return the Series A Preferred Stock tendered for conversion.
(3) (a) If the Corporation, at any time while any Series A Preferred Stock are outstanding, (i) shall pay a stock dividend or otherwise make a distribution or distributions on shares of its Junior Securities (as defined below) payable in shares of its capital stock (whether payable in shares of its Common Stock or of capital stock of any class), (ii) subdivide outstanding shares of Common Stock into a larger number of shares, (iii) combine outstanding shares of Common Stock into a smaller number of shares, or (iv) issue by reclassification of shares of Common Stock any shares of capital stock of the Corporation, the Conversion Ratio designated herein shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock of the Company outstanding before such event and of which the denominator shall be the number of shares of Common Stock outstanding after such event. Any adjustment made pursuant to this section shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or reclassification.
(b) If the Corporation, at any time while Series A Preferred Stock are outstanding, shall distribute to all holders of Common Stock (and not to Holders of Series A Preferred Stock) evidences of its indebtedness or assets or rights or warrants to subscribe for or purchase any security, then in each such case the Conversion Price at which each Series A Preferred Stock shall thereafter be convertible shall be determined by multiplying the Conversion Ratio in effect immediately prior to the record date fixed for determination of stockholders entitled to receive such distribution by a fraction of which the denominator shall be the Per Share Market Value of Common Stock determined as of the record date mentioned above, and of which the numerator shall be such Per Share Market Value of the Common Stock on such record date less the then fair market value at such record date of the portion of such assets or evidence of indebtedness so distributed applicable to one outstanding share of Common Stock as determined by the Board of Directors in good faith. Such adjustment shall be made whenever any such distribution is made and shall become effective immediately after the record date mentioned above.
(c) All calculations under this Article XIV shall be made to the nearest 1/1,000th of a cent or the nearest 1/1,000th of a share, as the case may be. Any calculation resulting in a fraction shall be rounded up to the next cent or share.
(d) Whenever the Conversion Ratio is adjusted pursuant to this section, the Corporation shall within ten (10) days after the determination of the new Fixed Conversion Ratio mail and fax to the Holder and to each other Holder of Series A Preferred Stock, a notice setting forth the Fixed Conversion Ratio after such adjustment and setting forth a brief statement of the facts requiring such adjustment.
(e) In case of any reclassification of the Common Stock, any consolidation or merger of the Corporation with or into another person, the sale or transfer of all or substantially all of the assets of the Corporation or any compulsory share exchange pursuant to which the Common Stock is converted into other securities, cash or property, then each holder of Series A Preferred Stock then outstanding shall have the right thereafter to convert such Series A Preferred Stock only into the shares of stock and other securities and property receivable upon or deemed to be held by holders of Common Stock following such reclassification, consolidation, merger, sale, transfer or share exchange (except in the event the property is cash, then the Holder shall have the right to convert the Series A Preferred Stock and receive cash in the same manner as other stockholders), and the Holder shall be entitled upon such event to receive such amount of securities or property as the shares of the Common Stock into which such Series A Preferred Stock could have been converted immediately prior to such reclassification, consolidation, merger, sale, transfer or share exchange would have been entitled. The terms of any such consolidation, merger, sale, transfer or share exchange shall include such terms so as to continue to give to the holder the right to receive the securities or property set forth in this section upon any conversion following such consolidation, merger, sale, transfer or share exchange. This provision shall similarly apply to successive reclassifications, consolidations, mergers, sales, transfers or share exchanges.
(f) If:
(i) the Corporation shall declare a dividend (or any other distribution) on its Common Stock; or
(ii) the Corporation shall declare a special nonrecurring cash dividend on or a redemption of its Common Stock; or
(iii) the Corporation shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights; or
(iv) the approval of any stockholders of the Corporation shall be required in connection with any reclassification of the Common Stock of the Corporation (other than a subdivision or combination of the outstanding shares of Common Stock), any consolidation or merger to which the Corporation is a party, any sale or transfer of all or substantially all of the assets of the Corporation, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property; or
(v) the Corporation shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Corporation;
then the Corporation shall cause to be filed at each office or agency maintained for the purpose of conversion of Series A Preferred Stock, and shall cause to be mailed and faxed to the Holders of Series A Preferred Stock at their last addresses as it shall appear upon the Series A Preferred stock register, at least thirty (30) calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined, or (y) the date on which such reclassification, consolidation, merger, sale, transfer, share exchange, dissolution, liquidation or winding-up is expected to become effective, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their shares of Common Stock for securities or other property deliverable upon such reclassification, consolidation, merger, sale, transfer, share exchange, dissolution, liquidation or winding-up; provided, however, that the failure to mail such notice or any defect therein or in the mailing thereof shall not affect the validity of the corporate action required to be specified in such notice.
(4) The Corporation covenants that all shares of Common Stock that shall be issuable hereunder shall, upon issue, be duly and validly authorized, issued and fully paid and nonassessable.
(5) No fractional shares of Common Stock shall be issuable upon a conversion hereunder and the number of shares to be issued shall be rounded up to the nearest whole share. If a fractional share interest arises upon any conversion hereunder, the Corporation shall eliminate such fractional share interest by issuing the Holder an additional full share of Common Stock.
(6) The issuance of certificates for shares of Common Stock on conversion of Series A Preferred Stock shall be made without charge to the Holder for any documentary stamp or similar taxes that may be payable in respect of the issue or delivery of such certificate, provided that the Corporation shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery of any such certificate upon conversion in a name other than that of the Holder and the Corporation shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Corporation the amount of such tax or shall have established to the satisfaction of the Corporation that such tax has been paid.
(7) Series A Preferred Stock converted into Common Stock shall be canceled upon conversion.
(8) Each Notice of Conversion shall be given by facsimile or email to the Corporation no later than 4:00 pm EST. Any such notice shall be deemed given and effective upon the transmission of such facsimile or email at the current facsimile telephone number of the Company. In the event that the Corporation receives the Notice of Conversion after 4:00 p.m. EST, the Conversion Date shall be deemed to be the next Business Day. In the event that the Corporation receives the Notice of Conversion after the end of the Business Day, notice will be deemed to have been given the next Business Day.
F. Rank. The Series A Preferred Stock shall, as to distribution of assets upon liquidation, dissolution or winding up of the Corporation, rank (i) prior to the Corporation’s Common Stock (ii) prior to any class or series of 0capital stock of the Corporation hereafter created that, by its terms, ranks junior to the Series A Preferred Stock (“Junior Securities”); (iii) junior to any class or series of capital stock of the Corporation hereafter created which by its terms ranks senior to the Series A Preferred Stock (“Senior Securities”); (iv) pari passu with any other series of preferred stock of the Corporation hereafter created which by its terms ranks on a parity (“Pari Passu Securities”) with the Series A Preferred Stock.
G. Voting Rights. Each one share of the Series A Preferred Stock shall have voting rights equal to one million (1,000,000) votes of Common Stock. With respect to all matters upon which stockholders are entitled to vote or to which stockholders are entitled to give consent, the holders of the outstanding shares of Series A Preferred Stock shall vote together with the holders of Common Stock without regard to class, except as to those matters on which separate class voting is required by applicable law or the Corporation’s Certificate of Incorporation or by-laws.
H. Protection Provisions. So long as any shares of Series A Preferred Stock are outstanding, the Corporation shall not, without first obtaining the unanimous written consent of the holders of Series A Preferred Stock, alter or change the rights, preferences or privileges of the Series A Preferred so as to affect adversely the holders of Series A Preferred Stock.
I. Miscellaneous.
(1) Status of Converted or Redeemed Stock. In case any shares of Series A Preferred Stock shall be redeemed or otherwise repurchased or reacquired, the shares so redeemed, repurchased, or reacquired shall resume the status of authorized but unissued shares of preferred stock, and shall no longer be designated as Series A Preferred Stock.
(2) Lost or Stolen Certificates. Upon receipt by the Corporation of (a) evidence of the loss, theft, destruction or mutilation of any Preferred Stock Certificate(s) and (b) in the case of loss, theft or destruction, indemnity (with a bond or other security) reasonably satisfactory to the Corporation, or in the case of mutilation, the Preferred Stock Certificate(s) (surrendered for cancellation), the Corporation shall execute and deliver new Preferred Stock Certificates. However, the Corporation shall not be obligated to reissue such lost, stolen, destroyed or mutilated Preferred Stock Certificates if the holder of Series A Preferred Stock contemporaneously requests the Corporation to convert such holder’s Series A Preferred.
(3) Waiver. Notwithstanding any provision in this Certificate of Designation to the contrary, any provision contained herein and any right of the holders of Series A Preferred granted hereunder may be waived as to all shares of Series A Preferred Stock (and the holders thereof) upon the unanimous written consent of the holders of the Series A Preferred Stock.
(4) Notices. Any notices required or permitted to be given under the terms hereof shall be sent by certified or registered mail (return receipt requested) or delivered personally, by nationally recognized overnight carrier or by confirmed facsimile transmission, and shall be effective five (5) days after being placed in the mail, if mailed, or upon receipt or refusal of receipt, if delivered personally or by nationally recognized overnight carrier or confirmed facsimile transmission, in each case addressed to a party as set forth below, or such other address and telephone number as may be designated in writing hereafter in the same manner as set forth in this section.
| If to the Corporation: | American Picture House Corporation | |
477 Madison Avenue, 6FL New York, NY 10022 | ||
| Attention:
Bannor Michael MacGregor, Chief Executive Officer | ||
| Telephone: 1-877-416-5558 |
If to the holders of Series A Preferred, to the address listed in the Corporation’s books and records.
ARTICLE XV – CONFLICTING INTEREST TRANSACTIONS
No contract or other transaction between the Corporation and one (1) or more of its directors or any other Corporation, firm, association, or entity in which one (1) or more of its directors are directors or officers or are financially interested shall be either void or voided solely because of such relationship or interest, or solely because such directors are present at the meeting of the board of directors or a committee thereof which authorizes, approves, or ratifies such contract or transaction, or solely because their votes are counted for such purpose if:
A. The fact of such a relationship or interest is disclosed or known to the Board of Directors or committee that authorizes, approves. or ratifies the contract or transaction by a vote or consent sufficient for the purpose without counting the votes or consents of such interested directors;
B. The fact of such relationship or interest is disclosed or known to the shareholders entitled to vote and they authorize, approve, or ratify such contract or transaction by vote or written consent; or
C. The contract or transaction is fair and reasonable to the Corporation. Common or interested directors may be counted in determining the presence of a quorum, as herein previously defined, at a meeting of the Board of Directors or a committee thereof that authorizes, approves, or ratifies such contract or transaction.
Exhibit 3.2
AMENDEDAND RESTATED BYLAWS OF:
AMERICAN PICTURE HOUSE CORPORATION
ARTICLE I. GENERAL
The provisions of this document constitute the Amended and Restated Bylaws (Bylaws) of American Picture House Corporation, a Wyoming corporation, hereinafter referred to as the Corporation, which Bylaws shall be utilized to govern the management and operation of the Corporation.
ARTICLE II. OFFICES AND AGENCY
Section 1. Registered Office and Registered Agent. The registered office of the Corporation shall be located in the state of incorporation at such place as may be fixed from time to time by the Board of Directors of the Corporation, the members of which shall be hereinafter referred to as Directors, upon filing of such notices as may be required by law, and the registered agent shall have a business office identical with such registered office.
Section 2. Other Offices. The Corporation may have other offices within or outside the state of incorporation at such place or places as the Board of Directors may from time to time determine.
ARTICLE III. STOCKHOLDERS
Section 1. Closing Transfer Books. For the purpose of determining stockholders entitled to notice of, or to vote at, any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend, or in order to make a determination of stockholders for any other purpose, the Board of Directors may, but is not required to, provide that the stock transfer books shall be closed for a stated period not to exceed, in any case, sixty (60) days. If the stock transfer books shall be closed for the purpose of determining stockholders entitled to notice of, or to vote at, a meeting of stockholders, such books shall be closed for at least ten (10) days immediately preceding such meeting.
Section 2. Fixing Record Date. In lieu of closing the stock transfer books, the Board of Directors may fix in advance a date as the record date for any determination of stockholders, such date in any case to be not more than sixty (60) days and, in case of a meeting of stockholders, not less than ten (10) days prior to the date on which the particular action requiring such determination of stockholders is to be taken.
Section 3. Other Determination of Stockholders. If the stock transfer books are not closed and no record date is fixed for the determination of stockholders entitled to notice of or to vote at a meeting of stockholders or stockholders entitled to receive payment of a dividend the date on which notice of the meeting is mailed or the date on which the resolution of the Board of Directors declaring such dividend is adopted, as the case may be, shall be the record date for such determination of stockholders.
Section 4. Adjourned Meetings. When a determination of stockholders entitled to vote at any meeting of stockholders has been made as provided in this Article, such determination shall apply to any adjournment thereof, unless the Board of Directors fixes a new record date for the adjourned meeting.
| Page 1 of 16 pages |
Section 5. Record of Stockholders.
(a) If the Corporation has six or more stockholders of record, the officer or agent having charge of the stock transfer books for shares of the Corporation shall make, at least ten (10) days before each meeting of stockholders, a complete list of the stockholders entitled to vote at such meeting or any adjournment thereof, with the address of and the number and class and series, if any, of shares held by each. The list shall be kept on file at the registered office of the Corporation, at the principal place of business of the Corporation or at the office of the transfer agent or registrar of the Corporation for a period of ten (10) days prior to such meeting and shall be subject to inspection by any stockholder at any time during usual business hours. The list shall also be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any stockholder at any time during the meeting.
(b) If the requirements of paragraph (a) above have not been substantially complied with, the meeting, on demand of any stockholder in person or by proxy, shall be adjourned until the requirements are complied with. If no such demand is made, failure to comply with the requirements of paragraph (a) shall not affect the validity of any action at such meeting.
ARTICLE IV. STOCKHOLDERS’ MEETINGS
Section 1. Annual Meetings. The annual meeting of the stockholders for the election of Directors and for the transaction of such other business as may properly come before the meeting, shall be held each year within three months after the end of the fiscal year, or at such other time as the Board of Directors or stockholders shall direct; provided, however, that the annual meeting for any year shall be held at no later than thirteen (13) months after the last preceding annual meeting of stockholders.
Section 2. Special Meetings. Special meetings of the stockholders for any purpose may be called at any time by the President of the Corporation, Board of Directors, or the consents in writing of holders of not less than one third (1/3) of all shares entitled to vote at the meeting.
Section 3. Place of Meetings. All meetings of the stockholders shall be at the principal place of business of the Corporation or at such other place, either within or without the state of incorporation, as the Board of Directors or the stockholders may from time to time designate.
Section 4. Notice. Written or printed notice stating the place, day and hour of any meeting and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be given to each stockholder of record entitled to vote at such meeting not less than ten (10) nor more than sixty (60) days before the meeting, by or at the direction of the President, the Secretary or other persons calling the meeting. Notice to stockholders shall be given by personal delivery, by first class U.S. Mail or by telephone facsimile or electronic mail with receipt confirmed; and, if mailed, such notice shall be deemed to be delivered when deposited, the deposit thereof certified by the Secretary of the Corporation, in the United States mail addressed to the stockholder at his address as it appears on the stock transfer books of the Corporation, with postage thereon prepaid. The Corporation shall obtain a receipt of mailing from the U.S. Postal Service, if notice is delivered by first class U.S. Mail; or the Corporation’s officer effecting delivery by telephone facsimile or by electronic mail shall certify in writing for the records of the Corporation, the name of each stockholder, the facsimile number or electronic mail address, the date and the time of initiation of such delivery.
Section 5. Adjourned Meetings. A majority of the stockholders present, whether or not a quorum exists, may adjourn any meeting of the stockholders to another time and place. Notice of any such adjourned meeting, or of the business to be transacted thereat need not be given of any adjourned meeting if the time and place of the adjourned meeting are announced at the time of the adjournment, unless the time of the adjourned meeting is more than thirty days after the meeting at which the adjournment is taken.
| Page 2 of 16 pages |
Section 6. Waiver of Notice. A written waiver of notice signed by any stockholder, whether before or after any meeting, shall be equivalent to the giving of timely notice to said stockholder. Attendance of a stockholder at a meeting shall constitute a waiver of notice of such meeting and a waiver of any and all objections to the place of the meeting, the time of the meeting, or the manner in which it has been called or convened, except when a stockholder attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders need be specified in any written waiver of notice.
Section 7. Quorum and Voting.
(a) Stockholders representing not less than one-third (1/3) of the shares entitled to vote in attendance at any meeting of stockholders, shall constitute a quorum for the transaction of business at such meeting, unless otherwise specifically provided by these Bylaws or applicable law. When a specified item of business is required to be voted on by a class or series of stock, not less than one-third of the shares of such class or series shall constitute a quorum for the consideration of such item of business by that class or series, subject to paragraph (b) below. Attendance shall be either in person, by proxy, or by telephonic, radio or electronic connection whereby the distant stockholder and those stockholders present in person all hear and may speak to and be heard on the matters raised therein.
(b) Notwithstanding, even if a quorum is present, only the affirmative vote of a majority of the shares entitled to vote on the subject matter, in person or by legally valid proxy, shall be the act of the stockholders, unless the vote of a greater number or voting by classes is required by the Articles of Incorporation, these Bylaws or applicable law.
(c) After a quorum has been established at a stockholders’ meeting, the subsequent withdrawal of stockholders, so as to reduce the number of stockholders entitled to vote at the meeting below the number required for a quorum, shall not affect the validity of the meeting or any adjournment thereof. Nonetheless, only the affirmative vote of a majority of the shares entitled to vote on the subject matter shall be the act of the stockholders unless otherwise provided by the Articles of Incorporation, these Bylaws or applicable law.
(d) A person entitled to vote shares at a meeting of the stockholders shall be deemed to have attended such meeting in person if such person has attended by telephone, radio or electronic connection whereby the distant person and the other stockholders present at such meeting all hear and may speak to and be heard on the matters raised therein.
Section 8. Voting of Shares.
(a) Each outstanding share of common stock shall be entitled to one vote, unless otherwise provided in the Articles of Incorporation which authorize it, and each outstanding share of preferred stock shall be entitled to the number of votes provided in the Articles of Incorporation which authorize it, in each case on each matter submitted to a vote at a meeting of stockholders.
(b) Treasury shares, shares of stock of the Corporation owned by another corporation of which the majority of the voting stock is owned or controlled by the Corporation, and shares of stock of the Corporation held by it in a fiduciary capacity shall not be voted, directly or indirectly, at any meeting, and shall not be counted in determining the total number of outstanding shares at any given time.
| Page 3 of 16 pages |
(c) A stockholder may vote either in person or by proxy executed in writing by the stockholder or his duly authorized attorney-in-fact.
(d) Shares standing in the name of another corporation, domestic or foreign, may be voted by the officer, agent, or proxy designated by the bylaws of the corporate stockholder; or, in the absence of any applicable bylaw, by such person as the Board of Directors of the corporate stockholder may designate. Proof of such designation may be made by presentation of a certified copy of the bylaws or other instrument of the corporate stockholder. In the absence of any such designation, or in case of conflicting designation by the corporate stockholder, the chairman of the board, president, any vice president, secretary and treasurer of the corporate stockholder shall be presumed to possess, in that order, authority to vote such shares.
(e) Shares held by an administrator, executor, guardian or conservator may be voted by him, either in person or by proxy, without a transfer of such shares into his name. Shares standing in the name of a trustee may be voted by him, either in person or by proxy, but no trustee shall be entitled to vote shares held by him in trust without a transfer of such shares into his name.
(f) Shares standing in the name of a receiver may be voted by such receiver, and shares held by or under the control of a receiver may be voted by such receiver without the transfer thereof into his name if authority to do so is contained in an appropriate order of the court by which such receiver was appointed.
(g) A stockholder whose shares are pledged shall be entitled to vote such shares until the shares have been transferred into the name of the pledgee, and thereafter the pledgee or his nominee shall be entitled to vote the shares so transferred.
(h) On and after the date on which written notice of redemption of redeemable shares has been mailed to the holders thereof and a sum sufficient to redeem such shares has been deposited with a bank or trust company with irrevocable instruction and authority to pay the redemption price to the holders thereof upon surrender of certificates therefor, such shares shall not be entitled to vote on any matter and shall not be deemed to be outstanding shares.
Section 9. Proxies.
(a) Every stockholder entitled to vote at a meeting of stockholders, or to express consent or dissent without a meeting or a stockholder’s duly authorized attorney-in-fact, may authorize another person or persons to act for him by proxy.
(b) Every proxy must be signed by the stockholder or his attorney-in-fact. No proxy shall be valid after the expiration of eleven (11) months from the date thereof unless otherwise provided in the proxy. Every proxy shall be revocable at the pleasure of the stockholder executing it, except as otherwise provided by law.
(c) The authority of the holder of a proxy to act shall not be revoked by the incompetence or death of the stockholder who executed the proxy unless, before the authority is exercised, written notice of an adjudication of such incompetence or of such death is received by the corporate officer responsible for maintaining the list of stockholders.
| Page 4 of 16 pages |
(d) If a proxy for the same shares confers authority upon two or more persons and does not otherwise provide, a majority of them present at the meeting, or if only one is present, then that one, may exercise all the powers conferred by the proxy; but if the proxy holders present at the meeting are equally divided as to the right and manner of voting in any particular case, the voting of such shares shall be prorated.
(e) If a proxy expressly provides, any proxy holder may appoint, in writing, a substitute to act in his place.
Section 10. Voting Trusts. Any number of stockholders of the Corporation may create a voting trust for the purpose of conferring upon a trustee or trustees the right to vote or otherwise represent their shares for a period not to exceed ten (10) years, as provided by law. A counterpart of the voting trust agreement and a copy of the record of the holders of voting trust certificates shall be deposited with the Corporation at its registered office as provided by law. These documents shall be subject to the same right of examination by a stockholder of the Corporation, in person or by agent or attorney, as are the books and records of the Corporation and shall also be subject to examination by any holder of record of voting trust certificates, either in person or by agent or attorney, at any reasonable time for any proper purpose.
Section 11. Stockholders’ Agreements. Two or more stockholders of the Corporation may enter a written agreement, signed by the parties thereto, providing for the exercise of voting rights in the manner provided in the agreement or relating to any phase of the affairs of the Corporation as provided by law. Nothing therein shall impair the right of the Corporation to treat the stockholders of record as entitled to vote the shares standing in their names.
Section 12. Action by Stockholders Without a Meeting.
(a) Any action required by law, these Bylaws, or the Articles of Incorporation of the Corporation to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. If any class of shares is entitled to vote thereon as a class, such written consent shall be required of the holders of a majority of the shares of each class of shares entitled to vote as a class thereon and of the total shares entitled to vote thereon.
(b) Within ten (10) days after obtaining such authorization by written consent, notice shall be given to those stockholders who have not consented in writing. The notice shall fairly summarize the material features of the authorized action and, if the action be a merger, consolidation or sale or exchange of assets for which dissenters’ rights are provided under law, the notice shall contain a clear statement of the right of stockholders dissenting therefrom to be paid the fair value of their shares upon compliance with further provisions of the law regarding the rights of dissenting stockholders.
Section 13. New Business. Any Stockholder of record may make a proposal of new business to be acted upon at an annual or a special meeting of Stockholders, only if and provided written notice of such proposed new business is filed with the Secretary of the Corporation not less than five business days prior to the day of meeting, but no other proposal shall be acted upon at such meeting.
ARTICLE V. DIRECTORS
Section 1. Function. All corporate powers shall be exercised by or under the authority of, and the business and affairs of the Corporation shall be managed under the direction of, the Board of Directors, except as may otherwise be provided by the Articles of Incorporation, these Bylaws or applicable law. The Board of Directors shall make appropriate delegations of authority to the officers and, to the extent permitted by law, by appropriate resolution, the Board of Directors may authorize one or more committees to act on its behalf when it is not in session.
| Page 5 of 16 pages |
Section 2. Qualification. Directors need not be residents of the state of incorporation or stockholders of the Corporation.
Section 3. Compensation. The Board of Directors shall have authority to fix the compensation of Directors.
Section 4. Duties of Directors.
(a) A Director shall be expected to attend meetings, whether annual, or special, of the Board of Directors and of any committee to which the Director has been appointed.
(b) A Director shall perform his duties as a Director, including his duties as a member of any committee of the Board of Directors upon which he may serve, in good faith, in a manner he reasonably believes to be in the best interests of the Corporation, and with such care as an ordinarily prudent person in a like position would use under similar circumstances.
(c) In performing his duties, a Director shall be entitled to rely on information, opinions, reports or statements, including financial statements and other financial data, in each case prepared or presented by:
(1) One or more officers or employees of the Corporation whom the Director reasonably believes to be reliable and competent in the matters presented;
(2) Counsel, public accountants, or other persons as to matters which the Director reasonably believes to be within such persons’ professional or expert competence; or
(3) A committee of the Board of Directors upon which he does not serve, duly designated in accordance with a provision of the Articles of Incorporation or these Bylaws, as to matters within its designated authority, which committee the Director reasonably believes to merit confidence.
(d) A Director shall not be considered to be acting in good faith if he has knowledge concerning the matter in question that would cause such reliance described above to be unwarranted.
(e) A person who performs his duties in compliance with this section shall have no liability by reason of being or having been a Director of the Corporation.
Section 5. Number. The number of Directors of the Corporation shall be a minimum of five (5) and a maximum of sixteen (16). This number may be increased or decreased from time to time by amendment to these Bylaws or by election of a number of persons as directors which exceeds or is less than the immediately preceding incumbent number of directors, as the case may be, at any time such number, but no decrease shall have the effect of shortening the term of any incumbent Director; provided, that the resignation or removal of a number of directors director(s) which exceeds the number set forth first in this Section shall reduce the authorized number of directors to the number thereof remaining in office, but not to a number less than the number set forth first in this Section. Unfilled vacancies on the board of directors shall not prevent the board of directors from conducting business.
| Page 6 of 16 pages |
Section 6. Election and Term.
(a) Each person named in the Articles of Incorporation as a member of the initial Board of Directors shall hold office until the first annual meeting of stockholders and until his successor shall have been elected and qualified or until his earlier resignation, removal from office or death.
(b) At the first meeting of stockholders and at each annual meeting thereafter, the stockholders shall elect Directors to hold office until the next succeeding annual meeting. Each Director shall hold office for the term for which he is elected and until his successor shall have been elected and qualified or until his earlier resignation, removal from office or death.
Section 7. Election of Chair and Vice Chair. At the organizational meeting of the Board of Directors and at each first Board of Directors’ meeting following the election of directors at the annual meeting of stockholders, the Board of Directors shall elect from among the then incumbent Directors a person to serve as Chair of the Board. The Chair of the Board shall preside at all meetings of the Board of Directors and of the stockholders. At any time, the board of directors may, but is not required to, elect a Vice Chair, who shall preside at such meetings in the absence of the Chair.
Section 8. Removal of Directors.
(a) At a meeting of stockholders called expressly for that purpose, any Director or the entire Board of Directors may be removed, with or without cause, by a vote of the holders of a majority of the shares then entitled to vote in an election of Directors.
(b) If less than the entire Board of Directors is to be removed and if cumulative voting is permitted by the Articles of Incorporation, no one of the Directors may be removed if the votes cast against his removal would be sufficient to elect him if then cumulatively voted at an election of the entire Board of Directors.
Section 9. Resignation of Director. A Director may resign from the Board of Directors by providing written notification of such resignation to the President of the Corporation, and such resignation shall become effective immediately upon receipt by the President of said written notification or at such later date as may be specified in the notification.
Section 10. Vacancies. Any vacancy occurring in the membership of the Board of Directors, including any vacancy created by reason of an increase in the number of Directors, may be filled by the affirmative vote of a majority of the remaining Directors though less than a quorum of the Board of Directors. A Director so elected shall hold office until the next election of Directors by the stockholders.
ARTICLE VI. DIRECTORS’ MEETINGS
Section 1. Regular Meetings. The Board of Directors shall hold, without notice, a regular meeting immediately after the adjournment of the annual meeting of stockholders and such other regular meetings as they may, by resolution, designate from time to time.
Section 2. Special Meetings. Special meetings of the Board of Directors may be called at any time by the President of the Corporation or by any two Directors.
Section 3. Place of Meeting. All meetings of the Board of Directors shall be held at the principal place of business of the Corporation or at such other place, either within or without the state of incorporation, as the Directors may from time to time designate; provided, however, no such meeting shall be held outside the state of incorporation if at least two (2) Directors object in writing not less than three (3) days before such meeting.
| Page 7 of 16 pages |
Section 4. Notice of Meeting. Written or printed notice stating the place, day and hour of any special meeting of the Board of Directors must be given to each Director not less than five (5) nor more than thirty (30) days before the meeting, by or at the direction of the President or other persons calling the meeting. Notice shall be given either personally or by telephone facsimile or by electronic mail or first-class U.S. mail; and if mailed, the notice shall be deemed to be given when deposited in the United States mail addressed to the Director at his or her address, as it appears in the records of the Corporation, with postage thereon prepaid. Except as otherwise specified in these Bylaws, the notice need not specify the business to be transacted at, nor the purpose of, any meeting.
Section 5. Waiver of Notice. A written waiver of notice signed by any Director, whether before or after any meeting, shall be equivalent to the giving of timely notice to said Director. Attendance of a Director at a meeting shall constitute a waiver of notice of such meeting and waiver of any and all objections to the place of the meeting, the time of the meeting, or the manner in which it has been called or convened, except when a Director attends a meeting for the express purpose, as stated at the beginning of the meeting, of objecting to the transaction of business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any annual or a special meeting of the Directors need be specified in any written waiver of notice.
Section 6. Presumption of Assent. A Director of the Corporation who is present at a meeting of the Board of Directors at which action on any corporate matter is taken shall be presumed to have assented to the action taken, unless he votes against such action or abstains from voting in respect thereto because of an asserted conflict of interest.
Section 7. Adjourned Meeting. A majority of the Directors present, whether or not a quorum exists, may adjourn any meeting of the Board of Directors to another time and place. Notice of any such adjourned meeting shall be given to the Directors who were not present at the time of the adjournment and, unless the time and place of the adjourned meeting are announced at the time of the adjournment, to the other Directors.
Section 8. Quorum. A majority of the number of Directors fixed by these Bylaws shall constitute a quorum for the transaction of business at any meeting of the Directors, unless otherwise specifically provided by the Articles of Incorporation, these Bylaws or applicable law. Attendance shall be either in person or by telephonic, electronic or radio connection whereby the distant Director and those Directors present in person all hear and may speak to and be heard on the matters raised therein.
Section 9. Voting. Each Director who is entitled to vote and who is present at any meeting of the Board of Directors, including the Chair and, if any, the Vice Chair, shall be entitled to one (1) vote on each matter submitted to a vote of the Directors. An affirmative vote, of a majority of the Directors present at a meeting of Directors at which a quorum is present, shall constitute the approval, ratification and confirmation of the Board of Directors.
Section 10. Proxies Prohibited. No Director may authorize another person or entity to act in said Director’s stead by proxy or otherwise.
Section 11. Action by Directors Without a Meeting. Any action required or which may be taken at a meeting of the Directors, or of a committee thereof, may be taken without a meeting if a consent in writing, setting forth the action so to be taken, shall be signed or otherwise approved in writing by all of the Directors or all of the members of the committee, as the case may be. Such consent shall have the same effect as a unanimous vote.
| Page 8 of 16 pages |
Section 12. Directors’ Conflicts of Interest.
(a) No contract or other transaction between the Corporation and one or more of its Directors or any other corporation, firm, association or entity in which one or more of the Directors are directors or officers or are financially interested shall be either void or voidable because of such relationship or interest, or because such Director or Directors are present at the meeting of the Board of Directors or a committee thereof which authorizes, approves or ratifies such contract or transaction, or because his or their votes are counted for such purpose, if:
(1) The fact of such relationship or interest is disclosed or known to the Board of Directors or committee which authorizes, approves or ratifies the contract or transaction by a vote or consent sufficient for the purpose, even though less than a majority of the quorum, without counting the votes or consents of such interested Directors; or
(2) The fact of such relationship or interest is disclosed or known to the stockholders entitled to vote, and they authorize, approve, or ratify such contract or transaction by vote or written consent; or
(3) The contract or transaction is fair and reasonable as to the Corporation at the time it is authorized by the Board of Directors, a committee, or the stockholders.
(b) Common or interested Directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or a committee thereof which authorizes, approves or ratifies such contract or transaction.
(c) The position of director, officer or employee of a not-for-profit corporation held by a Director of the Corporation shall not be deemed to create a conflict of interest for such Director, with respect to approval of dealings between the Corporation and the not-for-profit corporation.
(d) In the event all Directors of the Corporation are directors, officers or employees of or have a financial interest in another corporation, firm, association or entity, the vote or consent of all Directors shall be counted for purposes of approving any contract or transaction between the Corporation and such other corporation, firm, association or entity.
Section 13. Procedure. The Board of Directors may adopt their own rules of procedure which shall not be inconsistent with the Articles of Incorporation, these Bylaws or applicable law.
ARTICLE VII. EXECUTIVE AND OTHER COMMITTEES
Section 1. Designation. The Board of Directors, by resolution adopted by a majority of the full Board of Directors may designate from among its members an executive committee and one or more other committees. The Board of Directors, by resolution adopted in accordance with this section, may designate one or more Directors as alternate members of any such committee, who may act in the place and stead of any absent member or members at any meeting of such committee.
Section 2. Powers. Any committee designated as provided above shall have and may exercise all the authority granted to it by the Board of Directors, except that no committee shall have the authority to:
(a) Approve or recommend to stockholders’ actions or proposals required by law to be approved by stockholders;
| Page 9 of 16 pages |
(b) Designate candidates for the office of Director, for purposes of proxy solicitation or otherwise;
(c) Fill vacancies on the Board of Directors or any committee thereof;
(d) Amend the Bylaws;
(e) Authorize or approve the reacquisition of shares unless pursuant to a general formula or method specified by the Board of Directors; or
(f) Authorize or approve the issuance or sale of, or any contract to issue or sell, common shares, except that the Board of Directors, having acted regarding general authorization for the issuance or sale of common shares, or any contract therefor, may, pursuant to a general formula or method specified by the Board of Directors by resolution or by adoption of a stock option or other plan, authorize a committee to fix the terms of any contract for the sale of the common shares and to fix the terms upon which such shares may be issued or sold, subject to final approval of the Board of Directors.
ARTICLE VIII. OFFICERS
Section 1. Designation. The officers of the Corporation shall consist of one president, one or more vice presidents (if determined to be necessary by the Board of Directors), a corporation secretary and a treasurer (if determined to be necessary by the Board of Directors). The Corporation shall also have such other officers, assistant officers and agents as may be deemed necessary or appropriate by the Board of Directors from time to time. Any two or more offices may be held by the same person. The failure to elect a president, vice president, secretary or treasurer shall not affect the existence of the Corporation. The office of the president may, in the discretion of the Board of Directors, be divided into the office of the chief executive officer and the office of the chief operating officer, provided, that the office of the chief executive officer shall be the office of the president for purposes of state and federal laws requiring such office or the signature of such officer.
Section 2. Duties. The officers of the Corporation shall have the following duties.
(a) President. The President shall be the Chief Executive Officer of the Corporation, shall have general and active management of the business and affairs of the Corporation subject to the directions of the Board of Directors, and shall preside at all meetings of the stockholders and Board of Directors. The Board of Directors, in its discretion from time to time, may separate from the duties and responsibilities of the President, the duties and responsibilities of a Chief Operating Officer by the election thereof.
(b) Vice President. In the absence of the President or in the event of his death, inability or refusal to act, the Vice President (or in the event there is more than one vice president, the vice presidents in the order designated at the time of their election, or in the absence of any designation, then in the order of their election) shall perform the duties of the President and, when so acting, shall have all the powers of and be subject to all the restrictions upon the President. Any Vice President may sign, with the attestation of the Secretary or an Assistant Secretary, certificates for shares of the Corporation, and shall perform such other duties as from time to time may be assigned to him by the President or by the Board of Directors.
| Page 10 of 16 pages |
(c) Corporation Secretary. The Secretary shall have custody of, and maintain, all of the corporate records except the financial records; shall record the minutes of all meetings of the stockholders and Board of Directors; send out all notices of meetings; and perform such other duties as may be prescribed by the Board of Directors or the President.
(d) Treasurer. The Treasurer shall have custody of all corporate funds and financial records, shall keep full and accurate accounts of receipts and disbursements and render accounts thereof at the annual meetings of stockholders and whenever else required by the Board of Directors or the President, and shall perform such other duties as may be prescribed by the Board of Directors or the President. The Board of Directors may designate the title of the Treasurer as Chief Financial Officer.
Section 3. Election. All officers shall be elected by the Board of Directors.
Section 4. Tenure. Each officer shall take and hold office from the date of his election until the next annual meeting of the Board of Directors and until his successor shall have been duly elected and qualified or until his earlier resignation, removal from office or death.
Section 5. Resignation of Officers. Any officer or agent elected or appointed by the Board of Directors may resign such office by providing written notification of such resignation to the President (or if the President is resigning, to the Vice President) of the Corporation.
Section 6. Removal of Officers.
(a) Any officer or agent elected or appointed by the Board of Directors may be removed by the Board of Directors whenever in its judgment the best interests of the Corporation will be served thereby.
(b) Any officer or agent elected by the stockholders may be removed only by vote of the stockholders unless the stockholders shall have authorized the Directors to remove such officer or agent.
(c) Removal of any officer shall be without prejudice to the contract rights, if any, of the person so removed; however, election or appointment of an officer or agent shall not of itself create contract rights.
Section 7. Vacancies. Any vacancy, however occurring, in any office, may be filled by the Board of Directors.
ARTICLE IX. STOCK CERTIFICATES
Section 1. Issuance. Every holder of shares in the Corporation shall be entitled to have a certificate, representing all shares to which he is entitled. No certificate shall be issued for any share until such share is fully paid.
| Page 11 of 16 pages |
Section 2. Form.
(a) Certificates representing shares in this Corporation shall be signed by the President or Vice President and the Secretary or an Assistant Secretary and may be sealed with the seal of this Corporation or a facsimile thereof. The signatures of the President or Vice President and the Secretary or Assistant Secretary may be facsimiles if the certificate is manually signed on behalf of a transfer agent or a registrar, other than the Corporation itself or an employee of the Corporation. In case any officer who signed or whose facsimile signature has been placed upon such certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer at the date of its issuance.
(b) If there is more than one class of stock, every certificate representing shares issued by the Corporation shall set forth or fairly summarize upon the face or back of the certificate, or shall state that the Corporation will furnish to any stockholder upon request and without charge a full statement of: the designations, preferences, limitations and relative rights of the shares of each class or series authorized to be issued; the variations in the relative rights and preferences between the shares of each series so far as the same have been fixed and determined; and the authority of the Board of Directors to fix and determine the relative rights and preferences of subsequent series.
(c) Every certificate representing shares which are restricted as to the sale, disposition or other transfer of such shares shall state that such shares are restricted as to transfer and shall set forth or fairly summarize upon the certificate or shall state that the Corporation will furnish to any stockholder upon request and without charge a full statement of, such restrictions.
(d) Each certificate representing shares shall state upon the face thereof: the name of the Corporation; that the Corporation is organized under the laws state of incorporation; the name of the person or persons to whom issued; the number and class, if any, of shares, and the designation of the series, if any, which such certificate represents; and the par value of each share represented by such certificate, or a statement that the shares are without par value.
Section 3. Transfers of Stock. Transfers of stock shall be made only upon the stock transfer books of the Corporation, kept at the registered office of the Corporation or at its principal place of business, or at the office of its transfer agent or registrar; and before a new certificate is issued, the old certificate shall be surrendered for cancellation and shall be properly endorsed by the holder of record or by his duly authorized attorney. The Board of Directors may, by resolution, open a share register in any state of the United States and may employ an agent or agents to keep such register and to record transfers of shares therein.
Section 4. Registered Owner. Registered stockholders only shall be entitled to be treated by the Corporation as the holders in fact of the stock standing in their respective names, and the Corporation shall not be bound to recognize any equitable or other claim to or interest in any share on the part of any other person, whether or not it shall have express or other notice thereof, except as expressly provided by the laws of the state of incorporation.
Section 5. Lost, Stolen or Destroyed Certificates. The Corporation shall issue a new stock certificate in the place of any certificate previously issued if the holder of record of the certificate:
(a) Makes proof in affidavit form that it has been lost, destroyed or wrongfully taken;
(b) Requests the issuance of a new certificate before the Corporation has notice that the certificate has been acquired by a purchaser for value in good faith and without notice of any adverse claim;
| Page 12 of 16 pages |
(c) Gives bond or other security in such form as the Corporation may direct to indemnify the Corporation, the transfer agent and registrar against any claim that may be made on account of the alleged loss, destruction or theft of a certificate; and
(d) Satisfies any other reasonable requirements imposed by the Corporation.
Section 6. Fractional Shares or Scrip. The Corporation shall not issue fractional shares. In the event a recapitalization, share combination or share division would result in fractional shares, each fractional share shall be rounded to one whole share.
Section 7. Shares of Another Corporation. Shares owned by the Corporation in another corporation, domestic or foreign, may be voted by such officer, agent or proxy as the Board of Directors may determine or, in the absence of such determination, by the President of the Corporation.
ARTICLE X. DIVIDENDS
Section 1. Declaration. The Board may from time to time declare, and the Corporation may pay, dividends on its shares in cash, property or its own shares, except when the Corporation is insolvent, when the payment thereof would render the Corporation insolvent, or when the declaration or payment thereof would be contrary to any restrictions contained in the Articles of Incorporation, subject to the following provisions:
(a) Unless otherwise provided by Wyoming law, dividends in cash or property may be declared and paid, except as otherwise provided in this section, only out of the unreserved and unrestricted earned surplus of the Corporation or out of capital surplus, howsoever arising, but each dividend paid out of capital surplus shall be identified as a distribution of capital surplus, and the amount per share paid from such surplus shall be disclosed to the stockholders receiving the same concurrently with the distribution.
(b) Dividends may be declared and paid in the Corporation’s own treasury shares.
(c) Dividends may be declared and paid in the Corporation’s own authorized but unissued shares out of any unreserved and unrestricted surplus of the Corporation upon the following conditions:
(1) If a dividend is payable in shares having a par value, such shares shall be issued at not less than the par value thereof, and there shall be transferred to stated capital, at the time such dividend is paid, an amount of surplus equal to the aggregate par value of the shares to be issued as a dividend.
(2) If a dividend is payable in shares without par value, such shares shall be issued at such stated value as shall be fixed by the Board of Directors by resolution adopted at the time such dividend is declared, and there shall be transferred to stated capital, at the time such dividend is paid, an amount of surplus equal to the aggregate stated value so fixed in respect of such shares; and the amount per share so transferred to stated capital shall be disclosed to the stockholders receiving such dividend concurrently with the payment thereof.
(d) No dividend payable in shares of any class shall be paid to the holders of shares of any other class unless the Articles of Incorporation so provide or such payment is authorized by the affirmative vote or the written consent of the holders of at least a majority of the outstanding shares of the class in which the payment is to be made.
| Page 13 of 16 pages |
(e) A split-up or division of the issued shares of any class into a greater number of shares of the same class without increasing the stated capital of the Corporation shall not be construed to be a share dividend within the meaning of this section.
(f) Shares of one class or series (including common shares) of capital stock may be issued as a share dividend in respect of shares of another class or series (including common shares) of capital stock.
Section 2. Holders of Record. The holders of record shall be determined as provided in Article III of these Bylaws.
ARTICLE XI. INDEMNIFICATION OF
OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS
Section 1. Indemnification for Actions, Suits or Proceedings.
(a) The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he is or was a Director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding, including any appeal thereof, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, and with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The adverse termination of any action, suit or proceeding by judgment, order, settlement, conviction, or a plea of nolo contendere or its equivalent, shall not of itself create a presumption that the person did not act in good faith and in a manner in which he reasonably believed to be in or not opposed to the best interests of the Corporation, and with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) The Corporation shall indemnify any person who was or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a Director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation; provided, however, that no indemnification shall be made in respect to any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the Corporation unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all circumstances of the case, such person is firmly and reasonably entitled to indemnity for such expenses which such court shall deem proper.
| Page 14 of 16 pages |
(c) To the extent that a Director, officer, employee, or agent of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b), or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) or (b) (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in subsections (a) or (b). Such determination shall be made:
(1) By the Board of Directors by a majority vote of a quorum consisting of Directors who were not parties to such action, suit or proceeding, or
(2) If such a quorum is not obtainable, or even if obtainable, a quorum of disinterested Directors so directs, by independent legal counsel in a written opinion, or
(3) By the stockholders by a majority vote of a quorum consisting of stockholders who were not parties to such action, suit or proceeding.
(e) Expenses (including attorneys’ fees) incurred in defending a civil or criminal action, suit or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit or proceeding as authorized in the manner provided in subsection (d) upon receipt of an undertaking by or on behalf of the Director, officer, employee or agent to repay such amount, unless it shall ultimately be determined that he is entitled to be indemnified by the Corporation as authorized in this section.
Section 2. Other Indemnification. The indemnification provided by these Articles shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any Bylaw, agreement, vote of stockholders or disinterested Directors, under Wyoming law or otherwise, both as to actions in his official capacity and as to actions in another capacity while holding such position and shall continue as to a person who has ceased to be a Director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
Section 3. Liability Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a Director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation shall have indemnified him against such liability under the provisions of this Article XI.
ARTICLE XII. BOOKS AND RECORDS
Section 1. Books and Records.
(a) This Corporation shall keep correct and complete books and records of account and shall keep minutes of the proceedings of its stockholders, Board of Directors, and committees of Directors.
| Page 15 of 16 pages |
(b) This Corporation shall keep at its registered office or principal place of business, or at the office of its transfer agent or registrar, a record of its stockholders, giving the names and addresses of all stockholders and the number, class and series, if any, of the shares held by each.
(c) Any books, records and minutes may be in written form or in any other form capable of being converted into written form within a reasonable time.
Section 2. Stockholders’ Inspection Rights. Any person who shall have been a holder of record of shares or of voting trust certificates therefor at least six (6) months immediately preceding his demand or shall be the holder of record of, or the holder of record of voting trust certificates for, at least five percent (5%) of the outstanding shares of any class or series of the Corporation, upon written demand stating the purpose thereof, shall have the right to examine, in person or by agent or attorney, at any reasonable time or times, for any proper purpose, its relevant books and records of accounts, minutes and records of stockholders and to make extracts therefrom.
Section 3. Financial Information.
(a) Not later than four (4) months after the close of each fiscal year, the Corporation shall prepare a balance sheet showing in reasonable detail the financial condition of the Corporation as of the close of its fiscal year, and a profit and loss statement showing the results of the operations of the Corporation during its fiscal year.
(b) Upon the written request of any stockholder or holder of voting trust certificates for shares of the Corporation, the Corporation shall mail to such stockholder or holder of voting trust certificates a copy of the most recent such balance sheet and profit and loss statement.
(c) The balance sheets and profit and loss statements shall be maintained in the principal place of business of the Corporation, shall be kept for at least five (5) years, and shall be subject to inspection during business hours by any stockholder or holder of voting trust certificates, in person or by agent, as provided by Wyoming state law.
ARTICLE XIII. CORPORATE SEAL
The Board of Directors shall provide a corporate seal or stamp which shall be circular or rectangular in form and shall have inscribed thereon the name of the Corporation, the state of incorporation and the year of incorporation. The use of a seal or stamp by a Corporation on any corporate record is not necessary. The Corporation may use a seal or stamp, if it desires, but such use or nonuse must not in any way affect the legality of the record.
ARTICLE XIV. AMENDMENT TO BYLAWS
Section 1. By Stockholders. The stockholders, by the affirmative vote of a majority of the voting stock, shall have the power to alter, amend, and repeal the Bylaws of this Corporation or to adopt additional Bylaws and any Bylaw so adopted may specifically provide that such Bylaw can only be altered, amended or repealed by the stockholders.
Section 2. By Directors. The Board of Directors, by affirmative vote of a majority of the Board of Directors, shall have the power to adopt additional Bylaws or to alter, amend, and repeal the Bylaws of this Corporation, except when any Bylaw adopted by the stockholders specifically provides that such Bylaw can only be altered, amended, or repealed by the stockholders.
| Page 16 of 16 pages |
SECRETARY’S CERTIFICATION
I, the undersigned Secretary of this Corporation, hereby certify that the foregoing Bylaws were duly adopted by its Board of Directors on the date above indicated and that the foregoing text of the Bylaws are currently in full force and effect and have not been revoked, suspended, or amended since adoption thereof.
| 7/20/2023 | |
| Donald Harris, Secretary | date |
Exhibit 10.1
American Picture House Corporation
At-Will Consulting Agreement
Version 1.01
At-Will Initial Consulting Agreement
This At-Will Initial Consulting Agreement (hereinafter referred to as, “Agreement”) made as of January 1, 2022 by and between the parties Bannor Michael MacGregor (hereinafter referred to as, the “Consultant”) and Picture House Corporation (hereinafter referred to as, the, “Company”) a Wyoming limited liability company (hereinafter respectively referred in the singular as, “Party” and collectively in the plural as, “Parties”).
Witnesseth
Whereas, the Company desires to the secure the services of the Consultant and the Consultant desires to provide such services to the Company; and
Now, therefore, in consideration of the foregoing and the mutual covenants herein contained, the Parties hereto hereby agree as follows:
Article I: Engagement
The Company hereby engages the Consultant, effective as of the above-mentioned date util such time as either party terminates this Agreement.
Article II: Duties
| 1. | The Consultant will oversee the operations of the Company. | |
| 2. | The Consultant shall devote such time and efforts as Consultant deems appropriate. |
| a. | Promote the quality of the Company’s products and services with attention to the maintenance of the standards and procedures the Company will establish; and | |
| b. | Seek to enhance and develop the Company’s relationships with the entertainment industry and technology developers. |
| 3. | The Consultant shall act as the Company’s acting CEO/President. | |
| 4. | The Consultant represents and warrants to the Company that, to the best of his/her knowledge, he/she is under no professional obligation or commitment, whether contractual or otherwise, that is inconsistent with his/her obligations under this Agreement. The Consultant represents and warrants that he/she will not knowingly use or disclose any trade secrets or other proprietary information or intellectual property in which the Company or any other person has any right, title or interest. To the best of his/her knowledge, the Consultant’s services to be delivered to the Company as contemplated by this Agreement will not infringe or violate the rights of any other person. The Consultant represents and warrants to the Company that he/she has returned all property and confidential information belonging to his/her most recent prior employer. |
| Page 1 of 6 Pages |
American Picture House Corporation
At-Will Consulting Agreement
Version 1.01
Article III: Compensation
| 1. | Company shall pay to the Consultant for all services to be rendered pursuant to the terms of this Agreement until its termination the “Consultant Compensation” as outlined and payable as per “Exhibit A”. | |
| 2. | The Company shall pay bonus compensation as mutually agreed and to be determined at the sole discretion of the Company to the Consultant for the additional services which are considered outside the scope this Agreement. |
Article IV: Working Conditions and Benefits
| 1. | The Consultant shall work from wherever the customarily work (e.g, from home or other) and will not be required to work from the Company’s offices. | |
| 2. | If the Consultant travels on the Company’s behalf to the extent reasonably necessary Consultant shall be reimbursed for such travel, provide such travel was pre-authorized by the Company. |
Article V: Term “At-Will”
The Agreement shall remain in effect, from the commencement date set forth in Article I until the date when the Agreement terminates pursuant to Article VI.
Article VI: Termination
| 1. | The Consultant may voluntarily terminate this Agreement at any time upon written notice to the Company. | |
| 2. | The Company may terminate this Agreement, in its sole discretion, at any time. |
Article VII: Confidentiality
The Consultant hereby agrees as follows:
| 1. | All Company trade secrets, proprietary information, software, software codes, advertising, sales, marketing and other materials or articles of information, including customer and supplier lists, data, reports, customer sales analyses, invoices, price lists or information, samples, or any other materials or data of any kind furnished to the Consultant by the Company shall remain the sole and confidential property of the Company; if the Company requests the return of such materials at any time the Consultant shall immediately deliver the same to the Company. | |
| 2. | During the term of this Agreement and at all times thereafter, the Consultant shall not knowingly use for his/her personal benefit, or disclose, communicate or divulge to, or use for the direct or indirect benefit of any person, firm, association or entity other than the Company, any material referred to in subsection (1) above or any information regarding the business methods, business policies, procedures, techniques, research or development projects or results, trade secrets, or other knowledge or processes used or developed by the Company or any names and addresses of customers or clients or any other confidential information relating to or dealing with the business operations or activities of the Company, first made known to the Consultant or first learned or acquired by the Consultant from the Company. |
| Page 2 of 6 Pages |
American Picture House Corporation
At-Will Consulting Agreement
Version 1.01
| 3. | The foregoing provisions of this Article shall not: |
| a. | Prevent Consultant from owning five percent (5%) or less of the outstanding stock of any publicly traded entity; | |
| b. | Apply to information of any type that is publicly disclosed, or is or becomes publicly available, in each instance without a violation by Consultant of the provisions of this Article, and | |
| c. | Be construed to prevent disclosure by Consultant pursuant to legal process, provided in this event Consultant shall endeavor to give reasonable advance notice to the Company of any such legal process involving his/her that may result in otherwise prohibited disclosure. |
| 4. | It is recognized that damages in the event of breach by the Consultant of this Article would be difficult, if not impossible, to ascertain. It is, therefore, agreed that the Company shall have the right to an injunction or other equitable relief in any court of competent jurisdiction, enjoining any breach, and the Consultant hereby waives any and all defenses specifically related to the ground of lack of jurisdiction or competence of the court to grant such injunction or other equitable relief. The existence of this right shall not preclude any other rights and remedies at law or in equity which the Company may have. |
| 5. | The Consultant also agrees to sign additional Mutual Non-Disclosure Agreements as may be required by the Company. |
Article VIII: Construction, Enforceability and Severability
| 1. | The descriptive headings of Articles, or of or in any exhibit, are inserted for convenience only and are not a part of this Agreement. Unless otherwise qualified, references in this Agreement to “Article” are to provisions of this Agreement and a reference thereto includes any subparts. As used herein, the singular includes the plural, the plural includes the singular, and words in one gender include the other, the terms “Party” and “Parties” are references to the Company and/or the Consultant as permitted or required by the context, “herein”, “hereunder”, “hereof” and similar references refer to the whole of this Agreement, “include”, “including” and similar terms are not words of limitation, and any examples are not limiting. The failure of an incorporated Party to affix its corporate seal to this Agreement shall not impair the validity of the signature of that Party but shall, instead, be the adoption by that Party of the phrase “Corporate Seal” as the corporate seal of that Party for the purposes of this Agreement. In the event any date specified herein or determined hereunder shall be on a Saturday, Sunday or nationally declared holiday, then that date so specified or determined shall be deemed to be the next business day following such date and compliance by or on that day shall be deemed to be compliance with the terms of this Agreement. |
| 2. | If any provision or portion of this Agreement shall be held invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. If any provision or portion of this Agreement is held invalid or unenforceable with respect to circumstances, it shall remain in full force and effect in all other circumstances. |
| 3. | The Company represents and warrants to the Consultant that, to the best of its knowledge, it has been duly authorized to execute, deliver and perform this Agreement and each related agreement, and that execution, delivery and performance hereof and thereof is not and will not be a breach or violation of any obligation or commitment, whether contractual or otherwise, to which the Company is subject or by which it is bound. |
| Page 3 of 6 Pages |
American Picture House Corporation
At-Will Consulting Agreement
Version 1.01
Article IX: Arbitration
Any controversy or claim arising out of or relating to this Agreement or the breach thereof, or the Consultant’s engagement or the termination thereof, shall be settled by arbitration in North Carolina in accordance with rules outlined by the American Arbitration Association. The decision of the arbitrator shall be final and binding on the Parties, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator shall be empowered to enter an equitable decree mandating specific enforcement of the terms of this Agreement. The Company and the Consultant shall share equally all fees and expenses of the arbitrator; provided, however, that the Company or the Consultant, as the case may be, shall bear all fees and expenses of the arbitrator and all of the legal fees and out-of-pocket expenses of the other Party if the arbitrator determines that the claim or position of the Company or the Consultant, as the case may be, was without reasonable foundation. The Consultant and the Company each hereby consent to personal jurisdiction of the state and federal courts located within the territorial limits of the above venue for any action or proceeding arising from or relating to this Agreement or relating to any arbitration in which the parties are participants, and waive all venue objections with respect to such arbitration, actions or proceedings.
Article X: Notice
Any notice, request, demand or other communication required to be given under the terms of this Agreement shall be in writing and shall be deemed to have been duly given if delivered to the addressee in person or mailed by certified mail, return receipt requested, to the Consultant at the last resident address he/she/they has(have) provided to the Company, or in the case of the Company, at its principal offices.
Article XI: Benefit
This Agreement shall inure to and shall be binding upon the Parties, the successors and assigns of the Company, and the heirs and personal representatives of the Consultant.
Article XII: Waiver
The waiver by either Party of any breach or violation of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach.
Article XIII: Governing Law
The law of the State of North Carolina shall govern the construction, enforcement and validity of this Agreement as such laws shall apply to agreements negotiated, formed and executed within such state.
Article XIV: Entire Agreement
This Agreement constitutes or refers to the entire understanding of the Consultant and the Company with respect to the subject matter hereof and supersedes any and all prior understandings written or oral. This Agreement may not be changed, modified, or discharged orally, but only by an instrument in writing signed by the Parties.
Article XV: Counterparts and Facsimile Signatures
This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.
Execution and delivery of this Agreement by exchange of facsimile copies bearing the facsimile signature of a Party shall constitute a valid and binding execution and delivery of this Agreement by such Party. Such facsimile copies shall constitute enforceable original documents.
| Page 4 of 6 Pages |
American Picture House Corporation
At-Will Consulting Agreement
Version 1.01
Signatures Page
In Witness Whereof, the Parties have executed this Agreement and affixed their hands and seal the day and year first written above.
| Bannor Michael MacGregor (the, “Consultant”) | |||
| By: | /s/ Bannor Michael MacGregor | 01/01/2022 | |
| Bannor Michael MacGregor, Individually | date | ||
| American Picture House Corporation (the, “Company”) | |||
| By: | /s/ Bannor Michael MacGregor | 01/01/2022 | |
| Bannor Michael MacGregor, CEO/President | date | ||
| Page 5 of 6 Pages |
American Picture House Corporation
At-Will Consulting Agreement
Version 1.01
(Exhibit A)
Consultant Compensation Details:
Compensation: Consultant will receive compensation (at the sole discretion of the Company) for exemplary performance and for significantly adding value to the Company. The Company makes no warrantees and/or representations of guaranteed compensation to Consultant.
However, if this Agreement his replaced with a full-time, employment agreement the Company shall pay Consultant a minimum of:
| ● | Five thousand dollars per month ($5,000.00 USD); and | |
| ● | An amount of ownership in the Company to be mutually agreed to and to be further vested with terms acceptable to both parties (e.g., over a two-year period, etc.). |
| Page 6 of 6 Pages |
Exhibit 10.1.1
American Picture House Corporation
Amended Consulting Agreement
Version 1.01
Amended Consulting Agreement
This Amended Consulting Agreement (hereinafter referred to as, “Agreement”) made as of September 19, 2023 (the “Effective Date”), by and between Bannor Michael MacGregor (the “Consultant”), citizen and resident of the State of North Carolina, and American Picture House Corporation (the “Company”), a corporation formed and existing under the laws of the State of Wyoming. Consultant and Company may be referred to herein individually as a “Party” and collectively as “Parties”.
Witnesseth
Whereas, the Company desires to the secure the services of the Consultant as defined herein and the Consultant desires to provide such services to the Company; and
Now, therefore, in consideration of the foregoing and the mutual covenants herein contained, the Parties agree as follows:
Article I: Engagement
The Company hereby engages the Consultant effective as of the Effective Date to provide the services and perform the duties enumerated in Article II. This Agreement shall continue until such time as either party terminates this Agreement pursuant to Article VI.
Article II: Duties
| 1. | The Consultant will oversee the operations of the Company for the purposes of: |
| a. | Promoting the quality of the Company’s products and services with attention to the maintenance of the standards and procedures the Company will establish; and | |
| b. | Seeking to enhance and develop the Company’s relationships with the entertainment industry and technology developers. |
| 2. | The Consultant shall devote such time and efforts as Consultant and Company deem appropriate. | |
| 3. | The Consultant shall act as the Company’s CEO. The Consultant represents and warrants to the Company that, to the best of his/her knowledge, he/she is under no professional obligation or commitment, whether contractual or otherwise, that is inconsistent with his/her obligations under this Agreement. The Consultant represents and warrants that he/she will not knowingly use or disclose any trade secrets or other proprietary information or intellectual property in which the Company or its affiliates or any other third person doing business with the Company has any right, title or interest. To the best of his/her knowledge, the Consultant’s services to be delivered to the Company as contemplated by this Agreement will not infringe or violate the rights of any other person. The Consultant represents and warrants to the Company that he/she has returned all property and confidential information belonging to his/her most recent prior employer and that he/she will not use any such property or confidential information in providing services and/or performing the duties contemplated herein. |
| Page 1 of 6 Pages |
American Picture House Corporation
Amended Consulting Agreement
Version 1.01
Article III: Compensation
| 1. | Company shall pay to the Consultant for all services to be rendered pursuant to the terms of this Agreement until its termination, the “Consultant Compensation” as outlined and payable as per “Exhibit A”. | |
| 2. | The Company shall pay to the Consultant, bonus compensation as mutually agreed upon and to be determined at the sole discretion of the Company for any additional services provided to the Company by the Consultant, which are considered outside the scope this Agreement. |
Article IV: Working Conditions and Benefits
| 1. | The Consultant shall work from wherever the Consultant customarily works (e.g, from home or other) and will not be required to work from the Company’s offices. | |
| 2. | If the Consultant travels at the request of and on behalf of the Company, Company shall reimburse Consultant for all reasonably incurred and necessary travel expenses, provided such travel expenses were pre-authorized by the Company. |
Article V: Term
The Agreement shall remain in effect, from the Effective Date set forth above, until such time as the Agreement is terminated in accordance with Article VI.
Article VI: Termination
| 1. | The Consultant may voluntarily terminate this Agreement with or without cause upon 30-day written notice to the Company. | |
| 2. | The Company may terminate this Agreement with or without cause, in its sole discretion, at any time and without notice. |
Article VII: Confidentiality
The Consultant hereby agrees as follows:
| 1. | All Company trade secrets, proprietary information, software, software codes, advertising, sales, marketing and other materials or articles of information, including customer and supplier lists, data, reports, customer sales analyses, invoices, price lists or information, samples, or any other materials or data of any kind furnished to the Consultant by the Company shall remain the sole and confidential property of the Company; if the Company requests the return of such materials at any time the Consultant shall immediately deliver the same to the Company. | |
| 2. | During the term of this Agreement and at all times thereafter, the Consultant shall not knowingly use for his/her personal benefit, or disclose, communicate or divulge to, or use for the direct or indirect benefit of any person, firm, association or entity other than the Company, any material referred to in subsection (1) above or any information regarding the business methods, business policies, procedures, techniques, research or development projects or results, trade secrets, or other knowledge or processes used or developed by the Company or any names and addresses of customers or clients or any other confidential information relating to or dealing with the business operations or activities of the Company, first made known to the Consultant or first learned or acquired by the Consultant from the Company. |
| Page 2 of 6 Pages |
American Picture House Corporation
Amended Consulting Agreement
Version 1.01
| 3. | The foregoing provisions of this Article shall not: |
| a. | Apply to information of any type that is publicly disclosed, or is or becomes publicly available, in each instance without a violation by Consultant of the provisions of this Article, and | |
| b. | Be construed to prevent disclosure by Consultant pursuant to legal process, provided in this event Consultant shall endeavor to give reasonable advance notice to the Company of any such legal process involving his/her that may result in otherwise prohibited disclosure. |
| 4. | It is recognized that damages in the event of breach by the Consultant of this Article would be difficult, if not impossible, to ascertain. It is, therefore, agreed that the Company shall have the right to an injunction or other equitable relief in any court of competent jurisdiction, enjoining any breach, and the Consultant hereby waives any and all defenses specifically related to the ground of lack of jurisdiction or competence of the court to grant such injunction or other equitable relief. The existence of this right shall not preclude any other rights and remedies at law or in equity which the Company may have. | |
| 5. | The Consultant also agrees to sign additional Mutual Non-Disclosure Agreements as may be required by the Company. |
Article VIII: Construction, Enforceability and Severability
| 1. | The descriptive headings of Articles, or of or in any exhibit, are inserted for convenience only and are not a part of this Agreement. Unless otherwise qualified, references in this Agreement to “Article” are to provisions of this Agreement and a reference thereto includes any subparts. As used herein, the singular includes the plural, the plural includes the singular, and words in one gender include the other, the terms “Party” and “Parties” are references to the Company and/or the Consultant as permitted or required by the context, “herein”, “hereunder”, “hereof” and similar references refer to the whole of this Agreement, “include”, “including” and similar terms are not words of limitation, and any examples are not limiting. The failure of an incorporated Party to affix its corporate seal to this Agreement shall not impair the validity of the signature of that Party but shall, instead, be the adoption by that Party of the phrase “Corporate Seal” as the corporate seal of that Party for the purposes of this Agreement. In the event any date specified herein or determined hereunder shall be on a Saturday, Sunday or nationally declared holiday, then that date so specified or determined shall be deemed to be the next business day following such date and compliance by or on that day shall be deemed to be compliance with the terms of this Agreement. |
| 2. | If any provision or portion of this Agreement shall be held invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. If any provision or portion of this Agreement is held invalid or unenforceable with respect to circumstances, it shall remain in full force and effect in all other circumstances. | |
| 3. | The Company represents and warrants to the Consultant that, to the best of its knowledge, it has been duly authorized to execute, deliver and perform this Agreement and each related agreement, and that execution, delivery and performance hereof and thereof is not and will not be a breach orviolation of any obligation or commitment, whether contractual or otherwise, to which the Company is subject or by which it is bound. |
| Page 3 of 6 Pages |
American Picture House Corporation
Amended Consulting Agreement
Version 1.01
Article IX: Arbitration
Any controversy or claim arising out of or relating to this Agreement or the breach thereof, or the Consultant’s engagement or the termination thereof, shall be settled by arbitration in North Carolina in accordance with rules outlined by the American Arbitration Association. The decision of the arbitrator shall be final and binding on the Parties, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator shall be empowered to enter an equitable decree mandating specific enforcement of the terms of this Agreement. The Company and the Consultant shall share equally all fees and expenses of the arbitrator; provided, however, that the Company or the Consultant, as the case may be, shall bear all fees and expenses of the arbitrator and all of the legal fees and out-of-pocket expenses of the other Party if the arbitrator determines that the claim or position of the Company or the Consultant, as the case may be, was without reasonable foundation. The Consultant and the Company each hereby consent to personal jurisdiction of the state and federal courts located within the territorial limits of the above venue for any action or proceeding arising from or relating to this Agreement or relating to any arbitration in which the parties are participants, and waive all venue objections with respect to such arbitration, actions or proceedings.
Article X: Notice
Any notice, request, demand or other communication required to be given under the terms of this Agreement shall be in writing and shall be deemed to have been duly given if delivered to the addressee in person or mailed by certified mail, return receipt requested, to the Consultant at the last resident address he/she/they has(have) provided to the Company, or in the case of the Company, at its principal offices.
Article XI: Benefit
This Agreement shall inure to and shall be binding upon the Parties, the successors and assigns of the Company, and the heirs and personal representatives of the Consultant.
Article XII: Waiver
The waiver by either Party of any breach or violation of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach.
Article XIII: Governing Law
The law of the State of North Carolina shall govern the construction, enforcement and validity of this Agreement as such laws shall apply to agreements negotiated, formed and executed within such state.
Article XIV: Entire Agreement
This Agreement constitutes or refers to the entire understanding of the Consultant and the Company with respect to the subject matter hereof and supersedes any and all prior understandings written or oral. This Agreement may not be changed, modified, or discharged orally, but only by an instrument in writing signed by the Parties.
Article XV: Counterparts and Facsimile Signatures
This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. Execution and delivery of this Agreement by exchange of facsimile copies bearing the facsimile signature of a Party shall constitute a valid and binding execution and delivery of this Agreement by such Party. Such facsimile copies shall constitute enforceable original documents.
| Page 4 of 6 Pages |
American Picture House Corporation
Amended Consulting Agreement
Version 1.01
Signatures Page
In Witness Whereof, the Parties have executed this Agreement and affixed their hands and seal the day and year first written above.
| Bannor Michael MacGregor (the, “Consultant”) | |||
| By: | /s/ Bannor Michael MacGregor | 9/19/23 | |
| Bannor Michael MacGregor, Individually | date | ||
| American Picture House Corporation (the, “Company”) | |||
| By: | /s/ A. John Luessenhop | 9/19/23 | |
| A. John Luessenhop | date | ||
| Page 5 of 6 Pages |
American Picture House Corporation
Amended Consulting Agreement
Version 1.01
(Exhibit A)
Consultant Compensation Details:
Compensation: Consultant will receive compensation (at the sole discretion of the Company) for exemplary performance and for significantly adding value to the Company. The Company makes no warrantees and/or representations of guaranteed compensation to Consultant.
However, if this Agreement his replaced with a full-time, employment agreement the Company shall pay Consultant a minimum of:
| ● | Five thousand dollars per month ($5,000.00 USD); and | |
| ● | An amount of ownership in the Company to be mutually agreed to and to be further vested with terms acceptable to both parties (e.g., over a two-year period, etc.). |
| Page 6 of 6 Pages |
Exhibit 10.2
LOAN AUTHORIZATION AND AGREEMENT (LA&A)
A PROPERLY SIGNED DOCUMENT IS
REQUIRED PRIOR TO ANY
DISBURSEMENT
CAREFULLY READ THE LA&A:
This document describes the terms and conditions of your loan. It is your responsibility to comply with ALL the terms and conditions of your loan.
SIGNING THE LA&A:
All borrowers must sign the LA&A.
| ● | Sign your name exactly as it appears on the LA&A. If typed incorrectly, you should sign with the correct spelling. | |
| ● | If your middle initial appears on the signature line, sign with your middle initial. | |
| ● | If a suffix appears on the signature line, such as Sr. or Jr., sign with your suffix. | |
| ● | Corporate Signatories: Authorized representatives should sign the signature page. |
Your signature represents your agreement to comply
with the terms and conditions of the loan.
U.S. Small Business Administration
Economic Injury Disaster Loan
LOAN AUTHORIZATION AND AGREEMENT
Date: 02.26.2021 (Effective Date)
On the above date, this Administration (SBA) authorized (under Section 7(b) of the Small Business Act, as amended) a Loan (SBA Loan #4909478503) to American Picture House Corporation (Borrower) of 1 Marina Park Dr Ste 1410 Boston Massachusetts 02210 in the amount of one hundred and fifty thousand and 00/100 Dollars ($150,000.00), upon the following conditions:
PAYMENT
| ● | Installment payments, including principal and interest, of $731.00 Monthly, will begin Twelve (12) months from the date of the promissory Note. The balance of principal and interest will be payable Thirty (30) years from the date of the promissory Note. |
INTEREST
| ● | Interest will accrue at the rate of 3.75% per annum and will accrue only on funds actually advanced from the date(s) of each advance. |
PAYMENT TERMS
| ● | Each payment will be applied first to interest accrued to the date of receipt of each payment, and the balance, if any, will be applied to principal. |
| ● | Each payment will be made when due even if at that time the full amount of the Loan has not yet been advanced or the authorized amount of the Loan has been reduced. |
COLLATERAL
| ● | For loan amounts of greater than $25,000, Borrower hereby grants to SBA, the secured party hereunder, a continuing security interest in and to any and all “Collateral” as described herein to secure payment and performance of all debts, liabilities and obligations of Borrower to SBA hereunder without limitation, including but not limited to all interest, other fees and expenses (all hereinafter called “Obligations”). The Collateral includes the following property that Borrower now owns or shall acquire or create immediately upon the acquisition or creation thereof: all tangible and intangible personal property, including, but not limited to: (a) inventory, (b) equipment, (c) instruments, including promissory notes (d) chattel paper, including tangible chattel paper and electronic chattel paper, (e) documents, (f) letter of credit rights, (g) accounts, including health-care insurance receivables and credit card receivables, (h) deposit accounts, (i) commercial tort claims, (j) general intangibles, including payment intangibles and software and (k) as-extracted collateral as such terms may from time to time be defined in the Uniform Commercial Code. The security interest Borrower grants includes all accessions, attachments, accessories, parts, supplies and replacements for the Collateral, all products, proceeds and collections thereof and all records and data relating thereto. |
| ● | For loan amounts of $25,000 or less, SBA is not taking a security interest in any collateral. |
| Page 2 of 11 |
REQUIREMENTS RELATIVE TO COLLATERAL
| ● | Borrower will not sell or transfer any collateral (except normal inventory turnover in the ordinary course of business) described in the “Collateral” paragraph hereof without the prior written consent of SBA. |
USE OF LOAN PROCEEDS
| ● | Borrower will use all the proceeds of this Loan solely as working capital to alleviate economic injury caused by disaster occurring in the month of January 31, 2020 and continuing thereafter and to pay Uniform Commercial Code (UCC) lien filing fees and a third-party UCC handling charge of $100 which will be deducted from the Loan amount stated above. |
REQUIREMENTS FOR USE OF LOAN PROCEEDS AND RECEIPTS
| ● | Borrower will obtain and itemize receipts (paid receipts, paid invoices or cancelled checks) and contracts for all Loan funds spent and retain these receipts for 3 years from the date of the final disbursement. Prior to each subsequent disbursement (if any) and whenever requested by SBA, Borrower will submit to SBA such itemization together with copies of the receipts. |
| ● | Borrower will not use, directly or indirectly, any portion of the proceeds of this Loan to relocate without the prior written permission of SBA. The law prohibits the use of any portion of the proceeds of this Loan for voluntary relocation from the business area in which the disaster occurred. To request SBA’s prior written permission to relocate, Borrower will present to SBA the reasons therefore and a description or address of the relocation site. Determinations of (1) whether a relocation is voluntary or otherwise, and (2) whether any site other than the disaster-affected location is within the business area in which the disaster occurred, will be made solely by SBA. |
| ● | Borrower will, to the extent feasible, purchase only American-made equipment and products with the proceeds of this Loan. |
| ● | Borrower will make any request for a loan increase for additional disaster-related damages as soon as possible after the need for a loan increase is discovered. The SBA will not consider a request for a loan increase received more than two (2) years from the date of loan approval unless, in the sole discretion of the SBA, there are extraordinary and unforeseeable circumstances beyond the control of the borrower. |
DEADLINE FOR RETURN OF LOAN CLOSING DOCUMENTS
| ● | Borrower will sign and return the loan closing documents to SBA within 2 months of the date of this Loan Authorization and Agreement. By notifying the Borrower in writing, SBA may cancel this Loan if the Borrower fails to meet this requirement. The Borrower may submit and the SBA may, in its sole discretion, accept documents after 2 months of the date of this Loan Authorization and Agreement. |
COMPENSATION FROM OTHER SOURCES
| ● | Eligibility for this disaster Loan is limited to disaster losses that are not compensated by other sources. Other sources include but are not limited to: (1) proceeds of policies of insurance or other indemnifications, (2) grants or other reimbursement (including loans) from government agencies or private organizations, (3) claims for civil liability against other individuals, organizations or governmental entities, and (4) salvage (including any sale or re-use) of items of damaged property. |
| Page 3 of 11 |
| ● | Borrower will promptly notify SBA of the existence and status of any claim or application for such other compensation, and of the receipt of any such compensation, and Borrower will promptly submit the proceeds of same (not exceeding the outstanding balance of this Loan) to SBA. |
| ● | Borrower hereby assigns to SBA the proceeds of any such compensation from other sources and authorizes the payor of same to deliver said proceeds to SBA at such time and place as SBA shall designate. |
| ● | SBA will in its sole discretion determine whether any such compensation from other sources is a duplication of benefits. SBA will use the proceeds of any such duplication to reduce the outstanding balance of this Loan, and Borrower agrees that such proceeds will not be applied in lieu of scheduled payments. |
DUTY TO MAINTAIN HAZARD INSURANCE
| ● | Within 12 months from the date of this Loan Authorization and Agreement the Borrower will provide proof of an active and in effect hazard insurance policy including fire, lightning, and extended coverage on all items used to secure this loan to at least 80% of the insurable value. Borrower will not cancel such coverage and will maintain such coverage throughout the entire term of this Loan. BORROWER MAY NOT BE ELIGIBLE FOR EITHER ANY FUTURE DISASTER ASSISTANCE OR SBA FINANCIAL ASSISTANCE IF THIS INSURANCE IS NOT MAINTAINED AS STIPULATED HEREIN THROUGHOUT THE ENTIRE TERM OF THIS LOAN. Please submit proof of insurance to: U.S. Small Business Administration, Office of Disaster Assistance, 14925 Kingsport Rd, Fort Worth, TX. 76155. |
BOOKS AND RECORDS
| ● | Borrower will maintain current and proper books of account in a manner satisfactory to SBA for the most recent 5 years until 3 years after the date of maturity, including extensions, or the date this Loan is paid in full, whichever occurs first. Such books will include Borrower’s financial and operating statements, insurance policies, tax returns and related filings, records of earnings distributed and dividends paid and records of compensation to officers, directors, holders of 10% or more of Borrower’s capital stock, members, partners and proprietors. |
| ● | Borrower authorizes SBA to make or cause to be made, at Borrower’s expense and in such a manner and at such times as SBA may require: (1) inspections and audits of any books, records and paper in the custody or control of Borrower or others relating to Borrower’s financial or business conditions, including the making of copies thereof and extracts therefrom, and (2) inspections and appraisals of any of Borrower’s assets. |
| ● | Borrower will furnish to SBA, not later than 3 months following the expiration of Borrower’s fiscal year and in such form as SBA may require, Borrower’s financial statements. |
| ● | Upon written request of SBA, Borrower will accompany such statements with an ‘Accountant’s Review Report’ prepared by an independent public accountant at Borrower’s expense. |
| ● | Borrower authorizes all Federal, State and municipal authorities to furnish reports of examination, records and other information relating to the conditions and affairs of Borrower and any desired information from such reports, returns, files, and records of such authorities upon request of SBA. |
| Page 4 of 11 |
LIMITS ON DISTRIBUTION OF ASSETS
| ● | Borrower will not, without the prior written consent of SBA, make any distribution of Borrower’s assets, or give any preferential treatment, make any advance, directly or indirectly, by way of loan, gift, bonus, or otherwise, to any owner or partner or any of its employees, or to any company directly or indirectly controlling or affiliated with or controlled by Borrower, or any other company. |
EQUAL OPPORTUNITY REQUIREMENT
| ● | If Borrower has or intends to have employees, Borrower will post SBA Form 722, Equal Opportunity Poster (copy attached), in Borrower’s place of business where it will be clearly visible to employees, applicants for employment, and the general public. |
DISCLOSURE OF LOBBYING ACTIVITIES
| ● | Borrower agrees to the attached Certification Regarding Lobbying Activities BORROWER’S CERTIFICATIONS |
Borrower certifies that:
| ● | There has been no substantial adverse change in Borrower’s financial condition (and organization, in case of a business borrower) since the date of the application for this Loan. (Adverse changes include, but are not limited to: judgment liens, tax liens, mechanic’s liens, bankruptcy, financial reverses, arrest or conviction of felony, etc.) |
| ● | No fees have been paid, directly or indirectly, to any representative (attorney, accountant, etc.) for services provided or to be provided in connection with applying for or closing this Loan, other than those reported on SBA Form 5 Business Disaster Loan Application’; SBA Form 3501 COVID-19 Economic Injury Disaster Loan Application; or SBA Form 159, ‘Compensation Agreement’. All fees not approved by SBA are prohibited. |
| ● | All representations in the Borrower’s Loan application (including all supplementary submissions) are true, correct and complete and are offered to induce SBA to make this Loan. |
| ● | No claim or application for any other compensation for disaster losses has been submitted to or requested of any source, and no such other compensation has been received, other than that which Borrower has fully disclosed to SBA. |
| ● | Neither the Borrower nor, if the Borrower is a business, any principal who owns at least 50% of the Borrower, is delinquent more than 60 days under the terms of any: (a) administrative order; (b) court order; or (c) repayment agreement that requires payment of child support. |
| ● | Borrower certifies that no fees have been paid, directly or indirectly, to any representative (attorney, accountant, etc.) for services provided or to be provided in connection with applying for or closing this Loan, other than those reported on the Loan Application. All fees not approved by SBA are prohibited. If an Applicant chooses to employ an Agent, the compensation an Agent charges to and that is paid by the Applicant must bear a necessary and reasonable relationship to the services actually performed and must be comparable to those charged by other Agents in the geographical area. Compensation cannot be contingent on loan approval. In addition, compensation must not include any expenses which are deemed by SBA to be unreasonable for services actually performed or expenses actually incurred. Compensation must not include charges prohibited in 13 CFR 103 or SOP 50-30, Appendix 1. If the compensation exceeds $500 for a disaster home loan or $2,500 for a disaster business loan, Borrower must fill out the Compensation Agreement Form 159D which will be provided for Borrower upon request or can be found on the SBA website. |
| Page 5 of 11 |
| ● | Borrower certifies, to the best of its, his or her knowledge and belief, that the certifications and representations in the attached Certification Regarding Lobbying are true, correct and complete and are offered to induce SBA to make this Loan. |
CIVIL AND CRIMINAL PENALTIES
| ● | Whoever wrongfully misapplies the proceeds of an SBA disaster loan shall be civilly liable to the Administrator in an amount equal to one-and-one half times the original principal amount of the loan under 15 U.S.C. 636(b). In addition, any false statement or misrepresentation to SBA may result in criminal, civil or administrative sanctions including, but not limited to: 1) fines, imprisonment or both, under 15 U.S.C. 645, 18 U.S.C. 1001, 18 |
U.S.C. 1014, 18 U.S.C. 1040, 18 U.S.C. 3571, and any other applicable laws; 2) treble damages and civil penalties under the False Claims Act, 31 U.S.C. 3729; 3) double damages and civil penalties under the Program Fraud Civil Remedies Act, 31 U.S.C. 3802; and 4) suspension and/or debarment from all Federal procurement and non-procurement transactions. Statutory fines may increase if amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015.
RESULT OF VIOLATION OF THIS LOAN AUTHORIZATION AND AGREEMENT
| ● | If Borrower violates any of the terms or conditions of this Loan Authorization and Agreement, the Loan will be in default and SBA may declare all or any part of the indebtedness immediately due and payable. SBA’s failure to exercise its rights under this paragraph will not constitute a waiver. |
| ● | A default (or any violation of any of the terms and conditions) of any SBA Loan(s) to Borrower and/or its affiliates will be considered a default of all such Loan(s). |
DISBURSEMENT OF THE LOAN
| ● | Disbursements will be made by and at the discretion of SBA Counsel, in accordance with this Loan Authorization and Agreement and the general requirements of SBA. |
| ● | Disbursements may be made in increments as needed. |
| ● | Other conditions may be imposed by SBA pursuant to general requirements of SBA. |
| ● | Disbursement may be withheld if, in SBA’s sole discretion, there has been an adverse change in Borrower’s financial condition or in any other material fact represented in the Loan application, or if Borrower fails to meet any of the terms or conditions of this Loan Authorization and Agreement. |
| ● | NO DISBURSEMENT WILL BE MADE LATER THAN 6 MONTHS FROM THE DATE OF THIS LOAN AUTHORIZATION AND AGREEMENT UNLESS SBA, IN ITS SOLE DISCRETION, EXTENDS THIS DISBURSEMENT PERIOD. |
| Page 6 of 11 |
PARTIES AFFECTED
| ● | This Loan Authorization and Agreement will be binding upon Borrower and Borrower’s successors and assigns and will inure to the benefit of SBA and its successors and assigns. |
RESOLUTION OF BOARD OF DIRECTORS
| ● | Borrower shall, within 180 days of receiving any disbursement of this Loan, submit the appropriate SBA Certificate and/or Resolution to the U.S. Small Business Administration, Office of Disaster Assistance, 14925 Kingsport Rd, Fort Worth, TX. 76155. |
ENFORCEABILITY
| ● | This Loan Authorization and Agreement is legally binding, enforceable and approved upon Borrower’s signature, the SBA’s approval and the Loan Proceeds being issued to Borrower by a government issued check or by electronic debit of the Loan Proceeds to Borrower’ banking account provided by Borrower in application for this Loan. |
 | |
| James E. Rivera | |
| Associate Administrator | |
| U.S. Small Business Administration |
The undersigned agree(s) to be bound by the terms and conditions herein during the term of this Loan, and further agree(s) that no provision stated herein will be waived without prior written consent of SBA. Under penalty of perjury of the United States of America, I hereby certify that I am authorized to apply for and obtain a disaster loan on behalf of Borrower, in connection with the effects of the COVID-19 emergency.
| American Picture House Corporation | ||||
 |
Date: | 02.26.2021 | ||
| Bannor MacGregor, Owner/Officer |
Note: Corporate Borrowers must execute Loan Authorization and Agreement in corporate name, by a duly authorized officer. Partnership Borrowers must execute in firm name, together with signature of a general partner. Limited Liability entities must execute in the entity name by the signature of the authorized managing person.
| Page 7 of 11 |
CERTIFICATION REGARDING LOBBYING
For loans over $150,000, Congress requires recipients to agree to the following:
| 1. | Appropriated funds may NOT be used for lobbying. |
| 2. | Payment of non-federal funds for lobbying must be reported on Form SF-LLL. |
| 3. | Language of this certification must be incorporated into all contracts and subcontracts exceeding $100,000. |
| 4. | All contractors and subcontractors with contracts exceeding $100,000 are required to certify and disclose accordingly. |
| Page 8 of 11 |
CERTIFICATION REGARDING LOBBYING
Certification for Contracts, Grants, Loans, and Cooperative Agreements
Borrower and all Guarantors (if any) certify, to the best of its, his or her knowledge and belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, or modification of any Federal contract, grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal loan, the undersigned shall complete and submit Standard Form LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
(3) The undersigned shall require that the language of this certification be included in the award documents for all sub-awards at all tiers (including subcontracts, sub-grants, and contracts under grants, loans, and co-operative agreements) and that all sub-recipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000.00 and not more than $100,000.00 for each such failure.
| Page 9 of 11 |
 |
This Statement of Policy is Posted
In Accordance with Regulations of the
Small Business Administration
This Organization Practices
Equal Employment Opportunity |
We do not discriminate on the ground of race, color, religion, sex, age, disability or national origin in the hiring, retention, or promotion of employees; nor in determining their rank, or the compensation or fringe benefits paid them.
This Organization Practices
Equal Treatment of Clients
We do not discriminate on the basis of race, color, religion, sex, marital status, disability, age or national origin in services or accommodations offered or provided to our employees, clients or guests.
These policies and this notice comply with regulations of the
United States Government.
Please report violations of this policy to:
| Administrator | |
| Small Business Administration Washington, | |
| D.C. 20416 |
In order for the public and your employees to know their rights under 13 C.F.R Parts 112, 113, and 117, Small Business Administration Regulations, and to conform with the directions of the Administrator of SBA, this poster must be displayed where it is clearly visible to employees, applicants for employment, and the public.
Failure to display the poster as required in accordance with SBA Regulations may be considered evidence of noncompliance and subject you to the penalties contained in those Regulations.
| Page 10 of 11 |
 |
Esta Declaración De Principios Se Publica |
Esta Organización Practica
Igual Oportunidad De Empleo
No discriminamos por razón de raza, color, religión, sexo, edad, discapacidad o nacionalidad en el empleo, retención o ascenso de personal ni en la determinación de sus posiciones, salarios o beneficios marginales.
Esta Organización Practica
Igualdad En El Trato A Su Clientela
No discriminamos por razón de raza, color, religión, sexo, estado civil, edad, discapacidad o nacionalidad en los servicios o facilidades provistos para nuestros empleados, clientes o visitantes.
Estos principios y este aviso cumplen con los reglamentos del Gobierno
de los Estados Unidos de América.
Favor de informar violaciones a lo aquí indicado a:
| Administrador | |
|---|---|
| Agencia Federal Para el Desarrollo de la | |
| Pequeña Empresa | |
| Washington, D.C. 20416 | |
A fin de que el público y sus empleados conozcan sus derechos según lo expresado en las Secciones 112, 113 y 117 del Código de Regulaciaones Federales No. 13, de los Reglamentos de la Agencja Federal Para el Desarrollo de la Pequeña Empresa y de acuerdo con las instrucciones del Administrador de dicha agencia, esta notificación debe fijarse en un lugar claramente visible para los empleados, solicitantes de empleo y público en general. No fijar esta notificación según lo requerido por los reglamentos de la Agencia Federal Para el Desarrollo de la Pequeña Empresa, puede ser interpretado como evidencia de falta de cumplimiento de los mismos y conllevará la ejecución de los castigos impuestos en estos reglamentos.
| Page 11 of 11 |
NOTE
A PROPERLY SIGNED NOTE IS
REQUIRED PRIOR TO ANY
DISBURSEMENT
CAREFULLY READ THE NOTE: It is your promise to repay the loan.
| ● | The Note is pre-dated. DO NOT CHANGE THE DATE OF THE NOTE. | |
| ● | LOAN PAYMENTS will be due as stated in the Note. | |
| ● | ANY CORRECTIONS OR UNAUTHORIZED MARKS MAY VOID THIS DOCUMENT. |
SIGNING THE NOTE: All borrowers must sign the Note.
| ● | Sign your name exactly as it appears on the Note. If typed incorrectly, you should sign with the correct spelling. | |
| ● | If your middle initial appears on the signature line, sign with your middle initial. | |
| ● | If a suffix appears on the signature line, such as Sr. or Jr., sign with your suffix. | |
| ● | Corporate Signatories: Authorized representatives should sign the signature page. |
|
U.S. Small Business Administration
Note
(SECURED DISASTER LOANS) |
Date: 02.26.2021 |
Loan Amount: $150,000.00 | ||
Annual Interest Rate: 3.75% |
| SBA Loan # 4909478503 | Application #3315916159 |
| 1. | PROMISE TO PAY: In return for a loan, Borrower promises to pay to the order of SBA the amount of one hundred and fifty thousand and 00/100 Dollars ($150,000.00), interest on the unpaid principal balance, and all other amounts required by this Note. |
| 2. | DEFINITIONS: A) “Collateral” means any property taken as security for payment of this Note or any guarantee of this Note. B) “Guarantor” means each person or entity that signs a guarantee of payment of this Note. C) “Loan Documents” means the documents related to this loan signed by Borrower, any Guarantor, or anyone who pledges collateral. |
| 3. | PAYMENT TERMS: Borrower must make all payments at the place SBA designates. Borrower may prepay this Note in part or in full at any time, without notice or penalty. Borrower must pay principal and interest payments of $731.00 every month beginning Twelve (12) months from the date of the Note. SBA will apply each installment payment first to pay interest accrued to the day SBA receives the payment and will then apply any remaining balance to reduce principal. All remaining principal and accrued interest is due and payable Thirty (30) years from the date of the Note. |
| 4. | DEFAULT: Borrower is in default under this Note if Borrower does not make a payment when due under this Note, or if Borrower: A) Fails to comply with any provision of this Note, the Loan Authorization and Agreement, or other Loan Documents; B) Defaults on any other SBA loan; C) Sells or otherwise transfers, or does not preserve or account to SBA’s satisfaction for, any of the Collateral or its proceeds; D) Does not disclose, or anyone acting on their behalf does not disclose, any material fact to SBA; E) Makes, or anyone acting on their behalf makes, a materially false or misleading representation to SBA; F) Defaults on any loan or agreement with another creditor, if SBA believes the default may materially affect Borrower’s ability to pay this Note; G) Fails to pay any taxes when due; H) Becomes the subject of a proceeding under any bankruptcy or insolvency law; I) Has a receiver or liquidator appointed for any part of their business or property; J) Makes an assignment for the benefit of creditors; K) Has any adverse change in financial condition or business operation that SBA believes may materially affect Borrower’s ability to pay this Note; L) Dies; M) Reorganizes, merges, consolidates, or otherwise changes ownership or business structure without SBA’s prior written consent; or, N) Becomes the subject of a civil or criminal action that SBA believes may materially affect Borrower’s ability to pay this Note. |
| 5. | SBA’S RIGHTS IF THERE IS A DEFAULT: Without notice or demand and without giving up any of its rights, SBA may: A) Require immediate payment of all amounts owing under this Note; B) Have recourse to collect all amounts owing from any Borrower or Guarantor (if any); C) File suit and obtain judgment; D) Take possession of any Collateral; or E) Sell, lease, or otherwise dispose of, any Collateral at public or private sale, with or without advertisement. |
| 6. | SBA’S GENERAL POWERS: Without notice and without Borrower’s consent, SBA may: A) Bid on or buy the Collateral at its sale or the sale of another lienholder, at any price it chooses; B) Collect amounts due under this Note, enforce the terms of this Note or any other Loan Document, and preserve or dispose of the Collateral. Among other things, the expenses may include payments for property taxes, prior liens, insurance, appraisals, environmental remediation costs, and reasonable attorney’s fees and costs. If SBA incurs such expenses, it may demand immediate reimbursement from Borrower or add the expenses to the principal balance; C) Release anyone obligated to pay this Note; D) Compromise, release, renew, extend or substitute any of the Collateral; and E) Take any action necessary to protect the Collateral or collect amounts owing on this Note. |
| Page 2 of 3 |
| 7. | FEDERAL LAW APPLIES: When SBA is the holder, this Note will be interpreted and enforced under federal law, including SBA regulations. SBA may use state or local procedures for filing papers, recording documents, giving notice, foreclosing liens, and other purposes. By using such procedures, SBA does not waive any federal immunity from state or local control, penalty, tax, or liability. As to this Note, Borrower may not claim or assert against SBA any local or state law to deny any obligation, defeat any claim of SBA, or preempt federal law. |
| 8. | GENERAL PROVISIONS: A) All individuals and entities signing this Note are jointly and severally liable. B) Borrower waives all suretyship defenses. C) Borrower must sign all documents required at any time to comply with the Loan Documents and to enable SBA to acquire, perfect, or maintain SBA’s liens on Collateral. D) SBA may exercise any of its rights separately or together, as many times and in any order it chooses. SBA may delay or forgo enforcing any of its rights without giving up any of them. E) Borrower may not use an oral statement of SBA to contradict or alter the written terms of this Note. F) If any part of this Note is unenforceable, all other parts remain in effect. G) To the extent allowed by law, Borrower waives all demands and notices in connection with this Note, including presentment, demand, protest, and notice of dishonor. Borrower also waives any defenses based upon any claim that SBA did not obtain any guarantee; did not obtain, perfect, or maintain a lien upon Collateral; impaired Collateral; or did not obtain the fair market value of Collateral at a sale. H) SBA may sell or otherwise transfer this Note. |
| 9. | MISUSE OF LOAN FUNDS: Anyone who wrongfully misapplies any proceeds of the loan will be civilly liable to SBA for one and one- half times the proceeds disbursed, in addition to other remedies allowed by law. |
| 10. | BORROWER’S NAME(S) AND SIGNATURE(S): By signing below, each individual or entity acknowledges and accepts personal obligation and full liability under the Note as Borrower. |
| American Picture House Corporation | |
 |
|
| Bannor MacGregor, Owner/Officer |
| Page 3 of 3 |
SECURITY AGREEMENT
Read this document carefully. It grants the SBA a security interest (lien) in all the property described in paragraph 4.
This document is predated. DO NOT CHANGE THE DATE ON THIS DOCUMENT.
 | U.S. Small Business Administration Security Agreement |
| SBA Loan #: | 4909478503 |
| Borrower: | American Picture House Corporation |
| Secured Party: | The Small Business Administration, an Agency of the U.S. Government |
| Date: | 02.26.2021 |
| Note Amount: | $150,000.00 |
| 1. | DEFINITIONS. |
Unless otherwise specified, all terms used in this Agreement will have the meanings ascribed to them under the Official Text of the Uniform Commercial Code, as it may be amended from time to time, (“UCC”). “SBA” means the Small Business Administration, an Agency of the U.S. Government.
| 2. | GRANT OF SECURITY INTEREST. |
For value received, the Borrower grants to the Secured Party a security interest in the property described below in paragraph 4 (the “Collateral”).
| 3. | OBLIGATIONS SECURED. |
This Agreement secures the payment and performance of: (a) all obligations under a Note dated 02.26.2021, made by American Picture House Corporation , made payable to Secured Lender, in the amount of $150,000.00 (“Note”), including all costs and expenses (including reasonable attorney’s fees), incurred by Secured Party in the disbursement, administration and collection of the loan evidenced by the Note; (b) all costs and expenses (including reasonable attorney’s fees), incurred by Secured Party in the protection, maintenance and enforcement of the security interest hereby granted; (c) all obligations of the Borrower in any other agreement relating to the Note; and (d) any modifications, renewals, refinancings, or extensions of the foregoing obligations.
| 4. | COLLATERAL DESCRIPTION. |
The Collateral in which this security interest is granted includes the following property that Borrower now owns or shall acquire or create immediately upon the acquisition or creation thereof: all tangible and intangible personal property, including, but not limited to: (a) inventory, (b) equipment, (c) instruments, including promissory notes (d) chattel paper, including tangible chattel paper and electronic chattel paper, (e) documents, (f) letter of credit rights, (g) accounts, including health-care insurance receivables and credit card receivables, (h) deposit accounts, (i) commercial tort claims, (j) general intangibles, including payment intangibles and software and (k) as-extracted collateral as such terms may from time to time be defined in the Uniform Commercial Code. The security interest Borrower grants includes all accessions, attachments, accessories, parts, supplies and replacements for the Collateral, all products, proceeds and collections thereof and all records and data relating thereto.
| Page 2 of 5 |
| 5. | RESTRICTIONS ON COLLATERAL TRANSFER. |
Borrower will not sell, lease, license or otherwise transfer (including by granting security interests, liens, or other encumbrances in) all or any part of the Collateral or Borrower’s interest in the Collateral without Secured Party’s written or electronically communicated approval, except that Borrower may sell inventory in the ordinary course of business on customary terms. Borrower may collect and use amounts due on accounts and other rights to payment arising or created in the ordinary course of business, until notified otherwise by Secured Party in writing or by electronic communication.
| 6. | MAINTENANCE AND LOCATION OF COLLATERAL; INSPECTION; INSURANCE. |
Borrower must promptly notify Secured Party by written or electronic communication of any change in location of the Collateral, specifying the new location. Borrower hereby grants to Secured Party the right to inspect the Collateral at all reasonable times and upon reasonable notice. Borrower must: (a) maintain the Collateral in good condition; (b) pay promptly all taxes, judgments, or charges of any kind levied or assessed thereon; (c) keep current all rent or mortgage payments due, if any, on premises where the Collateral is located; and (d) maintain hazard insurance on the Collateral, with an insurance company and in an amount approved by Secured Party (but in no event less than the replacement cost of that Collateral), and including such terms as Secured Party may require including a Lender’s Loss Payable Clause in favor of Secured Party. Borrower hereby assigns to Secured Party any proceeds of such policies and all unearned premiums thereon and authorizes and empowers Secured Party to collect such sums and to execute and endorse in Borrower’s name all proofs of loss, drafts, checks and any other documents necessary for Secured Party to obtain such payments.
| 7. | CHANGES TO BORROWER’S LEGAL STRUCTURE, PLACE OF BUSINESS, JURISDICTION OF ORGANIZATION, OR NAME. |
Borrower must notify Secured Party by written or electronic communication not less than 30 days before taking any of the following actions: (a) changing or reorganizing the type of organization or form under which it does business; (b) moving, changing its place of business or adding a place of business; (c) changing its jurisdiction of organization; or (d) changing its name. Borrower will pay for the preparation and filing of all documents Secured Party deems necessary to maintain, perfect and continue the perfection of Secured Party’s security interest in the event of any such change.
| 8. | PERFECTION OF SECURITY INTEREST. |
Borrower consents, without further notice, to Secured Party’s filing or recording of any documents necessary to perfect, continue, amend or terminate its security interest. Upon request of Secured Party, Borrower must sign or otherwise authenticate all documents that Secured Party deems necessary at any time to allow Secured Party to acquire, perfect, continue or amend its security interest in the Collateral. Borrower will pay the filing and recording costs of any documents relating to Secured Party’s security interest. Borrower ratifies all previous filings and recordings, including financing statements and notations on certificates of title. Borrower will cooperate with Secured Party in obtaining a Control Agreement satisfactory to Secured Party with respect to any Deposit Accounts or Investment Property, or in otherwise obtaining control or possession of that or any other Collateral.
| Page 3 of 5 |
| 9. | DEFAULT. |
Borrower is in default under this Agreement if: (a) Borrower fails to pay, perform or otherwise comply with any provision of this Agreement; (b) Borrower makes any materially false representation, warranty or certification in, or in connection with, this Agreement, the Note, or any other agreement related to the Note or this Agreement; (c) another secured party or judgment creditor exercises its rights against the Collateral; or (d) an event defined as a “default” under the Obligations occurs. In the event of default and if Secured Party requests, Borrower must assemble and make available all Collateral at a place and time designated by Secured Party.
Upon default and at any time thereafter, Secured Party may declare all Obligations secured hereby immediately due and payable, and, in its sole discretion, may proceed to enforce payment of same and exercise any of the rights and remedies available to a secured party by law including those available to it under Article 9 of the UCC that is in effect in the jurisdiction where Borrower or the Collateral is located. Unless otherwise required under applicable law, Secured Party has no obligation to clean or otherwise prepare the Collateral for sale or other disposition and Borrower waives any right it may have to require Secured Party to enforce the security interest or payment or performance of the Obligations against any other person.
| 10. | FEDERAL RIGHTS. |
When SBA is the holder of the Note, this Agreement will be construed and enforced under federal law, including SBA regulations. Secured Party or SBA may use state or local procedures for filing papers, recording documents, giving notice, enforcing security interests or liens, and for any other purposes. By using such procedures, SBA does not waive any federal immunity from state or local control, penalty, tax or liability. As to this Agreement, Borrower may not claim or assert any local or state law against SBA to deny any obligation, defeat any claim of SBA, or preempt federal law.
| 11. | GOVERNING LAW. |
Unless SBA is the holder of the Note, in which case federal law will govern, Borrower and Secured Party agree that this Agreement will be governed by the laws of the jurisdiction where the Borrower is located, including the UCC as in effect in such jurisdiction and without reference to its conflicts of laws principles.
| 12. | SECURED PARTY RIGHTS. |
All rights conferred in this Agreement on Secured Party are in addition to those granted to it by law, and all rights are cumulative and may be exercised simultaneously. Failure of Secured Party to enforce any rights or remedies will not constitute an estoppel or waiver of Secured Party’s ability to exercise such rights or remedies. Unless otherwise required under applicable law, Secured Party is not liable for any loss or damage to Collateral in its possession or under its control, nor will such loss or damage reduce or discharge the Obligations that are due, even if Secured Party’s actions or inactions caused or in any way contributed to such loss or damage.
| 13. | SEVERABILITY. |
If any provision of this Agreement is unenforceable, all other provisions remain in effect.
| Page 4 of 5 |
| 14. | BORROWER CERTIFICATIONS. |
Borrower certifies that: (a) its Name (or Names) as stated above is correct; (b) all Collateral is owned or titled in the Borrower’s name and not in the name of any other organization or individual; (c) Borrower has the legal authority to grant the security interest in the Collateral; (d) Borrower’s ownership in or title to the Collateral is free of all adverse claims, liens, or security interests (unless expressly permitted by Secured Party); (e) none of the Obligations are or will be primarily for personal, family or household purposes; (f) none of the Collateral is or will be used, or has been or will be bought primarily for personal, family or household purposes; (g) Borrower has read and understands the meaning and effect of all terms of this Agreement.
| 15. | BORROWER NAME(S) AND SIGNATURE(S). |
By signing or otherwise authenticating below, each individual and each organization becomes jointly and severally obligated as a Borrower under this Agreement.
| American Picture House Corporation | |||
 |
Date: | 02.26.2021 | |
| Bannor MacGregor, Owner/Officer |
| Page 5 of 5 |
Exhibit 10.1.2
American Picture House Corporation
CONSULTING AGREEMENT
This Consulting Agreement (“Agreement’) is made effective as of May 3, 2024 (the “Effective Date”), by and between American Picture House Corporation (the “Company”), a Wyoming corporation, and JonCar Productions, LLC (“Lender”) f/s/o Jonathan Sanger (“Sanger”), a citizen of the State of California, Lender and Sanger may be referred to herein collectively as “Consultant’. Consultant and Company may be referred to herein individually as a “Party” and collectively as the “Parties”. The Parties agree that effective as of the Effective Date, this Agreement supersedes and replaces any prior agreement Consultant may have had with Company and that Consultant has no claims under any prior agreement as of the Effective Date.
| ● | DUTIES; REPORTING RELATIONSHIP; OFFICE LOCATION. |
● Company hereby engages Consultant on a non-exclusive basis effective as of the Effective Date to act as Company’s President.
● Relationship, The Parties to this Agreement are independent contractors. Nothing herein shall be deemed to establish a partnership, joint venture, franchise, employee/employer or any other form of relationship as participants in a joint undertaking. Each party shall be solely responsible for any claims, damages or lawsuits arising out of the acts of its employees and agents. Neither party shall incur any obligations for or in the name of the other party, or have the authority to bind or obligate the other party.
● Services: , Lender shall provide the services of Consultant on a non-exclusive basis to provide services in an executive capacity commonly associated with this position, including the roles and responsibilities identified on EXHIBIT A, attached hereto, and as also may be assigned to Consultant by the Chief Executive Officer of the Company (“CEO”) and the Board of Directors of the Company (“Board”) and agreed to by Consultant from time to time. The Company, with approval of Lender, may make changes to Consultant’s roles, responsibilities and reporting from time to time without advance notice to accommodate its business interest and this Agreement will continue to apply after such changes.
● Consultant will report to the CEO and work primarily from wherever Consultant customarily works.
● In providing services to the Company, Consultant may be required to travel. Consultant shall be promptly reimbursed for all reasonable expenses, including travel and entertainment, incurred in the performance of Consultant’s duties. Consultant will maintain records and written receipts as required by Company policy.
● On the Effective Date, Consultant shall devote such time and efforts as Consultant, in consultation with Company, deems reasonable and necessary to complete the Services.
| ● | COMPENSATION AND BENEFITS. |
● Base Compensation. Effective from the Effective Date, Consultant’s starting base compensation is $20,000.00 USD per month, said compensation to be paid as advances against customary producer fees, which fees shall be set forth in the production budget for any film produced by Company. During Consultant’s engagement with the Company, Consultant’s base compensation will be reviewed at least annually by the Compensation Committee of the Board (the “Compensation Committee”) and any subsequent compensation increases will be subject to the approval of the Compensation Committee.
● Performance Bonus and Company Equity. In addition to the above base compensation, Consultant will be eligible to earn a discretionary performance bonus (the “Performance Bonus”) and/or Company equity (the “Company Equity”), with the amount of any bonus to be paid and/or equity awarded to be determined by the Compensation Committee (after consultation with the CEO). Consultant must be actively engaged with the Company and in good standing on the payment and/or award date of Consultant’s Performance Bonus or Company Equity to earn and be eligible to receive a Performance Bonus or Company Equity. The Compensation Committee will determine in its sole discretion whether Consultant has earned the Performance Bonus or Company Equity and the amount of any Performance Bonus or Company Equity based upon performance standards and guidelines established or to be established by the Compensation Committee.
| ● | CONFIDENTIALITY AND PROPRIETARY INFORMATION OBLIGATIONS. |
● Company Policies. As a condition of Consultant’s engagement, Consultant agrees to abide by all Company policies, rules and regulations.
● Exclusive Property. The Parties agree that Consultant shall procure business opportunities for Company, and any such business opportunities shall be discussed and terms, including financial compensation and/or ownership, shall be determined by the parties on a case by case basis”
● Confidentiality Agreement. Consultant is required, as a condition to Consultant’s engagement by the Company, to execute and deliver to the Company, the Company’s standard Confidentiality and Non-Disclosure Agreement in the form attached hereto as EXHIBIT B (the “Confidentiality Agreement”. By executing and delivering the Confidentiality Agreement to the Company, Consultant is agreeing to abide by and be bound by the terms and conditions of that agreement. Consultant’s obligations under the Confidentiality Agreement will survive the termination of Consultant’s engagement with the Company.
● NO CONFLICTS. By signing this Agreement, Consultant hereby represents to the Company that, except as previously disclosed to the Company: (a) Consultant’s engagement with or service to the Company Group is not prohibited under any engagement agreement or other contractual arrangement; and (b) Consultant does not know of any conflicts of interest with Consultant’s duties under this Agreement which would restrict Consultant’s service to the Company Group. Consultant hereby represents that Consultant has disclosed to the Company any contract Consultant has signed that may restrict Consultant’s activities on behalf of the Company Group, and that Consultant is presently in compliance with such contracts, if any. Company acknowledges that Consultant works in the entertainment industry and may consult with other business and/or individuals involved therein, and Company hereby waives any potential conflict of interest.
● TERMINATION. The Company or Lender may terminate this Agreement, with or without cause, in its sole discretion, at any time and upon 30-day written notice. Upon termination, Company shall immediately pay Consultant for amounts due up to the date of termination.
| ● | MISCELLANEOUS. |
● Entire Agreement. Consultant is required, as a condition to Consultant’s engagement with the Company, to execute and deliver the Company’s standard Confidentiality and Non-Disclosure Agreement in the form attached hereto as EXHIBIT B (the “Confidentiality Agreement”). This Agreement together with the Confidentiality Agreement shall constitute the complete and exclusive statement of Consultant’s engagement with the Company. The engagement terms in this Agreement supersede any other agreements, the terms of any equity grants to the extent inconsistent with the terms of this Agreement, or promises made to Consultant by anyone, whether oral or written, concerning Consultant’s engagement terms. Changes in Consultant’s engagement terms, other than those changes expressly reserved to the Company’s, the CEO’s, or Board’s discretion in this Agreement, require a written modification approved by the Board and signed by Consultant and a duly authorized member of the Board.
● Binding Effect; Severability. This Agreement will bind the heirs, personal representatives, successors and assigns of both Consultant and the Company, and inure to the benefit of both Consultant and the Company, their heirs, successors and assigns. If any provision of this Agreement is determined to be invalid or unenforceable, in whole or in part, this determination shall not affect any other provision of this Agreement and the provision in question shall be modified so as to be rendered enforceable in a manner consistent with the intent of the parties insofar as possible under applicable law.
● Governing Law. The parties agree that all disputes relating in any manner to this Agreement will be submitted to binding arbitration by JAMS under its then-applicable rules in the City of Los Angeles. Prevailing party shall be entitled to recover attorney’s fees. The parties each waive whatever rights each of them might otherwise have to a jury trial with respect to the disputes referred to in this paragraph. This Agreement will be construed under the laws of the State of California for agreements fully performed in this State and without regard to conflicts of law principals.
● Notices. All notices or other communications required or permitted under this Agreement shall be made in writing and shall be deemed given if delivered personally or sent by nationally recognized overnight courier service. Any notice or other communication shall be deemed given on the date of delivery or on the date one (1) business day after it shall have been given to a nationally recognized overnight courier service. All such notices or communications shall be delivered to the recipient at the addresses indicated below:
To the Company:
American Picture House Corporation
c/o Bannor Michael MacGregor
477 Madison Avenue - 6FL
NewYork, NewYork 10022
With copy to:
Donald J. Harris
Harris Sarratt & Hodges, LLP
1620 Hillsborough Street, Suite 200
Raleigh, NC 27605
To Consultant:
At Consultant’s address as it appears in the Company’s books and records or at such other place as Consultant shall have designated by notice as herein provided to the Company.
● Mutual Drafting. Any ambiguity in this Agreement shall not be construed against either party as the drafter. Any waiver of a breach of this Agreement, or rights hereunder, shall be in writing and shall not be deemed to be a waiver of any successive breach or rights hereunder.
● Counterparts. This Agreement may be executed in counterparts which shall be deemed to be part of one original, and facsimile and .pdf signatures shall be equivalent to original signatures.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
| AMERICAN PICTURE HOUSE CORPORATION | ||
| By | /s/ Bannor Michael MacGregor | |
| Bannor Michael MacGregor, CEO | ||
| CONSULTANT: | ||
| JonCar Productions, LLC | ||
| By: | ||
| President | ||
EXHIBIT A
Roles and Responsibilities - President
1. Promoting the quality of the Company’s products and services with attention to the maintenance of the standards and procedures the Company will establish; and
2. Seeking to enhance and develop the Company’s relationships with the entertainment industry and technology developers; and
3. Enhancing the ability of the Company to raise capital of its operations; and
4. Identifying, procuring and introducing new business and creative projects to the Company for evaluation and potential involvement.
| 1 |
CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT
THIS AGREEMENT made as of May 3, 2024 (the “Effective Date”), by and between American Picture House Corporation, a Wyoming corporation (the “Company”), and Jonathan Sanger (“Sanger’’), a citizen of California, and JonCar Productions, LLC (“JonCar”), a California limited liability company. JonCar and Sanger are collectively referred to herein as “Consultant”. Consultant and Company may be referred to herein individually as a “Party” and collectively as the “Parties”.
WHEREAS, Company is an entertainment company with a focus on producing feature films, limited series, and creating content-enhancing entertainment technologies. Company partners with filmmakers, showrunners, content developers and strategic technology partners to develop, package, finance, and produce high-quality feature films and television shows with broad market appeal. Company’s work necessarily involves the development and utilization of information not generally known in the industry in which the Company is or may become engaged;and
WHEREAS, Consultant has extensive experience in the entertainment industry. Consultant’s work necessarily involves the development and utilization of information not generally known in the industry in which the Consultant is or may become engaged; and
WHEREAS, the Consultant, pursuant to a separate Consulting Agreement, is acting as a consultant for the Company; and
WHEREAS, in performing services as a consultant for Company, Consultant will necessarily be given access to “confidential information” (defined below) of Company; and
WHEREAS, in accepting the services of the Consultant, Company may be given access to “confidential information” (defined below) of Consultant; and
WHEREAS, the use of the confidential information by, or its disclosure to, any person or organization other than the Party receiving such confidential information pursuant to the terms of this Agreement (the “Receiving Party”) would be highly detrimental and damaging to the Party disclosing such confidential information pursuant to the terms of this Agreement (the “Disclosing Party”).
NOW THEREFORE, with the foregoing recitals being incorporated herein by reference and deemed an essential part hereof and in consideration of the mutual promises, covenants and conditions contained herein, the Parties agree as follows:
Section 1.
Confidential Information
For the purposes of this Agreement, “confidential information” shall mean information relating to the Disclosing Party’s methods, concepts, ideas, products, work product, and services which is of a proprietary or confidential nature, whether communicated orally or in writing, data or sample form, including, without limitation, concepts, techniques, processes, designs, screenplays, scripts, financial projections, budgets, forecasts, cost data and analyses, computer programs, and other know-how that is disclosed to the Receiving Party by the Disclosing Party pursuant to the terms of this Agreement.
| 2 |
Section 2.
Non Disclosure of Confidential Information
2.1 Non-disclosure. The Receiving Party shall not, without the prior written consent of the Disclosing Party, disclose such confidential information to any third party, including any third-party consultant(s). Further, the Receiving Party shall only use the confidential information pursuant to and for the purposes contemplated by the Consultant’s Consulting Agreement with Company. The parties acknowledge that irreparable injury and damage will result from disclosure of the confidential information to unauthorized third parties or from utilization of the confidential information for any purpose other than the purposes described herein. Also, the Receiving Party shall take all reasonable steps to ensure that the confidential information in the Receiving Party’s possession remains confidential.
The foregoing restrictions shall not be applicable to any information which:
| (a) | the Receiving Party can show was previously known to him/her/it prior to receipt from the Disclosing Party, without breach of an obligation of confidence to any third party; or | |
| (b) | is now, or hereafter, comes into the public domain or is otherwise legally known or available to the public through sources other than the Receiving Party; or | |
| (c) | is subsequently legally disclosed to the Receiving Party by a third party not owing obligations of confidence to the Disclosing Party, or | |
| (d) | is, or will be, developed independently by the Receiving Party outside of his/her/its services to Disclosing Party, solely through his/her/its affiliates which have not been exposed directly or indirectly to the confidential information, or | |
| (e) | the Receiving Party is obligated to produce as a result of a court order or other valid and legally enforceable mandate, provided that the Disclosing Party has been given reasonable advance notice thereof and an opportunity to waive its rights or to seek a protective order or other appropriate remedy. |
For the purposes of this Section 2, disclosures which provide specific detailed information shall not be deemed to be within the foregoing exceptions merely because they are embraced by more general disclosures in the public domain or in the Receiving Party’s possession. In addition, any combination of features shall not be deemed to be within the foregoing exceptions merely because information about individual components is separately in the public domain or in the Receiving Party’s possession, but only if the combination itself and its principle of operation are in the public domain or in the lawful possession of the Receiving Party without restriction on disclosure.
| 3 |
2.2 Return of documents. Upon termination of Consultant’s position as a consultant to Company, the Parties agree that all documents, records, notebooks and similar repositories of or containing confidential information, including copies of such materials, in whatever form, then in their possession, whether prepared by it or others belonging to the other Party, will be returned to the other Party.
2.3 Receiving Party acknowledges that the confidential information belongs to Disclosing Party, that Disclosing Party claims the confidential information comprises trade confidentials, claims that the confidential information is confidential to Disclosing Party and that each of the obligations assumed by Receiving Party in this, and the other paragraphs contained herein, is a material inducement to disclose the confidential information to Receiving Party.
Section 3.
No License Granted
Nothing herein shall be deemed to confer on the Receiving Party a license or other right to use the confidential information disclosed hereunder for any purpose other than the purposes expressly stated in this Agreement. Specifically, and without limitation, Receiving Party shall have no license or right to use any confidential information in developing any product, work of art, invention, discovery, know-how, trade confidential, patent, trademark, or copyright.
Section 4.
Enforcement
In the event that the Receiving Party shall breach this Agreement, or in the event that such breach appears to be an imminent possibility, Disclosing Party shall be entitled to all legal and equitable remedies afforded it by law as a result of the breach (including an injunction restraining the party or parties about to commit any breach of this Agreement, or who have committed a breach of it, without showing or proving any actual damage sustained by Disclosing Party), and may, in addition to any and all other forms of relief, recover from Receiving Party all reasonable costs and attorneys’ fees incurred by it in seeking any such remedy.
Section 5.
Binding Effect
This Agreement shall be binding upon the parties to this Agreement and upon their respective executors, administrators, legal representatives, successors and assigns.
Section 6.
Applicable Law
This Agreement shall be governed for all purposes by the laws of the State of North Carolina, with Wake County, North Carolina as the agreed upon proper venue. The Parties shall retain all rights and remedies afforded to them under the patent, trademark, copyright and other laws of the United States and the States thereof, and of other countries, including without limitation any laws designed to protect proprietary or confidential information.
| 4 |
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
| AMERICAN PICTURE HOUSE CORPORATION | ||
| By: | /s/ Bannor Michael Macgregor | |
| Bannor Michael MacGregor, CEO | ||
| CONSULTANT: | ||
| /s/ Jonathan Sanger | ||
| Jonathan Sanger | ||
Exhibit 10.3
| American Express® Business Line of Credit Loan Agreement and Personal Guarantee | ||
Borrower Information |
Lender: | |
| Account Number: 360311 | American Express | |
| Borrower: AMERICAN PICTURE HOUSE CORPORATION | National Bank | |
| Borrower Address: 555 Madison Ave # 5FL, New York, | Fees | |
NY 10022 Business Representative/Guarantor: BANNOR MACGREGOR Marketplaces: AmexCreditCard, Bank of America *8280, Bank of America *2818 Financial Transaction Channels: ACH Account: Bank of America *8280, ACH Account: Bank of America *2818 |
Late Fee: Up to $100 per month | |
 |
This tool is provided to help you understand and assess the cost of your small business financing.
The calculations below involve certain key assumptions about this Loan, including that the Loan is paid off in its entirety according to the agreed payment schedule and that no repayments are missed. |
| Loan Amount |
Disbursement Amount (minus fees withheld)1 |
Repayment Amount |
Term (repaid monthly) | |||
| $115,000.00 | $115,000.00 | $120,175.00 | 6 Months | |||
| METRIC | METRIC CALCULATION | METRIC EXPLANATION | ||||
|
Total Cost of Capital $5,175.00
|
Interest Expense: Loan Fee: Origination Fee: Other Fees: Total Cost of Capital: |
$0.00 $5,175.00 $0.00 $0.00 $5,175.00 |
This is the total amount that you will pay in interest or Loan Fees and other fees for the Loan. | |||
| The amount does not include fees and other charges you can avoid, such as late payment fees.2 | ||||||
| Annual Percentage Rate (APR)3 | Your Loan will have monthly payments of: |
See Specific Monthly Schedule below |
This is the cost of the Loan - including total interest or Loan Fees and other fees - expressed as a yearly rate. APR takes into account the amount and timing of capital you receive, fees you pay, and the periodic payments you make. | |||
| 13.34% | APR: | 13.34% | While APR can be used for comparison purposes, it is not an interest rate and is not used to calculate your interest expense or Loan Fee. | |||
|
Average Monthly Payment $20,029.17 |
Repayment Amount: | $120,175.00 | This is the average monthly repayment amount of the Loan, which does not include fees and other charges you can avoid, such as late payment fees.2 This is an estimate for comparison purposes only. | |||
| Term (in months): | ÷6 Months | |||||
| Average Monthly Payment: | $20,029.17 | |||||
|
Specific Monthly Schedule (if available): |
||||||
| Month 1: | $20,604.17 | |||||
| Month 2: | $20,604.17 | |||||
| Month 3: | $19,741.67 | |||||
| Month 4: | $19,741.67 | |||||
| Month 5: | $19,741.67 | |||||
| Month 6: | $19,741.65 | |||||
|
Cents on the Dollar (excluding fees) 4.50¢ |
Interest Expense or Loan Fee: | $5,175.00 | This is the total amount of interest or Loan Fee paid per dollar borrowed. This amount is exclusive of fees. | |||
| Loan Amount: | ÷$115,000.00 | |||||
|
Cents on the Dollar (excluding fees): |
4.50¢ | |||||
| Prepayment | Does prepayment of this Loan result in any new fees or charges? |
No (see Section 7) | ||||
| Does prepayment of this Loan decrease the total interest or Loan Fees owed? | Yes | |||||
1The Disbursement Amount is the amount of capital that a business receives and may be different from the Loan Amount. The Disbursement Amount is net of fees withheld from the Loan Amount. A portion of the Disbursement Amount may be used to pay off any amounts owed from a prior loan or an amount owed to a third party.
2Your business may incur other fees that are not a condition of borrowing, such as late payment fees, returned payment fees, or monthly maintenance fees. Those fees are not reflected here. See the agreement for details on these fees (see Section 12).
3APR should be considered in conjunction with the Total Cost of Capital. APR may be most useful when comparing financing solutions of similar expected duration. APR is calculated here according to the principles of 12 C.F.R. § 1026 (Regulation Z), using twelve (12) payment periods per year.
© 2016 Innovative Lending Platform Association. All rights reserved. Innovative Lending Platform Association is not responsible for any misuse of the SMART Box™ or any inaccuracies in the calculations or information included therein.
This American Express Business Line of Credit Loan Agreement and Personal Guarantee (“Loan Agreement”) is made in connection with your loan, issued by American Express National Bank. “We”, “us”, “our”, and “American Express” mean American Express National Bank. “You” or “your” mean the business (the “Borrower”) to which we issue the loan and, “Business Representative” means the individual person who submitted the loan application on behalf of the Borrower and provides a Personal Guarantee.
| Table of Contents | |
| 1. Your American Express Business Line of Credit Loan | 17. Credit Reports and Reporting to Credit Reporting Agencies |
| 2. Loan Purpose | 18. Usury Savings Clause |
3. Business Representative’s Guarantee of Borrower’s Contractual Covenants and Payment Obligations |
19. Privacy, PATRIOT ACT |
| 4. Conditions and Acceptance of Loan Agreement | 20. Electronic Signatures |
| 5. Your Promise to Pay | 21. Sending Notices, Disclosures and Communications |
| 6. Term | 22. No Warranties |
| 7. Cost and Prepayment | 23. Indemnification, Limitation of Liability |
| 8. Minimum Monthly Payments | 24. Severability |
| 9. Total Minimum Monthly Payments | 25. Assignment |
| 10. Payments | 26. No Waiver |
| 11. How We Apply Your Payments | 27. Governing Law |
| 12. Fees | 28. Claims Resolution |
| 13. Linked Accounts | 29. Entire Agreement |
| 14. Events of Default, Remedies | 30. Construction |
| 15. Representations, Warranties and Covenants | 31. State Disclosures |
| 16. Security Interest, Financing Statements | 32. Confidentiality, Press Releases |
1. Your American Express Business Line of Credit Loan
This American Express Business Line of Credit Loan (the “Loan”) is an individual installment loan. The loan in the amount you requested in your loan application (“Loan Disbursement”) will reduce your available line of credit by the Loan Disbursement, at a minimum. Every time you draw from your line of credit a separate installment loan is issued by us to you and a separate loan agreement will apply. This Loan and any outstanding loans at the time of execution of this Loan Agreement are together referred to as “Loans”.
The American Express Business Line of Credit is the total amount of funding available to the Borrower upon qualification. This is also the maximum amount you can borrow at any one time. The line of credit is subject to periodic review and change and may also be subject to elimination.
We rely solely on the accuracy, authenticity and completeness of any account or other information you and the Business Representative provide to us to make a Loan Disbursement. You and the Business Representative represent and warrant that all account information or other related information provided by you, and in accordance with which we make a Loan Disbursement, is true, accurate and correct and shall remain true, accurate and correct for the duration of this Loan Agreement. You and the Business Representative agree to hold us harmless to the extent a Loan Disbursement is made in reliance upon information you and the Business Representative provide to us.
You authorize us to send a disbursement in the amount of your Loan Disbursement (or, if necessary, to electronically debit your bank account to correct errors) via automated clearing house in one-to-three business days to a Bank Account, as defined herein, designated on your established American Express Business Line of Credit Loan online account. You and the Business Representative represent and warrant that (1) the Bank Account that receives the Loan Disbursement is used for business purposes and (2) you and the Business Representative are authorized to make deposits into such account.
An American Express Business Line of Credit loan is not a card product, and so, unlike American Express Credit and Charge Cards, you and the Business Representative will not receive any card benefits, rewards programs or insurance with your Loan.
2. Loan Purpose.
YOU AND THE BUSINESS REPRESENTATIVE REPRESENT AND WARRANT THAT THE LOAN WILL BE USED SOLELY FOR BUSINESS PURPOSES (AND AS INDICATED IN YOUR APPLICATION, IF APPLICABLE) AND NOT FOR CONSUMER, PERSONAL, FAMILY OR HOUSEHOLD PURPOSES. YOU AND THE BUSINESS REPRESENTATIVE REPRESENT AND WARRANT THAT YOU WILL NOT USE THE LOAN TO FUND DIVIDENDS OR DISTRIBUTIONS TO YOUR SHAREHOLDERS, PARTNERS, MEMBERS OR OTHER OWNERS OF AN EQUITY INTEREST IN YOUR BUSINESS. THIS LOAN IS NOT A “CONSUMER TRANSACTION” AS DEFINED IN THE UNIFORM COMMERCIAL CODE. This loan may not be used to satisfy any outstanding debt or obligation to us or any of our affiliates. You agree not to repay us from any consumer account and understand that certain important duties imposed upon transactions and communications for consumer purposes, and certain important rights conferred upon consumers, pursuant to federal or state law, will not apply to any aspect of this loan.
Borrower and Business Representative also understand, acknowledge, and agree that we may be unable to confirm whether, for example, any particular use of any amount loaned or any particular payment conforms to this section. Borrower and Business Representative understand, acknowledge, and agree that a breach by Borrower of the provisions of this section will not affect our right to (i) enforce this Loan Agreement, regardless of the purpose for which any amount loaned is in fact used, or (ii) use any remedy legally available to us in a commercial transaction, even if that remedy would not have been available had any amount loaned been disbursed for consumer purposes or payment delivered from a consumer account.
3. Business Representative’s Guarantee of Borrower’s Contractual Covenants and Payment Obligations
You, as the Business Representative, understand and agree that you are entering into this Loan Agreement on behalf of the Borrower and you are executing a Personal Guarantee (the “Personal Guarantee”), in your individual capacity. Business Representative personally and unconditionally guarantees the performance of all of the covenants of Borrower in this Loan Agreement including, but not limited to, the Borrower Contractual Covenants herein and Borrower’s payment obligations herein. Specifically, Business Representative guarantees payment of all amounts owed by Borrower and that such payments will be made strictly in accordance with the terms of any and all Loans of Borrower. Business Representative’s guarantee of payment hereunder is independent of the Borrower’s obligation of payment and a separate claim may be brought against the Business Representative to enforce this Loan Agreement, whether or not any claim is made against Borrower. The liability of Business Representative hereunder is primary, direct, irrevocable, continuing, absolute and unconditional. The Business Representative waives any right to require us to proceed first against the Borrower before recovering damages from the Business Representative. The Business Representative hereby expressly waives and surrenders any defenses to Business Representative’s liability hereunder, it being the purpose and intent of the parties hereto that the obligations of the Business Representative hereunder are absolute and unconditional and without right of set off or deduction.
If one or more of the terms of this Personal Guarantee or its application shall be held to be invalid, illegal, or unenforceable, such terms shall nevertheless remain valid, legal, and enforceable in all such other respects and shall not affect any other provision hereof, but instead, this Personal Guarantee shall be construed as if such invalid, illegal, or unenforceable term had never been contained herein.
4. Conditions and Acceptance of Loan Agreement
The American Express Business Line of Credit is a digital product. To agree to this Loan Agreement the Borrower and Business Representative must each provide their electronic signature below. The Business Representative represents and warrants that the Business Representative is 18 years or older.
The Business Representative represents and warrants that Business Representative is a resident of the United States or the United States territories, as applicable, and has provided and will maintain both a physical business and physical residential address in the United States or the United States territories, as applicable. Business Representative also represents and warrants that all beneficial owners of the Borrower are also residents of the United States or United State territories, as applicable, and have provided and will maintain a physical residential address in the United States or the United States territories, as applicable.
This Loan Agreement in its entirety, and all obligations on the part of American Express contained herein, are subject to and conditioned upon your and the Business Representative’s representations, warranties and covenants being true, accurate, and correct in all material respects as of the date of this Loan Agreement and for the duration of this Loan Agreement. You authorize American Express and its affiliates to conduct such due diligence, inquiries, or investigations as we deem necessary to verify the accuracy of your representations, warranties and covenants, including those concerning your identity, bank accounts, and/or financial information. We will not make any Loan Disbursements under this Loan Agreement until we have verified, to our satisfaction, the accuracy of this information. In the event that we are unable to verify the accuracy of your representations and warranties, to our sole and complete satisfaction, we shall notify you that a condition of this Loan Agreement has not been satisfied. If any condition of this Loan Agreement is not satisfied prior to us making any Loan Disbursements under this Loan Agreement, then this Loan Agreement, in its entirety, shall be deemed void, unenforceable, and of no effect, as if there was no agreement. If a condition of this Loan Agreement is not satisfied after we have made a Loan Disbursement under this Loan Agreement, then our obligations shall terminate, but your obligations under this Loan Agreement will continue in full force and effect, with respect to the Loan Disbursement that we made to you under this Loan Agreement.
5. Your Promise to Pay
You promise to pay the Disbursement Amount shown above, plus Costs (as defined below), plus all other amounts that may become due under this Loan Agreement. The Total Minimum Monthly Payment and Payment Due Date (as such terms are defined below) are shown on each monthly statement that we send you. You must pay each Total Minimum Monthly Payment by the Payment Due Date even if you do not receive a monthly statement. You may not apply any credits you have on any American Express account or on any account you have with any American Express affiliate to your loan balance.
You waive, to the extent permitted by applicable law: (a) protest, demand and presentment: (b) notice of dishonor, protest or suit; (c) all other notices or requirements necessary to hold you liable under this Loan Agreement; and (d) all rights of exemption under the constitution or laws of any state as to real or personal property. YOU AGREE THAT YOUR OBLIGATIONS UNDER THIS LOAN AGREEMENT ARE ABSOLUTE AND UNCONDITIONAL, AND WILL CONTINUE IN FULL FORCE AND EFFECT REGARDLESS OF ANY CIRCUMSTANCE, AND THAT SUCH OBLIGATIONS SHALL NOT BE AFFECTED BY ANY COUNTERCLAIM, SET-OFF, RECOUPMENT, OFFSET, DEFENSE OR OTHER ALLEGED RIGHT AGAINST US.
6. Term
The term of this loan is the term shown in the SMART Box on page 1 of this Loan Agreement (the “Term”).
7. Cost and Prepayment
We will impose a fee (“Cost”) on each Anniversary Date (defined below) that any portion of Loan proceeds remains outstanding until maturity. The portion of Loan proceeds deemed to be outstanding is the total amount of Loan Disbursements made to you that have not yet been repaid.
If the outstanding balance of your loan is paid on or before the Anniversary Date, then, you will not be required to pay Costs for subsequent months on such loan. The Anniversary Date is the date of the month on which you take the loan and occurs monthly thereafter on the same date. However, if your Anniversary Date occurs on a date which does not repeat every month (e.g., the 31st), your Anniversary Date for that month will be the last day of that month. You may repay your loan in full without penalty. However, if you have multiple Loans, Loans must be repaid in the order of the oldest loan first, then the second oldest loan, and so on.
| If you repay your Loan in full on or before: | Your anticipated (total) Cost will be: | |||
| Second Monthly Anniversary Date | $ | 1,437.50 | ||
| Third Monthly Anniversary Date | $ | 2,875.00 | ||
| Fourth Monthly Anniversary Date | $ | 3,450.00 | ||
| Fifth Monthly Anniversary Date | $ | 4,025.00 | ||
| Sixth Monthly Anniversary Date | $ | 4,600.00 | ||
8. Minimum Monthly Payments
You agree to make minimum monthly payments (each a “Minimum Monthly Payment”) in the amounts specified below on each scheduled monthly payment due date (“Payment Due Date”) as shown on your monthly statement(s). The Minimum Monthly Payment for this loan will be:
| Payment Due Date | Scheduled Minimum Monthly Payment: | Monthly Cost % | ||||||
| First Payment Due Date | $ | 20,604.17 | * | 1.25 | % | |||
| Second Payment Due Date | $ | 20,604.17 | * | 1.25 | % | |||
| Third Payment Due Date | $ | 19,741.67 | * | 0.50 | % | |||
| Fourth Payment Due Date | $ | 19,741.67 | * | 0.50 | % | |||
| Fifth Payment Due Date | $ | 19,741.67 | * | 0.50 | % | |||
| Sixth Payment Due Date | $ | 19,741.65 | * | 0.50 | % | |||
*Or all amounts due under this Loan Agreement if less than the amount shown
Based on your cycle date, your first Payment Due Date may be as short as 21 days from disbursement or as long as 51 days from disbursement. See your American Express Business Line of Credit Loan online account or your monthly statement for your exact Payment Due Dates. You may at any time pay more than the Minimum Monthly Payment without penalty. Any amounts paid above the Minimum Monthly Payment will be applied as detailed in Section 11 How We Apply Your Payments. Any amounts due under this Loan Agreement and remaining unpaid on the final scheduled Payment Due Date are due on that date.
9. Total Minimum Monthly Payments
At least 10 calendar days in advance of each Payment Due Date, we will send you a monthly statement which, in addition to the Minimum Monthly Payment due for this Loan, will include the amounts due for all other unpaid Loan(s) between you and us (“Total Minimum Monthly Payment”). The Total Minimum Monthly Payment due is calculated by adding: (i) the total of the current Minimum Monthly Payment(s) due for each Loan(s), plus (ii) any previous Minimum Monthly Payment(s) remaining unpaid, in whole or in part, for each Loan(s), plus (iii) any billed but unpaid Fees. You may receive more than one monthly statement from us. You are responsible for paying the Total Minimum Monthly Payment on each monthly statement when due.
10. Payments
| i. | Automatic Payment Authorization. You authorize us to initiate, on each Payment Due Date, an automatic electronic debit from your business account, the details of which you have provided to us (your “Business Payment Account”) in the amount of the Total Minimum Monthly Payment; provided, however, that if a Payment Due Date falls on a Saturday, Sunday or holiday, then the debit may be initiated on the next business day. If our attempt to debit the Business Payment Account in respect of a Total Minimum Monthly Payment is totally or partially unsuccessful, you authorize us to initiate, on or after the relevant Payment Due Date, one or more automatic electronic debits from your Business Payment Account and one or more additional designated business accounts, the details of which you have provided to us (each such additional account, a “Bank Account”), in an aggregate amount not to exceed the Total Minimum Monthly Payment. Such additional debits may be made against the Business Payment Account and individual Bank Accounts in any order and amount (but not to exceed in aggregate the amount of the Total Minimum Monthly Payment then due), with no obligation on our part to minimize the number of debits initiated or accounts debited. Any separate payments that you make on or before a Payment Due Date will not affect this authorization. We will not be liable for any fees that you may incur if we are unable to debit your Total Minimum Monthly Payment under this authorization. We also are not responsible for any fees imposed on you by the provider of any Business Payment Account or Bank Account as the result of any authorized debits or any payments made directly by you under this Loan Agreement. You agree that Automated Clearing House transactions must comply with the provisions of U.S. law, and you agree to be bound by the National Automated Clearing House Association Operating Rules, as in effect from time to time and to the extent applicable, in connection with all such transactions. |
| ii. | Account Maintenance. You agree to maintain in your Business Payment Account sufficient funds to meet each Total Minimum Monthly Payment obligation. We may initiate a debit at any time on or after a Payment Due Date, including prior to the time that we open for business on any business day. Consequently, you understand that funds must be available by the end of the business day prior to the applicable Payment Due Date and maintained in your Business Payment Account until the debit is processed. | |
| iii. | Changing Debit Authorization. If you need to make a change related to your automatic electronic debit authorization, you may make a request to do so by calling Customer Service at 1-888-986-8263. If you want to request a change that is relative to an upcoming payment, you should call Customer Service at the number above at least five (5) business days prior to the relevant Payment Due Date. We may modify or terminate automatic debiting for any reason by notifying you in writing in accordance with Section 21 Sending Notices, Disclosures and Communications. Following the date of any termination of automatic debits, you will be responsible for making all further payments directly and in a timely manner. | |
| iv. | Alternative Payment. If for any reason we are unable to initiate an electronic debit, you agree that we may prepare and deposit a remotely created check in the same amount. | |
| v. | Check Payments. When you pay us by check, you authorize us to electronically deduct the amount from your bank or other asset account. We may process the check electronically by transmitting to your financial institution: the amount, the routing number, the account number, and the check serial number. If we do this, your payment may be deducted from your bank or other asset account on the same day we receive your check. Also, you will not receive that cancelled check with your bank or asset account billing statement. If we cannot collect the funds electronically, we may issue a draft against your bank or other asset account for the amount of the check. | |
| vi. | Other Payments. You may make additional or alternative payments at any time. Payments made by check should be sent by postal mail, postage paid, to the following address: American Express Business Line of Credit Payment Remittance, P.O. Box 570622, Atlanta, GA 30357. You may also call Customer Service to arrange payments by overnight delivery, telephone, or other acceptable method. Payments made to any other address than as specified by us may result in a delay in processing and/or crediting for which we will not be responsible. All payments must be made in good funds from an account at an U.S. institution in U.S. dollars. You are solely responsible for any costs associated with a payment. Payments received after 5:00 p.m. (ET) on any day will be credited on the next business day. Credit to your account may be delayed and you may also incur a Late Fee if a payment (a) contains more than one payment for one or more Loans, or (b) includes staples, paper clips, tape, a folded check, or correspondence of any type. We will not accept a payment made in a foreign currency or payment drawn on an account at a bank located outside of the U.S. | |
| vii. | Acceptance of Late and Partial Payments, Disputed Amounts. We may accept late or partial payments without losing any of our rights under this Loan Agreement. You agree not to send us partial payments marked “paid in full,” “without recourse,” or similar language. If you send such a payment, we may accept it as an accommodation to you without losing or waiving any of our rights under this Loan Agreement. All written communications concerning disputed amounts, including any check or other instrument that indicates that the payment constitutes “payment in full” of your payment or fee obligations or that is tendered with other conditions or limitations or as full satisfaction of a disputed amount, must be mailed or delivered to American Express Business Line of Credit Dispute Resolution, P.O. Box 570622, Atlanta, GA 30357. |
11. How We Apply Your Payments
With regard to all Loans listed on your monthly statement, payments received will be applied first to Fees to the extent included in your Total Minimum Monthly Payment due, then to Loans listed on your monthly statement, in order of the oldest loan first, then the second oldest loan, and so on; provided, however, that if one or more of your Loans is delinquent, we may apply payments first to delinquent Loans at our sole discretion. With respect to any particular loan, payment will be applied as described in the Loan Agreement associated with that loan. When repaying Loans in full, Loans must be repaid in the order of the oldest loan first, then the second oldest loan, and so on.
With respect to this Loan, payment will be applied first to any Fees associated with this Loan, then to Costs, and finally to principal, to the extent included in your Total Minimum Monthly Payment due. Payments will be applied based on Fees and Costs posted as of the day of payment application which may be different from the Fees and Costs listed on your monthly statement. Any amount received in excess of your Total Minimum Monthly Payment due will be applied in the same order as your Total Minimum Monthly Payment. Any payment in excess of the Total Minimum Monthly Payment due does not relieve you of your obligation to make your next scheduled Total Minimum Monthly Payment.
We will apply your payments as described above even if you provide an instruction or notation with your payment.
12. Fees
You may incur one or more Late Fee(s) (together, “Fees”).
If we do not receive the Total Minimum Monthly Payment by the Payment Due Date, we may assess a Late Fee of:
| i. | $10 if the aggregate outstanding balance of the Loans listed on the monthly statement (including any Fees) is equal to or greater than $35 but less than or equal to $500; | ||
| ii. | $35 if the aggregate outstanding balance of the Loans listed on the monthly statement (including any Fees) is greater than $500 but less than or equal to $5,000; | ||
| iii. | $100 if the aggregate outstanding balance of the Loans listed on the monthly statement (including any Fees) is greater than $5,000. |
13. Linked Accounts
To be eligible for the American Express Business Line of Credit, you have linked a Business Payments Account, certain Bank Accounts, marketplaces where you do business, service providers and/or other accounts on your American Express Business Line of Credit Loan online account. To the extent you de-link any such accounts, marketplaces or service providers this may impact your available line of credit. To avoid any impact to your available line of credit, you should promptly notify us if (i) the details of your account with any such marketplace or other service provider change, (ii) you open a new account with any such marketplace or other service provider or (iii) you close your account with any such marketplace or other service provider.
14. Events of Default, Remedies
Each of the following will constitute an “Event of Default” under this Loan Agreement:
| i. | you or the Business Representative violate a provision of this Loan Agreement, | ||
| ii. | you or the Business Representative give us false or misleading information either now or at the time made or furnished, | ||
| iii. | you or the Business Representative commit fraud, | ||
| iv. | you or the Business Representative misrepresent your identity or your ownership of any account, | ||
| v. | you or the Business Representative default under another agreement you have with us or an affiliate, | ||
| vi. | if you are a sole proprietorship, the Business Representative becomes incapacitated or dies; if you are a trust, a trustor becomes incapacitated or dies; if you are a partnership, any general or managing partner becomes incapacitated or dies; if you are a corporation, any principal officer or ten percent (10.00%) or greater shareholder becomes incapacitated or dies; if you are a limited liability company, any managing member becomes incapacitated or dies; if you are any other form of business entity, any person(s) directly or indirectly controlling ten percent (10.00%) or more of the ownership interests of such entity becomes incapacitated or dies; | ||
| vii. | you (a) legally dissolve, close, are adjudicated insolvent or cease to pay your debts as they mature, (b) make a general assignment for the benefit of or enter into an arrangement with creditors, (c) apply for or consent to the appointment of a receiver, trustee or liquidator of all or a substantial part of your property, (d) become subject to, voluntarily or involuntarily, a petition in bankruptcy or under any similar law, (e) liquidate, or (f) take any step to effectuate any of the foregoing (a)-(e), | ||
| viii. | the Business Representative becomes subject to, voluntarily or involuntarily, a petition in bankruptcy or under any similar law, | ||
| ix. | you enter into any consolidation merger, partnership, joint venture, or other combination without our prior written consent, | ||
| x. | any guarantee given to us ceases to be in full force and effect or is declared to be null and void; or the validity or enforceability thereof is contested in a judicial proceeding; or Business Representative denies that Business Representative, has any further liability under such guarantee; or Business Representative defaults in any provision of any guarantee, or any financial information provided by Business Representative is false or misleading, | ||
| xi. | you sell any assets except in the ordinary course of your business as now conducted, or sell, lease, assign, or transfer any substantial part of your business or fixed assets or any property or other assets necessary for the continuance of your business as now conducted, including, without limitation, the selling of any property or other assets accompanied by the leasing back of the same, | ||
| xii. | any creditor tries to take, by foreclosure, seizure, repossession, receivership, or otherwise, any of your property on or in which we have a lien or security interest, | ||
| xiii. | a judgment is entered against you or Business Representative that is not satisfied within thirty (30) days or stayed pending appeal, | ||
| xiv. | your credit rating is downgraded or a risk alert is generated, in either case, by any third party or any third party credit reporting service (e.g., D&B or Equifax) or by us, | ||
| xv. | you or the Business Representative fail to provide such information as we may request from time to time (including but not limited to, information about beneficial owners of the Business), | ||
| xvi. | you terminate your automatic scheduled debit authorization, stop payment on any authorized debit hereunder or claim that a debit transaction is unauthorized, | ||
| xvii. | you or the Business Representative are in default under any loan, security agreement, or any other agreement, in favor of any other party to whom you owe a debt, | ||
| xviii. | you make a material change in your ownership or organizational structure (acknowledging that any change in ownership will be deemed material when ownership is closely held), | ||
| xix. | we do not receive the full amount of your Minimum Monthly Payment Due on your Payment Due Date, or | ||
| xx. | we believe you or the Business Representative is unable or unwilling to pay your debts when due. |
Upon the occurrence of an Event of Default, we may, to the extent permitted by applicable law:
| i. | require you to immediately pay more than the Minimum Monthly Payment Due, |
| ii. | require you to immediately repay your Loan in full, | ||
| iii. | declare all your Loans in default, | ||
| iv. | suspend your ability to obtain further Loans, | ||
| v. | initiate a claim against Borrower and Business Representative, or | ||
| vi. | initiate one or more debits to your Business Payment Account or Bank Account, at any time and from time to time, for all amounts due us. |
To the extent not prohibited by applicable law, Borrower or Business Representative shall pay us, on demand, any and all expenses, including, but not limited to, arbitration filing and other fees, collection costs, attorneys’ fees, and all other expenses of a like or unlike nature, which may be expended by us to obtain or enforce payment obligations of Borrower or guarantee obligations of Business Representative. Borrower and Business Representative hereby waive any and all defenses to liability under this Agreement other than payment in full.
Upon the occurrence of an Event of Default under Section 14 (vii) (excluding subclause (f)), all outstanding amounts will be immediately due and payable. Upon the occurrence of any other Event of Default, we will have the right, but not the obligation, to declare all outstanding amounts to be immediately due and payable. In addition, we will have and may exercise any and all other rights and remedies available to us. Except as may be prohibited by applicable law, all of our rights and remedies, whether evidenced by this Loan Agreement or by any other record, will be cumulative and may be exercised singularly or concurrently. Election by us to pursue any remedy will not constitute a waiver of our rights to pursue other remedies. No forbearance or delay by us will be deemed to waive any of our rights or remedies or create a course of dealing between the parties. Any election by us to make expenditures or to take action to perform one or more of your obligations under this Loan Agreement, after your failure to perform, will not affect our right to declare an Event of Default and exercise our remedies.
Notice of Borrower or Business Representative Default
You and the Business Representative agree to furnish to us, immediately upon becoming aware of the existence of any condition or event which with the lapse of time or failure to give notice would constitute an event of default under this Loan Agreement, written notice specifying the nature and period of the existence of such condition or event and any action which you and/or the Business Representative are taking or propose to take with respect thereto.
Authorization to Withdraw from Deposit Accounts for Past Due Amounts and/or upon Event of Default
You hereby irrevocably authorize us (such authorization being coupled with an interest) to debit or otherwise withdraw (via the ACH system, electronic checks, wires or otherwise) any funds we are entitled to receive under this Loan Agreement for past due amounts and/or upon the occurrence of an Event of Default from any deposit accounts owned or controlled by you, including without limitation, any Business Payment Account or Bank Account as applicable. You represent, warrant, and agree that, as of the date of and during the term of this Loan Agreement, each such Business Payment Account or Bank Account was established for business purposes and continues to be used for business purposes. The specific Business Payment Account or Bank Account(s) set up for automatic debit will no longer apply. This authorization may not be revoked until we have received the amounts past due, or, upon an Event of Default, the total outstanding balance of all Loan(s). You acknowledge and agree that we may issue pre-notifications to your bank(s) with respect to such debits, withdrawals and other transactions. Further, you agree that you will provide such information and execute such documents to enable us to make such debits as may be reasonably requested by the financial institution(s) at which such deposit accounts are held.
Within two (2) business days of any request by us, you will provide, or cause the applicable financial institutions to provide, us with records and/or other information regarding the Business Payment Account, Bank Accounts and any other deposit accounts owned or controlled by you. You hereby authorize and direct the applicable financial institutions to provide us with all such information at your expense.
Right of set-off.
In addition to any rights and remedies provided to us by law, if your loan is in default, you agree that we and any of our affiliates may recoup from, set-off against, and apply any and all deposits at any time held by, funds in the possession of, and other indebtedness or obligations at any time owing by, us or any of our affiliates to or for the credit or account of the Business and/or the Business Representative against any and all obligations owing to us under this Loan Agreement, to the extent permitted by applicable law. We may use this right of set-off without prior notice to you (any such notice being waived by you) and without first making a demand under this Loan Agreement and although such obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit, funds or indebtedness.
15. Representations, Warranties and Covenants
Each of the Borrower and Business Representative represents, warrants and covenants the following as of the date hereof and at all times during the term of this Loan Agreement:
| i. | that the Business is in good standing and is and will remain duly organized, licensed, validly existing and in good standing under the laws of its state of formation, and is and will remain duly qualified, licensed, and in good standing in each and every other state in which the failure to do so could have a material adverse effect on its financial condition, business or operations; | ||
| ii. | that (1) any information provided to us regarding your loan, including the bank, financial, or other account information provided in your loan application, is true and accurate and will remain true and accurate for the duration of this Loan Agreement; (2) you have not misrepresented the identity of the Business or of the Business Representative, or described, presented or portrayed yourself as a person other than yourself; (3) you are solvent and are not contemplating any insolvency or bankruptcy proceeding, nor have you initiated or been a party in any insolvency, bankruptcy, receivership, or assignment for the benefit of your creditors and no such action or proceeding has been filed or is pending against you during the four months preceding the date of this Loan Agreement; (4) the Business Representative has full power and authority to act as the Business Representative and enter into this Loan Agreement on behalf of the Business; (5) you have no present intention to close or cease operating your business, in whole or in part, temporarily or permanently; and (6) no eviction or foreclosure is pending or threatened against Borrower. |
| iii. | to furnish us information that we may request from time to time; | ||
| iv. | not to use any amount loaned for personal, family or household purposes and not to repay us from any consumer account; | ||
| v. | your exact legal name set forth herein is true and correct, and you do not and will not conduct your business under any other name other than the d/b/a provided to us; | ||
| vi. | you will not change your place of business, your legal name, entity type, or state of formation without our prior signed consent; | ||
| vii. | you are authorized and permitted, by law, your organizational documents, any contracts to which you are a party and otherwise, to execute, deliver, and perform this Loan Agreement and all related documents; | ||
| viii. | you are subject to no charter, corporate or other legal restriction, or any judgment, award, decree, order, governmental rule or regulation or contractual restriction that could have a material adverse effect on your financial condition, business or prospects; | ||
| ix. | not to materially change the nature of the business that you conduct from the type of business originally disclosed to us in connection with this Loan Agreement and, unless we are adequately notified in advance, to conduct your business substantially in accordance with past practices; | ||
| x. | you will take all steps necessary to provide us with access, and you will not reduce or remove, or cause anyone to reduce or remove, our access once granted, to your Business Payment Account(s) or Bank Account(s) linked to your American Express Business Line of Credit Profile as of the date of execution of this Loan Agreement and used for Loan Disbursement or Repayment; | ||
| xi. | with regard to information about any marketplace or other service provider that you provided to us to determine the amount of your loan, to notify us promptly if the details of your account with such marketplace or other service provider changes, you open a new account or you close your account; | ||
| xii. | to use your Business Payment Account in a volume consistent with the level of transactions you processed through such account(s) when you received your loan, or otherwise ensure that funds sufficient to satisfy your obligations under this Loan Agreement are deposited into your Business Payment Account or Bank Account; | ||
| xiii. | to maintain a minimum balance in your Business Payment Account or Bank Account, as appropriate; | ||
| xiv. | is in compliance with any and all federal, state, and local laws and regulations and all rules and regulations relating to the operation of Borrower’s business and Borrower possesses and is in compliance with all permits, licenses, approvals, consents, registrations and other authorizations necessary to own, operate and lease its properties and to conduct the business in which it is presently engaged; | ||
| xv. | to collect on your sales promptly, in compliance with all applicable federal, state and local laws, rules and regulations and consistent with your past collection practices; | ||
| xvi. | to make payments to us (in U.S. dollars) on the applicable “Payment Due Date”; | ||
| xvii. | not to take any action to discourage the use of your Business Payment Account and not to permit any event to occur that could have an adverse effect on the use, acceptance or authorization of your Business Payment Account for the purchase of services and/or products by your customers; | ||
| xviii. | not to open a new account other than the Business Payment Account or Bank Account (collectively, the “Accounts”) into which your sales will be deposited and not to take any action to cause future sales to be settled or paid to any account other than the Accounts; | ||
| xix. | not to sell, dispose, convey or otherwise transfer your business or assets without our express prior written consent and the prior payment or assumption of all of your obligations under this Loan Agreement pursuant to documentation reasonably satisfactory to us; | ||
| xx. | not to take any intentional action that would substantially impair or reduce your generation or collection of accounts receivable adequate to satisfy your obligations under this Loan Agreement without our prior written permission; | ||
| xxi. | not to terminate your authorization of scheduled debits, stop payment on any debit authorized, claim that a debit transaction is unauthorized, or seek a refund, return, chargeback or dispute of a credit card transaction related to a payment; | ||
| xxii. | to maintain insurance in such amounts and against such risks are consistent with past practice and shall show proof of such insurance upon our request; | ||
| xxiii. | Borrower shall not enter into any arrangement, agreement or commitment that relates to or involves Borrower’s accounts receivable, whether in the form of a purchase of, a loan against, or the sale or purchase of credits against, Borrower’s accounts receivable or future credit card or online sales with any party other than us; | ||
| xxiv. | Borrower has good, complete and marketable title to all of its accounts receivable, free and clear of any and all liabilities, liens, claims, charges, restrictions, conditions, options, rights, mortgages, security interests, equities, pledges and encumbrances of any kind or nature whatsoever or any other rights or interests that may be inconsistent with the transactions contemplated with, or adverse to the interests of, us; | ||
| xxv. | to notify us promptly if, with regard to any Business Payment Account or Bank Account, the details of your account change, you open a new account or you close your account; and | ||
| xxvi. | that: (a) There is no action, suit, proceeding or investigation pending or, to your knowledge, threatened against or affecting you or any of your assets before or by any court or other governmental authority which, if determined adversely to you, would have a material adverse effect on your financial condition, business or prospects; (b) neither you nor any of your direct or indirect owners of at least 25% are listed on the U.S. Department of Treasury, Office of Foreign Assets Control, Specially Designated Nationals and Blocked Persons List; and (c) you will provide the name(s) and other personal information that we request regarding any subsequent beneficial owners who own 25% or more of the Borrower within thirty (30) days of any such change. |
Collectively, the preceding items (i) through (xxvi) are your “Borrower Contractual Covenants”.
16. Security Interest, Financing Statements
Borrower grants to us, to secure Borrower’s performance under this Loan Agreement, a continuing security interest in any and all assets of Borrower, wherever found, that Borrower now owns or shall acquire, including, but not limited to: (a) all tangible and intangible personal property of Borrower, including, but not limited to, all cash or cash equivalents, accounts, deposit accounts, chattel paper, documents, equipment, general intangibles, instruments, inventory, investment property (including certificated and uncertificated securities, securities accounts, securities entitlements, commodity contracts and commodity accounts), letter of credit rights, commercial tort claims and as-extracted collateral (as those terms are defined in Article 9 of the Uniform Commercial Code (“UCC”) in effect from time to time in the State of Utah); (b) all patents, patent applications, trademarks, trade names, service marks, logos, copyrights, and other sources of business identifiers, and all registrations, recordings and applications with the U.S. Patent and Trademark Office (“USPTO”) and U.S. Copyright Office and all renewals, reissues and extensions thereof (collectively “IP”), together with any written agreement granting any right to use any IP; and (c) all accessions, attachments, accessories, parts, supplies and replacements, products, proceeds and collections with respect to the items described in (a) and (b) above, as those terms are defined in Article 9 of the UCC and all records and data relating thereto.
Borrower understands and agrees that we may at any time file one or more (i) UCC-1 financing statements, lien entry form or other document to perfect, amend, or continue any interest granted herein and (ii) assignments with USPTO and/or U.S. Copyright Office to perfect any security interest in IP described above. Borrower agrees to cooperate with us as may be necessary to accomplish said filing and authorizes us to sign Borrower’s name to affect the filing or continuation of any such filings.
Borrower hereby acknowledges and agrees that we may use “doing business as” or “d/b/a” names or agents in connection with various matters relating to the transaction between us and Borrower, including the filing of UCC-1 financing statements and other notices or filings.
17. Credit Reports and Reporting to Credit Reporting Agencies
You and the Business Representative authorize us to verify your and his/her information and obtain reports from commercial and consumer reporting agencies or other third parties, and from our affiliates, as applicable, from time to time as permitted by applicable law. You and Business Representative agree that we may investigate your and his/her ability to pay and obtain information about you and Business Representative from other sources. You and Business Representative authorize us and our affiliates to share information we have about you and Business Representative at any time for marketing and administrative purposes as permitted by law and you and Business Representative agree that we will use such information for any purposes, subject to applicable law and pursuant to our privacy practices as described in Section 19 Privacy, PATRIOT ACT. Upon request, we will tell you and Business Representative if we have received a consumer report and the name and address of the agency that provided it.
You and Business Representative agree that we may provide information about your loan to credit reporting agencies. For example, we may tell a credit reporting agency if you fail to make a payment or fail to comply with any other term of this Loan Agreement, or otherwise default on your loan. This may have a negative impact on your credit reports.
If you believe information we provided to a credit reporting agency is incorrect, write to us at: American Express Credit Bureau Unit, P.O. Box 981537, El Paso, TX 79998-1537. When you write to us, tell us the specific information you believe is incorrect.
You and Business Representative waive to the maximum extent permitted by law any claim for damages against us or any of our affiliates relating to any (a) investigation undertaken by or on your behalf as permitted by this Loan Agreement or (b) disclosure of information as permitted by this Loan Agreement. You and Business Representative also agree that we may release information if we believe it is required to comply with any governmental or legal process, whether or not such release is actually required, or when it is necessary or desirable in connection with a transaction or investigating a loss or potential loss.
18. Usury Savings Clause
It is the intention of parties hereto to comply strictly with applicable laws and accordingly, in no event and upon no contingency will we ever be entitled to receive, collect, or apply payments as interest in excess of the maximum rate of interest which we may lawfully charge under applicable law (“Maximum Rate”). In the event that we ever receive, collect, or apply payments as interest in excess of the Maximum Rate, such amount which, but for this provision, would be excessive interest, will be applied to the reduction of the principal balance owed hereunder; and if said principal balance, and all lawful interest thereon, is paid in full, any remaining excess will forthwith be paid to you, or another party lawfully entitled thereto. In determining whether or not the interest or fees paid or payable, under any specific contingency, exceeds the highest rate which we may lawfully charge under applicable law from time to time in effect, the parties will, to the maximum extent permitted under applicable law, characterize any non-principal payment as a reasonable loan charge, rather than as interest. Any provision hereof or of any other agreement between the parties, that operates to bind, obligate, or compel you to pay interest in excess of such Maximum Rate will be construed to require the payment of the Maximum Rate only. The provisions of this section will be given precedence over any other provision contained herein or in any other agreement between the parties that is in conflict with the provisions of this section.
19. Privacy, PATRIOT ACT
Your privacy is very important to us. For information about how we collect, store, use, share, and protect your information, please read our Privacy Statement at https://www.americanexpress.com/us/company/privacy-center/online-privacy- disclosures/#privacy-statement, as it is updated from time to time. We may also send you communications from time to time regarding privacy choices which you may make.
TO HELP PREVENT THE FUNDING OF TERRORISM AND MONEY LAUNDERING ACTIVITIES, FEDERAL LAW REQUIRES ALL FINANCIAL INSTITUTIONS SUCH AS US TO OBTAIN, VERIFY, AND RECORD INFORMATION ABOUT PERSONS AND ORGANIZATIONS WHICH OPEN AN ACCOUNT OR ESTABLISH A RELATIONSHIP WITH US OR TO WHICH WE SEND MONEY.
20. Electronic Signatures
You and the Business Representative consent to the use of electronic records and signatures in the execution and performance of this Loan Agreement. The Loan Agreement, and any other document you and the Business Representative sign electronically, will be legally valid and enforceable in accordance with its terms to the same extent as if you and the Business Representative had executed it on paper using a handwritten signature.
21. Sending Notices, Disclosures and Communications
Electronic Communications
We may provide any notice, disclosure, statement or other communication related to this Loan Agreement to you or Business Representative by any lawfully permitted electronic means, including by (i) sending it to your email address, (ii) posting it on the American Express website, or (iii) making it available to you on the American Express website through a link provided on an email or communication. Communications sent to you electronically will be effective the earlier of when (i) we send it to you or (ii) we send or otherwise provide you with notice that the communication has been posted on the American Express website. You and Business Representative agree that we may use any email address you provide to us. You may set your electronic communications preferences in your American Express Business Line of Credit Loan online account. Regardless of these preferences, we may continue to send you certain communications, including servicing messages, electronically.
A copy of your executed Loan Agreement, as well as your monthly statements and other communications and disclosures provided in connection with your Loan, are available in your American Express Business Line of Credit Loan online account.
Postal Mail Communications
We may mail you and Business Representative notices through the U.S. mail, postage prepaid, using the latest billing address on our records. Any notice that we send this way is deemed to be given when deposited in the U.S. mail.
Changes to Your Contact Information
You and Business Representative must notify us immediately of any changes to any email address, phone number or mailing address to which we send or make any communications. You may do so by accessing your American Express Business Line of Credit Loan online account or by calling Customer Service at 1-888-986-8263.
Servicing and Collections Calls/Text Messages
If we need to contact you or Business Representative to service your Loan or to collect amounts you owe, you and Business Representative authorize us (and our affiliates, agents, and contractors) to contact you at any number you provide, from which you call us, or at which we believe we can reach you. We may contact you using an automated dialer or prerecorded messages. We may contact you on a mobile, wireless or similar device, even if you are charged for it. To the extent you previously provided consent to receive solicitation or marketing calls or texts at a phone number you provided, this term does not affect your prior consent.
Call Monitoring
We may monitor and record any calls and/or web sessions between you and us.
22. No Warranties
EXCEPT AS EXPRESSLY PROVIDED IN THIS LOAN AGREEMENT OR APPLICABLE LAW, WE MAKE NO REPRESENTATIONS OR WARRANTIES. WE HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE RELATING TO OR ARISING OUT OF THIS LOAN AGREEMENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE MAKE NO REPRESENTATION OR WARRANTY TO YOU REGARDING THE EFFECT THAT THIS LOAN AGREEMENT MAY HAVE UPON YOUR TAX LIABILITIES IN ANY JURISDICTION.
23. Indemnification, Limitation of Liability
You and the Business Representative will indemnify and hold American Express, its direct or indirect subsidiaries, controlled affiliates, agents, employees or representatives (collectively referred to as the “Indemnified Parties”) harmless from and against all losses, damages, claims, liabilities, obligations, penalties, suits, actions, controversies, or proceedings of any kind, imposed upon, incurred by, or asserted against any of the Indemnified Parties, in any way arising from, in connection with, relating to, or incident to your or the Business Representative’s breach of this Loan Agreement, including the payment of all costs and expenses of every kind for the enforcement of our rights and remedies hereunder. Such amounts will bear interest at the rate for prejudgment interest prevailing in your jurisdiction until paid.
NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, IN NO EVENT WILL AMERICAN EXPRESS, ITS DIRECT OR INDIRECT SUBSIDIARIES, CONTROLLED AFFILIATES, AGENTS, EMPLOYEES OR REPRESENTATIVES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, NOR FOR ANY LOST PROFITS IN CONNECTION WITH OR ARISING OUT OF THIS LOAN AGREEMENT.
The foregoing indemnities are continuing indemnities and will survive expiration or termination of this Loan Agreement for any reason.
24. Severability
If any part of this Loan Agreement is found by a court or governmental authority to be invalid or unenforceable, that part will be deemed omitted from this Loan Agreement. The remainder of this Loan Agreement will remain in full force and effect, and will be modified only as necessary to give such force and effect to the remaining provisions.
25. Assignment
We may sell, transfer or assign this Loan Agreement or your Loan. We may do so at any time without notifying you. You may not sell, assign or transfer your Loan or any of your or the Business Representative’s obligations under this Loan Agreement. Any such sale, assignment or transfer by you or the Business Representative will be null and void.
You acknowledge that American Express, acting solely for this purpose as your non-fiduciary agent, shall maintain a register for the recordation of the name and address of the holder of the Loans (including any assignee, participant or transferee, if any, who becomes the holder of the Loans pursuant to an assignment, participation, sale or transfer), and principal amounts (and stated interest) of the Loans owing to, such holder from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and you, American Express, Business Representative and holder of the Loans (including any assignee, participant or transferee, if any, who becomes the holder of the Loans pursuant to an assignment, participation, sale or transfer) shall treat the person whose name is recorded in the Register as a holder of the Loans hereunder for all purposes of this Loan Agreement. Recordation in the Register is the sole means of assignment or transfer of the holder’s interest in the Loans, and any assignment or transfer in contravention thereof is not effective and is hereby rendered null and void.
26. No Waiver
We may choose to delay enforcing or to not exercise rights under this Loan Agreement. If we do this, we do not waive our rights to exercise or enforce them or any other rights under this Loan Agreement on any other occasion.
27. Governing Law
Utah law and federal law govern this Loan Agreement and your Loan. They govern without regard to internal principles of conflicts of law. You and the Business Representative agree that this Loan Agreement is made and performed in the State of Utah. You and the Business Representative agree that: (i) we are located in Utah; (ii) we make all credit decisions from our home office in Utah; and (iii) the Loan hereunder is made in Utah (that is, no binding contract will be formed until we receive and accept your signed Loan Agreement in Utah). This Loan Agreement will only be valid when signed by you and the Business Representative and accepted by us at our home office in Utah.
28. Claims Resolution
For this section, “you” and “us” includes any corporate parents, subsidiaries, affiliates or related persons or entities and “you” also includes Business Representative. “Claim” means any current or future claim, dispute or controversy relating to your Loan(s), this Loan Agreement, or any agreement or relationship you have or had with us, except for the validity, enforceability or scope of the Arbitration provision. Claim includes but is not limited to: (1) initial claims, counterclaims, crossclaims and third-party claims; (2) claims based upon contract, tort, fraud, statute, regulation, common law and equity; (3) claims by or against any third party using or providing any product, service or benefit in connection with any loan; and (4) claims that arise from or relate to (a) any loan created under any of the agreements, or any balances on any such loan, (b) advertisements, promotions or statements related to any loans, goods or services financed under any loans or terms of financing, and (c) your application for any loan. You may not sell, assign or transfer a claim.
Sending a Claim Notice
Before beginning a lawsuit, mediation or arbitration, you and we agree to send a written notice (a claim notice) to each party against whom a claim is asserted, in order to provide an opportunity to resolve the claim informally or through mediation. Go to https://www.americanexpress.com/en-us/business/blueprint/claim/claim-form.pdf for a sample claim notice. The claim notice must describe the claim and state the specific relief demanded. Notice to you may be provided by your billing statement or sent to your billing address. Notice to us must include your name, address and Account number and be sent to American Express ADR c/o CT Corporation System, 28 Liberty Street, New York, New York 10005. If the claim proceeds to arbitration, the amount of any relief demanded in a claim notice will not be disclosed to the arbitrator until after the arbitrator rules.
Mediation
In mediation, a neutral mediator helps parties resolve a claim. The mediator does not decide the claim but helps parties reach agreement. Before beginning mediation, you or we must first send a claim notice. Within 30 days after sending or receiving a claim notice, you or we may submit the claim to JAMS (1-800-352-5267, jamsadr.com) or the American Arbitration Association (“AAA”) (1-800-778-7879, adr.org) for mediation. We will pay the fees of the mediator. All mediation- related communications are confidential, inadmissible in court and not subject to discovery.
All applicable statutes of limitation will be tolled from the date you or we send the claim notice until termination of the mediation. Either you or we may terminate the mediation at any time. The submission or failure to submit a claim to mediation will not affect your or our right to elect arbitration.
Arbitration
You or we may elect to resolve any claim by individual arbitration. Claims are decided by a neutral arbitrator. If arbitration is chosen by any party, neither you nor we will have the right to litigate that claim in court or have a jury trial on that claim. Further, you and we will not have the right to participate in a representative capacity or as a member of any class pertaining to any claim subject to arbitration. Arbitration procedures are generally simpler than the rules that apply in court, and discovery is more limited. The arbitrator’s authority is limited to claims between you and us alone. Claims may not be joined or consolidated unless you and we agree in writing. An arbitration award and any judgment confirming it will apply only to the specific case and cannot be used in any other case except to enforce the award. The arbitrator’s decisions are as enforceable as any court order and are subject to very limited review by a court. Except as set forth below, the arbitrator’s decision will be final and binding. Other rights you or we would have in court may also not be available in arbitration.
Initiating Arbitration
Before beginning arbitration, you or we must first send a claim notice. Claims will be referred to either JAMS or AAA, as selected by the party electing arbitration. Claims will be resolved pursuant to this Arbitration provision and the selected organization’s rules in effect when the claim is filed, except where those rules conflict with this Loan Agreement. If we choose the organization, you may select the other within 30 days after receiving notice of our selection. Contact JAMS or AAA to begin an arbitration or for other information. Claims also may be referred to another arbitration organization if you and we agree in writing or to an arbitrator appointed pursuant to section 5 of the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (FAA).
We will not elect arbitration for any claim you file in small claims court, so long as the claim is individual and pending only in that court. You or we may otherwise elect to arbitrate any claim at any time unless it has been filed in court and trial has begun or final judgment has been entered. Either you or we may delay enforcing or not exercise rights under this Arbitration provision, including the right to arbitrate a claim, without waiving the right to exercise or enforce those rights.
Limitations on Arbitration
If either party elects to resolve a claim by arbitration, that claim will be arbitrated on an individual basis. There will be no right or authority for any claims to be arbitrated on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of the general public, other cardmembers or other persons similarly situated.
Notwithstanding any other provision and without waiving the right to appeal such decision, if any portion of these Limitations on Arbitration is deemed invalid or unenforceable, then the entire Arbitration provision (other than this sentence) will not apply.
Arbitration Procedures
This Arbitration provision is governed by the FAA. The arbitrator will apply applicable substantive law, statutes of limitations and privileges. The arbitrator will not apply any federal or state rules of civil procedure or evidence in matters relating to evidence or discovery. Subject to the Limitations on Arbitration, the arbitrator may otherwise award any relief available in court. You and we agree that the arbitration will be confidential. You and we agree that we will not disclose the content of the arbitration proceeding or its outcome to anyone, but you or we may notify any government authority of the claim as permitted or required by law. If your claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents, through a telephonic hearing, or by an in-person hearing. At any party’s request, the arbitrator will provide a brief written explanation of the award. The arbitrator’s award will be final and binding, subject to each party’s right to appeal as stated in this section and/or to challenge or appeal an arbitration award pursuant to the FAA. To initiate an appeal, a party must notify the arbitration organization and all parties in writing within 35 days after the arbitrator’s award is issued. The arbitration organization will appoint a three- arbitrator panel to decide anew, by majority vote based on written submissions, any aspect of the decision objected to. The appeal will otherwise proceed pursuant to the arbitration organization’s appellate rules. Judgment upon any award may be entered in any court having jurisdiction. At your election, arbitration hearings will take place in the federal judicial district of your residence.
Arbitration Fees and Costs
You will be responsible for paying your share of any arbitration fees (including filing, administrative, hearing or other fees), but only up to the amount of the filing fees you would have incurred if you had brought a claim in court. We will be responsible for any additional arbitration fees. At your written request, we will consider in good faith making a temporary advance of your share of any arbitration fees, or paying for the reasonable fees of an expert appointed by the arbitrator for good cause.
Additional Arbitration Awards
If the arbitrator rules in your favor for an amount greater than any final offer we made before the final hearing in arbitration, the arbitrator’s award will include: (1) any money to which you are entitled, but in no case less than $5,000; and (2) any reasonable attorneys’ fees, costs and expert and other witness fees.
Your Right to Reject Arbitration
You may reject this Arbitration provision by sending a written rejection notice to us at: American Express, P.O. Box 981556, El Paso, TX 79998. Go to https://www.americanexpress.com/en-us/business/blueprint/reject/reject-form.pdf for a sample rejection notice. Your rejection notice must be mailed within 45 days after you execute your Loan Agreement. Your rejection notice must state that you reject the Arbitration provision and include your name, address, Account number and personal signature. No one else may sign the rejection notice. If your rejection notice complies with these requirements, this Arbitration provision and any other arbitration provisions in the Loan Agreement(s) for any other currently open American Express loans you have will not apply to you and any claims subject to pending litigation or arbitration at the time you send your rejection notice. Rejection of this Arbitration provision will not affect your other rights or responsibilities under this Claims Resolution section or the Loan Agreement. Rejecting this Arbitration provision will not affect your ability to use any benefit, product or service you may have with your Loan.
Continuation
This section will survive termination of your Loan Agreement, voluntary payment of your Loan balance, any legal proceeding to collect a debt, any bankruptcy and any sale of your Loan (in the case of a sale, its terms will apply to the buyer of your Loan). If any portion of this Claims Resolution section, except as otherwise provided in the Limitations on Arbitration subsection, is deemed invalid or unenforceable, it will not invalidate the remaining portions of this Claims Resolution section.
29. Entire Agreement
This Loan Agreement is a final expression of the agreement between you, the Business Representative and us governing your loan. There are no unwritten oral agreements between the parties. This written Loan Agreement may not be contradicted by any alleged oral agreement. You and the Business Representative may not amend the terms of this Loan Agreement without written agreement from us. We may amend this Loan Agreement to comply with law or to update any names or contact information, definitions, references, or similar terms, only to the extent such amendment is permitted by law, and you and the Business Representative acknowledge that you agree to such amendment upon notice. All rights and obligations of us, our affiliates, you and the Business Representative concerning anything other than the loan continue to be governed by the terms of the separate agreement governing such items, if any. In the event of any conflict between this Loan Agreement and any separate agreement, this Loan Agreement shall prevail as it relates to your loan. You and the Business Representative acknowledge that there are no third-party beneficiaries to this Loan Agreement.
30. Construction
The headings of the sections and subsections herein are inserted for convenience only and under no circumstances shall they affect in any way the meaning or interpretation of this Loan Agreement. For purposes of this Loan Agreement, “including” shall mean “including, without limitation.”
31. State Disclosures
FOR OHIO RESIDENTS ONLY: The Ohio laws against discrimination require that all creditors make credit equally available to all credit worthy customers, and that credit reporting agencies maintain separate credit histories on each individual upon request. The Ohio civil rights commission administers compliance with this law.
32. Confidentiality, Press Releases
You and the Business Representative understand and agree that the terms and conditions of the products and services we offer, including this Loan Agreement and any other documentation provided by us, is our proprietary and confidential information. Accordingly, unless disclosure is required by applicable law or court order, you and the Business Representative will not disclose such information to any person other than your attorneys, accountants, financial advisors, or employees who need to know such information for the purpose of advising you or the Business Representative, provided that such advisors use such information solely to advise you and the Business Representative and first agree in a signed record to keep such information confidential. You and the Business Representative will not issue any press release or make any public announcement (or both) in respect of this Loan Agreement or us without our prior signed consent. In the event that you were referred to us by a third party, you acknowledge and agree that we may inform such third party that we extended you a Loan under this Loan Agreement and share additional information about your Loan with such third party.
| Andres Espinosa, Chief Credit Officer | BANNOR MACGREGOR | |
| American Express National Bank | Jul 20, 2023 04:42 PM | |
| Jul 20, 2023 04:42 PM | ||
| BANNOR MACGREGOR | ||
| Jul 20, 2023 04:42 PM |
Jul 2023
Exhibit 10.4
AMERICAN PICTURE HOUSE CORPORATION
2023 DIRECTORS, EMPLOYEES AND ADVISORS STOCK INCENTIVE AND COMPENSATION PLAN
| 1. | Purpose. |
1.1 Purpose. The purpose of the American Picture House Corporation 2023 Directors, Employees and Advisors Stock Incentive and Compensation Plan is to enable the Company to offer to its officers, directors, advisors and consultants whose past, present and/or potential contributions to the Company and its Subsidiaries have been, are or will be important to the success of the Company, an opportunity to acquire a proprietary interest in the Company. The types of long-term incentive Awards that may be provided under the Plan will enable the Company to respond to changes in compensation practices, tax laws, accounting regulations and the size and diversity of its businesses.
| 2. | Definitions. |
2.1 Definitions. For purposes of the Plan, the following terms shall be defined as set forth below:
(a) “Agreement” means the agreement between the Company and the Holder setting forth the terms and conditions of an Award under the Plan. Agreements shall be in the form(s) attached hereto.
(b) “Award” means Stock Options, Restricted Stock and/or other Stock Based Awards awarded under the Plan.
(c) “ Board “ means the Board of Directors of the Company.
(d) “ Code “ means the Internal Revenue Code of 1986, as amended from time to time.
(e) “ Committee “ means the Board or any committee of the Board that the Board may designate to administer the Plan or any portion thereof. If no Committee is so designated, then all references in this Plan to “Committee” shall mean the Board.
(f) “ Common Stock “ means the common stock of the Company, $0.0001 par value per share.
(g) “ Company “ means American Picture House Corporation, a corporation organized under the laws of the State of Wyoming.
(h) “ Disability “ means physical or mental impairment as determined under procedures established by the Committee for purposes of the Plan.
(i) “ Effective Date “ means the date set forth in Section 12.1, below.
(j) “ Fair Market Value “, means, as of any given date: (i) if the Common Stock is listed on a national securities exchange, the closing price of the Common Stock in the principal trading market for the Common Stock on such date, as reported by the exchange (or on the last preceding trading date if such security was not traded on such date); (ii) if the Common Stock is not listed on a national securities exchange, but is traded in the over-the-counter market, the closing bid price for the Common Stock on such date, as reported by the OTC Markets Inc. or similar publisher of such quotations; (iii) the price per share of the Common Stock sold in the latest completed private placement; and (iv) if the fair market value of the Common Stock cannot be determined pursuant to clause (i), (ii) or (iii) above, such price as the Committee shall determine, in good faith.
(k) “ Holder “ means a person who has received an Award under the Plan.
(l) “ Other Stock-Based Award “ means an Award under Section 9, below, that is valued in whole or in part by reference to, or is otherwise based upon, Common Stock.
| 1 |
(m) “ Parent “ means any present or future “parent corporation” of the Company, as such term is defined in Section 424(e) of the Code.
(n) “ Plan “ means the American Picture House Corporation 2023 Directors, Employees and Advisors Stock Incentive and Compensation Plan, as hereinafter amended from time to time.
(o) “ Repurchase Value “ shall mean the Fair Market Value in the event the Award to be repurchased under Section 10.2 is comprised of shares of Common Stock and the difference between Fair Market Value and the Exercise Price (if lower than Fair Market Value) in the event the Award is a Stock Option or Stock Appreciation Right; in each case, multiplied by the number of shares subject to the Award.
(p) “ Restricted Stock “ means Common Stock, received under an Award made pursuant to Section 8, below that is subject to restrictions under said Section 8.
(q) “ SAR Value “ means the excess of the Fair Market Value (on the exercise date) over the exercise price that the participant would have otherwise had to pay to exercise the related StockOption, multiplied by the number of shares for which the Stock Appreciation Right is exercised.
(r) “ Stock Appreciation Right “ means the right to receive from the Company, on surrender of all or part of the related Stock Option, without a cash payment to the Company, a number of shares of Common Stock equal to the SAR Value divided by the Fair Market Value (on the exercise date).
(s) “ Stock Option “ or “ Option “ means any option to purchase shares of Common Stock that is granted pursuant to the Plan. Options granted under the Plan are not intended to be “incentive stock options” within the meaning of Section 422 of the Code.
(t) “ Subsidiary “ means any present or future “subsidiary corporation” of the Company, as such term is defined in Section 424(f) of the Code.
| 3. | Administration. |
3.1 Committee Membership. The Plan shall be administered by the Board or a committee designated by the Board. Committee members shall serve for such term as the Board may in each case determine, and shall be subject to removal at any time by the Board. The Committee members, to the extent deemed to be appropriate by the Board, shall be “non-employee directors” as defined in Rule 16b-3 promulgated under the Securities Exchange Act of 1934, as amended (“ Exchange Act “).
3.2 Powers of Committee. The Committee shall have the authority and responsibility to recommend to the Board for approval, Awards for Board members, executive officers, non-executive employees and consultants of the Company, pursuant to the terms of the Plan: (i) Stock Options, (ii) Stock Appreciation Rights, (iii) Restricted Stock, and/or (iv) Other Stock-Based Awards. For purposes of illustration and not of limitation, the Committee shall have the authority (subject to the express provisions of this Plan):
(a) to select the officers, employees, directors, advisors and consultants of the Company or any Subsidiary to whom Stock Options, Stock Appreciation Rights, Restricted Stock, and/or Other Stock- Based Awards may from time to time be awarded hereunder.
(b) to determine the terms and conditions, not inconsistent with the terms of the Plan or requisite Board approval, of any Award granted hereunder including, but not limited to, number of shares, share exercise price or types of consideration paid upon exercise of Stock Options and the purchase price of Common Stock awarded under the Plan (including without limitation by a Holder’s conversion of deferred salary or other indebtedness of the Company to the Holder), such as other securities of the Company or other property, any restrictions or limitations, and any vesting, exchange, surrender, cancellation, acceleration, termination, exercise or forfeiture provisions, as the Committee shall determine;
(c) to determine any specified performance goals or such other factors or criteria which need to be attained for the vesting of an Award granted hereunder;
| 2 |
(d) to determine the terms and conditions under which Awards granted hereunder are to operate on a tandem basis and/or in conjunction with or apart from other equity awarded under this Plan and cash Awards made by the Company or any Subsidiary outside of this Plan; and
(e) to determine the extent and circumstances under which Common Stock and other amounts payable with respect to an Award hereunder shall be deferred that may be either automatic or at the election of the Holder.
| 3.3 | Interpretation of Plan. |
Subject to Section 11, below, the Committee shall have the authority to adopt, alter and repeal such administrative rules, guidelines and practices governing the Plan as it shall, from time to time, deem advisable, to interpret the terms and provisions of the Plan and any Award issued under the Plan (and to determine the form and substance of all Agreements relating thereto), and to otherwise supervise the administration of the Plan. Subject to Section 11, below, all decisions made by the Committee pursuant to the provisions of the Plan shall be made in the Committee’s sole discretion, subject to Board authorization if indicated, and shall be final and binding upon all persons, including the Company, its Subsidiaries and Holders.
| 4. | Stock Subject to Plan. |
4.1 Number of Shares. The total number of shares of Common Stock reserved and available for issuance under the Plan shall be up to Twenty Percent (20%) of the issued and outstanding stock at the time of the grant. Shares of Common Stock under the Plan may consist, in whole or in part, of authorized and unissued shares or treasury shares. If any shares of Common Stock that have been granted pursuant to a Stock Option ceases to be subject to a Stock Option, or if any shares of Common Stock that are subject to any Stock Appreciation Right, Restricted Stock, Deferred Stock Award, or Other Stock-Based Award granted hereunder are forfeited or any such Award otherwise terminates without a payment being made to the Holder in the form of Common Stock, such shares shall again be available for distribution in connection with future grants and Awards under the Plan.
4.2 Adjustment Upon Changes in Capitalization, Etc. In the event of any dividend (other than a cash dividend) payable on shares of Common Stock, stock split, reverse stock split, combination or exchange of shares, or other similar event (not addressed in Section 4.3, below) occurring after the grant of an Award, which results in a change in the shares of Common Stock of the Company as a whole, (i) the number of shares issuable in connection with any such Award and the purchase price thereof, if any, shall be proportionately adjusted to reflect the occurrence of any such event and (ii) the Committee shall determine whether such change requires an adjustment in the aggregate number of shares reserved for issuance under the Plan or to retain the number of shares reserved and available under the Plan in their sole discretion. Any adjustment required by this Section 4.2 shall be made by the Committee, in good faith, subject to Board authorization if indicated, whose determination will be final, binding and conclusive.
4.3 Certain Mergers and Similar Transactions. In the event of (a) a dissolution or liquidation of the Company, (b) a merger or consolidation in which the Company is not the surviving corporation (other than a merger or consolidation with a wholly-owned subsidiary, a reincorporation of the Company in a different jurisdiction, or other transaction in which there is no substantial change in the shareholders of the Company or their relative stock holdings and the Awards granted under this Plan are assumed, converted or replaced by the successor corporation, which assumption will be binding on all Awardees), (c) a merger in which the Company is the surviving corporation but after which the shareholders of the Company immediately prior to such merger (other than any shareholder that merges, or which owns or controls another corporation that merges, with the Company in such merger) cease to own their shares or other equity interest in the Company, (d) the sale of substantially all of the assets of the Company, or (e) the acquisition, sale, or transfer of more than 50% of the outstanding shares of the Company by tender offer or similar transaction, any or all outstanding Awards may be assumed, converted or replaced by the successor corporation (if any), which assumption, conversion or replacement will be binding on all Awardees. In the alternative, the successor corporation may substitute equivalent Awards or provide substantially similar consideration to Awardees as was provided to shareholders (after taking into account the existing provisions of the Awards). The successor corporation may also issue, in place of outstanding Shares of the Company held by the Holder, substantially similar shares or other property subject to repurchase restrictions no less favorable to the Holder. In the event such successor corporation (if any) refuses or otherwise declines to assume or substitute Awards, as provided above, (i) the vesting of any or all Awards granted pursuant to this Plan will accelerate immediately prior to the effective date of a transaction described in this Section 4.3 and (ii) any or all Stock Options granted pursuant to this Plan will become exercisable in full prior to the consummation of such event at such time and on such conditions as the Committee determines. If such Stock Options are not exercised prior to the consummation of the corporate transaction, they shall terminate at such time as determined by the Committee. Subject to any greater rights granted to Awardees under the foregoing provisions of this Section 4.3, in the event of the occurrence of any transaction described in this Section 4.3, any outstanding Awards will be treated as provided in the applicable agreement or plan of merger, consolidation, dissolution, liquidation, or sale of assets.
| 3 |
| 5. | Eligibility. |
Awards may be made or granted to employees, officers, directors, advisors and consultants who are deemed to have rendered or to be able to render significant services to the Company or its Subsidiaries and who are deemed to have contributed or to have the potential to contribute to the success of the Company. Notwithstanding anything to the contrary contained in the Plan, Awards covered or to be covered under a registration statement on Form S-8 may be made under the Plan only if (a) they are made to natural persons, (b) who provide bona fide services to the Company or its Subsidiaries, and (c) the services are not in connection with the offer and sale of securities in a capital raising transaction, and do not directly or indirectly promote or maintain a market for the Company’s securities.
| 6. | Stock Options. |
6.1 Grant and Exercise. Any Stock Option granted under the Plan shall contain such terms, not inconsistent with this Plan as the Committee may from time to time approve.
6.2 Terms and Conditions. Stock Options granted under the Plan shall be subject to the following terms and conditions:
(a) Option Term. The term of each Stock Option shall be fixed by the Committee.
(b) Exercise Price. The exercise price per share of Common Stock purchasable under a Stock Option shall be determined by the Committee at the time of grant.
(c) Exercisability. Stock Options shall be exercisable at such time or times and subject to such terms and conditions as shall be determined by the Committee and as set forth in Section 10, below. If the Committee provides, in its discretion, that any Stock Option is exercisable only in installments, i.e., that it vests over time, the Committee may waive such installment exercise provisions at any time at or after the time of grant in whole or in part, based upon such factors as the Committee shall determine.
(d) Method of Exercise. Subject to whatever installment, exercise and waiting period provisions are applicable in a particular case, Stock Options may be exercised in whole or in part at any time during the term of the Stock Option, by giving written notice of exercise to the Company specifying the number of shares of Common Stock to be purchased. Such notice shall be accompanied by payment in full of the purchase price, which shall be in cash or, if provided in the Agreement, either in shares of Common Stock (including Restricted Stock and other contingent Awards under this Plan) or partly in cash and partly in such Common Stock, or such other means which the Committee determines are consistent with the Plan’s purpose and applicable law. Cash payments shall be made by wire transfer, certified or bank check or personal check, in each case payable to the order of the Company; provided, however , that the Company shall not be required to deliver certificates for shares of Common Stock with respect to which an Option is exercised until the Company has confirmed the receipt of good and available funds in payment of the purchase price thereof. Payments in the form of Common Stock shall be valued at the Fair Market Value on the date prior to the date of exercise. Such payments shall be made by delivery of stock certificates in negotiable form that are effective to transfer good and valid title thereto to the Company, free of any liens or encumbrances. A Holder shall have none of the rights of a Shareholder with respect to the shares subject to the Option until such shares shall be transferred to the Holder upon the exercise of the Option.
| 4 |
(e) Transferability. Except as may be set forth in the Agreement, no Stock Option shall be transferable by the Holder other than by will or by the laws of descent and distribution, and all Stock Options shall be exercisable, during the Holder’s lifetime, only by the Holder (or, to the extent of legal incapacity or incompetency, the Holder’s guardian or legal representative).
(f) Termination by Reason of Death. If a Holder’s employment by or service as an officer, director advisor, or consultant to the Company or a Subsidiary terminates by reason of death, any Stock Option held by such Holder, unless otherwise determined by the Committee at the time of grant and set forth in the Agreement, shall thereupon automatically terminate, except that the portion of such Stock Option that has vested on the date of death may thereafter be exercised by the legal representative of the estate or by the legatee of the Holder under the will of the Holder, for a period of one year (or such other greater or lesser period as the Committee may specify at grant) from the date of such death or until the expiration of the stated term of such Stock Option, whichever period is the shorter.
(g) Termination by Reason of Disability. If a Holder’s employment by or service as an officer, director advisor, or consultant to the Company or any Subsidiary terminates by reason of Disability, any Stock Option held by such Holder, unless otherwise determined by the Committee at the time of grant and set forth in the Agreement, shall there upon automatically terminate, except that the portion of such Stock Option that has vested on the date of termination may thereafter be exercised by the Holder for a period of one year (or such other greater or lesser period as the Committee may specify at the time of grant) from the date of such termination or until the expiration of the stated term of such Stock Option, whichever period is the shorter.
(h) Other Termination. Subject to the provisions of Section 13, below, and unless otherwise determined by the Committee at the time of grant and set forth in the Agreement, if a Holder is an employee, officer, director, advisor or consultant of the Company or a Subsidiary at the time of grant and if such Holder’s employment by or service as an officer, director, advisor or consultant to the Company or any Subsidiary terminates for any reason other than death or Disability, the Stock Option shall thereupon automatically terminate, except that if the Holder’s employment or service as an officer, director, advisor or consultant is terminated by the Company or a Subsidiary without cause or due to normal retirement, then the portion of such Stock Option that has vested on the date of termination may be exercised for the lesser of three months after termination or the balance of such Stock Option’s term.
(i) Buyout and Settlement Provisions. The Committee may at any time, subject to Board authorization, if indicated, offer to repurchase a Stock Option previously granted, based upon such terms and conditions as the Committee shall establish and communicate to the Holder at the time that such offer is made.
| 7. | Stock Appreciation Rights. |
7.1 Grant and Exercise. The Committee, subject to Board authorization, if indicated, may grant Stock Appreciation Rights to participants who have been, or are being granted, Stock Options under the Plan as a means of allowing such participants to exercise their Stock Options without the need to pay the exercise price in cash. A Stock Appreciation Right may be granted either at or after the time of the grant of such Stock Option.
7.2 Terms and Conditions. Stock Appreciation Rights shall be subject to the following terms and conditions:
(a) Exercisability. Stock Appreciation Rights shall be exercisable as shall be determined by the Committee and set forth in the Agreement.
(b) Termination. A Stock Appreciation Right shall terminate and shall no longer be exercisable upon the termination or exercise of the related Stock Option.
(c) Method of Exercise. Stock Appreciation Rights shall be exercisable upon such terms and conditions as shall be determined by the Committee and set forth in the Agreement and by surrendering the applicable portion of the related Stock Option. Upon such exercise and surrender, the Holder shall be entitled to receive a number of shares of Common Stock equal to the SAR Value divided by the Fair Market Value on the date the Stock Appreciation Right is exercised.
| 5 |
(d) Shares Affected Upon Plan. The granting of a Stock Appreciation Right shall not affect the number of shares of Common Stock available for Awards under the Plan. The number of shares available for Awards under the Plan will, however, may be reduced by the number of shares of Common Stock acquirable upon exercise of the Stock Option to which such Stock Appreciation Right relates.
| 8. | Restricted Stock. |
8.1 Grant. Shares of Restricted Stock may be awarded either alone or in addition to other Awards granted under the Plan. The Committee, subject to Board authorization, if indicated, shall determine the eligible persons to whom, and the time or times at which, grants of Restricted Stock will be awarded, the number of shares to be awarded, the price (if any) to be paid by the Holder, the time or times within which such Awards may be subject to forfeiture (“ Restriction Period “), the vesting schedule and rights to acceleration thereof, and all other terms and conditions of the Awards.
8.2 Terms and Conditions. Each Restricted Stock Award shall be subject to the following terms and conditions:
(a) Certificates. Restricted Stock, when issued, will be represented by a stock certificate or certificates registered in the name of the Holder to whom such Restricted Stock shall have been awarded. During the Restriction Period, certificates representing the Restricted Stock and any securities constituting Retained Distributions (as defined below) shall bear a legend to the effect that ownership of the Restricted Stock (and such Retained Distributions), and the enjoyment of all rights appurtenant thereto, are subject to the restrictions, terms and conditions provided in the Plan and the Agreement. Such certificates shall be deposited by the Holder with the Company, together with stock powers or other instruments of assignment, each endorsed in blank, which will permit transfer to the Company of all or any portion of the Restricted Stock and any securities constituting Retained Distributions that shall be forfeited or that shall not become vested in accordance with the Plan and the Agreement.
(b) Rights of Holder. Restricted Stock shall constitute issued and outstanding shares of Common Stock for all corporate purposes. The Holder will have the right to vote such Restricted Stock, to receive and retain all regular cash dividends and other cash equivalent distributions as the Board may in its sole discretion designate, pay or distribute on such Restricted Stock and to exercise all other rights, powers and privileges of a holder of Common Stock with respect to such Restricted Stock, with the exceptions that (i) the Holder will not be entitled to delivery of the stock certificate or certificates representing such Restricted Stock until the Restriction Period shall have expired and unless all other vesting requirements with respect thereto shall have been fulfilled; (ii) the Company will retain custody of the stock certificate or certificates representing the Restricted Stock during the Restriction Period; (iii) other than regular cash dividends and other cash equivalent distributions as the Board may in its sole discretion designate, pay or distribute, the Company will retain custody of all distributions (“Retained Distributions”) made or declared with respect to the Restricted Stock (and such Retained Distributions will be subject to the same restrictions, terms and conditions as are applicable to the Restricted Stock) until such time, if ever, as the Restricted Stock withrespect to which such Retained Distributions shall have been made, paid or declared shall have become vested and with respect to which the Restriction Period shall have expired; (iv) a breach of any of the restrictions, terms or conditions contained in this Plan or the Agreement or otherwise established by the Committee with respect to any Restricted Stock or Retained Distributions will cause a forfeiture of such Restricted Stock and any Retained Distributions with respect thereto.
(c) Vesting; Forfeiture. Upon the expiration of the Restriction Period with respect to each Award of Restricted Stock and the satisfaction of any other applicable restrictions, terms and conditions (i) all or part of such Restricted Stock shall become vested in accordance with the terms of the Agreement, subject to Section 10, below, and (ii) any Retained Distributions with respect to such Restricted Stock shall become vested to the extent that the Restricted Stock related thereto shall have become vested, subject to Section 10, below. Any such Restricted Stock and Retained Distributions that do not vest shall be forfeited to the Company and the Holder shall not thereafter have any rights with respect to such Restricted Stock and Retained Distributions that shall have been so forfeited.
| 6 |
| 9. | Other Stock-Based Awards. |
Other Stock-Based Awards may be awarded, subject to limitations under applicable law, that are denominated or payable in, valued in whole or in part by reference to, or otherwise based on, or related to, shares of Common Stock, as deemed by the Committee to be consistent with the purposes of the Plan, including, without limitation, purchase rights, shares of Common Stock awarded which are not subject to any restrictions or conditions, or other rights convertible into shares of Common Stock and Awards valued by reference to the value of securities of or the performance of specified Subsidiaries. Other Stock- Based Awards may be awarded either alone or in addition to or in tandem with any other Awards under this Plan or any other plan of the Company. Each other Stock-Based Award shall be subject to such terms and conditions as may be determined by the Committee.
| 10. | Accelerated Vesting and Exercisability. |
10.1 Approved Transactions. The Committee may, subject to Board authorization, if indicated, in the event of an acquisition of substantially all of the Company’s assets or at least 50% of the combined voting power of the Company’s then outstanding securities in one or more transactions (including by way of merger or reorganization) which has been approved by the Company’s Board of Directors, (i) accelerate the vesting of any and all Stock Options and other Awards granted and outstanding under the Plan, and (ii) require a Holder of any Award granted under this Plan to relinquish such Award to the Company upon the tender by the Company to Holder of cash in an amount equal to the Repurchase Value of such Award. Notwithstanding the foregoing, for a Holder that is terminated without cause within six (6) months of said acquisition, the vesting of any and all Stock Options and other Awards granted and outstanding under the Plan shall be accelerated.
| 11. | Amendment and Termination. |
11.1 The Board may at any time, and from time to time, amend alter, suspend or discontinue any of the provisions of the Plan, but no amendment, alteration, suspension or discontinuance shall be made that would impair the rights of a Holder under any Agreement theretofore entered into hereunder, without the Holder’s consent.
| 12. | Term of Plan. |
12.1 Effective Date. The Plan shall become effective at such time as the Plan is approved and adopted by the Company’s Board of Directors (the “ Effective Date “).
12.2 Termination Date. Unless otherwise terminated by the Board, this Plan shall continue to remain effective until the earlier of ten (10) years from the Effective Date or such time as no further Awards may be granted and all Awards granted under the Plan are no longer outstanding.
| 13. | Leak Out/No Shorting. |
13.1 Leak Out. The transfer of any Common Stock received by a Director, Employee, of Advisor as a result of an award or issuance of Stock Options, Stock Appreciation Rights, Restricted Stock, or Other Stock- Based Awards by the Company under or pursuant to this Plan equal to or greater than of One Hundred Thousand (100,000.00) shares at the time of issuance or award, shall be limited to selling or transferring up to one percent (1%) of the total issued and outstanding shares over a rolling 90-day period for the duration of 365 days from the date of the issuance of the Common Stock.
13.2 No Shorting. The Holder agrees that during the Lock Up Period, they, or any of their affiliates, shall not short sell the Common Stock and shall abide by any anti-shorting provisions in any remaining Covered Loan Agreements.
| 14. | General Provisions. |
14.1 Written Agreements. Each Award granted under the Plan shall be confirmed by, and shall be subject to the terms, of the Agreement executed by the Company and the Holder. The Committee may terminate any Award made under the Plan if the Agreement relating thereto is not executed and returned to the Company within 10 days after the Agreement has been delivered to the Holder for his or her execution.
| 7 |
14.2 Unfunded Status of Plan. The Plan is intended to constitute an “unfunded” plan for incentive and deferred compensation. With respect to any payments not yet made to a Holder by the Company, nothing contained herein shall give any such Holder any rights that are greater than those of a general creditor of the Company.
14.3 Officers, Directors, Employees, Consultants, and Advisors.
(a) Disclosure of Confidential Information. If a Holder’s employment with the Company or a Subsidiary is terminated for any reason whatsoever, and within six months after the date thereof such Holder discloses to anyone outside the Company or uses any confidential information or material of the Company in violation of the Company’s policies or any agreement between the Holder and the Company, the Committee, in its sole discretion, may require such Holder to return to the Company the economic value of any Award that was realized or obtained by such Holder at any time during the period beginning on that date that is six months prior to the date such Holder’s employment with the Company is terminated.
(b) Termination for Cause. If a Holder’s employment with the Company or a Subsidiary is terminated for cause, subsequent to the grant of any Award under this Plan to such employee, the Committee, in its sole discretion, may require such Holder to return to the Company the economic value of any Award that was realized or obtained by such Holder at any time following the grant date of such Award.
(c) No Right of Employment. Nothing contained in the Plan or in any Award hereunder shall be deemed to confer upon any Holder who is an employee of the Company or any Subsidiary any right to continued employment with the Company or any Subsidiary, nor shall it interfere in any way with the right of the Company or any Subsidiary to terminate the employment of any Holder who is an employee at any time.
14.4. Investment Representations; Company Policy. The Committee may require each person acquiring shares of Common Stock pursuant to a Stock Option or other Award under the Plan to represent to and agree with the Company in writing that the Holder is acquiring the shares for investment without a view to distribution thereof. Each person acquiring shares of Common Stock pursuant to a Stock Option or other Award under the Plan shall be required to abide by all policies of the Company in effect at the time of such acquisition and thereafter with respect to the ownership and trading of the Company’s securities.
14.5 Additional Incentive Arrangements. Nothing contained in the Plan shall prevent the Board from adopting such other or additional incentive arrangements as it may deem desirable, including, but not limited to, the granting of Stock Options and the Awarding of Common Stock and cash otherwise than under the Plan; and such arrangements may be either generally applicable or applicable only in specific cases.
14.6 Governing Law. The Plan and all Awards made and actions taken thereunder shall be governed by and construed in accordance with the laws of the State of Wyoming.
14.7 Other Benefit Plans. Any Award granted under the Plan shall not be deemed compensation for purposes of computing benefits under any retirement plan of the Company or any Subsidiary and shall not affect any benefits under any other benefit plan now or subsequently in effect under which the availability or amount of benefits is related to the level of compensation (unless required by specific reference in any such other plan to Awards under this Plan).
14.8 Non-Transferability. Except as otherwise expressly provided in the Plan or the Agreement, no right or benefit under the Plan may be alienated, sold, assigned, hypothecated, pledged, exchanged, transferred, encumbered or charged, and any attempt to alienate, sell, assign, hypothecate, pledge, exchange, transfer, encumber or charge the same shall be void.
14.9 Applicable Laws. The obligations of the Company with respect to all Stock Options and Awards under the Plan shall be subject to (i) all applicable laws, rules and regulations and such approvals by any governmental agencies as may be required, including, without limitation, the Securities Act of 1933, as amended, and (ii) the rules and regulations of any securities exchange on which the Common Stock may then be listed.
| 8 |
14.10 Conflicts. If any of the terms or provisions of any Agreement conflicts with any terms or provisions of the Plan, then such terms or provisions shall be deemed inoperative to the extent they so conflict with the requirements of the Plan. Additionally, if any Agreement does not contain any provision required to be included therein under the Plan, such provision shall be deemed to be incorporated therein with the same force and effect as if such provision had been set out at length therein.
14.11 Non-Registered Stock. The shares of Common Stock to be distributed under this Plan have not been, as of the Effective Date, registered under the Securities Act of 1933, as amended, or any applicable state or foreign securities laws and the Company has no obligation to any Holder to register the Common Stock or to assist the Holder in obtaining an exemption from the various registration requirements, or to list the Common Stock on a national securities exchange or any other trading or quotation system.
14.13 Venue. Any litigation allowable under the Plan and/or the Stock Option Award Agreement may be brought only in the State of North Carolina, notwithstanding that the Holder is not at the time a resident of the State of North Carolina and cannot be served process within that State. Holder hereby irrevocably consents to the jurisdiction of the courts of North Carolina (whether Federal or State courts) over his/her person.
14.14 Arbitration. Any controversy or claim arising out of or relating to the Plan and/or Stock Option Award Agreement shall be settled by arbitration administered by the American Arbitration Association under its Employment Arbitration Rules and Mediation Procedures and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
| 9 |
FORM OF STOCK OPTION AWARD AGREEMENT
American Picture House Corporation
____________
____________
____________
Date:____________
______________
______________
______________
| Re: | Stock Option |
Dear M__________ :
We are pleased to advise you that, on __/__/20__, the Board of Directors of American Picture House Corporation (the “Company”) authorized the Award to you (“Recipient” or “_____ “ or “you”) of an option to purchase ________________(___________) shares of our common stock, par value $0.0001 per share (the “Option”), upon the following terms and conditions:
1. The Option is granted in accordance with and subject to the terms and conditions of the Company’s 2023 Directors, Employees and Advisors Stock Incentive and Compensation Plan (the “Plan”).
2. The Option is exercisable commencing on _/_/20 and terminating at 5:00 pm New York time on _/_/20__ .
3. The price at which the Option may be exercised is $_.__per share.
4. The Option is non-transferable and may be exercised, in whole or in part, during the exercise period, only by you, except that upon your death, the Option may be exercised strictly in accordance with the terms and conditions of the Plan.
5. The exercise price and number of shares issuable upon exercise of the Option (the “Option Shares”) are subject to adjustment in accordance with the Plan in the event of stock splits, dividends, reorganizations and similar corporate events.
6. If neither the Option nor the Option Shares have been registered under the Securities Act of 1933, as amended (the “Act”), the Option Shares may not be sold, assigned, pledged, transferred or otherwise disposed of absent registration under the Act or the availability of an applicable exemption from registration. All certificates evidencing the Option Shares will contain a legend describing this restriction on resale of the Option Shares. There is no assurance that there will be a public market into which you may sell the Option Shares or that you will be able to sell your Option Shares at a profit or at all.
7. In order to exercise the Option, you must provide us with written notice that you are exercising all or a portion of your Option. The written notice must specify the number of Option Shares that you are exercising your Option for, and must be accompanied by the exercise price described in paragraph 3, above. You agree to execute and deliver such additional documents as we may request in connection with and as a condition to your ability to exercise the Option. Your Option Shares will be issued to you within approximately one week following our receipt of your exercise notice, cleared funds evidencing the exercise price and any additional documents we may request.
8. At the time you exercise the Option, you acknowledge that the Option Shares cannot be issued to you without a restrictive legend and may not be resold by you except in accordance with the provisions of Rule 144 of the Act.
| 10 |
9. No rights or privileges of a shareholder of the Company are conferred by reason of the grant of the Option to you. You will have no rights of a shareholder until you have delivered your exercise notice to us and we have received the exercise price of the Option in cleared funds.
10. You understand that the Plan contains important information about your Option and your rights with respect to the Option. The Plan includes terms relating to your right to exercise the Option; important restrictions on your ability to transfer the Option or Option Shares; provisions relating to adjustments in the number of Option Shares and the exercise price; and early termination of the Option following the occurrence of certain events; including the termination of your relationship with us. By signing below, you acknowledge your receipt of a copy of the Plan. By acceptance of your Option, you agree to abide by the terms and conditions of the Plan.
11. You understand and acknowledge that your execution of this Agreement subjects all APHP shares currently held for you at the Company’s transfer agent at the time of your execution of this Agreement to the terms, conditions, and restrictions set out in this Agreement and the Plan.
12. Our business is subject to many risks and uncertainties. The exercise of your Option is a speculative investment and there is no assurance that you will realize a profit on the sale of Option Shares received upon exercise of your Option.
13. The Recipient acknowledges that he, she or it is, will be, or may be in possession of Confidential Information concerning the business of the Company (the “Business”), including, but not limited to, information about markets, key personnel, current and prospective customers and other business affairs and methods and other information not readily available to the public; provided, however, that, for purposes of this Agreement, Confidential Information shall not include information which (a) is or becomes generally available to the public other than as a result of wrongful disclosure by the Recipient, or (b) becomes available to the Recipient, as applicable, from a third party without restriction or breach of this Agreement and, to the knowledge of the Recipient, as applicable, without breach of any other confidentiality obligation owed to the Company. As a means reasonably designed to protect the Confidential Information, from the Effective Date above until the second anniversary of the Effective Date, the Sellers agree that they will not, directly or indirectly (including through their Affiliates), engage in, assist (financially or otherwise), render services to, or perform any activity that is competitive with the Business (the “Protected Activities”), in any territory in which the Company does business. Also as a means reasonably designed to protect the Confidential Information, from the Effective Date above until the second anniversary of the Effective Date, the Recipient agrees that he, she or it will not, directly or indirectly (including through his, her or its Affiliates), engage in, assist (financially or otherwise), render services to, or perform any activity that is competitive with the Company and substantially similar to the services rendered or the activities performed by the Company (the “Protected Activities”) in the capacity of a shareholder, officer, director or other management personnel, whether as an employee or an independent contractor, in any territory in which the Company does business. For avoidance of doubt, the Recipient’s engaging in any Excluded Business shall not be limited by this Section 12. Notwithstanding the foregoing, the Recipient may own, directly or indirectly, an aggregate of no more than one percent (1%) of the outstanding stock or other equity interest of or in any publicly traded corporation or other business enterprise that engages in the Protected Activities, provided that such participation therein is solely as a passive investor and does not include any role, as applicable, as director, officer, manager or other service provider.
14. From the Effective Date until the second anniversary of the Effective Date, the Recipient will not, without the prior written consent of the Company, directly, indirectly (including through his, her or its Affiliates) or as an agent on behalf of or in conjunction with any person, firm, partnership, corporation or other entity: (a) hire, solicit, encourage the resignation of, or in any other manner seek to engage or employ, any person who, as of the Effective Date or at any time during the six (6) month period prior thereto, was an employee of the Company, whether or not for compensation and whether as an officer, employee, consultant, adviser, independent sales representative, vendor, independent contractor or participant, or (b) contact, solicit, service or otherwise have any dealings with any person or entity with whom the Company has a then-current business relationship or if such contact, solicitation or other dealings could reasonably be expected to adversely impact the Company’s relationship with such person or entity.
| 11 |
15. Unless otherwise approved in writing by the Company, the Recipient covenants and agrees that he, she or it will not use for any purpose and will keep secret and will not intentionally disclose to anyone other than the Company, wherever located, any and all Confidential Information during the term of this Agreement or for two years after the Effective Date hereof.
16. The Option will become effective upon your acknowledgment of the terms and conditions of this Agreement and your delivery to us of a signed counterpart of this Agreement.
17. This Agreement and Plan contain all of the terms and conditions of your Option and supersedes all prior agreements or understandings relating to your Option. This Agreement shall be governed by the laws of the State of Wyoming, without regard to the conflicts of law provisions thereof.
18. Any litigation allowable under the Plan and/or this Stock Option Award Agreement may be brought only in the State of North Carolina, notwithstanding that the Holder is not at the time a resident of the State of North Carolina and cannot be served process within that State. Holder hereby irrevocably consents to the jurisdiction of the courts of North Carolina (whether Federal or State courts) over his/her person.
19. Any controversy or claim arising out of or relating to the Plan and/or Stock Option Award Agreement shall be settled by arbitration administered by the American Arbitration Association under its Employment Arbitration Rules and Mediation Procedures and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
20. This Agreement may be only amended in writing signed by you and the Company.
Very truly yours,
_________________________
_______________
Corporate Secretary
| AGREED TO AND ACCEPTED THIS | |
| _____DAY OF ________20__ | |
| (Signature) | |
| (Print Name) |
| 12 |
Exhibit 10.5
APHP/BC ASSET PURCHASE AGREEMENT AND
DESIGNATION OF BC AS A DESIGNATED APHP DEVELOPER
This Asset Purchase and Designated Developer Agreement (this “Agreement”) is made and entered into on November 10th, 2022, by and among American Picture House Corporation, a Wyoming corporation with principal offices at 555 Madison Avenue (5FL), NY, NY 10022 (“Buyer” or “APHP”); and Bold Crayon Corporation, a Wyoming corporation with principal offices at 4242 Six Forks Road, North Hills (Suite 1550), Raleigh, NC 27609 (“Seller” or “BC”). (Hereinafter collectively referred to in the singular as “Party” and in the plural “Parties”). Capitalized terms used herein shall have the meanings ascribed to them in Schedule 1.
Recitals
Whereas, Buyer desires to purchase from Seller, and Seller desires to sell to Buyer, all of the rights, title and interest in, to certain film related assets (the “BC Assets”) as further defined herein, of the Seller subject to the terms and conditions of this Agreement;
Whereas, Buyer also desires to secure the services of the Seller, specifically to have the Seller act as a designated developer of content for the Buyer and the Seller desires to provide such services to the Buyer; and
Whereas, Buyer is a publicly-traded company with a current common share (“Common Share”) price on the Over-The-Counter (“OTC”) Market under the trading symbol (“APHP”) as of the above-mentioned date of two and three tenths of a cent ($0.023 USD) and a extrapolated preferred share (“Preferred Share”) price of two thousand three hundred dollars ($2,300.00 USD), based on the Preferred Shares’ convertibility clause which allows the holder to exchange one Preferred Share for one hundred thousand (100,000) Common Shares.
Agreement
Now, Therefore, in consideration of the promises and the mutual covenants contained herein, the Parties agree as follows:
ARTICLE I
SALE AND PURCHASE OF ASSETS
| 1.01 | Sale and Purchase of Assets. |
| (a) | BC Assets. On the terms and subject to the conditions of this Agreement, at the Closing, Seller shall sell, convey, assign, transfer and deliver to Buyer, and Buyer shall purchase, acquire and accept delivery of, all right, title and interest in the BC Assets (as defined below), free and clear of all Liens, except as otherwise noted herein. It is specifically understood and agreed by the Parties hereto that Buyer is acquiring, and Seller is selling, the below assets owned by the Seller: |
The BC Assets:
| i. | BC’s ownership in the feature film “BUFFALOED” inclusive of: |
| ● | BC’s ownership rights in BUFFALOED as per the agreements between BC and Lost City Inc (“Lost City”), the Co-Finance/ Co-Production Agreement dated July 10th, 2018 and its preceding term sheet. |
Of Note: As of the date of signing hereof, the above-mentioned IP pertaining to BUFFALOED, upon information and BC’s belief, is held one hundred percent (100%) in the name of Lost City’s parent company, “Maker Investment Partners Pty Ltd” (“Maker”), which in BC’s opinion is contrary to the Lost City/BC agreements. Further, it is more than likely that BC will have to pursue arbitration in the state of California to correct this issue. BC reserves its right to arbitrate with Lost City and/or Maker, but makes no that such arbitration shall be initiated.
| 1 | P a g e |
| ● | A secured position of a one million three hundred eighty-thousand-dollar ($1,380,000.00 USD) receivable against the film’s revenues as per the film’s Cash Asset Management Agreement (“CAMA”). |
| ● | A thirty-five percent (35%) beneficial ownership interest as per the film’s CAMA. |
Of Note: As of the date of signing hereof, the above-mentioned CAMA pertaining to BUFFALOED is currently unsigned; however, BC reasonable believes that the CAMA will be signed by all the parties to the CMA within the next quarter.
| ii. | Title and all copyrights to “THIEF” (including five titles) (U.S. Copyright #: V9968D472 (2019)), BC will transfer such copyrights to APHP and APHP will file the necessary documents with the U.S. Library of Congress to effectuate such transfer; and |
| iii. | Title and copyright to “SPREAD THE WORD” (U.S. Copyright #: V9968D474 (2019)) BC will transfer such copyrights to APHP and APHP will file the necessary documents with the U.S. Library of Congress to effectuate such transfer. |
| (b) | Method of Conveyance. The sale, transfer, conveyance, assignment and delivery by Seller of the BC Assets to Buyer on the Closing Date by Seller’s execution and delivery to Buyer of one or more bills of sale, assignments and other conveyance instruments with respect to Seller’s transfer of the BC Assets including but not necessarily limited to all Intangible Rights in form and scope reasonably satisfactory to Buyer (collectively the “Conveyance Documents”). At the Closing, Seller shall transfer, convey, assign and deliver good, valid and, to the extent applicable, marketable title to the BC Assets to Buyer pursuant to the Conveyance Documents, free and clear of any and all liabilities, obligations, debts, costs, expenses, encumbrances, and Liens. |
| (c) | Liabilities. Except as otherwise provided herein, in no event shall Buyer assume or be responsible for or be required to pay, perform, or discharge any liability, obligation, debt, cost, expense or commitment of Seller, whether absolute or contingent, accrued or unaccrued, asserted or unasserted, known or unknown, or otherwise, all of which shall be retained by Seller. |
| 1.02 | Consideration for Assets. |
| (a) | Consideration. As consideration for the BC Assets being acquired by Buyer hereunder, Buyer shall pay to Seller the below purchase price (the “Purchase Price”) on or before the Closing Date: |
| i. | APHP shall provide a promise in the form of a contingent promissory note to pay BC the first one hundred thirty thousand dollars ($130,000.00 USD) that APHP collects from the BUFFALOED receivable (referred to in Section 1.01, subsection (a)(i.)); |
| ii. | APHP shall promise to deliver one Preferred Share to BC for each ten thousand dollars ($10,000.00 USD), in value paid to the APHP from the BUFFALOED receivable above the one hundred thirty thousand dollars ($130,000.00 USD), not to exceed one hundred twenty-five (125) Preferred Shares. (This right ultimately entitles the Seller to purchase the Common Shares for ten cents ($0.10 USD) per share possibly far into the future). |
| iii. | APHP shall promise to designate BC as an APHP content development partner (“Content Partner”) for and among other reasons, and in exchange for the thirty-five percent (35%) beneficial ownership interest as per the BUFFALOED CAMA. |
| 2 | P a g e |
| iv. | Co-producer agreements entitling BC to certain limited rights in any production resulting from the use of the THIEF or SPREAD THE WORD IP (referred to in Section 1.01, subsection (a)(ii.) and ((iii.)) including: |
| ● | An “In Association” credit for each production; |
| ● | Two “Executive Producer” credits for each production; and |
| ● | Two “Producer” credits and such other compensation to Producers under work for hire as mutually agreed for each production. |
ARTICLE II
DESIGNATED CONTENT PARTNER
| 2.01 | Designated Content Partner. The Parties agree that APHP will designated BC as a “Content Partner” wherein BC will develop content and present APHP with a first opportunity to co-finance and/or co- produce content developed by BC subject to a mutually agreed upon Content Partner Agreement and BC will accept such designation. |
ARTICLE III
CLOSING
| 3.01 | Closing. The closing of the transactions contemplated hereby (the “Closing”) shall occur on or before the close of business on December 31st, 2022, at such place as may be mutually agreeable to Seller and Buyer. The date upon which the Closing occurs is hereinafter referred to as the “Closing Date.” |
| 3.02 | Conditions to the Obligations of Buyer to Close. The obligations of Buyer to consummate the transactions contemplated by this Agreement are subject to the satisfaction or waiver, at or prior to the Closing, of the following conditions: |
| (a) | Deliveries. At or prior to the Closing, Seller shall deliver to Buyer, as applicable, the items set forth on Schedule 2. |
| 3.03 | Conditions to the Obligations of Seller to Close. The obligations of Seller to consummate the transactions contemplated by this Agreement are subject to the satisfaction or waiver, at or prior to the Closing, of the following conditions: |
| (a) | Deliveries. At or prior to the Closing, Buyer shall deliver to Seller the items set forth on Schedule |
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer that:
| 4.01 | Existence. Seller is a corporation, duly incorporated, validly existing and in good standing under the laws of the State of Wyoming and has the power to own, manage, lease and hold its Properties and to carry on its business as and where such Properties are presently located and such business is presently conducted. |
| 4.02 | Authority, Approval and Enforceability. This Agreement has been duly executed and delivered by Seller; Seller has all requisite power and legal capacity to execute and deliver this Agreement and all Collateral Agreements executed and delivered or to be executed and delivered in connection with the transactions provided for hereby, to consummate the transactions contemplated hereby and by the Collateral Agreements, and to perform its obligations hereunder and under the Collateral Agreements. The execution and delivery of this Agreement and the Collateral Agreements and the performance of the transactions contemplated hereby and thereby has been duly and validly authorized and approved by all action necessary on behalf of Seller. Each of this Agreement and each Collateral Agreement to which Seller is a party constitutes the legal, valid, and binding obligation of such party, enforceable in accordance with its terms. |
| 3 | P a g e |
| 4.03 | Sale Free and Clear of Liens. On the terms and subject to the conditions of this Agreement, at the Closing, Seller shall sell, convey, assign, transfer and deliver to Buyer, and Buyer shall purchase, acquire and accept delivery of, all right, title and interest in the BC Assets, free and clear of all Liens. It is specifically understood and agreed by the Parties hereto that Buyer is acquiring, and Seller is selling, the intangible BC Assets owned by the Seller. |
ARTICLE
V
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller that:
| 5.01 | Existence. Buyer is a corporation duly organized, validly existing and in good standing under the laws of the State of Wyoming. Buyer has the power to own, manage, lease and hold its properties and to carry on its business as and where such properties are presently located and such business is presently conducted. |
| 5.02 | Authority, Approval and Enforceability. This Agreement has been duly executed and delivered by Buyer, and Buyer has all requisite corporate power to execute and deliver this Agreement and all Collateral Agreements executed and delivered or to be executed and delivered by Buyer, as applicable, in connection with the transactions provided for hereby, to consummate the transactions contemplated hereby and by the Collateral Agreements, and to perform its respective obligations hereunder and under the Collateral Agreements. The execution and delivery of this Agreement and the Collateral Agreements and the performance of the transactions contemplated hereby and thereby have been duly and validly authorized and approved by all action necessary on behalf of Buyer. This Agreement and each Collateral Agreement to which Buyer is a party constitutes, or upon execution and delivery will constitute, the legal, valid, and binding obligation of Buyer, enforceable in accordance with its terms, except as such enforcement may be limited by general equitable principles or by applicable bankruptcy, insolvency, moratorium, or similar laws and judicial decisions from time to time in effect which affect creditors’ rights generally. |
| 5.03 | The BUFFALOED Cash Asset Management Agreement (“CAMA”) is Not Executed. As of the date signed hereof the Buyer acknowledges that the BUFFALOED CAMA is currently not signed. |
ARTICLE VI
POST-CLOSING OBLIGATIONS
| 6.01 | Further Assurances. Following the Closing, Seller or Buyer shall execute and deliver such documents, and take such other action, as shall be reasonably requested by Seller or Buyer to carry out the transactions contemplated by this Agreement. Seller shall, and shall cause its respective Affiliates, employees, consultants and agents to, take all reasonable actions necessary and reasonably requested by Buyer to facilitate the orderly transition of the BC Assets of Seller to Buyer. |
ARTICLE VII
MISCELLANEOUS
| 7.01 | Survival. The representations and warranties of the Parties set forth in this Agreement shall survive and continue to be in full force and effect. |
| 7.02 | Brokers. Seller and Buyer each represent to one another that no Broker has been used with respect to this transaction. |
| 4 | P a g e |
| 7.03 | Notices. Any notice, request, instruction, correspondence, or other document to be given hereunder by any Party hereto to another shall be in writing and delivered personally, sent by facsimile or sent by overnight courier, charges prepaid, as follows: |
Each of the above addresses at the beginning of this Agreement for notice purposes may be changed by providing appropriate notice hereunder. Notice given: (i.) by personal delivery shall be effective upon actual receipt, (ii.) by facsimile shall be effective upon the date sent (with confirmation) if sent before 5:00 p.m. on a Business Day, and if not, on the next business day, and (iii.) by overnight courier, on the date delivered. Anything to the contrary contained herein notwithstanding, notices to any Party hereto shall not be deemed effective with respect to such Party until such notice would, but for this sentence, be effective both as to such Party and as to all other Persons to whom copies are provided above to be given.
| 7.04 | Governing Law. The provisions of this agreement and the documents delivered pursuant hereto shall be governed by and construed in accordance with the laws of the State of Wyoming (excluding any conflict of law rule or principle that would result in the application of the laws of another jurisdiction). |
| 7.05 | Entire Agreement; Amendments and Waivers. This Agreement, together with all exhibits (if any) and schedules attached hereto, constitutes the entire agreement between and among the Parties hereto pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the Parties with respect to such subject matter. No amendment, supplement, modification or waiver of this Agreement shall be binding unless executed in writing by the Party to be bound thereby. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (regardless of whether similar), nor shall any such waiver constitute a continuing waiver unless otherwise expressly provided. |
| 7.06 | Binding Effect and Assignment. This Agreement shall be binding upon, inure to the benefit of and be enforceable by the Parties hereto and their respective permitted successors and assigns; but neither this Agreement nor any of the rights, benefits or obligations hereunder shall be assigned, by operation of law or otherwise, by any Party hereto without the prior written consent of the Buyer and Seller; provided, however, that nothing herein shall prohibit the assignment of Buyer’s rights and obligations to any Affiliate or direct or indirect Subsidiary or any Person acquiring the assets, business, or equity securities of Buyer or prohibit the assignment of Buyer’s rights (but not obligations) to any lender. Nothing in this Agreement, express or implied, is intended to confer upon any Person or entity other than the Parties hereto and their respective permitted successors and assigns, any rights, benefits or obligations hereunder. |
| 7.07 | Remedies. Except as otherwise provided herein, the rights and remedies provided by this Agreement are cumulative, and the use of any one right or remedy by any Party hereto shall not preclude or constitute a waiver of its right to use any or all other remedies a Party may have by law, statute or otherwise. |
| 7.08 | Exhibits and/or Schedules. The exhibits and schedules referred to herein are attached hereto and incorporated herein by this reference. A disclosure in any particular Schedule, or otherwise, in this Agreement will be deemed adequate to disclose another exception to a representation or warranty made herein if the disclosure identifies the exception with reasonable particularity so that any exception to any other Schedule is reasonably apparent. The Parties hereto intend that each representation, warranty and covenant contained herein will 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 the Party has not breached will not detract from or mitigate the fact that the Party is in breach of the first representation, warranty or covenant. |
| 7.09 | Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. |
| 5 | P a g e |
| 7.10 | References and Construction. |
| (a) | Whenever required by the context, and as used in this Agreement, the singular number shall include the plural and pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identification the Person may require. References to monetary amounts, specific named statutes and generally accepted accounting principles are intended to be and shall be construed as references to United States dollars, statutes of the United States or any individual state thereof and United States generally accepted accounting principles, respectively, unless the context otherwise requires. |
| (b) | The provisions of this Agreement shall be construed according to their fair meaning and neither for nor against any Party hereto irrespective of which Party caused such provisions to be drafted. Each of the Parties acknowledge that it has been represented by an attorney in connection with the preparation and execution of this Agreement. |
| 7.11 | Attorneys’ Fees. In the event any suit or other legal proceeding is brought for the enforcement of any of the provisions of this Agreement, the Parties hereto agree that the prevailing Party or Parties shall be entitled to recover from the other Party or Parties upon final judgment on the merits reasonable attorneys’ fees (and sales taxes thereon, if any), including attorneys’ fees for any appeal, and costs incurred in bringing such suit or proceeding. |
| 7.12 | Other Assets of BC. Parties acknowledge that BC will continue to own other assets, which when collectively valued as of the date of this Agreement, constitute, as represented by BC’s management, a value greater than the value of the BC Assets being transferred to APHP. |
| 7.13 | BC’s Continuation as a Business and Non-Compete with APHP. It is anticipated by the Parties that BC will continue to operate its business including and not limited to its business related to the Film Industry. BC will not compete with APHP on any of the BC assets; however, if APHP, fails to negotiate an acceptable deal with BC within ninety (90) of BC offering APHP such deal, on any other film properties which are secured by BC subsequent to the signing of this Agreement, then, and only then will BC be entitled to seek an alternative deal with other third-parties. |
| 7.14 | Disclosure Regarding Related Parties. As of the above-mentioned date, Bannor Michael MacGregor is the CEO/President and a director of APHP, Mr. MacGregor owns three and thirty-eight thousandths percent (3.038%) of the common shares of APHP. Mr. MacGregor is a Managing Manager of Hyperion Sprung Private Family Trust Management Company, LLC, the trustee of The Noah Morgan Private Family Trust which owns 31.430% of the common shares of APHP. Mr. MacGregor is a Managing Member and a shareholder of Duncan Morgan LLC which owns three and thirty-eight thousandths percent (3.038%) of the common shares of APHP, and Mr. MacGregor is the Managing Manager of Bold Crayon Family Trust Management Company, LLC, the trustee of The Bold Crayon Private Family Trust which owns two and nine hundred seventy-one thousandths percent (2.971%) of the common shares of APHP (Mr. MacGregor’s common shares and the common shares of these three entities, in aggregate, hold forty and four hundred seventy-seven thousandths percent (40.477%) of the common shares of APHP), and Mr. MacGregor owns one hundred percent (100%) of the Preferred Shares of APHP which grant Mr. MacGregor controlling interest in APHP. Mr. MacGregor is also the CEO/President and a director of BC and as stated above effectively controls BC as a managing manager of the trustee of the trust that owns the majority ownership interest in BC. Mr. Michael Blanchard is the Secretary/Treasurer and a director of APHP, Mr. Blanchard, is a past Director and Secretary/Treasurer of Bold Crayon, and Mr. Blanchard owns three and seven hundred seventeen thousandths percent (3.717%) of the common shares of APHP. Donald J. Harris, esq. is a director of APHP, owns three and one hundred fifty-seven thousandths percent (3.157%) of APHP and is a partner at Harris Sarratt & Hodges, LLP, a firm which APHP utilizes for legal services. |
| 7.15 | Potential and/or Perceived Conflicts of Interest. To avoid potential conflicts of interest or perceived conflicts of interest between the Parties, APHP will cause Mr. MacGregor, Mr. Blanchard, and Mr. Harris, esq. to abstain from any votes conducted by APHP’s Board of Directors pertaining to this Agreement. |
| 6 | P a g e |
SIGNATURES
EXECUTED as of the date first written above.
| BUYER: | ||
| American Picture House Corporation, a Wyoming corporation (“Buyer” or “APHP”) | ||
| By: | /s/ Michael Blanchard | |
| Michael Blanchard, Secretary | ||
| SELLER: | ||
| Bold Crayon Corporation, a Wyoming corporation (“Seller” or “BC”) | ||
| By: | /s/ Bannor Michael MacGregor | |
| Bannor Michael MacGregor, CEO/President | ||
____
Acknowledged:
American Picture House Corporation, a Wyoming corporation (“Buyer” or “APHP”)
| By: | e- Signature on File | |
| Michael Wilson, Director for the Board and Chairman of the Compensation/Valuation Committee | ||
| 7 | P a g e |
Schedule 1 – Definitions
Affiliate. The term “Affiliate” means, with respect to any Person, any other Person controlling, controlled by or under common control with such Person, or the spouse, parent, child, or sibling of such Person. The term “control” as used in the preceding sentence means the right to exercise, directly or indirectly, more than fifty percent (50%) of the voting rights attributable to the equity interests of an entity or the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person.
Agreement. The term “Agreement” has the meaning set forth in the preamble.
Acquired Contracts. The term “Acquired Contracts” means all contracts that are part of the Buyer’s bid for the Assets that are ultimately assumed by the Seller and assigned by the Seller to the.
BC Assets. The term “BC Assets” means all rights and interest of every kind or nature owned by Seller in connection with: (i.) the feature film “BUFFALOED”, (ii.) the IP related to “THIEF” including five titles (U.S. Copyright #: V9968D472 (2019)), (iii.) the IP related to “SPREAD THE WORD” (U.S. Copyright #: V9968D474 (2019)) and including, without limiting the generality of the foregoing:
Buyer. The term “Buyer” has the meaning set forth in the preamble. Closing. The term “Closing” has the meaning set forth in Section 2.01.
Closing Date. The term “Closing Date” has the meaning set forth in Section 2.01. Code. The term “Code” means the Internal Revenue Code of 1986, as amended.
Collateral Agreements. The term “Collateral Agreements” means any or all of the exhibits to this Agreement and any and all other agreements, certificates, instruments or documents required or expressly provided under this Agreement to be executed and delivered in connection with the transactions contemplated in connection with this Agreement.
Company Intangible Rights. The term “Company Intangible Rights” mean all Intangible Rights that are owned, licensed or controlled by Seller or are otherwise Used by Seller for the ownership, management, operation or commercialization of its Properties and the conduct of its business.
Confidential Information. The term “Confidential Information” means confidential and proprietary data and information relating to the business of a specified Person; other than any data or information that: (i.) has been voluntarily disclosed to the general public by Seller or its Affiliates, (ii.) has been independently developed and disclosed to the general public by others, or (iii.) otherwise enters the public domain through lawful means and not in violation of any confidentiality obligation to any Person or (iv.) has been disclosed pursuant to legal process.
Contracts. The term “Contracts,” when described as being those of or applicable to any Person, means any and all contracts, agreements, franchises, understandings, arrangements, leases, licenses, registrations, authorizations, easements, servitudes, rights of way, mortgages, bonds, notes, guaranties, liens, indebtedness, approvals, or other instruments or undertakings to which such Person is a party or to which or by which such Person or the property of such Person is subject or bound, excluding any Permits.
Conveyance Documents. The term “Conveyance Documents” has the meaning set forth in Section 1.01(b).
Damages. The term “Damages” means any and all damages, liabilities, obligations, penalties, fines, judgments, claims, deficiencies, losses, Taxes, costs, expenses and assessments (including without limitation income and other taxes, interest, penalties and reasonable attorneys’ and accountants’ fees and disbursements).
GAAP. The term “GAAP” means U.S. generally accepted accounting principles consistently applied.
Governmental Authority. The term “Governmental Authority” means any nation or country (including but not limited to the United States) and any commonwealth, territory, or possession thereof and any political subdivision of any of the foregoing, including but not limited to courts, departments, commissions, boards, bureaus, departments, agencies, ministries, or other instrumentalities.
| 8 | P a g e |
Intangible Rights. The term “Intangible Rights” means any and all foreign and domestic patents, patent rights, trademarks, service marks, trade names, and copyrights (whether or not registered and, if applicable, including pending applications for registration), domain names and addresses, internet addresses, Trade Secrets, Confidential Information, and computer software and licenses other than such that are generally available on a retail basis.
IP. Is the abbreviation for “Intellectual Property”.
Knowledge. The term “Knowledge,” with respect to a Person, means the actual knowledge after reasonable inquiry of such Person of any directors, officers or managerial personnel of such Person with respect to the matter in question.
Legal Requirements. The term “Legal Requirements,” when described as being applicable to any Person, means any and all laws (statutory, judicial or otherwise), ordinances, regulations, judgments, orders, directives, injunctions, writs, decrees or awards of, and any Contracts with, any Governmental Authority, in each case as and to the extent applicable to such Person or such Person’s business, operations or properties.
Liens. The term “Liens” means any liens, mortgages, pledges, claims, interests, security agreements, restrictive covenants, encumbrances or other restrictions or limitations whatsoever.
Permits. The term “Permits” means any and all permits, rights, approvals, licenses, authorizations, legal status, orders or Contracts under any Legal Requirement or otherwise granted by any Governmental Authority.
Person. The term “Person” means any individual, partnership, joint venture, firm, corporation, association, limited liability company, trust or other enterprise or any governmental or political subdivision or any agency, department or instrumentality thereof.
Product. The term “Product” means each product, process or service under development, developed, manufactured, licensed, distributed, performed or sold by Seller at any time and any other products or services in which Seller has or had any proprietary rights.
Properties. The term “Properties” means any and all properties and assets (real, personal or mixed, tangible, intangible or otherwise) owned or Used by Seller, including, but not limited to, all Assets to be conveyed to Buyer pursuant to this Agreement.
Subsidiary. The term “Subsidiary” means any Person of which a majority of the outstanding voting securities or other voting equity interests are owned, directly or indirectly, by Seller.
Tangible Seller Properties. The term “Tangible Seller Properties” has the meaning set forth in Section 3.09.
Tax. The term “Tax” means any federal, state, provincial, local or foreign income, alternative minimum, accumulated earnings, personal holding company, franchise, capital stock, net worth, capital, profits, windfall profits, gross receipts, value added, sales, use, goods and services, excise, customs duties, transfer, conveyance, mortgage, registration, stamp, documentary, recording, premium, severance, environmental (including taxes under Section 59A of the Code or any analogous or similar provision of any state, local or foreign Legal Requirement), real property, personal property, ad valorem, intangibles, unclaimed property, rent, occupancy, license, occupational, employment, unemployment insurance, social security, disability, workers’ compensation, payroll, health care, withholding, estimated or other similar tax, duty or other governmental charge or assessment or deficiencies thereof, including any interest, penalty or addition thereto, whether disputed or not, and “Taxes” means any or all of the foregoing collectively.
Trade Secrets. The term “Trade Secrets” means information of Seller including, but not limited to, technical or nontechnical data, formulas, patterns, compilations, programs, financial data, financial plans, product or service plans or lists of actual or potential customers or suppliers which (i.) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other Persons who can obtain economic value from its disclosure or use, and (ii.) is the subject of efforts that are reasonable under the circumstances to maintain its confidentiality.
| 9 | P a g e |
Schedule 2 – Deliveries by Seller
| a) | The Conveyance Documents, in form and substance acceptable to Buyer, including, but not limited to: (i.) assignment of BC’s rights to BUFFALOED’s IP and CAMA rights, and assignment of (ii.) the THIEF and SPREAD THE WORD IP. |
| b) | An executed copy of the Content Partner agreement outlining the designation of BC as an APHP content development partner and the Parties respective responsibilities thereby. |
| c) | A certificate of an officer of Seller as to the satisfaction of the conditions set forth in Section 2.02 (a); |
| d) | Proof that BC will retain assets in a greater value than the BC assets being delivered to the Buyer as per Section 7.16. |
| e) | A certificate of the secretary of Seller as to: (i.) the incumbency of its officers, (ii.) the resolutions of its board of directors and stockholders approving this Agreement and the transactions contemplated hereby, and (iii.) Seller’s organizational documents; and |
| f) | Such other documents and agreements as may be reasonably requested by Buyer. |
Schedule 3 – Deliveries by Buyer
| a) | Such documents, in form and substance acceptable to Seller, including, but not limited to: (i.) contingent promissory note, (ii.) certain limited rights to the Preferred Shares, and (ii.) co-producer agreements. |
| b) | An executed copy of the Content Partner Agreement outlining the designation of BC as an APHP content development partner and the Parties respective responsibilities thereby. |
| c) | A certificate of an officer of Buyer as to the satisfaction of the conditions set forth in Section 2.03 (a); |
| d) | A certificate of the secretary of Buyer as to: (i.) the incumbency of its officers, (ii.) the resolutions of its board of directors approving this Agreement and the transactions contemplated hereby, and (iii.) its organizational documents; and |
| e) | Such other documents and agreements as may be reasonably requested by Seller. |
| 10 | P a g e |
Exhibit 10.8
This note has not been registered under the securities act of 1933, as amended, or any state securities law, and it may not be sold or otherwise transferred in the absence of an effective registration statement under said act or state law or an exemption from such registration requirements; and the borrower may require an opinion of counsel as to the availability of such exemption.
Durham, NC
March 1st, 2023
______
Master Loan Agreement
This Master Loan Agreement is established as of March 1st, 2023, between Bannor Michael MacGregor an individual residing at 13304 Boyce Mill Road, Durham, NC 27703, his assigns, and/or designees, (“Lender”) and American Picture house Corporation. (“Borrower”). This Agreement shall remain in effect until all Indebtedness is paid in full and the Agreement is terminated in writing by Lender.
MASTER LOAN AGREEMENT. On this date, and from time-to-time hereafter, Lender may make Loans to Borrower. Borrower and Lender (collectively, the “Parties”) enter into this Master Loan Agreement which, together with the applicable Supplement(s) and other Loan Documents, shall govern each separate Loan and all Indebtedness between the Parties. Unless stated to the contrary elsewhere, the provisions of all Loan Documents are incorporated by reference herein as if stated in full. For value received, Borrower promises to pay to order of Lender all Indebtedness governed by this Agreement. Nothing herein shall be construed to obligate Lender to restructure or renew any unpaid balance, any part thereof, or to make any additional or future loans or financial accommodations to Borrower.
SUPPLEMENTS. Loans made on and after the date of this Agreement will be evidenced by a “Promissory Note and Supplement to Master Loan Agreement” (“Supplement”). Each Supplement shall set forth the terms and conditions applicable to each Loan. All Supplements and attachments thereto, including all amendments, renewals, and restatements thereof, are incorporated by reference and made a part of this Agreement unless the contrary is stated in any Loan Document. In any conflict of terms between this Master Loan Agreement and any Supplement, the Supplement shall control, unless the contrary is specifically stated in the Supplement. Any amendment to this Master Loan Agreement shall control all Supplements, unless the contrary is stated in the amendment.
FUTURE CREDIT ACCOMMODATIONS. Borrower may apply for future loans, renewals of unpaid balances, re-financings, re-schedulings, or other credit facilities or accommodations. Each loan application Borrower submits will be evaluated for eligibility and creditworthiness at the time of its submission. Nothing in this Agreement or any other agreement between Borrower and Lender shall be construed to obligate Lender to restructure or renew any unpaid balance, any part thereof, or to make any additional or future loans or financial accommodations to Borrower.
DEFINED TERMS. “Indebtedness” means all Loans, advances, obligations, covenants and duties of any kind owing by Borrower to Lender under this Agreement whether now existing or hereafter arising, absolute or contingent, due or to become due, and whether or not evidenced by any writing, this Agreement or any other Loan Document, and including all interest, charges, fees, attorney’s fees, expenses, and any other sum(s) chargeable to Borrower under this or any other related agreement. “Loan” or “Account” means each loan, credit facility or other obligation evidenced by any Supplement. “Agreement” means this Master Loan Agreement, including all Supplements, attachments and other agreements incorporated by reference and all amendments, modifications, and restatements thereof. “Loan Document” means this Agreement, and any Supplement, guaranty, Security Instrument, and any and all other documents or agreements executed in connection with this Agreement, any Loan or the Indebtedness, and all amendments, modifications, and restatements thereof.
OTHER LOANS WITH LENDER. Unless specifically stated to the contrary in writing by Lender, in this or any other document, this Master Loan Agreement shall not supersede or govern other notes, loan agreements, loans, and obligations by Borrower to Lender not contained in Supplements hereto. Such other loans shall continue to be governed by the applicable loan documents.
TERMS TO GOVERN THIS AGREEMENT AND LOANS:
ARTICLE 1.
Events of Default and Acceleration
| (a) | Events of Default Defined. The entire unpaid principal amount of any notes issued by Lender to Borrower (“Loans”) issued under this Agreement shall forthwith become and be due and payable if any one or more the following events (“Events of Default”) shall have occurred and be continuing. An Event of Default shall occur: |
| (i) | If failure shall be made in the payment of the principal of any Loans when and as the same shall become due and such failure shall continue for a period of ten (10) days after such payment is due; |
| (ii) | If the Borrower shall consent to the appointment of a receiver, trustee or liquidator of itself or of a substantial part of its property, or shall admit in writing its inability to pay its debts generally as they become due, or shall make a general assignment for the benefit of creditors, or shall file a voluntary petition in bankruptcy, or an answer seeking reorganization in a proceeding under any bankruptcy law (as now or hereafter in effect) or an answer admitting the material allegations of a petition filed against the Borrower in any such proceeding, or shall by voluntary petition, answer or consent, seek relief under the provisions of any other now existing or future bankruptcy or other similar law providing for the reorganization or winding up of corporations, or an arrangement, composition, extension or adjustment with its creditors, or shall, in a petition in bankruptcy filed against it be adjudicated a bankrupt, or the Borrower or its directors or a majority of its stockholders shall vote to dissolve or liquidate the Borrower; or |
| (iii) | If an involuntary petition shall be filed against the Borrower seeking relief against the Borrower under any now existing or future bankruptcy, insolvency or other similar law providing for the reorganization or winding up of corporations, or an arrangement, composition, extension or adjustment with its or their creditors, and such petition shall not be stayed or vacated or set aside within ninety (90) days from the filing thereof; or |
| (iv) | If a court of competent jurisdiction shall enter an order, judgment or decree appointing, without consent of the Borrower, a receiver, trustee or liquidator of the Borrower or of all or any substantial part of the property of the Borrower, or approving a petition filed against the Borrower seeking a reorganization or arrangement of the Borrower under the Federal bankruptcy laws or any other applicable law or statute of the United States of America or any State thereof, or any substantial part of the property of the Borrower shall be sequestered; and such order, judgment or decree shall not be stayed or vacated or set aside within ninety (90) days from the date of the entry thereof. |
| (b) | Rights of the Lender. Nothing in this Agreement shall be construed to modify, amend or limit in any way the right of the Lender to bring an action against the Borrower. |
ARTICLE 2.
Use of Proceeds
| (a) | Funds Utilization. Shall be utilized as per the Borrowers Officer’s discretion unless otherwise specified in the “Funds Utilization” in subsequent Loans between the Parties. |
ARTICLE 3.
Miscellaneous
| (a) | Prepayment. The Borrower may prepay any Loans in whole without penalty or premium along with all interest then due. |
| (b) | Interest. The Lender will be entitled to receive a four and four tenths’ percent (4.4%) annualized interest rate payment, due and payable in a lump sum payment at the Maturity. |
| (c) | Convertibility. N/A. |
| (d) | Transferability. Loans shall not be transferred except in a transaction exempt from registration pursuant to the Securities Act and applicable state securities law. The Borrower shall treat as the owner of these Loans the person shown as the owner on its books and records. The term “Lender” shall include the initial Lender named on the first page of this Agreement and any subsequent Lender(s) of this Agreement. |
| (d) | Waiver of Trial by Jury. In any legal proceeding to enforce this Agreement and/or payment of the Loans, the Borrower waives trial by jury. |
| (e) | Limitation of Borrower Liability. Borrower’s liability to Lender shall not exceed the outstanding principal amount of the Loans any accrued interest plus reasonable attorney’s fees. |
| (f) | Usury Saving Provision. All payment obligations arising under this Agreement, or the subsequent Loans are subject to the express condition that at no time shall the Borrower be obligated or required to pay interest at a rate which could subject the Lender of these Loans to either civil or criminal liability as a result of being in excess of the maximum rate which the Borrower is permitted by law to contract or agree to pay. If by the terms of this Agreement, the Borrower is at any time required or obligated to pay interest at a rate in excess of such maximum rate, the applicable rate of interest shall be deemed to be immediately reduced to such maximum rate, and interest thus payable shall be computed at such maximum rate, and the portion of all prior interest payments in excess of such maximum rate shall be applied and shall be deemed to have been payments in reduction of principal. |
| (g) | Notice to Borrower. Notice to the Borrower shall be given to the Borrower at his address provided above or to such other address or person as the Borrower may, from time to time, advise the Lender of the Loans or to the Lender of the Loans at the address set forth on the Borrower’s records. Notice shall be given by hand delivery, certified or registered mail, return receipt requested, overnight courier service which provides evidence of delivery, or by telecopier if confirmation of receipt is given or of confirmation of transmission is sent as herein provided. |
| (h) | Pre-signed Confession of Judgement. The Borrower will agree to sign a Confession of Judgment in a form acceptable to the courts of North Carolina and provide such additional documentation as required to effect said Confession of Judgement. Failure by the Lender to deliver such timely shall constitute a breach which Lender may utilize to call the Loans and/or subsequent Loans. |
| (i) | Governing Law. This Agreement has been executed in the State of North Carolina and shall be governed by, construed and interpreted in accordance with the laws of the State of North Carolina. |
| (j) | Successors and Assigns. This Agreement shall be binding upon the Borrower’s successors and assigns and shall inure to the benefit of the Lender’s successors, legal representatives and permitted assigns; specifically, as per the attached assignment. |
| (k) | Expenses. In the event that the Lender commences a legal proceeding in order to enforce its rights under this Agreement, the Borrower shall pay all reasonable legal fees and expenses incurred by the Lender with respect thereto, if the Lender is successful in enforcing such action. |
ARTICLE 4.
Additional Rights
| a) | All Notes are for a One Year-Term. Lender may extend said Notes month-to-month; however, such Notes are due and payable upon their respective anniversaries. Any month-to-month extensions are at the sole discretion of the Lender. Furthermore, the Borrower will grant, at any time as requested by the Lender, a first position lien on all the Borrower’s assets and will deliver a UCC-1 establishing such timely. |
Signatures
In Witness Whereof, the Borrower has executed this Agreement as of the date and year first aforesaid.
American Picture house Corporation (the “Borrower”)
| By: | /s/ Bannor Michael MacGregor | 03/01/2023 | |
| Bannor Michael MacGregor, CEO/President | Date |
Addendum 1
Additional loans may be made to Borrower by the Lender from time to time and this Master Loan Agreement shall serve as a basis for such loans. If Borrower and/or Lender fail to execute any formal loan(s) between the Parties and Lender provides funds to the Borrower this Master Loan Agreement shall serve as the agreement with regard to such transaction between the Parties unless otherwise so written. Any other such promissory notes (or Loans as in defined in the primary agreement to this Addendum), specific in purpose may also be attached hereto.
(Attach additional notes “Loans” as necessary)
Exhibit 10.10
SENIOR MEZZANINE LOAN AGREEMENT
| Parties: | Barron’s Cove Movie, LLC (“Company”) |
| c/o Yale Entertainment, LLC | |
| 43 Glen Cove Road, Unit B | |
| Suite 170 | |
| Greenvale, NY 11548 | |
| and | |
| American Picture House Corporation (“Lender”) | |
| Attn.: Bannor Michael MacGregor | |
| 477 Madison Avenue, 6FL | |
| New York, New York 10022 | |
| Purpose: | Lender desires to loan finishing funds to Company for completion of the post-production editing of the feature length motion picture to be produced by Company, currently entitled Barron’s Cove (the “Picture”). |
| Date: | February 6, 2024 |
For good and valuable consideration as set forth below, the parties agree as follows:
1. Loan. Subject to the terms and conditions contained in this agreement (the “Agreement”), Lender agrees to contribute funds in the form of a mezzanine loan (the “Loan”) to Company in the amount of Two Hundred Thousand U.S. Dollars (US$200,000), consisting of One Hundred Eighty Thousand U.S. Dollars ($US180,000.00) in “fresh cash” to be advanced by Lender pursuant to the terms hereof and a Twenty Thousand U.S. Dollar (US$20,000.00) EP Fee (as more fully provided for in that certain Addendum To Agreement of even date herewith, the “Addendum To Agreement”), to be credited towards the Loan pursuant to the terms hereof and the Addendum To Agreement. Company shall use the Loan solely in connection with the Picture as specifically set forth above in the “Purpose”. Lender shall disburse to Company or its assigns (as detailed herein below) the “fresh cash” portion of the Loan concurrently with the execution of this Agreement. The Company hereby directs the Lender to pay the Loan to the following account:
Bank Name: JP Morgan Chase
Account Number: 952902232
Routing Number: 021000021
Beneficiary Name: Barron’s Cove Movie, LLC
2. Other Material Terms of Loan.
2.1. As provided for herein, the Loan shall constitute a general obligation of the Company, payable on the terms set forth herein.
2.2. The principal amount of the Loan (Two Hundred Thousand U.S. Dollars [US$200,000]), plus a premium of twenty percent (20%) thereof (for a total of Two Hundred Forty Thousand U.S. Dollars (US$240,000)), shall be repaid to Lender in accordance with the provisions of Section 2 hereof.
2.3. Provided the $180,000.00 “fresh cash” portion of the Loan is tendered by Lender , and subject to Section 2.4 hereof, the Loan, plus the premium thereon, shall be due and payable on that date (no later than 6 p.m. Pacific Standard Time) which is the earlier of either (a) twelve (12) months from the date of full execution hereof and Lender tendering the Loan to Company, or (b) when the Loan would otherwise be paid back pursuant to the Picture’s waterfall (as detailed below), whichever occurs first (the “Maturity Date”). In the event the Maturity Date would otherwise fall on a date on which banks are closed, said date shall be extended to the next business banking day. No interest shall accrue on the Loan until the Maturity Date. In the event that the principal amount of the Loan and the premium thereon (collectively, the “Repayment Amount”) is not repaid on or before the Maturity Date, then Lender shall be entitled to receive default interest, which shall accrue at the rate of two percent (2%) on any amounts outstanding on the Repayment Amount, compounded every month, or the maximum rate allowed by law if the foregoing rate would be deemed usurious under applicable law. Interest calculated hereunder shall be computed on the outstanding balance of the Repayment Amount, based on a three hundred sixty-five (365) day year. All payments hereunder shall first be applied to the Repayment Amount, and thereafter, to any accrued interest. The Repayment Amount shall be paid to the Lender in US dollars.
2.4. Lender’s Loan shall be repaid from the Adjusted Gross Receipts (as hereinafter defined) and shall sit in the Picture’s waterfall (as more fully detailed herein below in Section 3) in the senior mezz position as the “Senior Mezz Loan,” Section 3.e.
2.5. The Allocation of Receipts set forth in Section 3.a. - 3.e., below, shall not be altered or changed without the prior written approval of Lender.
2.6. Lender shall be entitled to file a UCC-1 against the Picture, which shall sit behind any applicable guild liens and/or current senior lenders. Upon full payment to Lender of the Repayment Amount, the security interest shall terminate.
3. Allocation of Receipts. For the purposes hereof, “Adjusted Gross Proceeds” calculated on an ongoing basis, shall be defined as all monies of any nature (including any minimum guarantees, proceeds from distribution and license agreements and other remuneration of any kind) credited to and actually received by Company (“Gross Proceeds”), in perpetuity, from the exploitation of the Picture and any rights therein anywhere in the world in any media or via any technology now known or hereafter devised (i.e. not to include any amounts contractually entitled to be retained by any unaffiliated distributor, third party producer rep, unaffiliated sales agent, or the like for its own account [each, a “Distributor”] and therefore not actually received by or due to the Company), plus the proceeds of any state film tax incentives, in each case minus only amounts actually paid off-the-top therefrom on a continuing basis for the following (calculated on a direct, third party, out-of-pocket cost basis, without double-counting, and except with respect to (a) - (e), not necessarily in the following order):
a. Payment of actual, verifiable third party fees to a collection account manager (i.e., Fintage or Freeway)(“Collection Agent”), for collection account services rendered, subject and pursuant to a collection account management agreement (the “CAMA”) to be entered into between Company and such Collection Agent;
b. all guild/union (including SAG or other collective bargaining organization) residuals, supplemental market payments, pension, health and welfare payments, and other related payments, paid or payable by Company which are not paid or payable by a licensee of the Picture or by the individual collective bargaining organization member;
c. third-party sales agency expenses and fees;
| 2 |
d. the repayment of the senior funding, and to the extent not paid from the monetized tax credits, rebates or incentives for the Picture, the tax credit funding;
e. the repayment of the Senior Mezz Loan (plus any default interest thereon, as detailed herein) to Lender;
f. the repayment of any junior mezzanine loans, then any default or any other loans in connection with the Picture;
g. actual, verifiable third party expenses due relating to the maintenance of the single purpose entity (i.e., the Company) and/or the copyright in the Picture, not to exceed $2,000 per annum;
h. actual, verifiable taxes due relating to the Company (but not income taxes relating to producer fees or compensation) or the Picture;
i. solely to the extent payment thereof is not assumed by a licensee of the Picture (which Company will use reasonable good faith efforts to cause the domestic or worldwide licensor of the Picture to assume, the failure to obtain not being deemed a breach hereof), box office bonuses or other bonuses (SVOD, etc.) which the Company is contractually obligated to pay to third parties unaffiliated with Company, if any;
j. actual, verifiable third party, legal and accounting costs related to the Company or the Picture, including costs relating to providing statements and tax instruments and/or documents to financiers, lender and the like, all costs of maintaining required accounting records, the processing of payments, and costs associated with maintaining required bank accounts not to exceed $10,000 per annum in aggregate;
k. solely to the extent payment thereof is not assumed by a licensee of the Picture (which Company will use reasonable good faith efforts to cause the domestic or worldwide licensor of the Picture to assume, the failure to obtain not being deemed a breach hereof), minimum required music, clip or other third-party permission payments triggered by the Picture’s exploitation, if any;
i. Company’s distribution expenses in respect of the Picture, if any, including, without limitation, creation and delivery of deliverables (including the creation of foreign language versions), festival expenses, marketing expenses and P&A expenses (all of the above if and only to the extent incurred by Company, and not by a Distributor), capped at $50,000, and all to the extent actual, verifiable and paid or payable to third parties;
j. actual, verifiable third party collection expenses (including reasonable outside attorneys’ and auditors’ fees and costs);
k. to the extent required by a distributor of the Picture, actual, verifiable third party insurance payments not already part of the budget; and,
l. reasonable reserves relating to the above (not to exceed 15% of Gross Proceeds in aggregate, and held for a reasonable period of time to address the applicable contingencies, but in no event to exceed one (1) year from the date the applicable funds are received by the Company).
| 3 |
Lender shall be paid Adjusted Gross Proceeds, if any are due, on a calendar year quarterly basis during the first two (2) years following the initial release of the Picture and bi-annually thereafter, accompanied by proper statements. Any statement not disputed in writing within eighteen (18) months of receipt shall be deemed accepted. With regard to any disputed statement, Lender shall have the right to designate a certified public accountant to audit the books and records of the Company solely related to the calculation of Adjusted Gross Proceeds at Company’s regular place of business and at Investor’s expense during regular business hours and on at least two weeks prior written notice, but not more than once in any calendar year. If there is an aggregate underpayment of 5% or more found with respect to the statements audited in the aggregate, then Company shall promptly pay the expenses of the audit (in addition to the unpaid amounts). The Company will enter into a CAMA in connection with the Picture, and Lender shall be made a party thereto.
Company makes no representation and/or warranty that the Picture will generate any specific type of and/or amount of profits.
Should Company desire to borrow and/or receive additional investment funds in connection with the Picture, Lender will be offered the first opportunity to provide such additional investment funds upon terms to be negotiated in good faith. Lender shall make such election within seven (7) days (reducible to 48-hours in the event of exigencies of which Lender is made aware of in writing at the time of request) to elect to enter into such good faith negotiations. If Lender makes such election, the parties shall enter into such good faith negotiations; provided if the parties are unable to timely close an agreement within fifteen (15) days thereafter (reducible to ten (10) days in the event of exigencies), and/or upon Lender’s refusal or failure to provide such investment funds, Company shall be free to borrow and/or receive any additional investment funds in connection with the Picture provided such additional funds sit below and are subordinate to the Senior Mezz Loan in the waterfall.
4. Credit/Premieres.
4.1. Credit. Upon Lender’s execution and tendering of this Agreement, provided Lender is not in breach hereof, Lender shall be entitled to: (i) designate one (1) individual to receive a “Producer” credit (currently intended for Bannor Michael MacGregor) and (ii) designate one (1) individual to receive an “Executive Producer” credit (currently intended for Jeffrey Katz), on IMDb and on screen, on a shared card, in the main titles of the Picture (i.e., wherever all producer and executive producer credits, as applicable, appear), and in the billing block of paid ads under Company’s control, tied in all respects to any other party receiving a producer and/or executive producer credit, as applicable, (including excluded ads) and wherever else all producer and executive producer credits, as applicable, appear; and (iii) an “In Association with American Picture House Corporation” company credit for Lender, including an animated logo company credit (animated at Lender’s own expense) on screen on all positive prints of the Picture, in the billing block paid ads under Company’s control, tied in all respects to any other party receiving a production company credit (including excluded ads) and in all marketing and advertising by or under the control of any distributor of the Picture. To the extent issued by Company, the above credits shall be referenced in any press releases regarding the Picture and Lender shall have a right of mutual approval over such references in the initial press release (such approvals not to be unreasonably withheld, delayed, and/or conditioned and which approvals shall be provided within five [5] days, reducible to 24-hours in the event of exigencies, of Lender’s receipt of written request thereof). All other characteristics of credit shall be determined by Company in its sole discretion. No casual or inadvertent failure by Company and/or any third party to comply with the credit obligation set forth herein shall be a breach hereunder. Company agrees to use reasonable commercial efforts to cure any such material failures after Company’s receipt of such notice. Company agrees to use good faith efforts to contractually bind, and shall in any event advise its distributors and other third parties in writing to comply with the credit provisions of this Agreement.
| 4 |
4.2. Premieres. Provided Lender is not in breach hereof, Lender shall be provided with four (4) invitations to any and all United States celebrity and/or festival premieres of the Picture (regardless of whether the Picture is in competition at such festival). Company shall have no obligation to provide Lender with travel and/or accommodations in connection with such premiere(s) and/or festival(s).
5. Copyright. Company shall own, forever and throughout the universe, all rights of any kind or nature in and to the Picture and the results and proceeds of Lender’s services and contributions hereunder, in any and all media now known or hereafter devised including, as a “work made for hire” for Company under United States Copyright laws. To the extent that any results and proceeds of Lender’s services hereunder may not be deemed a “work made for hire” under United States Copyright laws, Lender hereby assigns to Company all right, title and interest therein. Lender agrees to give Company, its designees, successors, licensees and/or assigns all assistance consistent herewith reasonably required to perfect such rights, titles and interest in the name of the Company. Except as set forth herein, Lender hereby waives any and all right, title and interest of any kind or nature, whether now or hereafter known, Lender may have in and to such results and proceeds, including without limitation any rights of droit moral, rental or lending or similar rights. The termination of this Agreement for any reason shall not affect the ownership by Company of the results and proceeds of Lender’s services hereunder.
6. Lender Representations.
6.1. Lender warrants that it has the right to enter into this Agreement and that his or her performance hereof shall not violate the terms of any other agreement or the rights of any third party. Lender is making the Loan for its own account, not as a nominee or agent for another, and not with a view towards distribution. Lender has no present intention of selling, granting participation in, or otherwise distributing its returns on the Loan. Lender does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer, or grant participation in the Loan.
6.2. Lender represents that Lender has had an opportunity to ask questions and receive answers from the Company regarding the Company, the Picture, the business prospects of the Company and the Picture, and the prospects of the Loan. Lender believes Lender has received all information Lender considers necessary or appropriate for deciding whether to make the Loan. Lender further represents that Lender has such knowledge and experience in financial or business matters that Lender can evaluate the merit and risks of the investment.
6.3. Lender understands that the Loan may be a security and, accordingly, may be subject to federal securities laws and applicable regulations, and that the Loan may be resold without registration under the Securities Act of 1933, as amended (the “Act”), only in certain limited circumstances. Lender represents that Lender is familiar is familiar with Rule 144 promulgated under the Act as presently in effect, and understands the resale limitations imposed thereby and by the Act, and that the Company has no obligations, and no current plans to satisfy, the current information obligations of such rule.
6.4. Without in any way limiting the representations set forth above, Lender further agrees not to make any disposition of the securities that constitute the Loan unless and until (a) there is then in effect a registration statement under the Act covering such proposed disposition and such disposition is made in accordance with such registration statement; or (b) Lender shall have notified the Company of the proposed disposition and shall have furnished the Company with a detailed statement of the circumstances surrounding the proposed disposition, and, if reasonably requested by the Company, Lender shall have furnished the Company with an opinion of counsel, reasonably satisfactory to the Company that such disposition will not require registration of such shares under the Act.
6.5. If Lender is not a United States person, Lender hereby represents that Lender has satisfied itself as to the full observance of the laws of its jurisdiction in connection with any invitation to make the Loan.
| 5 |
7. Assignment. With prior written approval of the Lendor, Company shall have the right to assign its rights and obligations hereunder to any person, firm or corporation that assumes any or all of its obligations hereunder in writing, and at the time of such assignment is capable of performing the assigned obligations.. Upon such an assignment by Company to an entity that assumes all of Company’s obligations hereunder, and at the time of such assignment is capable of performing the assigned obligations, the Company shall be relieved of all of its rights and obligations hereunder if the assignee is a “major” or “mini-major” studio, or a single-purpose production company created for the production of the Picture; otherwise, the Company shall remain secondarily liable for its obligations hereunder. Lender shall be entitled to assign its rights and obligations hereunder, including without limitation the right to receive money hereunder, provided that such assignment shall be in writing, and Lender notifies Company in writing of such assignment. This Agreement, and any and all rights and obligations hereunder, shall be binding upon, and inure to the benefit of, the parties hereto and their respective heirs, executors, administrators, personal representatives, designees, successors, licensees and/or permitted assigns, as the case may be.
8. Indemnification. Company shall indemnify and hold harmless Lender from and against any and all actual losses, obligations, fees, costs, expenses, liabilities, penalties or damages (including reasonable outside attorneys’ fees) resulting from third party claims, complaints or settlements arising from or in connection with the development, production, distribution, or exploitation of the Picture, except to the extent caused by (i) the gross negligence or willful misconduct or tortious misconduct of Lender; or (ii) by Lender’s breach of any representation, warranty, or covenant contained in this Agreement.
9. Notices. Notices hereunder shall be in writing, and sent to the parties at their respective addresses set forth above. Notices may be delivered by personal delivery, confirmed email or facsimile, mailing via certified or registered mail or Federal Express. Courtesy copies of notices to Company shall be sent to: Ramo Law PC, 315 South Beverly Drive, Suite 210, Beverly Hills, CA 90212, Attn: Elsa Ramo, Esq., Email: eramo@ramolaw.com. Courtesy copies of notices to Lendor shall be sent to: Harris Sarratt & Hodges, LLP, Attn: Donald J. Harris, Email: dharris@hshllp.com.
10. Confidentiality. Lender agrees that Lender shall not directly or indirectly disclose, furnish or otherwise make available to any party or utilize for Lender’s own benefit any non-public or proprietary information relating to Company’s business including, without limitation, relating to the Picture and the budget, cast, crew, story, screenplay, marketing and/or distribution plan in connection therewith. The foregoing shall not apply to information that: (a) has been approved for release by the written authorization of Company; (b) is or becomes part of information in the public domain through no fault of Lender; or (c) properly comes into the possession of Lender from a third party which is not under any obligation known to Lender to maintain the confidentiality of such information. Lender may disclose such information pursuant to a judicial or other government order; provided that Lender shall provide Company with prompt written notice prior to any disclosure so that Company may seek legal remedies to maintain the confidentiality of such information and Lender shall comply with any applicable protective order or the equivalent. Company agrees that it shall not directly or indirectly disclose to any third party the specific terms of this Agreement, except (a) in connection with the sale, license, or other exploitation of the Picture, and the Company may disclose the terms of Section 3 hereof as Company reasonably deems necessary, (b) information which has been approved for release by the written authorization of Lender; (c) is or becomes part of information in the public domain through no fault of Company, or (d) pursuant to a judicial or other government order, or (e) to Lender’s professional service providers in the performance of their duties on a need to know basis, and where such professional service providers agree to be bound by the confidentiality provisions hereof (with Lender being liable for any breaches hereof by such professional service providers).
| 6 |
11. Company’s Representations and Warranties. Company represents and warrants the following: (a) Company has or will acquire the rights in and to all literary, musical and dramatic material contained in the Picture, and Company has or will enter into all agreements and contracts with actors, directors, producers, writers and others rendering services or supplying materials in connection with the development, production and exploitation of the Picture and all customary rights therein, including without limitation all ancillary, allied, and derivative rights in order for the Picture to be distributed and exploited in any and all media whether now known or hereafter devised throughout the world in perpetuity, subject to customary industry parameters; (b) neither the Picture nor any part thereof, nor the exercise by any authorized party of any right granted to Lender hereunder will, to the best of Company’s knowledge, violate or infringe the copyright, literary, dramatic, personal, private, or civil or property rights, or rights of privacy, or any other rights of any third party. All agreements entered into by Company with third parties shall contain terms consistent with the provisions hereof, including, without limitation, a “work-for-hire” provision, waiver of injunctive relief, a strict confidentiality and no publicity clause, and appropriate warranties of originality and indemnities; (c) to the best of Company’s knowledge, there are no liens, claims or encumbrances (other than customary union/guild liens) which might conflict with or otherwise affect any of the provisions of this Agreement or Company’s promotion or exploitation of the Picture in any and all media whether now known or hereafter devised throughout the world and in perpetuity, (d) Company’s representations to Lender with regard to the identification and amount of all senior funding/loans ($3,861,000.00) and tax credit funding/loans ($1,170,350.00) in the waterfall above Lender is true and correct; .(e) Company has all requisite right, authority, and approval to enter into this Agreement, perform its duties and obligations hereunder, and to grant to Lender all rights and authorities granted to Lender herein.
12. Insurance. Lender shall be named as an additional insured party on any and all insurance policies which Company obtains in connection with the production and/or exploitation of the Picture, subject to the terms and conditions of such policies.
13. Risk of Investment. Investments in the motion picture industry involve a high degree of risk. The Loan shall be repaid exclusively from Adjusted Gross Proceeds of the Picture, and there is no guarantee that the Picture will generate revenues, or that any such revenues will be sufficient to return to Lender all or any part of the Loan, and Lender expressly acknowledges that no promise, warranty, representation or guarantee is or has been made by any party in connection with same, unless otherwise expressly set forth by Company in writing.
14. Remedies. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements entered into and wholly performed therein without regard to its choice of law provisions. Any dispute arising hereunder shall be conducted in and decided by arbitration in New York City pursuant to IFTA rules, with the resultant decision being enforceable in any court having jurisdiction over the party to be bound thereby. Each of the parties hereto hereby irrevocably submits to the sole and exclusive jurisdiction of the state and federal courts located in New York City, New York and, to the maximum extent permitted by law, hereby irrevocably waives the defense of inconvenient forum to the maintenance of any such action or proceeding. Lender agrees that under no circumstances including, without limitation, any breach or default or any alleged breach or default by Company shall Lender have the right to seek and/or obtain equitable or injunctive relief or to rescind, terminate or enjoin the development, production, distribution or other exploitation of the Picture, it being agreed that money damages at law shall be a suitable remedy. All such rights and remedies are cumulative and are not exclusive of any right or remedy which Lender may otherwise have.
15. Notices. Any notice pertaining hereto shall be in writing. Any such notice due hereunder shall be served by delivering said notice personally or by sending it by certified mail, return receipt requested (postage or applicable fee prepaid), or facsimile addressed to the party’s address on the face hereof (or as subsequently designated in writing) and the date of service of such notices shall be deemed the date of personal delivery (if personally delivered), seven (7) days after mailing (if sent via mail), the date of facsimile transmission (if faxed), or the date, if ever, on which a recipient of an emailed notice confirms or otherwise responds to such emailed notice, unless otherwise specified herein, provided that if delivery occurs outside normal business hours or on a Saturday, Sunday or U.S. bank holiday, then the date of service shall be deemed to be the next business day.
| 7 |
16. Miscellaneous. It is expressly understood, agreed and covenanted that the parties do not by this Agreement intend to form an employment relationship or a partnership or joint venture between them, and in no event shall this Agreement be construed to constitute such an employment relationship, partnership or joint venture. This Agreement is not for the benefit of any third party and shall not be deemed to give any right or remedy to any third party, whether referred to herein or not. This Agreement (and all attachments hereto) sets forth the entire understanding of the parties regarding its subject matter, supersedes and replaces all prior or contemporaneous agreements, documents, correspondences, conversations and undertakings, whether written and/or oral, between the parties with respect to the subject matter hereof. No termination, waiver, modification or amendment of or to this Agreement shall be binding unless it is in writing and signed by both parties hereto. No failure or delay by either party in exercising any right or privilege under this Agreement shall operate as a waiver thereof, and no single or partial exercise of any right or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right or privilege. No waiver by either party of a breach or default hereunder shall be deemed a waiver of any preceding or succeeding breach or default hereunder or under any other agreement. If any provision of this Agreement shall be deemed invalid or unenforceable as written, it shall be construed, to the maximum extent possible, in a manner which renders it valid and enforceable, and all other provisions of this Agreement shall remain in full force and effect. This Agreement may be executed and delivered in counterparts, by facsimile or pdf e-mail, each of which shall be deemed an enforceable original and all of which together shall constitute one enforceable agreement. The paragraph headings contained in this Agreement are inserted for convenience of reference only and shall not affect the meaning or interpretation of this Agreement. The terms “hereof”, “herein”, and “hereunder” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Senior Mezzanine Loan Agreement on the date first set forth above:
| COMPANY: | LENDER: | |||
| BARRON’S COVE THE MOVIE, LLC | AMERICAN PICTURE HOUSE CORPORATION | |||
| /s/ Jordan Yale Levine | /s/ Bannor Michael MacGregor | |||
| By: | Jordan Yale Levine | By: | Bannor Michael MacGregor | |
| Its: | Authorized Signatory | Its: | CEO | |
| 8 |
Exhibit 10.10.1
ADDENDUM TO AGREEMENT
This addendum (“Addendum”) dated as of February 6, 2024, shall supplement the Senior Mezzanine Loan Agreement dated as of February 6, 2024 (the “Agreement”) by and between Barrons Cove Movie LLC (“Company”) and American Picture House Corporation (“Lender”). Capitalized terms used herein but not defined herein shall have the meanings ascribed to them in the Agreement. In the event of a conflict between the terms hereof and the terms of the Agreement, the terms of this Addendum shall control. For good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties agree to supplement the Agreement on the following terms and conditions as follows:
| 1. | Provided Lender is not in breach hereof, Lender shall be entitled to a passive executive producer fee (“EP Fee”) in the amount of Twenty Thousand U.S. Dollars (US$20,000.00), which EP Fee shall be credited by Company (to Company) as part of the Loan and paid to Lender in accordance with the provisions of the Agreement. Other than as detailed in the Agreement, the EP Fee and the premium are the total compensation owed to Lender in connection with the Picture and any exploitation thereof. |
| 2. | Lender hereby acknowledges and agrees that with respect to positive prints of Barron’s Cove (the “Picture”), Lender hereby expressly designates the following recipient(s) of allotted credit(s): |
Jeffrey Katz - “Executive Producer”
Bannor Michael MacGregor - “Producer”
as referenced in Section 4.1 of aforementioned Agreement.
| 3. | All other terms and conditions of the Agreement shall remain in full force and effect and are hereby ratified and affirmed by the parties. |
| 4. | This Addendum may be executed in separate counterparts by the parties, 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. Delivery by facsimile or scan via e-mail (i.e., pdf) of an executed counterpart of a signature page to this Addendum shall be effective as delivery of an original executed counterpart of this Addendum. |
IN WITNESS WHEREOF, the parties hereto have executed this Addendum as of the date first set forth above by their fully authorized representatives with full power and authority to enter into this agreement.
AGREED TO AND ACCEPTED BY:
| BARRONS COVE MOVIE LLC | AMERICAN PICTURE HOUSE CORPORATION | |||
| /s/ Jordan Yale Levine | /s/ Bannor Michael MacGregor | |||
| By: | Jordan Yale Levine | By: | Bannor Michael MacGregor | |
| Its: | Authorized Signatory | Its: | CEO | |
Exhibit 10.13
This note has not been registered under the securities act of 1933, as amended, or any state securities law, and it may not be sold or otherwise transferred in the absence of an effective registration statement under said act or state law or an exemption from such registration requirements; and the borrower may require an opinion of counsel as to the availability of such exemption.
Durham, NC
February 6th, 2024
______
Master Loan Agreement
This Master Loan Agreement is established as of February 6th, 2024 between Noah Morgan Private Family Trust, its assigns, and/or designees, (“Lender”) and American Picture House Corporation (“Borrower”). This Agreement shall remain in effect until all Indebtedness is paid in full and the Agreement is terminated in writing by Lender.
MASTER LOAN AGREEMENT. On this date, and from time-to-time hereafter, Lender may make Loans to Borrower. Borrower and Lender (collectively, the “Parties”) enter into this Master Loan Agreement which, together with the applicable Supplement(s) and other Loan Documents, shall govern each separate Loan and all Indebtedness between the Parties. Unless stated to the contrary elsewhere, the provisions of all Loan Documents are incorporated by reference herein as if stated in full. For value received, Borrower promises to pay to order of Lender all Indebtedness governed by this Agreement. Nothing herein shall be construed to obligate Lender to restructure or renew any unpaid balance, any part thereof, or to make any additional or future loans or financial accommodation to Borrower.
SUPPLEMENTS. Loans made on and after the date of this Agreement will be evidenced by a “Promissory Note and Supplement to Master Loan Agreement” (“Supplement”). Each Supplement shall set forth the terms and conditions applicable to each Loan. All Supplements and attachments thereto, including all amendments, renewals, and restatements thereof, are incorporated by reference and made a part of this Agreement unless the contrary is stated in any Loan Document. In any conflict of terms between this Master Loan Agreement and any Supplement, the Supplement shall control, unless the contrary is specifically stated in the Supplement. Any amendment to this Master Loan Agreement shall control all Supplements, unless the contrary is stated in the amendment.
FUTURE CREDIT ACCOMMODATIONS. Borrower may apply for future loans, renewals of unpaid balances, re-financings, re-schedulings, or other credit facilities or accommodations. Each loan application Borrower submits will be evaluated for eligibility and creditworthiness at the time of its submission. Nothing in this Agreement or any other agreement between Borrower and Lender shall be construed to obligate Lender to restructure or renew any unpaid balance, any part thereof, or to make any additional or future loans or financial accommodations to Borrower.
DEFINED TERMS. “Indebtedness” means all Loans, advances, obligations, covenants and duties of any kind owing by Borrower to Lender under this Agreement whether now existing or hereafter arising, absolute or contingent, due or to become due, and whether or not evidenced by any writing, this Agreement or any other Loan Document, and including all interest, charges, fees, attorney’s fees, expenses, and any other sum(s) chargeable to Borrower under this or any other related agreement. “Loan” or “Account” means each loan, credit facility or other obligation evidenced by any Supplement. “Agreement” means this Master Loan Agreement, including all Supplements, attachments and other agreements incorporated by reference and all amendments, modifications, and restatements thereof. “Loan Document” means this Agreement, and any Supplement, guaranty, Security Instrument, and any and all other documents or agreements executed in connection with this Agreement, any Loan or the Indebtedness, and all amendments, modifications, and restatements thereof.
OTHER LOANS WITH LENDER. Unless specifically stated to the contrary in writing by Lender, in this or any other document, this Master Loan Agreement shall not supersede or govern other notes, loan agreements, loans, and obligations by Borrower to Lender not contained in Supplements hereto. Such other loans shall continue to be governed by the applicable loan documents.
TERMS TO GOVERN THIS AGREEMENT AND LOANS:
ARTICLE 1.
Events of Default and Acceleration
| (a) | Events of Default Defined. The entire unpaid principal amount of any notes issued by Lender to Borrower (“Loans”) issued under this Agreement shall forthwith become and be due and payable if any one or more the following events (“Events of Default”) shall have occurred and be continuing. An Event of Default shall occur: |
| (i) | If failure shall be made in the payment of the principal of any Loans when and as the same shall become due and such failure shall continue for a period of ten (10) days after such payment is due; |
| (ii) | If the Borrower shall consent to the appointment of a receiver, trustee or liquidator of itself or of a substantial part of its property, or shall admit in writing its inability to pay its debts generally as they become due, or shall make a general assignment for the benefit of creditors, or shall file a voluntary petition in bankruptcy, or an answer seeking reorganization in a proceeding under any bankruptcy law (as now or hereafter in effect) or an answer admitting the material allegations of a petition filed against the Borrower in any such proceeding, or shall by voluntary petition, answer or consent, seek relief under the provisions of any other now existing or future bankruptcy or other similar law providing for the reorganization or winding up of corporations, or an arrangement, composition, extension or adjustment with its creditors, or shall, in a petition in bankruptcy filed against it be adjudicated a bankrupt, or the Borrower or its directors or a majority of its stockholders shall vote to dissolve or liquidate the Borrower; or |
| (iii) | If an involuntary petition shall be filed against the Borrower seeking relief against the Borrower under any now existing or future bankruptcy, insolvency or other similar law providing for the reorganization or winding up of corporations, or an arrangement, composition, extension or adjustment with its or their creditors, and such petition shall not be stayed or vacated or set aside within ninety (90) days from the filing thereof; or |
| (iv) | If a court of competent jurisdiction shall enter an order, judgment or decree appointing, without consent of the Borrower, a receiver, trustee or liquidator of the Borrower or of all or any substantial part of the property of the Borrower, or approving a petition filed against the Borrower seeking a reorganization or arrangement of the Borrower under the Federal bankruptcy laws or any other applicable law or statute of the United States of America or any State thereof, or any substantial part of the property of the Borrower shall be sequestered; and such order, judgment or decree shall not be stayed or vacated or set aside within ninety (90) days from the date of the entry thereof. |
| (b) | Rights of the Lender. Nothing in this Agreement shall be construed to modify, amend or limit in any way the right of the Lender to bring an action against the Borrower. |
ARTICLE 2.
Use of Proceeds
| (a) | Funds Utilization. Shall be utilized as per the Borrowers Officer’s discretion unless otherwise specified in the “Funds Utilization” in subsequent Loans between the Parties. |
ARTICLE 3.
Miscellaneous
| (a) | Prepayment. The Borrower may prepay any Loans in whole without penalty or premium along with all interest then due. |
| (b) | Interest. The Lender will be entitled to receive an annualized interest rate payment equivalent to the then published Applicable Federal Rates (AFRs) as determined by the IRS, due and payable in a lump sum payment at the Maturity. |
| (c) | Convertibility. N/A. |
| (d) | Transferability. Loans shall not be transferred except in a transaction exempt from registration pursuant to the Securities Act and applicable state securities law. The Borrower shall treat as the owner of these Loans the person shown as the owner on its books and records. The term “Lender” shall include the initial Lender named on the first page of this Agreement and any subsequent Lender(s) of this Agreement. |
| (d) | Waiver of Trial by Jury. In any legal proceeding to enforce this Agreement and/or payment of the Loans, the Borrower waives trial by jury. |
| (e) | Limitation of Borrower Liability. Borrower’s liability to Lender shall not exceed the outstanding principal amount of the Loans any accrued interest plus reasonable attorney’s fees. |
| (f) | Usury Saving Provision. All payment obligations arising under this Agreement or the subsequent Loans are subject to the express condition that at no time shall the Borrower be obligated or required to pay interest at a rate which could subject the Lender of these Loans to either civil or criminal liability as a result of being in excess of the maximum rate which the Borrower is permitted by law to contract or agree to pay. If by the terms of this Agreement, the Borrower is at any time required or obligated to pay interest at a rate in excess of such maximum rate, the applicable rate of interest shall be deemed to be immediately reduced to such maximum rate, and interest thus payable shall be computed at such maximum rate, and the portion of all prior interest payments in excess of such maximum rate shall be applied and shall be deemed to have been payments in reduction of principal. |
| (g) | Notice to Borrower. Notice to the Borrower shall be given to the Borrower at his address provided above or to such other address or person as the Borrower may, from time to time, advise the Lender of the Loans or to the Lender of the Loans at the address set forth on the Borrower’s records. Notice shall be given by hand delivery, certified or registered mail, return receipt requested, overnight courier service which provides evidence of delivery, or by telecopier if confirmation of receipt is given or of confirmation of transmission is sent as herein provided. |
| (h) | Pre-signed Confession of Judgement. The Borrower will agree to sign a Confession of Judgment in a form acceptable to the courts of North Carolina and provide such additional documentation as required to effect said Confession of Judgement. Failure by the Lender to deliver such timely shall constitute a breach which Lender may utilize to call the Loans and/or subsequent Loans. |
| (i) | Governing Law. This Agreement has been executed in the State of North Carolina and shall be governed by, construed and interpreted in accordance with the laws of the State of North Carolina. |
| (j) | Successors and Assigns. This Agreement shall be binding upon the Borrower’s successors and assigns and shall inure to the benefit of the Lender’s successors, legal representatives and permitted assigns; specifically, as per the attached assignment. |
| (k) | Expenses. In the event that the Lender commences a legal proceeding in order to enforce its rights under this Agreement, the Borrower shall pay all reasonable legal fees and expenses incurred by the Lender with respect thereto, if the Lender is successful in enforcing such action. |
ARTICLE 4.
Additional Rights
| a) | All Notes are for a One Year-Term. Lender may extend said Notes month-to-month; however, such Notes are due and payable upon their respective anniversaries. Any month-to-month extensions are at the sole discretion of the Lender. Furthermore, the Borrower will grant, at any time as requested by the Lender, a first position lien on all the Borrower’s assets and swill deliver a UCC-1 establishing such timely. |
Signatures
In Witness Whereof, the Borrower has executed this Agreement as of the date and year first aforesaid.
American Picture House Corporation. (the “Borrower”)
| By: | 02/06/2024 | ||
| Donald Harris, Secretary | Date |
Addendum 1
Additional loans may be made to Borrower by the Lender from time to time and this Master Loan Agreement shall serve as a basis for such loans. If Borrower and/or Lender fail to execute any formal loan(s) between the Parties and Lender provides funds to the Borrower this Master Loan Agreement shall serve as the agreement with regard to such transaction between the Parties unless otherwise so written. Any other such promissory notes (or Loans as in defined in the primary agreement to this Addendum), specific in purpose may also be attached hereto.
(Attach additional notes “Loans” as necessary)
Exhibit 10.14
SENT VIA EMAIL
American Picture House Corporation
Attn: Bannor Michael McGregor
Email: macgregor@americanpicturehouse.com
Re: Term Sheet / “Turn up the Sun!”
Dear David:
This letter is intended to set forth the basic terms of understanding by and between American Picture House Corporation, a Wyoming corporation (the “Purchaser”), and SSS Entertainment, LLC, a Louisiana limited liability company (the “Producer”), in connection with the purchase of contingent revenues derived from the motion picture currently referred to as “Turn up the Sun!” (the “Picture”). Producer and Purchaser are referred to herein collectively as the “Parties” and individually as a “Party”.
Please review the terms of this letter (referred to as the “Term Sheet”) and if you agree to the principal terms and conditions below please sign and submit the purchase price in the amount of Seven Hundred Twenty Five Thousand United States Dollars (US$725,000.00) (the “Purchase Price”), which shall be a non-secured, non-recourse purchase of contingent net proceeds under the following terms:
| 1. Nature of Financing; Purchase: | The Purchase Price constitutes a non-equity financial obligation among the Parties and does not represent a membership interest in Producer or any other entity related to the Picture. This Term Sheet in no way constitutes any offer, solicitation, or sale of securities in Producer or any other limited liability or other company affiliated therewith or parent thereof. | |
| 2. Purchase Price Cash Flow: | The Purchase Price shall be wired into Producer’s designated bank account upon execution of this Term Sheet and no later than January 6, 2025 (“Funding Date”). | |
| 3. Backend Compensation: | In full consideration for the Purchase Price, and subject to Producer’s receipt in full of such Purchase Price, Purchaser shall also be entitled to receive twenty four percent (24%) of one hundred percent (100%) of the “Net Profits” (defined below), which amount shall be accounted and calculated on a most favored nations basis with all other profit participants (the “Purchaser Backend”). Subject to Producer’s receipt in full of such Purchase Price, Producer shall issue a direction to pay for the benefit of Purchaser to the collection account manager for the Picture directing the same to pay Purchaser directly Purchaser’s share of Net Profits in accordance with the terms hereof. | |
| 4. Net Profits: | All gross receipts derived from exploitation of the Picture shall be allocated and paid as follows: |
| (a) | First, toward payment of any collection account fees and expenses, and/or distributor fees and expenses; | |
| (b) | Second, toward applicable guild residual payments, if applicable; | |
| (c) | Third, toward third party, out of pocket, reasonable and customary sales expenses and sales fees payable to any sales agents for the Picture; | |
| (d) | Fourth, toward all debt financing and/or investments for the production and delivery of the Picture (approximately $800,000 plus future interest, if applicable); and thereafter | |
| The balance shall be considered “Net Profits” and shall be payable on a pro rata, pari passu basis as follows: (a) twenty four percent (24%) to Purchaser; seventy six percent (76%) to the other participants as allocated by Producer and its affiliates at their discretion. | ||
| 1 |
| 5. Stock Contribution: | Effective as of the full execution of this Term Sheet, Purchaser hereby issues to Producer, One Million (1,000,000) shares (which shall be automatically increased to 1,500,000 shares in the event Purchaser fails to fund the Purchase Price on or before the Funding Date) of Purchaser (“Contributed Assets”), valued at $0.30 United States Dollars per share as of November 7, 2024, pursuant to the terms of Purchaser’s bylaws. The Contributed Assets shall be deemed fully vested in Producer upon the full execution of this Term Sheet and any sale thereof by Producer shall be restricted for ninety (90) days after the issuance thereof by Purchaser. | |
| 6. Credit; Press Release: | Subject to Producer’s receipt of the full Contributed Assets, (a) Purchaser shall receive credits as set forth in that certain Credit Agreement entered into contemporaneously herewith between Purchaser and Producer (“Credit Agreement”), and (b) Purchaser shall have the right to issue a Producer-approved (in writing; approval not to be unreasonably withheld) press release announcing Purchaser’s involvement with the Picture. Notwithstanding anything construable to the contrary in the Credit Agreement, Purchaser’s credits herein and in the Credit Agreement shall be strictly subject to Producer’s receipt of the full Contributed Assets, as and when due hereunder. In the event of a conflict between the terms of this Term Sheet and the Credit Agreement, this Term Sheet shall control. | |
| 7. Tax Credits: | Purchaser acknowledges that Producer or its affiliates shall have the right to apply for tax rebates and/or tax credits applicable to the Picture (collectively, “Tax Incentives”) and to utilize a tax credit lender in the applicable state (as determined by the Producer or its affiliates) in connection therewith, which such Tax Incentives may, at the Producer’s sole direction be (a) used to offset the budget of the Picture and/or (b) deemed “gross receipts” for the purposes of calculating “Net Profits” per Paragraph 4 above. | |
| 8. Debt Financing: | Purchaser hereby acknowledges that Producer or its affiliates shall have the right to borrow funds and/or take on debt (plus any interest and/or premium thereon) to conduct its business and/or in connection with the Picture (collectively, “Debt”), which such Debt shall be recoupable from gross receipts and/or other collateral in connection with the Picture (e.g., tax credits, sales revenue, etc.) prior to distribution of “Net Profits” in accordance with Paragraph 4 above. | |
| 9. Ownership of Picture: | Purchaser and Producer hereby acknowledge and agree that the Picture shall be solely and exclusively owned by Producer or its affiliate, including without limitation, with respect to the copyright thereof and all rights therein and thereto, including, without limitation, the sole and exclusive distribution, exhibition, performance, and reproduction rights. Except to the extent expressly set forth herein, Purchaser shall have no rights in and to the Picture or any element thereof. Nothing herein contained shall create or be deemed to create any rights whatsoever of any kind or nature in favor of Purchaser with respect to any remake(s), sequel(s), and other production(s) based upon the Picture or the underlying property. |
| 2 |
| 10. Representations and Warranties: | Purchaser’s Representations and Warranties: |
| i. | Purchaser has not seen or received any advertisement or general solicitation with respect to the Purchase Price and/or Contributed Assets; | |
| ii. | Purchaser has the requisite knowledge and experience in financial and business matters to assess and evaluate (and has carefully assessed and evaluated) the relative merits and risks of an investment in the Picture and can bear the economic risks on the Purchase Price and/or Contributed Assets. | |
| iii. | Purchaser is an “accredited investor”, as defined under Regulation D promulgated pursuant to the Securities Act of 1933, as amended; | |
| iv. | Purchaser has been given the opportunity to discuss with representative of the Producer all material aspects of an investment in the Picture and review diligence in connection therewith; | |
| v. | Purchaser has had a reasonable opportunity to seek the advice of counsel with respect to the Purchase Price and/or Contributed Assets and the risks associated therewith; | |
| vi. | None of the cash or property that Purchaser will pay to Producer has been or shall be derived from, or related to, any activity that is deemed criminal under United States federal laws; and | |
| vii. | No contribution, consideration, or payment by Purchaser to Producer shall cause Producer to be in violation of the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986 or the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001. |
| Purchaser’s and Producer’s Representations and Warranties: | ||
| Each Party warrants and represents that it has the full right, power, and authority to enter into and to perform its obligations under this Term Sheet. Furthermore, each Party warrants, represents, and agrees that: | ||
| i. | It has the full right, power and authority to enter into this Term Sheet, to grant the rights granted herein, and to perform and fulfill all of the obligations to be rendered and satisfied by such Party hereunder; | |
| ii. | There are no claims, facts or circumstances existing or pending which would prevent the full performance of such Party’s obligations hereunder; | |
| iii. | The performance of such Party’s obligations hereunder shall not violate the terms of any other agreement; | |
| iv. | This Term Sheet has been duly and validly authorized, executed, and delivered by each Party and constitutes each Party’s valid and binding obligation, enforceable in accordance with its terms (except as enforcement may be limited by applicable law). | |
| 11. Legal and Professional Expenses: | Subject to the terms herein, each of the Parties is responsible for bearing the cost of their own legal and other professional expenses in connection with this Term Sheet and any other documents and exhibits, which may be necessary to effectuate payment of the Purchase Price and issuance of the Contributed Assets. | |
| 12. No Guarantee: | Producer (nor any of its agents, principals, or representatives, as applicable) has not made any express or implied representation, warranty, guarantee, or agreement as to the production of the Picture, the amount of revenue which will be derived from the distribution of the Picture, nor has Producer made any express or implied representation, warranty, guarantee, or agreement that there will be any sums payable to Purchaser hereunder, or that the Picture will be produced and/or favorably received by exhibitors or by the public, or will be distributed continuously. In no event shall Producer incur any liability based upon any claim that Producer (or its agents, principals, or representatives) has failed to realize receipts or revenue, which should or could have been realized. |
| 3 |
| 13. Acknowledgement of Risks: | Purchaser acknowledges the risks inherent in developing, producing, and marketing the Picture, including, but not limited to, the possibility of cost overruns, lower sales than anticipated, and loss of contributed financing, including, without limitation, the Purchase Price and Contributed Assets. There is no assurance that Purchaser will earn a profit the Picture nor is there any assurance that Purchaser will recoup any of its Purchase Price contributed and/or the value of the Contributed Assets. Producer makes no representation or warranty as to the amount of revenue, if any, to be received from exploitation of the Picture. Purchaser acknowledges that no federal or state agency has reviewed or made any findings or determination as to the fairness or merit of this purchase and that this Term Sheet shall not constitute a registered security. Purchaser acknowledges that neither Producer nor any person or entity acting on behalf of Producer has offered the opportunity to invest herein by means of any form of general solicitation or advertising, including without limitation, (a) any advertisement, article, notice, or other communication published in any newspaper, magazine, or similar media, or broadcast over television or radio, or (b) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. Purchaser is a sophisticated investor familiar with the types of risks inherent in an investment of the nature hereof, and has such business or financial experience that Purchaser is capable of protecting his/her/its own interests in connection with the investment of the Purchase Price and Contributed Assets. Purchaser is properly able to evaluate the proposed business of Producer and the inherent risks therein. Purchaser has reviewed with Purchaser’s own tax advisor(s) and/or attorney(s), to the extent Purchaser considers it prudent or relevant, the consequences of this investment and the transaction contemplated by this Term Sheet and is relying solely on such advisors and not on any statements or representations of Producer in connection therewith, other than as provided for herein. Purchaser understands that Purchaser, and not Producer, shall be solely responsible for Purchaser’s own tax liability that may arise as a result of this investment or the transactions contemplated by this Term Sheet. | |
| 14. Confidentiality: | The parties agree to keep all Confidential Information strictly confidential and Purchaser agrees not to disclose or permit the disclosure of any Confidential Information to any third- party without the prior written consent of Producer except that Purchaser may disclose such terms to its officers, directors, members, managers, attorneys, other advisors, governmental entities, or parties required by law. “Confidential Information” means any oral, written, visual, graphic, or machine-readable information (whether written or visual) including, but not limited to, that which relates to ideas, concepts, scripts, data, artwork, images, designs, drawings, graphics, photographs, objects, plans, specifications, products, techniques, developments, inventions, processes, research, agreements with third parties and/or internal Producer agreements, services, client lists, distributors, networks, cable companies, contestants, participants, business and/or marketing plans, strategies, marketing or finances, financial information, names, forecasts, budgets, statements, personnel, customer information, know-how, copyrights, patents, trademarks, and all other similar property, whether such information relates to the Picture or this Term Sheet (including, without limitation, the existence of the Picture or this Term Sheet) or otherwise, and whether such Confidential Information is acquired from Producer or any other source. | |
| 15. Assignment: | Purchaser may not assign this Term Sheet to a third party without the prior written consent of Producer, and any such purported assignment or delegation without such prior written consent shall be null and void and of no force and effect. Producer shall have the right to assign this Term Sheet (or any of its rights hereunder) to any person, firm or corporation. |
| 4 |
| 16. Remedies: | There is no obligation on the part of any Party until this Term Sheet is fully executed. Notwithstanding anything to the contrary, in the event that the Purchase Price is not funded by Purchaser hereunder no later than the Funding Date, then without limitation to any other rights or remedies available to Producer, (a) Purchaser shall reimburse Producer for all legal costs and fees (including attorney’s fees) incurred by Producer in connection with this Term Sheet up to Five Thousand United States Dollars (US$5,000), (b) Purchaser shall immediately issues the outstanding shares of the increased Contributed Assets (i.e., 1,500,000 shares in aggregate), and (b) Producer shall have the right to terminate this Term Sheet with no further obligation to Purchaser with the sole exception of, subject to Producer’s receipt of the Contributed Assets in full, Purchaser’s credits set forth in Paragraph 6 hereof. In the event of any breach by Producer of this Term Sheet or any of Producer’s obligations hereunder, Purchaser’s remedies shall be limited to the right to recover actual monetary damages, if any, in an action at law, and Purchaser hereby waives any right to seek and/or obtain injunctive or other equitable relief with respect to any breach of Producer’s obligations hereunder and/or to enjoin or restrain or otherwise impair in any manner the production, distribution, exhibition, or other exploitation of the Picture, or any parts or elements thereof, or the use, publication, or dissemination of any advertising in connection therewith. | |
| 17. Miscellaneous: | This Term Sheet is binding upon the Parties and is subject to California law and the exclusive jurisdiction of the Courts of the State of California and the Federal Courts located in Los Angeles, California. Any dispute arising hereunder shall be resolved solely through binding arbitration, before a single arbitrator familiar with entertainment law, and conducted in Los Angeles, California under and pursuant to the JAMS Streamlined (for claims under US$250,000.00) or the JAMS Comprehensive (for claims over US$250,000.00) Arbitration Rules and Procedures (“JAMS Rules”), as said rules may be amended from time to time. The parties agree to accept service of process in accordance with JAMS Rules. The arbitrator shall issue a written opinion that includes the factual and legal basis for any decision and award within thirty (30) days from the date the arbitration hearing concludes. Each party hereby irrevocably submits to the jurisdiction and venue in the state or federal courts of the State of California in the City and County of Los Angeles for all purposes, including, but not limited to, in connection with any petition to confirm an arbitration award obtained pursuant to this Paragraph. Any award shall be final, binding, and non-appealable. The arbitration will be confidential and conducted in private, and will not be open to the public or media. No matter relating to the arbitration (including but not limited to, the testimony, evidence or result) may be: (i) made public in any manner or form; (ii) reported to any news agency or publisher; and/or (iii) disclosed to any third party not involved in the arbitration. The prevailing party in any dispute shall be entitled to reimbursement of its reasonable outside attorneys’ fees and costs. | |
| This Term Sheet does not constitute either an offer to sell or an offer to purchase securities. The Parties may enter into a long-form purchase agreement reflecting the above terms and other customary terms and conditions, to be negotiated in good faith. Unless and until such long-form agreement is executed by the Parties, this Term Sheet will constitute the Parties’ complete agreement and shall supersede and replace any prior understandings, negotiations, and/or agreements, whether oral or written, executed or unexecuted. |
| 5 |
IN WITNESS WHEREOF, the Parties hereby execute this Term Sheet as of the date set forth below. The Parties agree to execute more formal documents affirming the essential terms herein and developing more detail thereon.
| READ, AGREED, & ACCEPTED: | ||
| PRODUCER: | ||
| By: | /s/ Shaun Sanghani | |
| On behalf of SSS Entertainment, LLC | ||
| Its: | Manager | |
| Name: | Shaun Sanghani | |
| Date: | 11/7/2024 | |
| PURCHASER: | ||
| By: | /s/ Bannor Michael MacGregor | |
| On behalf of American Picture House Corporation | ||
| Name: | Bannor Michael MacGregor | |
| [Its: Chief Executive Officer] | ||
Address: |
477 Madison Avenue – 6FL |
|
| New York, New York 10022 | ||
| Date: | 11/7/2024 | |
| 6 |
Exhibit 10.15
AGREEMENT
This Agreement (the “Agreement”) is made and entered into as of the 11th day of March, 2025 (the “Effective Date”), by and between ALFRED JOHN LUESSENHOP, JR., an individual (“JL”), on the one hand, and AMERICAN PICTURE HOUSE CORPORATION, a Wyoming corporation (“APH”), DEVIL’S HALF-ACRE, LLC, a Wyoming limited liability company (“DHA LLC”) and ASK CHRISTINE PRODUCTIONS, LLC, a Wyoming limited liability company (“ACP LLC”), on the other hand. JL, APH, DHA LLC, and ACP LLC are collectively referred to herein as the “Parties” or individually as a “Party”.
WHEREAS, Dashiell Luessenhop (“DL”) and APH entered into a Screenplay Option/Purchase Agreement (the “DHA Option Agreement”) with an effective date of August 1, 2022, relating to the unpublished screenplay “Devil’s Half-Acre” (the “DHA Screenplay”), written by DL;
WHEREAS, Danielle Silvie Gershberg (“Gershberg”) and ACP LLC entered into a Screenplay Option/Purchase Agreement (the “AC Option Agreement”) with an effective date of March 1, 2023, relating to the unpublished screenplay “Ask Christine” (the “AC Screenplay”) written by Gershberg, ;
WHEREAS, APH and Advantage Systems, Inc. entered into a Single Site – End-User Non- Disclosure and Software License Agreement (the “Software License Agreement”) with an effective date of November 16, 2023, relating to the licensing of certain accounting software;
WHEREAS, APH and Microsoft Azure entered into an agreement for the provision of cloud services (“Cloud Services Agreement”) to work in conjunction with the accounting software licensed to APH pursuant to the Software Licensing Agreement; and
WHEREAS, JL is the record owner and holder of approximately 3,000,000 shares of APH Common Stock.
NOW, THEREFORE, in consideration of the mutual covenants and obligations set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby recognized, the Parties covenant and agree as follows:
1. Transfer of Shares: In consideration for APH, DHA LLC, and ACP LLC’s performance of their respective obligations set forth in this Agreement, JL covenants and agrees to transfer to APH One Million (1,000,000) shares of APH Common Stock (valued at $256,000.00 USD based on $0.256 per share) currently held and/or owned by JL. JL hereby authorizes APH’s transfer agent, Madison Stock Transfer, Inc. (“Madison”), to release and/or transfer immediately to APH One Million (1,000,000) shares of APH’s Common Stock currently held in the name of JL on the books and records of Madison and APH. JL hereby covenants and agrees to execute a Stock Power in the form set forth in Exhibit “A” hereto, and all other documents and authorizations reasonably necessary to effectuate the transfer of the shares required by this Section 1.
2. Assignment of DHA Option Agreement: APH covenants and agrees to assign to JL all of APH’s rights, title and interests in the DHA Option Agreement, if any, such assignment making JL the sole owner of AC Option Agreement, with such assignment to be effective immediately upon completion of the transfer of shares required in Section 1 hereto.
3. Assignment of DHA Rights: APH and DHA LLC covenant and agree to assign to JL all of APH’s and DHA LLC’s rights, title and interests in the motion picture project “Devil’s Half-Acre,” including but not limited to, all of APH’s and DHA LLC’s rights, title and interests in the filmed footage, materials, copyright and other proceeds from that certain film production in Maine, USA in 2022 (collectively, the “DHA Motion Picture Rights”), with such assignment to be effective immediately upon completion of the transfer of shares required in Section 1 hereto. JL hereby acknowledges and agrees that he is currently in possession of all tangible and intangible material related to the motion picture project “Devil’s Half-Acre,” and that APH has no further obligation with regard to the transfer of said material to JL.
4. Assignment of AC Option Agreement: ACP LLC covenants and agrees to assign to JL all of ACP LLC’s rights, title and interests in the AC Option Agreement, if any, such assignment making JL the sole owner of AC Option Agreement, with such assignment to be effective immediately upon completion of the transfer of shares required in Section 1 hereto.
5. Assignment of Software License and Cloud Services Agreements: APH covenants and agrees to assign to JL all of APH’s rights, title and interests in the Software License Agreement and Cloud Services Agreement, such assignment making JL the sole licensee under those agreements, with such assignments to be effective immediately upon completion of the transfer of shares required in Section 1 hereto. JL agrees and covenants to obtain all consents from Advantage Systems, Inc. and Microsoft Azure that may be required to effectuate the assignment. In the event such consents cannot be or are not obtained by April 30, 2025, the assignment(s) set forth in this Section 5 shall be null and void. Prior to April 30, 2025, JL shall give notice to APH when, if ever, such consents are obtained and shall indemnify APH for all liabilities, costs, fees and expenses related to such agreements incurred by APH from the Effective Date of this Agreement through April 30, 2025.
6. Other Property: Other than for the agreements, options, screenplays, motion picture projects, entities, and other materials and intellectual property specifically referenced in this Agreement, APH retains all right, title and interest in and to its other agreements, options, screenplays, motion picture projects, entities, and other materials and intellectual property and nothing in this Agreement is intended to grant to JL, and JL agrees to forgo, any claim to such rights, title, interest, license or ownership in such APH agreements, options, screenplays, motion picture projects, entities, and other materials and intellectual property.
7. APH Representations and Warranties: APH, DHA LLC and ACP LLC represent and warrant that the following statements are true and correct as of the Effective Date of this Agreement:
| a. | Authorization; Enforcement; Validity: Each of APH, DHA LLC and ACP LLC has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder. Such Party’s execution and delivery of this Agreement and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of such Party, and no further corporate action is required by such Party, its board of directors or its equity-holders in connection therewith. This Agreement has been (or upon delivery will have been) duly executed by such Party and is, or when delivered in accordance with the terms hereof, will constitute the legal, valid and binding obligation of such Party enforceable against such Party in accordance with its terms, except (i) as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally the enforcement of, creditors’ rights and remedies or by other equitable principles of general application, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law. |
| b. | Owner of Rights: (i) APH is the sole owner of and has not transferred rights to the DHA Option Agreement, the Software License Agreement, and/or the Cloud Services Agreement to any person or entity, (ii) APH and DHA LLC are together the sole owners of DHA Motion Picture Rights set forth in Section 3 and neither has transferred any of such rights to any person or entity, and (iii) ACP LLC is the sole owner of and has not transferred rights to the AC Option Agreement to any person or entity. |
| 2 |
8. JL Representations and Warranties: JL represents and warrants that the following statements are true and correct as of the Effective Date of this Agreement:
| a. | Authorization; Enforcement; Validity: JL has the requisite power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out his obligations hereunder. JL’s execution and delivery of this Agreement and the consummation by him of the transactions contemplated hereby (including the transfer of APH Common shares as contemplated herein) have been duly authorized by all necessary parties, and no further action is required by JL or any other person or entity. This Agreement and all related transaction documents have been (or upon delivery will have been) duly executed by JL and are, or when delivered in accordance with the terms hereof, will constitute the legal, valid and binding obligations of JL, enforceable against him in accordance with their terms, except (i) as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally the enforcement of, creditors’ rights and remedies or by other equitable principles of general application, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law. |
9. Releases: APH, DHA LLC, ACP LLC, and JL, each individually and for themselves, their heirs, successors, representatives, and assigns, agree to MUTUALLY RELEASE and FOREVER DISCHARGE, one another from any and all claims, demands, damages, costs, expenses, obligations, actions, causes of action, personal injury claims, property damage claims, loss of any kind, costs, and compensation of any nature whatsoever that are known or unknown, past, present or future, arising from any of the agreements, contracts, screenplays, and/or film projects set forth in the recitals of this Agreement.
10. Non-disparagement: The Parties agree not to disparage each other or each other’s products, intellectual property, services, affiliates, or current or former officers, directors, members, or employees either publicly or privately.
11. Notices: All notices, requests, demands and other communications under this Agreement shall be in writing and served personally on or mailed to the party to whom notice is to be given by first class mail, registered or certified, postage prepaid, as follows; provided, that a Party may change its address for receiving notice by the proper giving of notice hereunder:
To APH:
American Picture House Corporation
477 Madison Ave, 6 FL, New York, NY 10022
Attn: Michael Macgregor
macgregor@americanpicturehouse.com
With a copy (which shall not constitute notice) to :
Donald J. Harris
Harris Sarratt & Hodges, LLP
1620 Hillsborough Street, Suite 200
Raleigh, North Carolina 27605
dharris@hshllp.com
To JL:
John Luessenhop
6 Eastwood Ct, #2038
Amagansett, NY 11930
jluessenhop@gmail.com
| 3 |
12. Entire Agreement: This Agreement and any related transaction documents constitute the exclusive statement of the agreements between the Parties to this Agreement and related transaction documents concerning the subject matter hereof and thereof, and supersedes all other prior agreements, if any, concerning the subject matter. The Parties acknowledge and agree that the terms and conditions set forth in each of the transaction documents are material to the terms, conditions, and agreements set forth in the other transaction documents.
13. Modification: No modification or waiver of this Agreement shall be enforceable unless made in a written instrument signed by all the Parties to this Agreement.
14. Binding Effect: This Agreement shall be binding upon and inure to the benefit of Parties and their respective successors and assigns.
15. Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, exclusive of its conflicts of law provisions.
16. Jurisdiction and Venue: Any action that relates to the provisions of this Agreement shall be brought solely in a state or federal court located in North Carolina and all objections to personal jurisdiction and venue in any such action are hereby waived. Each party acknowledges and agrees that any controversy which may arise under this agreement is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or any related transaction document.
17. Counterparts: This Agreement and related transaction documents may be executed and delivered in multiple counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. A facsimile, electronic copy or other copy of a signature shall be considered an original.
18. Assignment: No party may assign any of its rights or obligations hereunder without the prior written consent of the other party.
19. Further Assurances: The Parties will execute any and all additional documents necessary to effectuate the terms of this Agreement.
[signature page to follow]
| 4 |
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first above written.
| AGREED AND ACCEPTED: | ||
| /s/ Alfred John Luessenhop, Jr. | ||
| Alfred John Luessenhop, Jr., Individually | ||
| American Picture House Corporation | ||
| /s/ Bannor Michael MacGregor | ||
| Bannor Michael MacGregor, CEO | ||
| Devil’s Half-Acre, LLC | ||
| /s/ Bannor Michael MacGregor | ||
| Bannor Michael MacGregor, Managing Member | ||
| Ask Christine Productions, LLC | ||
| /s/ Bannor Michael MacGregor | ||
| Bannor Michael MacGregor, Managing Member |
| 5 |
Exhibit “A”
Irrevocable Stock Power
March 11, 2025
FOR VALUE RECEIVED, the undersigned does (do) hereby sell, assign, and transfer unto
American Picture House Corporation (the “Purchaser”):
One Million (1,000,000) common shares in the capital stock of American Picture House Corporation (“APH”) standing in the name of the undersigned on the books of said company.
The undersigned does (do) hereby irrevocably constitute and appoint: Madison Stock Transfer, Inc. Attorney to transfer the said common shares on the books of said company, with full power of substitution in the premises.
| Alfred John Luessenhop, Jr. ( the “Seller” or “APHP Shareholder”): | |||
| By: | /s/ Alfred John Luessenhop, Jr. | 03/11/2025 | |
| Alfred John Luessenhop, Jr. | Date | ||
| 6 |
Exhibit 10.15.1
Amendment to the APHP Luessenhop Agreement dated March 11, 2025
This amendment which amends the APHP Luessenhop Agreement dated March 11, 2025 (the “Addendum”) is made and entered into as of the29th day of April 2025 (the “Effective Date”), by and between ALFRED JOHN LUESSENHOP, JR., an individual (“JL”), on the one hand, and THE NOAH MORGAN PRIVATE FAMILY TRUST, a Wyoming spendthrift trust (“TRUST”) on the other hand.
Whereas the Trust is desirous to maintain goodwill between APHP and JL and JL is desirous of maintaining such goodwill; and
NOW, THEREFORE, in consideration of the mutual covenants and obligations set forth in this Addendum and other good and valuable consideration, the receipt and sufficiency of which are hereby recognized, the Parties covenant and agree as follows:
The Parties agree to amend the original agreement as follows:
Item 1. Is amended as follows, rather than have JL retire the one million shares of common stock, the Trust will retire ten preferred shares which upon conversion would be equivalent to one million shares.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first above written.
| AGREED AND ACCEPTED. | ||
| ALFRED JOHN LUESSENHOP, JR. | ||
| /s/ Alfred John Luessenhop, Jr. | 04/29/25 | |
| Alfred John Luessenhop, Jr. | date | |
| THE NOAH MORGAN PRIVATE FAMILY TRUST | ||
| /s/ Bannor Michael MacGregor | 04/29/25 | |
| Bannor Michael MacGregor, Managing Manager of Hyperion Sprung Private Family Trust Management Company, LLC, trustee of The Noah Morgan Private Family Trust | date | |
| ACKNOWLEDGED. | ||
AMERICAN PICTURE HOUSE COPORATION |
||
| /s/ Bannor Michael MacGregor | 04/29/25 | |
| Bannor Michael MacGregor, CEO | date | |
Exhibit 10.16
APHP/SSS Agreement to Extend the TURN UP THE SUN! (aka POSE) Option and to Acquire Additional Rights to BARRON’S COVE
This Agreement (“Agreement”) is entered into this 1st day of August 2025, by and between American Picture House Corporation, a corporation organized under the laws of Wyoming (“APHP”), and SSS Entertainment, LLC, a limited liability company organized under the laws of Louisiana (“SSS”).
WHEREAS:
The Parties previously entered into an agreement titled “Term Sheet / ‘Turn up the Sun!’” on November 11, 2024, granting APHP an option to purchase a 24% ownership interest in the feature film, TURN UP THE SUN! (aka POSE), from SSS and the Parties now mutually desire to extend this option through December 31, 2025, to allow for further negotiations and the completion of this transaction.
APHP further desires to acquire all of SSS’s rights, title, and interests in and to the feature film known as BARRON’S COVE, including, “BARRON’S COVE Domestic Loan with Security dated June 7, 2023” and related documents without limitation, all secured rights, loans, liens, UCC-1 filings, powers of attorney, and related assets (collectively, the “BARRON’S COVE Assets”). APHP intends to assume full control and ownership over the BARRON’S COVE Assets and utilize existing UCC-1 filings held by SSS to secure such assets.
APHP has conducted and reviewed financial and performance data relating to the exploitation of the film BARRON’S COVE and enters into this Agreement based on its independent evaluation.
APHP and SSS agree that upon APHP’s acquisition of the BARRON’S COVE Assets, APHP will pay to SSS the first 85% of revenues collected from exploitation and distribution of BARRON’S COVE until such time as SSS has fully recouped $2M, representing the principal, accrued interest, and fees pursuant to the originally documented financing terms.
APHP grants SSS the option to allow any revenues payable to SSS under this Agreement to be retained by APHP as revenue, in exchange for APHP issuing to SSS shares of APHP common stock at a conversion rate of 2.5 times the value of the retained revenues.
The Parties further acknowledge that APHP has issued 500,000 shares of its common stock to SSS in part to secure SSS’s agreement to the terms herein and to facilitate the extension of the prior option.
NOW, THEREFORE, in consideration of the mutual promises, covenants, and conditions set forth herein, the parties agree as follows:
| 1. | EXTENSION OF PURCHASE OPTION |
The option previously granted to APHP to purchase the 24% ownership interest in the film TURN UP THE SUN! from SSS at a purchase price of $725,000 is hereby extended to December 31, 2025,
| 2. | PURCHASE OF BARRON’S COVE ASSETS |
SSS agrees to transfer and assign all rights, title, and interest in the BARRON’S COVE Assets to APHP, free of any encumbrance other than those explicitly agreed herein.
| 3. | REVENUE SHARING AND EQUITY CONVERSION |
| a. | APHP shall pay to SSS the first 85% of revenues derived from the BARRON’S COVE Assets until SSS has fully recouped the principal, interest, fees, and costs under the original loan(s) held by SSS against the film. | |
| b. | Once SSS has fully recouped these amounts, all subsequent revenues derived from BARRON’S COVE Assets shall be solely and exclusively retained by APHP. | |
| c. | SSS shall have the right, at its sole discretion, to instruct APHP to retain revenues otherwise payable to SSS under this Agreement, and in exchange, APHP shall issue to SSS shares of APHP common stock valued at 2.5 times the retained revenue amount at the closing price on the date that APHP is directed by SSS to retain said revenues or at a price no less than $1.00 per share. |
| 4. | UCC-1 FILINGS AND SECURITY AGREEMENTS |
APHP shall promptly take all necessary legal and administrative actions to perfect and assume all security interests, liens, and rights previously held by SSS through UCC-1 filings and other recorded security interests, both parties will provide reasonable assistance and cooperation during the transition.
| 4.1 | Stock consideration |
As consideration for the extension of the option described in Section 1 and the acquisition of the BARRON’S COVE Assets described in Section 2, the Parties acknowledge that the 500,000 shares of APHP common stock issued to Shaun Sanghani on JUNE 26, 2025, individually, was in lieu of APHP paying SSS or Sanghani for any default(s) (as such default(s) is/are hereby waived). Instead, SSS hereby acknowledges and agrees that such issuance was made for the benefit of SSS and in consideration of the obligations undertaken by SSS in this Agreement.
For accounting purposes, the Parties agree that the 500,000 APHP common shares issued to Shaun Sanghani shall be allocated as follows: 50% toward the BARRON’S COVE transaction and 50% toward the TURN UP THE SUN! option extension.
| 4.2 | Enforcement of assigned rights |
APHP agrees to take all steps reasonably necessary (based on APHP’s best efforts) to assume, preserve, and enforce the first-position rights and security interests acquired from SSS pursuant to this Agreement. This includes, without limitation, taking legal, administrative, and operational actions under applicable law including UCC Article 9 and related remedies to act upon and perfect its position as secured party up to a total cost of $50,000. Any costs associated with the obligations assumed under this section shall be deducted from revenues derived from the BARRON’S COVE assets prior to the split contemplated in Section 3(a.). APHP shall be responsible for initiating and pursuing any necessary proceedings to exercise its rights against any collateral previously secured by SSS, including but not limited to the right to collect, receive, and control revenues, copyrights, and other assets related to the film BARRON’S COVE and its associated production entities. APHP shall act in good faith and with due diligence to protect and realize the full value of such rights and assets. APHP makes no representations, warranties, or guarantees regarding the success of its reasonable efforts, and expressly disclaims any assurance that such efforts will result in a successful outcome.
APHP shall be entitled to pursue any and all remedies available under applicable law to secure and realize the full value of the BARRON’S COVE Assets, including but not limited to taking legal actions to perfect its security interests, enforce contractual rights, and recover proceeds and revenues from third parties. The Parties agree that any such actions taken by APHP in good faith shall not constitute grounds for breach or cause of action by SSS.
| 5. | INDEMNIFICATION AND HOLD HARMLESS |
| 5.1 | Indemnification by SSS: |
SSS agrees to indemnify, defend, and hold harmless APHP its officers, directors, share- holders, employees, affiliates, representatives, agents, successors, and assigns (collectively, the “APHP Indemnified Parties”) from and against any and all claims, demands, liabilities, judgments, losses, damages, settlements, costs, and expenses (including reasonable attorneys’ fees and litigation expenses), except in cases involving fraud or intentional misconduct by APHP arising directly or indirectly from:
| a. | Any third-party claims or actions related to the BARRON’S COVE Assets, loans, UCC filings, liens, security interests, powers of attorney (s), etc., arising from acts or omissions by SSS. | |
| b. | Any breach by SSS of its representations, warranties, covenants, or obligations contained in this Agreement. |
SSS’s obligations under this Section shall survive the closing of the transactions contemplated herein indefinitely.
| 5.2 | Indemnification by APHP: |
APHP agrees to indemnify, defend, and hold harmless SSS, its members, officers, managers, employees, affiliates, representatives, agents, successors, and assigns (collectively, the “SSS Indemnified Parties”) from and against any and all claims, demands, liabilities, judgments, losses, damages, settlements, costs, and expenses (including reasonable attorneys’ fees and litigation expenses), except in cases involving fraud or intentional misconduct by SSS arising directly or indirectly from:
| a. | Any third-party claims or actions related to the BARRON’S COVE Assets, loans, UCC filings, liens, security interests, powers of attorney(s), etc. arising from acts or omissions by APHP. | |
| b. | Any breach by APHP of its representations, warranties, covenants, or obligations contained in this Agreement. |
APHP’s obligations under this Section shall survive the closing of the transactions contemplated herein indefinitely. APHP’s liability under this section is limited to and shall not exceed APHP’s share of funds actually received by APHP under this agreement.
| 5.3 | Limitation of Post-Closing Liability for SSS |
Following the execution of this Agreement and the transfer of the rights contemplated herein, APHP acknowledges and agrees that SSS shall have no further responsibility or liability to any third party asserting claims relating to the BARRON’S COVE Assets based solely on conduct, contracts, or representations made by APHP and occurring after the date of this Agreement, except in cases involving fraud or intentional misconduct by SSS. APHP shall not, and shall ensure that its successors, affiliates, or assigns do not, pursue SSS for indemnity, contribution, or reimbursement in connection with such third-party claims. APHP’s liability under this section is limited to and shall not exceed APHP’s share of funds actually received by APHP under this agreement. This limitation shall survive the closing of the transactions contemplated herein.
| 5.4 | Notification and Cooperation: |
The indemnified party shall promptly notify the indemnifying party in writing of any claim for indemnification hereunder, provided however, that failure to provide such notice shall not relieve the indemnifying party from its obligations unless the indemnifying party is materially prejudiced by such delay. The indemnified party shall provide reasonable cooperation in the defense or settlement of any such claims.
| 5.5 | Litigation Costs and Cooperation: |
Notwithstanding the foregoing, the Parties acknowledge the potential for third-party litigation relating to the BARRON’S COVE Assets and agree to cooperate in good faith to minimize legal exposure and costs. APHP shall not be liable to SSS or any affiliated party for failing to prevail in any litigation initiated or defended in good faith, provided such action was taken reasonably and in reliance on the rights transferred herein. The Parties further agree to work together to control and allocate legal expenses related to enforcement of the rights contemplated by this Agreement. In no event shall APHP be liable to SSS for incidental, indirect, or consequential damages resulting from any third- party legal action unless arising from APHP’s willful misconduct.
| 6. | Mutual Representations, Warranties, Covenants, and Obligations |
Each Party represents and warrants to the other, and covenants and agrees, as of the date of this Agreement and continuing throughout its term, that:
| a. | It has full power and authority to enter into this Agreement and to carry out its obligations hereunder, and all necessary corporate or limited liability company action has been taken to authorize the execution, delivery, and performance of this Agreement. | |
| b. | This Agreement constitutes a legal, valid, and binding obligation of such Party, enforceable against it in accordance with its terms. | |
| c. | The execution and performance of this Agreement does not and will not violate any applicable law, regulation, judgment, order, agreement, or instrument to which such Party is subject or by which it is bound. | |
| d. | Each Party shall comply in all material respects with the terms of this Agreement and shall not knowingly take any action that would cause a breach of any covenant, representation, warranty, or obligation hereunder. | |
| e. | Each Party has had the opportunity to consult with independent legal and financial counsel prior to executing this Agreement and enters into it voluntarily and without duress. |
| 6. | GOVERNING LAW AND JURISDICTION |
This Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of North Carolina without regard to its conflicts of laws principles.
| 7. | ENTIRE AGREEMENT |
This document constitutes the entire understanding between the parties concerning the matters discussed herein and supersedes all prior agreements and understandings, whether oral or written.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| American Picture House Corporation (APHP) | ||
| By: | /s/ Bannor Michael MacGregor | |
| Bannor Michael MacGregor, CEO | ||
| SSS Entertainment, LLC (SSS) | ||
| By: | /s/ Shaun Sanghani | |
| Shaun Sanghani, CEO and Managing Member | ||
Exhibit 10.17
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this “Agreement”) is made and entered into effective as of August 28, 2025, by and between American Picture House Corp., a Delaware corporation (the “Company”), and RH2 Equity Partners, a Delaware limited Partnership (the “Investor”).
RECITALS
WHEREAS, the Company and the Investor have entered into that certain Common Stock Purchase Agreement, dated as of the date hereof (the “Purchase Agreement”), pursuant to which the Company may issue, from time to time, to the Investor up to the lesser of (i) $100,000,000 in aggregate gross purchase price of newly issued shares of the Company’s common stock, par value $0.0001 per share (“Common Stock”), and (ii) the Maximum Common Stock Issuance (to the extent applicable under Section 7.1.3 of the Purchase Agreement), as provided for therein.
WHEREAS, pursuant to the terms of, and in consideration for the Investor entering into, the Purchase Agreement, and to induce the Investor to execute and deliver the Purchase Agreement, the Company has agreed to provide the Investor with certain registration rights with respect to the Registrable Securities (as defined herein) as set forth herein.
WHEREAS, the Company and Investor have agreed that the Equity Line shall remain open and irrevocable for a minimum period of twelve (12) months, subject to the terms and conditions of the Equity Line Agreement;
AGREEMENT
NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained herein and in the Purchase Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, intending to be legally bound hereby, the Company and the Investor hereby agree as follows:
| 1. | Definitions. |
Capitalized terms used herein and not otherwise defined herein shall have the respective meanings set forth in the Purchase Agreement. As used in this Agreement, the following terms shall have the following meanings:
(a) “Agreement” shall have the meaning assigned to such term in the preamble of this Agreement
(b) “Allowable Grace Period” shall have the meaning assigned to such term in Section 3(p).
(c) “Blue Sky Filing” shall have the meaning assigned to such term in Section 6(a).
(d) “Business Day” means any day other than Saturday, Sunday or any other day on which commercial banks in New York, New York are authorized or required by law to remain closed.
(e) “Claims” shall have the meaning assigned to such term in Section 6(a).
(f) “Closing Date” shall mean the date of this Agreement.
(g) “Commission” means the U.S. Securities and Exchange Commission or any successor entity.
(h) “Common Stock” shall have the meaning assigned to such term in the recitals to this Agreement.
(i) “Company” shall have the meaning assigned to such term in the preamble of this Agreement.
(j) “Effective Date” means the date that the applicable Registration Statement has been declared effective by the Commission.
(k) “Effectiveness Deadline” means (i) with respect to the Initial Registration Statement required to be filed to pursuant to Section 2(a), the earlier of (A) the 90th calendar day after the date of this Agreement, if such Registration Statement is subject to review by the Commission, and (B) the 45th calendar day after the date of this Agreement, if the Company is notified (orally or in writing, whichever is earlier) by the Commission that such Registration Statement will not be reviewed and (ii) with respect to any New Registration Statements that may be required to be filed by the Company pursuant to this Agreement, the earlier of (A) the 90th calendar day following the date on which the Company was required to file such additional Registration Statement, if such Registration Statement is subject to review by the Commission, and (B) the 45th calendar day following the date on which the Company was required to file such New Registration Statement, if the Company is notified (orally or in writing, whichever is earlier) by the Commission that such Registration Statement will not be reviewed.
(l) “Filing Deadline” means (i) with respect to the Initial Registration Statement required to be filed to pursuant to Section 2(a), the 30th day after the date of this Agreement and (ii) with respect to any New Registration Statements that may be required to be filed by the Company pursuant to this Agreement, the 30th day following the sale of substantially all of the Registrable Securities included in the Initial Registration Statement or the most recent prior New Registration Statement, as applicable, or such other date as permitted by the Commission.
(m) “Indemnified Damages” shall have the meaning assigned to such term in Section 6(a).
(n) “Initial Registration Statement” shall have the meaning assigned to such term in Section 2(a).
(o) “Investor” shall have the meaning assigned to such term in the preamble of this Agreement.
(p) “Investor Party” and “Investor Parties” shall have the meaning assigned to such terms in Section 6(a).
(q) “Legal Counsel” shall have the meaning assigned to such term in Section 2(b).
(r) “New Registration Statement” shall have the meaning assigned to such term in Section 2(c).
(s) “Person” means any person or entity, whether a natural person, trustee, corporation, Partnership, limited Partnership, limited liability company, trust, unincorporated organization, business association, firm, joint venture, governmental agency or authority.
| 2 |
(t) “Prospectus” means the prospectus in the form included in the Registration Statement, as supplemented from time to time by any Prospectus Supplement, including the documents incorporated by reference therein.
(u) “Prospectus Supplement” means any prospectus supplement to the Prospectus filed with the Commission from time to time pursuant to Rule 424(b) under the Securities Act, including the documents incorporated by reference therein.
(v) “Purchase Agreement” shall have the meaning assigned to such term in the recitals to this Agreement.
(w) “register,” “registered,” and “registration” refer to a registration effected by preparing and filing one or more Registration Statements in compliance with the Securities Act and pursuant to Rule 415 and the declaration of effectiveness of such Registration Statement(s) by the Commission.
(x) “Registrable Securities” means all of (i) the Shares, including, without limitation, the Purchase Notice Shares, the Rapid Purchase Notice Shares, the Commitment Shares, and the Additional Commitment Shares (if any), and (ii) any securities issued or issuable with respect to such shares by way of stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or reorganization, in each case until such time as such securities cease to be Registrable Securities pursuant to Section 2(f).
(y) “Registration Statement” means a registration statement or registration statements of the Company filed under the Securities Act covering the resale by the Investor of Registrable Securities, as such registration statement or registration statements may be amended and supplemented from time to time, including all documents filed as part thereof or incorporated by reference therein.
(z) “Registration Period” shall have the meaning assigned to such term in Section 3(a).
(aa) “Rule 144” means Rule 144 promulgated by the Commission under the Securities Act, as such rule may be amended from time to time, or any other similar or successor rule or regulation of the Commission that may at any time permit the Investor to sell securities of the Company to the public without registration.
(bb) “Rule 415” means Rule 415 promulgated by the Commission under the Securities Act, as such rule may be amended from time to time, or any other similar or successor rule or regulation of the Commission providing for offering securities on a delayed or continuous basis.
(cc) “Staff” shall have the meaning assigned to such term in Section 2(e).
(dd) “Violations” shall have the meaning assigned to such term in Section 6(a).
| 2. | Registration. |
(a) Mandatory Registration. The Company shall prepare and, as soon as practicable, but in no event later than the Filing Deadline, file with the Commission the Initial Registration Statement on Form S-1 (or any successor form) covering the resale by the Investor of (i) , the maximum number of additional Registrable Securities (which shall be designated in the Initial Registration Statement as Shares that may be issued and sold by the Company to the Investor in Purchases under the Purchase Agreement) as shall be permitted to be included in such Initial Registration Statement in accordance with applicable Commission rules, regulations and interpretations so as to permit the resale of such Registrable Securities by the Investor under Rule 415 under the Securities Act at then prevailing market prices (and not fixed prices) (the “Initial Registration Statement”). For the avoidance of doubt, the Registration Statement shall cover the resale of the Commitment Shares, Rapid Purchase Notice Shares, Purchase Notice Shares, and any Additional Commitment Shares, if issued. The Initial Registration Statement shall contain the “Selling Stockholder” and “Plan of Distribution” sections in substantially the form attached hereto as Exhibit B. The Company shall use its commercially reasonable efforts to have the Initial Registration Statement declared effective by the Commission as soon as reasonably practicable, but in no event later than the applicable Effectiveness Deadline.
| 3 |
(b) Legal Counsel. Subject to Section 5 hereof, the Investor shall have the right to select one legal counsel to review and oversee, solely on its behalf, any registration pursuant to this Section 2 (“Legal Counsel”), which shall be McMurdo Law Group, LLC, or such other counsel as thereafter designated by the Investor. Except as provided under Section 10.1(i) of the Purchase Agreement, the Company shall have no obligation to reimburse the Investor for any and all legal fees and expenses of the Legal Counsel incurred in connection with the transactions contemplated hereby.
(c) Sufficient Number of Shares Registered. If at any time all Registrable Securities are not covered by the Initial Registration Statement filed pursuant to Section 2(a) as a result of Section 2(e) or otherwise, the Company shall use its commercially reasonable efforts to file with the Commission one or more additional Registration Statements so as to cover all of the Registrable Securities not covered by the Initial Registration Statement, in each case, as soon as practicable (taking into account any position of the staff of the Commission (“Staff”) with respect to the date on which the Staff will permit such additional Registration Statement(s) to be filed with the Commission and the rules and regulations of the Commission) (each such additional Registration Statement, a “New Registration Statement”), but in no event later than the applicable Filing Deadline for such New Registration Statement(s). The Company shall use its commercially reasonable efforts to cause each such New Registration Statement to become effective as soon as practicable following the filing thereof with the Commission, but in no event later than the applicable Effectiveness Deadline for such New Registration Statement.
(d) No Inclusion of Other Securities. In no event shall the Company include any securities other than Registrable Securities on any Registration Statement pursuant to Section 2(a) or Section 2(c) without consulting the Investor and Legal Counsel prior to filing such Registration Statement with the Commission.
(e) Offering. If the Staff or the Commission seeks to characterize any offering pursuant to a Registration Statement filed pursuant to this Agreement as constituting an offering of securities that does not permit such Registration Statement to become effective and be used for resales by the Investor on a delayed or continuous basis under Rule 415 at then-prevailing market prices (and not fixed prices), or if after the filing of any Registration Statement pursuant to Section 2(a) or Section 2(c), the Company is otherwise required by the Staff or the Commission to reduce the number of Registrable Securities included in such Registration Statement, then the Company shall reduce the number of Registrable Securities to be included in such Registration Statement (after consultation with the Investor and Legal Counsel as to the specific Registrable Securities to be removed therefrom) until such time as the Staff and the Commission shall so permit such Registration Statement to become effective and be used as aforesaid. Notwithstanding anything in this Agreement to the contrary, if after giving effect to the actions referred to in the immediately preceding sentence, the Staff or the Commission does not permit such Registration Statement to become effective and be used for resales by the Investor on a delayed or continuous basis under Rule 415 at then- prevailing market prices (and not fixed prices), the Company shall not request acceleration of the Effective Date of such Registration Statement, the Company shall promptly (but in no event later than 48 hours) request the withdrawal of such Registration Statement pursuant to Rule 477 under the Securities Act, and the Effectiveness Deadline shall automatically be deemed to have elapsed with respect to such Registration Statement at such time as the Staff or the Commission has made a final and non-appealable determination that the Commission will not permit such Registration Statement to be so utilized (unless prior to such time the Company has received assurances from the Staff or the Commission that a New Registration Statement filed by the Company with the Commission promptly thereafter may be so utilized). In the event of any reduction in Registrable Securities pursuant to this paragraph, the Company shall use its commercially reasonable efforts to file one or more New Registration Statements with the Commission in accordance with Section 2(c) until such time as all Registrable Securities have been included in Registration Statements that have been declared effective and the Prospectuses contained therein are available for use by the Investor.
| 4 |
(f) Any Registrable Security shall cease to be a “Registrable Security” at the earliest of the following: (i) when a Registration Statement covering such Registrable Security becomes or has been declared effective by the Commission and such Registrable Security has been sold or disposed of pursuant to such effective Registration Statement; (ii) when such Registrable Security is held by the Company or one of its Subsidiaries; and (iii) the date that is the later of (A) the first (1st) anniversary of the date of termination of the Purchase Agreement in accordance with Article VIII of the Purchase Agreement and (B) the first (1st) anniversary of the date of the last sale of any Registrable Securities to the Investor pursuant to the Purchase Agreement; and (iv) the date on which such Registrable Security has been sold or otherwise transferred pursuant to Rule 144 (or another exemption from registration under the Securities Act), and the transferee is able to immediately resell such security without restriction or current public information requirements under Rule 144.
| 3. | Related Obligations. |
The Company shall use its commercially reasonable efforts to effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof, and, pursuant thereto, during the term of this Agreement, the Company shall have the following obligations:
(a) The Company shall promptly prepare and file with the Commission the Initial Registration Statement pursuant to Section 2(a) hereof and one or more New Registration Statements pursuant to Section 2(c) hereof with respect to the Registrable Securities, but in no event later than the applicable Filing Deadline therefor, and the Company use its commercially reasonable efforts to cause each such Registration Statement to become effective as soon as practicable after such filing, but in no event later than the applicable Effectiveness Deadline therefor. Subject to Allowable Grace Periods, the Company shall keep each Registration Statement effective (and the Prospectus contained therein available for use) pursuant to Rule 415 for resales by the Investor on a continuous basis at then-prevailing market prices (and not fixed prices) at all times until the earlier of (i) the date on which the Investor shall have sold all of the Registrable Securities covered by such Registration Statement and (ii) the date of termination of the Purchase Agreement if as of such termination date the Investor holds no Registrable Securities (or, if applicable, the date on which such securities cease to be Registrable Securities after the date of termination of the Purchase Agreement) (the “Registration Period”). Notwithstanding anything to the contrary contained in this Agreement (but subject to the provisions of Section 3(q) hereof), the Company shall ensure that, when filed and at all times while effective, each Registration Statement (including, without limitation, all amendments and supplements thereto) and the Prospectus (including, without limitation, all amendments and supplements thereto) used in connection with such Registration Statement shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein (in the case of Prospectuses, in the light of the circumstances in which they were made) not misleading. The Company shall submit to the Commission, as soon as reasonably practicable after the date that the Company learns that no review of a particular Registration Statement will be made by the Staff or that the Staff has no further comments on a particular Registration Statement (as the case may be), a request for acceleration of effectiveness of such Registration Statement to a time and date as soon as reasonably practicable in accordance with Rule 461 under the Securities Act.
| 5 |
(b) Subject to Section 3(q) of this Agreement, the Company shall use its commercially reasonable efforts to prepare and file with the Commission such amendments (including, without limitation, post-effective amendments) and supplements to each Registration Statement and the Prospectus used in connection with each such Registration Statement, which Prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep each such Registration Statement effective (and the Prospectus contained therein current and available for use) at all times during the Registration Period for such Registration Statement, and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company required to be covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the Investor. Without limiting the generality of the foregoing, the Company covenants and agrees that (i) at or before 8:30 a.m. (New York City time) on the Trading Day immediately following the Effective Date of the Initial Registration Statement and any New Registration Statement (or any post-effective amendment thereto), the Company shall file with the Commission in accordance with Rule 424(b) under the Securities Act the final Prospectus to be used in connection with sales pursuant to such Registration Statement (or post-effective amendment thereto), and (ii) if the transactions contemplated by any Purchase are material to the Company (individually or collectively with all other prior Purchases, the consummation of which have not previously been reported in any Prospectus Supplement filed with the Commission under Rule 424(b) under the Securities Act or in any report, statement or other document filed by the Company with the Commission under the Exchange Act), or if otherwise required under the Securities Act (or the interpretations of the Commission thereof), in each case as reasonably determined by the Company and the Investor, then, at or before 8:30 a.m., New York City time, on the first (1st) Trading Day immediately following the Purchase Date, if a Purchase Notice was properly delivered to the Investor hereunder in connection with such Purchase, the Company shall file with the Commission a Prospectus Supplement pursuant to Rule 424(b) under the Securities Act with respect to the Purchase(s), the total Purchase Price for the Shares subject to such Purchase(s) (as applicable), the applicable Purchase Price(s) for such Shares and the net proceeds that are to be (and, if applicable, have been) received by the Company from the sale of such Shares. To the extent not previously disclosed in the Prospectus or a Prospectus Supplement, the Company shall disclose in its Quarterly Reports on Form 10-Q and in its Annual Reports on Form 10-K the information described in the immediately preceding sentence relating to all Purchase(s) consummated during the relevant fiscal quarter and shall file such Quarterly Reports and Annual Reports with the Commission within the applicable time period prescribed for such report under the Exchange Act. In the case of amendments and supplements to any Registration Statement on Form S-3 or Prospectus related thereto which are required to be filed pursuant to this Agreement (including, without limitation, pursuant to this Section 3(b)) by reason of the Company filing a report on Form 8-K, Form 10-Q or Form 10-K or any analogous report under the Exchange Act, the Company shall have incorporated such report by reference into such Registration Statement and Prospectus, if applicable, or shall file such amendments or supplements to the Registration Statement or Prospectus with the Commission on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement or Prospectus, for the purpose of including or incorporating such report into such Registration Statement and Prospectus. The Company consents to the use of the Prospectus (including, without limitation, any supplement thereto) included in each Registration Statement in accordance with the provisions of the Securities Act and with the securities or “Blue Sky” laws of the jurisdictions in which the Registrable Securities may be sold by the Investor, in connection with the resale of the Registrable Securities and for such period of time thereafter as such Prospectus (including, without limitation, any supplement thereto) (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required by the Securities Act to be delivered in connection with resales of Registrable Securities.
| 6 |
(c) The Company shall (A) permit Legal Counsel an opportunity to review and comment upon (i) each Registration Statement at least two (2) Business Days prior to its filing with the Commission and (ii) all amendments and supplements to each Registration Statement (including, without limitation, the Prospectus contained therein) (except for Annual Reports on Form 10-K, Quarterly Reports on Form 10- Q, Current Reports on Form 8-K, and any similar or successor reports or Prospectus Supplements the contents of which is limited to that set forth in such reports) within a reasonable number of days prior to their filing with the Commission, and (B) shall reasonably consider any comments of the Investor and Legal Counsel on any such Registration Statement or amendment or supplement thereto or to any Prospectus contained therein. The Company shall promptly furnish to Legal Counsel, without charge, (i) electronic copies of any correspondence from the Commission or the Staff to the Company or its representatives relating to each Registration Statement (which correspondence shall be redacted to exclude any material, non-public information regarding the Company or any of its Subsidiaries), (ii) after the same is prepared and filed with the Commission, one (1) electronic copy of each Registration Statement and any amendment(s) and supplement(s) thereto, including, without limitation, financial statements and schedules, all documents incorporated therein by reference, if requested by the Investor, and all exhibits and (iii) upon the effectiveness of each Registration Statement, one (1) electronic copy of the Prospectus included in such Registration Statement and all amendments and supplements thereto; provided, however, the Company shall not be required to furnish any document (other than the Prospectus, which may be provided in .PDF format) to Legal Counsel to the extent such document is available on EDGAR).
(d) Without limiting any obligation of the Company under the Purchase Agreement, the Company shall promptly furnish to the Investor, without charge, (i) after the same is prepared and filed with the Commission, at least one (1) electronic copy of each Registration Statement and any amendment(s) and supplement(s) thereto, including, without limitation, financial statements and schedules, all documents incorporated therein by reference, if requested by the Investor, all exhibits thereto, (ii) upon the effectiveness of each Registration Statement, one (1) electronic copy of the Prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as the Investor may reasonably request from time to time) and (iii) such other documents, including, without limitation, copies of any final Prospectus and any Prospectus Supplement thereto, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by the Investor; provided, however, the Company shall not be required to furnish any document (other than the Prospectus, which may be provided in .PDF format) to the Investor to the extent such document is available on EDGAR).
(e) The Company shall take such action as is reasonably necessary to (i) register and qualify, unless an exemption from registration and qualification applies, the resale by the Investor of the Registrable Securities covered by a Registration Statement under such other securities or “Blue Sky” laws of all applicable jurisdictions in the United States, (ii) prepare and file in those jurisdictions, such amendments (including, without limitation, post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period, (iii) take such other actions as may be reasonably necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, the Company shall not be required in connection therewith or as a condition thereto to (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(e), (y) subject itself to general taxation in any such jurisdiction, or (z) file a general consent to service of process in any such jurisdiction. The Company shall promptly notify Legal Counsel and the Investor of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “Blue Sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose.
| 7 |
(f) The Company shall notify Legal Counsel and the Investor in writing of the happening of any event, as promptly as reasonably practicable after becoming aware of such event, as a result of which the Prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (provided that in no event shall such notice contain any material, non-public information regarding the Company or any of its Subsidiaries), and, subject to Section 3(q), promptly prepare a supplement or amendment to such Registration Statement and such Prospectus contained therein to correct such untrue statement or omission and deliver one (1) electronic copy of such supplement or amendment to Legal Counsel and the Investor (or such other number of copies as Legal Counsel or the Investor may reasonably request). The Company shall also promptly notify Legal Counsel and the Investor in writing (i) when a Prospectus or any Prospectus Supplement or post-effective amendment has been filed, when a Registration Statement or any post- effective amendment has become effective (notification of such effectiveness shall be delivered to Legal Counsel and the Investor by facsimile or e-mail on the same day of such effectiveness and by overnight mail), and when the Company receives written notice from the Commission that a Registration Statement or any post-effective amendment will be reviewed by the Commission, (ii) of any request by the Commission for amendments or supplements to a Registration Statement or related Prospectus or related information, (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate and (iv) of the receipt of any request by the Commission or any other federal or state governmental authority for any additional information relating to the Registration Statement or any amendment or supplement thereto or any related Prospectus. The Company shall respond as promptly as reasonably practicable to any comments received from the Commission with respect to a Registration Statement or any amendment thereto. Nothing in this Section 3(f) shall limit any obligation of the Company under the Purchase Agreement.
(g) The Company shall (i) use its commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement or the use of any Prospectus contained therein, or the suspension of the qualification, or the loss of an exemption from qualification, of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible time and (ii) notify Legal Counsel and the Investor of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding.
(h) The Company shall hold in confidence and not make any disclosure of information concerning the Investor provided to the Company unless (i) disclosure of such information is necessary to comply with federal or state securities laws, (ii) the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement or is otherwise required to be disclosed in such Registration Statement pursuant to the Securities Act, (iii) the release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction, or (iv) such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other Transaction Document. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
(i) Without limiting any obligation of the Company under the Purchase Agreement, the Company shall use its commercially reasonable efforts either to (i) cause all of the Registrable Securities covered by each Registration Statement to be listed on the Trading Market, or (ii) secure designation and quotation of all of the Registrable Securities covered by each Registration Statement on another Eligible Market. In addition, the Company shall reasonably cooperate with the Investor and any Broker-Dealer through which the Investor proposes to sell its Registrable Securities in effecting a filing with the Financial Industry Regulatory Authority, Inc. (“FINRA”) pursuant to FINRA Rule 5110 as requested by the Investor. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(i).
| 8 |
(j) The Company shall cooperate with the Investor and, to the extent applicable, facilitate the timely preparation and delivery of Registrable Securities, as DWAC Shares, to be offered pursuant to a Registration Statement and enable such DWAC Shares to be in such denominations or amounts (as the case may be) as the Investor may reasonably request from time to time and registered in such names as the Investor may request. Investor hereby agrees that it shall cooperate with the Company, its counsel and its transfer agent in connection with any issuances of DWAC Shares, and hereby represents, warrants and covenants to the Company that that it will resell such DWAC Shares only pursuant to the Registration Statement in which such DWAC Shares are included, in a manner described under the caption “Plan of Distribution” in such Registration Statement, and in a manner in compliance with all applicable U.S. federal and state securities laws, rules and regulations, including, without limitation, any applicable prospectus delivery requirements of the Securities Act. DWAC Shares shall be free from all restrictive legends may be transmitted by the transfer agent to the Investor by crediting an account at DTC as directed in writing by the Investor.
(k) Upon the written request of the Investor, the Company shall as soon as reasonably practicable after receipt of notice from the Investor and subject to Section 3(p) hereof, (i) incorporate in a Prospectus Supplement or post-effective amendment such information as the Investor reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) make all required filings of such Prospectus Supplement or post-effective amendment after being notified of the matters to be incorporated in such Prospectus Supplement or post- effective amendment; and (iii) supplement or make amendments to any Registration Statement or Prospectus contained therein if reasonably requested by the Investor.
(l) The Company shall use its commercially reasonable efforts to cause the Registrable Securities covered by a Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to consummate the disposition of such Registrable Securities.
(m) The Company shall make generally available to its security holders (which may be satisfied by making such information available on EDGAR) as soon as practical, but not later than ninety (90) days after the close of the period covered thereby, an earnings statement (in form complying with, and in the manner provided by, the provisions of Rule 158 under the Securities Act) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the applicable Effective Date of each Registration Statement.
(n) The Company shall otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission in connection with any registration hereunder.
(o) Within one (1) Business Day after each Registration Statement which covers Registrable Securities is declared effective by the Commission, the Company shall deliver, and shall cause legal counsel for the Company to deliver, to the transfer agent for such Registrable Securities (with copies to the Investor) confirmation that such Registration Statement has been declared effective by the Commission in the form attached hereto as Exhibit A.
| 9 |
(p) Notwithstanding anything to the contrary contained herein (but subject to the last sentence of this Section 3(p)), at any time after the Effective Date of a particular Registration Statement, the Company may, upon written notice to Investor, suspend Investor’s use of any prospectus that is a part of any Registration Statement (in which event the Investor shall discontinue sales of the Registrable Securities pursuant to such Registration Statement contemplated by this Agreement, but shall settle any previously made sales of Registrable Securities) if the Company (x) is pursuing an acquisition, merger, tender offer, reorganization, disposition or other similar transaction and the Company determines in good faith that (A) the Company’s ability to pursue or consummate such a transaction would be materially adversely affected by any required disclosure of such transaction in such Registration Statement or other registration statement or (B) such transaction renders the Company unable to comply with Commission requirements, in each case under circumstances that would make it impractical or inadvisable to cause any Registration Statement (or such filings) to be used by Investor or to promptly amend or supplement any Registration Statement contemplated by this Agreement on a post effective basis, as applicable, or (y) has experienced some other material non-public event the disclosure of which at such time, in the good faith judgment of the Company, would materially adversely affect the Company (each, an “Allowable Grace Period”); provided, however, that in no event shall the Investor be suspended from selling Registrable Securities pursuant to any Registration Statement for a period that exceeds twenty (20) consecutive Trading Days or an aggregate of sixty (60) days in any 365-day period; and provided, further, the Company shall not effect any such suspension during (A) the first ten (10) consecutive Trading Days after the Effective Date of the particular Registration Statement, (B) the five (5)-Trading Day period commencing on the Commencement Date, or (C) the five (5)-Trading Day period commencing on the Purchase Date for each Purchase. Upon disclosure of such information or the termination of the condition described above, the Company shall provide prompt notice, but in any event within one Business Day of such disclosure or termination, to the Investor and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated in this Agreement (including as set forth in the first sentence of Section 3(f) with respect to the information giving rise thereto unless such material, non-public information is no longer applicable). Notwithstanding anything to the contrary contained in this Section 3(p), the Company shall cause its transfer agent to deliver DWAC Shares to a transferee of the Investor in accordance with the terms of the Purchase Agreement in connection with any sale of Registrable Securities with respect to which (i) the Company has made a sale to Investor and (ii) the Investor has entered into a contract for sale, and delivered a copy of the Prospectus included as part of the particular Registration Statement to the extent applicable, in each case prior to the Investor’s receipt of the notice of an Allowable Grace Period and for which the Investor has not yet settled.
| 4. | Obligations of the Investor. |
(a) At least five (5) Business Days prior to the first anticipated filing date of each Registration Statement (or such shorter period to which the parties agree), the Company shall notify the Investor in writing of the information the Company requires from the Investor with respect to such Registration Statement. It shall be a condition precedent to the obligations of the Company to complete the registration pursuant to this Agreement with respect to the Registrable Securities of the Investor that the Investor shall furnish to the Company such information regarding itself, the Registrable Securities held by it and the intended method of disposition of the Registrable Securities held by it, as shall be reasonably required to effect and maintain the effectiveness of the registration of such Registrable Securities and shall execute such documents in connection with such registration as the Company may reasonably request.
(b) The Investor, by its acceptance of the Registrable Securities, agrees to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of each Registration Statement hereunder, unless the Investor has notified the Company in writing of the Investor’s election to exclude all of the Investor’s Registrable Securities from such Registration Statement.
| 10 |
(c) The Investor agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3(p) or the first sentence of 3(f), the Investor shall immediately discontinue disposition of Registrable Securities pursuant to any Registration Statement(s) covering such Registrable Securities until the Investor’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 3(p) or the first sentence of Section 3(f) or receipt of notice that no supplement or amendment is required. Notwithstanding anything to the contrary in this Section 4(c), the Company shall cause its transfer agent to deliver DWAC Shares to a transferee of the Investor in accordance with the terms of the Purchase Agreement in connection with any sale of Registrable Securities with respect to which the Investor has entered into a contract for sale prior to the Investor’s receipt of a notice from the Company of the happening of any event of the kind described in Section 3(p) or the first sentence of Section 3(f) and for which the Investor has not yet settled.
(d) The Investor covenants and agrees that it shall comply with the prospectus delivery and other requirements of the Securities Act as applicable to it in connection with sales of Registrable Securities pursuant to a Registration Statement.
| 5. | Expenses of Registration. |
All reasonable expenses of the Company, other than sales or brokerage commissions and fees and disbursements of counsel for, and other expenses of, the Investor, incurred in connection with registrations, filings or qualifications pursuant to Sections 2 and 3, including, without limitation, all registration, listing and qualifications fees, printers and accounting fees, and fees and disbursements of counsel for the Company, shall be paid by the Company.
| 6. | Indemnification. |
(a) In the event any Registrable Securities are included in any Registration Statement under this Agreement, to the fullest extent permitted by law, the Company will, and hereby does, indemnify, hold harmless and defend the Investor, each of its directors, officers, shareholders, members, Partners, employees, agents, advisors, representatives (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding the lack of such title or any other title) and each Person, if any, who controls the Investor within the meaning of the Securities Act or the Exchange Act and each of the directors, officers, shareholders, members, Partners, employees, agents, advisors, representatives (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding the lack of such title or any other title) of such controlling Persons (each, an “Investor Party” and collectively, the “Investor Parties”), against any losses, obligations, claims, damages, liabilities, contingencies, judgments, fines, penalties, charges, costs (including, without limitation, court costs, reasonable attorneys’ fees, costs of defense and investigation), amounts paid in settlement or expenses, joint or several, (collectively, “Claims”) reasonably incurred in investigating, preparing or defending any action, claim, suit, inquiry, proceeding, investigation or appeal taken from the foregoing by or before any court or governmental, administrative or other regulatory agency, body or the Commission, whether pending or threatened, whether or not an Investor Party is or may be a party thereto (“Indemnified Damages”), to which any of them may become subject insofar as such Claims (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon: (i) any untrue statement or alleged untrue statement of a material fact in a Registration Statement or any post-effective amendment thereto or in any filing made in connection with the qualification of the offering under the securities or other “Blue Sky” laws of any jurisdiction in which Registrable Securities are offered (“Blue Sky Filing”), or the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) any untrue statement or alleged untrue statement of a material fact contained in any Prospectus (as amended or supplemented) or in any Prospectus Supplement or the omission or alleged omission to state therein any material fact necessary to make the statements made therein, in light of the circumstances under which the statements therein were made, not misleading (the matters in the foregoing clauses (i) and (ii) being, collectively, “Violations”). Subject to Section 6(e), the Company shall reimburse the Investor Parties, promptly as such expenses are incurred and are due and payable, for any legal fees or other reasonable expenses incurred by them in connection with investigating or defending any such Claim. Notwithstanding anything to the contrary contained herein, the indemnification agreement contained in this Section 6(a): (i) shall not apply to a Claim by an Investor Party arising out of or based upon a Violation which occurs in reliance upon and in conformity with information furnished in writing to the Company by such Investor Party for such Investor Party expressly for use in connection with the preparation of such Registration Statement, Prospectus or Prospectus Supplement or any such amendment thereof or supplement thereto (it being hereby acknowledged and agreed that the written information set forth on Exhibit C attached hereto is the only written information furnished to the Company by or on behalf of the Investor expressly for use in any Registration Statement, Prospectus or Prospectus Supplement); (ii) shall not be available to the Investor to the extent such Claim is based on a failure of the Investor to deliver or to cause to be delivered the Prospectus (as amended or supplemented) made available by the Company (to the extent applicable), including, without limitation, a corrected Prospectus, if such Prospectus (as amended or supplemented) or corrected Prospectus was timely made available by the Company pursuant to Section 3(d) and then only if, and to the extent that, following the receipt of the corrected Prospectus no grounds for such Claim would have existed; and (iii) shall not apply to amounts paid in settlement of any Claim if such settlement is effected without the prior written consent of the Company, which consent shall not be unreasonably withheld or delayed. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Investor Party and shall survive the transfer of any of the Registrable Securities by the Investor pursuant to Section 9.
| 11 |
(b) In connection with any Registration Statement in which the Investor is participating, the Investor agrees to severally and not jointly indemnify, hold harmless and defend, to the same extent and in the same manner as is set forth in Section 6(a), the Company, each of its directors, each of its officers who signs the Registration Statement and each Person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act (each, an “Company Party”), against any Claim or Indemnified Damages to which any of them may become subject, under the Securities Act, the Exchange Act or otherwise, insofar as such Claim or Indemnified Damages arise out of or are based upon any Violation, in each case, to the extent, and only to the extent, that such Violation occurs in reliance upon and in conformity with written information relating to the Investor furnished to the Company by the Investor expressly for use in connection with such Registration Statement, the Prospectus included therein or any Prospectus Supplement thereto (it being hereby acknowledged and agreed that the written information set forth on Exhibit C attached hereto is the only written information furnished to the Company by or on behalf of the Investor expressly for use in any Registration Statement, Prospectus or Prospectus Supplement); and, subject to Section 6(e) and the below provisos in this Section 6(b), the Investor shall reimburse a Company Party any legal or other expenses reasonably incurred by such Company Party in connection with investigating or defending any such Claim; provided, however, the indemnity agreement contained in this Section 6(b) and the agreement with respect to contribution contained in Section 7 shall not apply to amounts paid in settlement of any Claim if such settlement is effected without the prior written consent of the Investor, which consent shall not be unreasonably withheld or delayed; and provided, further that the Investor shall be liable under this Section 6(b) for only that amount of a Claim or Indemnified Damages as does not exceed the net proceeds to the Investor as a result of the applicable sale of Registrable Securities pursuant to such Registration Statement, Prospectus or Prospectus Supplement. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Company Party and shall survive the transfer of any of the Registrable Securities by the Investor pursuant to Section 9.
| 12 |
(c) Promptly after receipt by an Investor Party or Company Party (as the case may be) under this Section 6 of notice of the commencement of any action or proceeding (including, without limitation, any governmental action or proceeding) involving a Claim, such Investor Party or Company Party (as the case may be) shall, if a Claim in respect thereof is to be made against any indemnifying party under this Section 6, deliver to the indemnifying party a written notice of the commencement thereof, and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume control of the defense thereof with counsel mutually satisfactory to the indemnifying party and the Investor Party or the Company Party (as the case may be); provided, however, an Investor Party or Company Party (as the case may be) shall have the right to retain its own counsel with the fees and expenses of such counsel to be paid by the indemnifying party if: (i) the indemnifying party has agreed in writing to pay such fees and expenses; (ii) the indemnifying party shall have failed promptly to assume the defense of such Claim and to employ counsel reasonably satisfactory to such Investor Party or Company Party (as the case may be) in any such Claim; or (iii) the named parties to any such Claim (including, without limitation, any impleaded parties) include both such Investor Party or Company Party (as the case may be) and the indemnifying party, and such Investor Party or such Company Party (as the case may be) shall have been advised by counsel that a conflict of interest is likely to exist if the same counsel were to represent such Investor Party or such Company Party and the indemnifying party (in which case, if such Investor Party or such Company Party (as the case may be) notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, then the indemnifying party shall not have the right to assume the defense thereof on behalf of the indemnified party and such counsel shall be at the expense of the indemnifying party, provided further that in the case of clause (iii) above the indemnifying party shall not be responsible for the reasonable fees and expenses of more than one (1) separate legal counsel for all Investor Parties or Company Parties (as the case may be). The Company Party or Investor Party (as the case may be) shall reasonably cooperate with the indemnifying party in connection with any negotiation or defense of any such action or Claim by the indemnifying party and shall furnish to the indemnifying party all information reasonably available to the Company Party or Investor Party (as the case may be) which relates to such action or Claim. The indemnifying party shall keep the Company Party or Investor Party (as the case may be) reasonably apprised at all times as to the status of the defense or any settlement negotiations with respect thereto. No indemnifying party shall be liable for any settlement of any action, claim or proceeding effected without its prior written consent; provided, however, the indemnifying party shall not unreasonably withhold, delay or condition its consent. No indemnifying party shall, without the prior written consent of the Company Party or Investor Party (as the case may be), consent to entry of any judgment or enter into any settlement or other compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Company Party or Investor Party (as the case may be) of a release from all liability in respect to such Claim or litigation, and such settlement shall not include any admission as to fault on the part of the Company Party. For the avoidance of doubt, the immediately preceding sentence shall apply to Sections 6(a) and 6(b) hereof. Following indemnification as provided for hereunder, the indemnifying party shall be subrogated to all rights of the Company Party or Investor Party (as the case may be) with respect to all third parties, firms or corporations relating to the matter for which indemnification has been made. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action shall not relieve such indemnifying party of any liability to the Investor Party or Company Party (as the case may be) under this Section 6, except to the extent that the indemnifying party is materially and adversely prejudiced in its ability to defend such action.
(d) No Person involved in the sale of Registrable Securities who is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) in connection with such sale shall be entitled to indemnification from any Person involved in such sale of Registrable Securities who is not guilty of fraudulent misrepresentation.
(e) The indemnification required by this Section 6 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or Indemnified Damages are incurred; provided that any Person receiving any payment pursuant to this Section 6 shall promptly reimburse the Person making such payment for the amount of such payment to the extent a court of competent jurisdiction determines that such Person receiving such payment was not entitled to such payment.
| 13 |
(f) The indemnity and contribution agreements contained herein shall be in addition to (i) any cause of action or similar right of the Company Party or Investor Party against the indemnifying party or others, and (ii) any liabilities the indemnifying party may be subject to pursuant to the law.
| 7. | Contribution. |
To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 6 to the fullest extent permitted by law; provided, however: (i) no contribution shall be made under circumstances where the maker would not have been liable for indemnification under the fault standards set forth in Section 6 of this Agreement, (ii) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (iii) contribution by any seller of Registrable Securities shall be limited in amount to the amount of net proceeds received by such seller from the applicable sale of such Registrable Securities pursuant to such Registration Statement. Notwithstanding the provisions of this Section 7, the Investor shall not be required to contribute, in the aggregate, any amount in excess of the amount by which the net proceeds actually received by the Investor from the applicable sale of the Registrable Securities subject to the Claim exceeds the amount of any damages that the Investor has otherwise been required to pay, or would otherwise be required to pay under Section 6(b), by reason of such untrue or alleged untrue statement or omission or alleged omission.
| 8. | Reports Under the Exchange Act. |
With a view to making available to the Investor the benefits of Rule 144, the Company agrees to:
(a) use its reasonable best efforts to make and keep public information available, as those terms are understood and defined in Rule 144;
(b) use its reasonable best efforts to file with the Commission in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act so long as the Company remains subject to such requirements (it being understood that nothing herein shall limit any of the Company’s obligations under the Purchase Agreement) and the filing of such reports and other documents is required for the applicable provisions of Rule 144;
(c) furnish to the Investor so long as the Investor owns Registrable Securities, promptly upon request, (i) a written statement by the Company, if true, that it has complied with the reporting, submission and posting requirements of Rule 144 and the Exchange Act, (ii) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company with the Commission if such reports are not publicly available via EDGAR, and (iii) such other information as may be reasonably requested to permit the Investor to sell such securities pursuant to Rule 144 without registration; and
(d) take such additional action as is reasonably requested by the Investor to enable the Investor to sell the Registrable Securities pursuant to Rule 144, including, without limitation, delivering all such legal opinions, consents, certificates, resolutions and instructions to the Company’s Transfer Agent as may be reasonably requested from time to time by the Investor and otherwise fully cooperate with Investor and Investor’s broker to effect such sale of securities pursuant to Rule 144.
| 14 |
| 9. | Assignment of Registration Rights. |
Neither the Company nor the Investor shall assign this Agreement or any of their respective rights or obligations hereunder.
| 10. | Amendment or Waiver. |
No provision of this Agreement may be amended or waived by the parties from and after the date that is one (1) Trading Day immediately preceding the date on which the Initial Registration Statement is initially filed with the Commission. Subject to the immediately preceding sentence, no provision of this Agreement may be (i) amended other than by a written instrument signed by both parties hereto or (ii) waived other than in a written instrument signed by the party against whom enforcement of such waiver is sought. Failure of any party to exercise any right or remedy under this Agreement or otherwise, or delay by a party in exercising such right or remedy, shall not operate as a waiver thereof.
| 11. | Miscellaneous. |
(a) Solely for purposes of this Agreement, a Person is deemed to be a holder of Registrable Securities whenever such Person owns or is deemed to own of record such Registrable Securities. If the Company receives conflicting instructions, notices or elections from two or more Persons with respect to the same Registrable Securities, the Company shall act upon the basis of instructions, notice or election received from such record owner of such Registrable Securities.
(b) Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement shall be given in accordance with Section 10.4 of the Purchase Agreement.
(c) Failure of any party to exercise any right or remedy under this Agreement or otherwise, or delay by a party in exercising such right or remedy, shall not operate as a waiver thereof. The Company and the Investor acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that either party shall be entitled to an injunction or injunctions to prevent or cure breaches of the provisions of this Agreement by the other party 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), this being in addition to any other remedy to which either party may be entitled by law or equity.
(d) All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the federal courts sitting in The City of New York, Borough of Manhattan, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address for such 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 manner permitted by law. If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of any provision of this Agreement in any other jurisdiction. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
| 15 |
(e) The Transaction Documents set forth the entire agreement and understanding of the parties solely with respect to the subject matter thereof and supersedes all prior and contemporaneous agreements, negotiations and understandings between the parties, both oral and written, solely with respect to such matters. There are no promises, undertakings, representations or warranties by either party relative to subject matter hereof not expressly set forth in the Transaction Documents. Notwithstanding anything in this Agreement to the contrary and without implication that the contrary would otherwise be true, nothing contained in this Agreement shall limit, modify or affect in any manner whatsoever (i) the conditions precedent to a Purchase contained in Article VII of the Purchase Agreement or (ii) any of the Company’s obligations under the Purchase Agreement.
(f) This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors. This Agreement is not for the benefit of, nor may any provision hereof be enforced by, any Person, other than the parties hereto, their respective successors and the Persons referred to in Sections 6 and 7 hereof.
(g) The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. Unless the context clearly indicates otherwise, each pronoun herein shall be deemed to include the masculine, feminine, neuter, singular and plural forms thereof. The terms “including,” “includes,” “include” and words of like import shall be construed broadly as if followed by the words “without limitation.” The terms “herein,” “hereunder,” “hereof” and words of like import refer to this entire Agreement instead of just the provision in which they are found.
(h) This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party; provided that a facsimile signature or signature delivered by e-mail in a “.pdf” format data file, including any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com, www.echosign.adobe.com, etc., shall be considered due execution and shall be binding upon the signatory thereto with the same force and effect as if the signature were an original signature.
(i) 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 any 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) 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.
[Signature Pages Follow]
| 16 |
IN WITNESS WHEREOF, Investor and the Company have caused their respective signature page to this Registration Rights Agreement to be duly executed as of the date first written above.
| COMPANY: | ||
| AMERICAN PICTURE HOUSE CORP. | ||
By: |
 | |
| Name: | Bannor Michael MacGregor | |
| Title: | CEO | |
| 17 |
IN WITNESS WHEREOF, Investor and the Company have caused their respective signature page to this Registration Rights Agreement to be duly executed as of the date first written above.
| INVESTOR: | ||
| RH2 EQUITY PARTNERS | ||
By: |
 | |
| Name: | Richard Hawkins | |
| Title: | Managing Partner | |
| 18 |
EXHIBIT A
FORM OF NOTICE OF EFFECTIVENESS OF REGISTRATION STATEMENT
[●]
[●]
[●]
| Re: | American Picture House Corp. |
Ladies and Gentlemen:
We are counsel to American Picture House Corp., a Delaware corporation (the “Company”), and have represented the Company in connection with that certain Common Stock Purchase Agreement, dated August 28, 2025 (the “Purchase Agreement”), entered into by and among the Company and the Investor named therein (the “Holder”) pursuant to which the Company has issued and will issue to the Holder from time to time shares of the Company’s common stock, par value $0.00001 per share (the “Common Stock”). Pursuant to the Purchase Agreement, the Company also has entered into a Registration Rights Agreement, dated August 28, 2025, with the Holder (the “Registration Rights Agreement”), pursuant to which the Company agreed, among other things, to register the offer and sale by the Holder of the Registrable Securities (as defined in the Registration Rights Agreement) under the Securities Act of 1933, as amended (the “Securities Act”). In connection with the Company’s obligations under the Registration Rights Agreement, on August 28, 2025 the Company filed a Registration Statement on Form S-3 (File No. 333- [●]) (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) relating to the Registrable Securities which names the Holder as a selling stockholder thereunder and does not identify the Holder as an underwriter.
In connection with the foregoing, based solely on our review of the Commission’s EDGAR website, we advise you that the Registration Statement became effective under the Securities Act on [●], 202[●]. In addition, based solely on our review of the information made available by the Commission at http://www.sec.gov/litigation/stoporders.shtml, we confirm that the Commission has not issued any stop order suspending the effectiveness of the Registration Statement. To our knowledge, based solely on our participation in the conferences mentioned above regarding the Registration Statement and our review of the information made available by the Commission at http://www.sec.gov/litigation/stoporders.shtml, no proceedings for that purpose are pending or have been instituted or threatened by the Commission.
This letter shall serve as our standing opinion to you that the shares of Common Stock are freely transferable by the Holder pursuant to the Registration Statement, provided the Registration Statement remains effective.
This opinion letter is limited to the federal securities laws of the United States of America. We express no opinion as to matters relating to state securities laws or Blue Sky laws.
We assume no obligation to update or supplement this opinion letter to reflect any facts or circumstances which may hereafter come to our attention with respect to the opinion and statements expressed above, including any changes in applicable law that may hereafter occur.
This opinion letter is being delivered solely for the benefit of the person to whom it is addressed; accordingly, it may not be quoted, filed with any governmental authority or other regulatory agency or otherwise circulated or utilized for any purposes without our prior written consent.
| Very truly yours, | ||
| [ISSUER’S COUNSEL] | ||
| By: | ||
cc: RH2 Equity Partners
EXHIBIT B
SELLING STOCKHOLDER
This prospectus relates to the offer and sale by RH2 Equity Partners of up to [●] shares of common stock that have been and may be issued by us to RH2 Equity Partners under the Purchase Agreement. For additional information regarding the shares of common stock included in this prospectus, see the section titled “Plan of Distribution” below. We are registering the shares of common stock included in this prospectus pursuant to the provisions of the Registration Rights Agreement we entered into with RH2 Equity Partners on August 28, 2025 in order to permit the selling stockholder to offer the shares for resale from time to time. Except for the purchase by RH2 Equity Partners of certain of the Company’s convertible securities, preferred stock and promissory notes and the transactions contemplated by the Purchase Agreement and the Registration Rights Agreement, RH2 Equity Partners has not had any material relationship with us within the past three years. As used in this prospectus, the term “selling stockholder” as used in this prospectus means RH2 Equity Partners in its capacity as a selling securityholder and not as an underwriter.
The table below presents information regarding the selling stockholder and the shares of common stock that may be resold by the selling stockholder from time to time under this prospectus. This table is prepared based on information supplied to us by the selling stockholder, and reflects holdings as of [●], 2025. The number of shares in the column “Maximum Number of Shares of Common Stock to be Offered Pursuant to this Prospectus” represents all of the shares of common stock being offered for resale by the selling stockholder under this prospectus. The selling stockholder may sell some, all or none of the shares being offered for resale in this offering. We do not know how long the selling stockholder will hold the shares before selling them, and we know of no existing arrangements between the selling stockholder or any other stockholder, broker, dealer, underwriter or agent relating to the sale or distribution of the shares of our common stock offered by this prospectus.
Beneficial ownership is determined in accordance with Rule 13d-3(d) promulgated by the SEC under the Exchange Act, and includes shares of common stock with respect to which the selling stockholder has voting power, including the power to vote or to direct the voting of such shares, and/or investment power, including the power to dispose or to direct the disposition of such shares. The percentage of shares of common stock beneficially owned by the selling stockholder prior to the offering shown in the table below is based on an aggregate of [●] shares of our common stock outstanding on [●], 2025.
Because the purchase price per share to be paid by the selling stockholder for the shares of common stock that we may, in our discretion, elect to sell to the selling stockholder from time to time after the date of this prospectus in Purchases pursuant to the Purchase Agreement, if any, will fluctuate based on the market prices of our common stock at the times we elect to sell such shares to the selling stockholder in Purchases under the Purchase Agreement, it is not possible for us to predict, as of the date of this prospectus and prior to any such Purchases under the Purchase Agreement, the actual number of shares of common stock that we will sell to the selling stockholder under the Purchase Agreement, which may be fewer than the number of shares of common stock being offered for resale by the selling stockholder under this prospectus. The fourth column assumes the resale by the selling stockholder of all of the shares of common stock being offered pursuant to this prospectus.
| Name of Selling Stockholder | Number
of Shares of Common Stock Owned Prior to Offering | Maximum Number of Shares of Common Stock to be Offered Pursuant to this Prospectus | Number
of Shares of Common Stock Owned After Offering | |||||||||||||
Number(1) | Percent(2) | Number(3) | Percent(2) | |||||||||||||
| RH2 Equity Partners(4) | [●] | * | [●] | 0 | — | |||||||||||
* Represents beneficial ownership of less than 1% of the outstanding shares of our common stock.
| (1) | In accordance with Rule 13d-3(d) under the Exchange Act, we have excluded from the number of shares beneficially owned prior to the offering all of the shares that the selling stockholder may be required to purchase from us at our election from time to time after the date of this prospectus pursuant to Purchases under the Purchase Agreement, because the issuance of such shares is solely at our discretion and is subject to conditions contained in the Purchase Agreement, the satisfaction of which are entirely outside of the selling stockholder’s control, including the registration statement that includes this prospectus becoming and remaining effective. Furthermore, the Purchases of common stock are subject to certain agreed upon maximum amount limitations set forth in the Purchase Agreement. Also, the Purchase Agreement prohibits us from issuing and selling any shares of our common stock to the selling stockholder to the extent such shares, when aggregated with all other shares of our common stock then beneficially owned by the selling stockholder, would cause the selling stockholder’s beneficial ownership of common stock to exceed the 4.99% Beneficial Ownership Limitation. The Purchase Agreement also prohibits us from issuing or selling shares of our common stock under the Purchase Agreement in excess of the 19.99% Maximum Common Stock Issuance, unless we obtain stockholder approval to do so, or unless sales of common stock are made at a price equal to or greater than $[●] per share, such that the Maximum Common Stock Issuance limitation would not apply under applicable OTC Market rules. Neither the Beneficial Ownership Limitation nor the Maximum Common Stock Issuance (to the extent applicable under OTC Market rules) may be amended or waived under the Purchase Agreement. |
| (2) | Applicable percentage ownership is based on [●] shares of our common stock outstanding as of [●], 2025. |
| (3) | Assumes the sale of all shares being offered pursuant to this prospectus. |
| (4) | The business address of RH2 Equity Partners is 8 The Green Suite R, Dover, DE 19901 |
PLAN OF DISTRIBUTION
The shares of common stock offered by this prospectus are being offered by the selling stockholder, RH2 Equity Partners. RH2 Equity Partners may sell or distribute the shares from time to time directly to one or more purchasers or through registered broker-dealers acting solely as agents. These sales may be made at market prices prevailing at the time of sale, at prices related to such prevailing market prices, at negotiated prices, or at fixed prices, which may be subject to change. The sale of the shares of our common stock offered by this prospectus could be effected in one or more of the following methods:
| ● | ordinary brokers’ transactions; | |
| ● | transactions involving cross or block trades; | |
| ● | through brokers, dealers who may act solely as agents; | |
| ● | “at the market” into an existing market for our common stock; | |
| ● | in other ways not involving market makers or established business markets, including direct sales to purchasers or sales effected through agents; | |
| ● | in privately negotiated transactions; or | |
| ● | any combination of the foregoing. |
In order to comply with the securities laws of certain states, if applicable, the shares may be sold only through registered or licensed brokers or dealers. In addition, in certain states, the shares may not be sold unless they have been registered or qualified for sale in the state or an exemption from the state’s registration or qualification requirement is available and complied with.
RH2 Equity Partners has informed us that it intends to use one or more registered broker-dealers to effectuate all sales, if any, of our common stock that it has acquired and may in the future acquire from us pursuant to the Purchase Agreement. Such sales will be made at prices and at terms then prevailing or at prices related to the then current market price. Each such registered broker-dealer will be acting as agent of RH2 Equity Partners and not as an underwriter, and RH2 Equity Partners has informed us that each such broker-dealer will receive commissions from RH2 Equity Partners that will not exceed customary brokerage commissions.
Brokers, dealers, or agents participating in the distribution of the shares of our common stock offered by this prospectus may receive compensation in the form of commissions, discounts, or concessions from the purchasers, for whom the broker-dealers may act as agent, of the shares sold by the selling stockholder through this prospectus. The compensation paid to any such particular broker-dealer by any such purchasers of shares of our common stock sold by the selling stockholder may be less than or in excess of customary commissions. Neither we nor the selling stockholder can presently estimate the amount of compensation that any agent will receive from any purchasers of shares of our common stock sold by the selling stockholder.
We know of no existing arrangements between the selling stockholder or any other stockholder, broker, dealer, or agent relating to the sale or distribution of the shares of our common stock offered by this prospectus.
We may from time to time file with the SEC one or more supplements to this prospectus or amendments to the registration statement of which this prospectus forms a part to amend, supplement or update information contained in this prospectus, including, if and when required under the Securities Act, to disclose certain information relating to a particular sale of shares offered by this prospectus by the selling stockholder, including the names of any brokers, dealers, or agents participating in the distribution of such shares by the selling stockholder, any compensation paid by the selling stockholder to any such brokers, dealers, or agents, and any other required information.
We will pay the expenses incident to the registration under the Securities Act of the offer and sale of the shares of our common stock covered by this prospectus by the selling stockholder.
We also have agreed to indemnify RH2 Equity Partners and certain other persons against certain liabilities in connection with the offering of shares of our common stock offered hereby, including liabilities arising under the Securities Act or, if such indemnity is unavailable, to contribute amounts required to be paid in respect of such liabilities. RH2 Equity Partners has agreed to indemnify us against liabilities under the Securities Act that may arise from certain written information furnished to us by RH2 Equity Partners specifically for use in this prospectus or, if such indemnity is unavailable, to contribute amounts required to be paid in respect of such liabilities. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers, and controlling persons, we have been advised that in the opinion of the SEC this indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
We estimate that the total expenses for the offering will be approximately $[●].
RH2 Equity Partners has represented to us that at no time prior to the date of the Purchase Agreement has RH2 Equity Partners or its agents, representatives or affiliates engaged in or effected, in any manner whatsoever, directly or indirectly, any short sale (as such term is defined in Rule 200 of Regulation SHO of the Exchange Act) of our common stock or any hedging transaction, which establishes a net short position with respect to our common stock. RH2 Equity Partners has agreed that during the term of the Purchase Agreement, neither RH2 Equity Partners, nor any of its agents, representatives or affiliates will enter into or effect, directly or indirectly, any of the foregoing transactions.
We have advised the selling stockholder that it is required to comply with Regulation M promulgated under the Exchange Act. With certain exceptions, Regulation M precludes the selling stockholder, any affiliated purchasers, and any broker-dealer or other person who participates in the distribution from bidding for or purchasing, or attempting to induce any person to bid for or purchase any security which is the subject of the distribution until the entire distribution is complete. Regulation M also prohibits any bids or purchases made in order to stabilize the price of a security in connection with the distribution of that security. All of the foregoing may affect the marketability of the securities offered by this prospectus.
This offering will terminate on the date that all shares of our common stock offered by this prospectus have been sold by the selling stockholder.
Our common stock is currently listed on the OTC Markets under the symbol “APHP”.
EXHIBIT C
The business address of RH2 Equity Partners is 8 The Green, Suite R, Dover, DE 19901. RH2 Equity Partners is a private investment firm. Richard Hawkins and Robert Hymers serve as the managing principals of RH2 Equity Partners. As such, each of Mr. Hawkins and Mr. Hymers may be deemed to have sole voting and investment power with respect to the securities beneficially owned, directly or indirectly, by RH2 Equity Partners. RH2 Equity Partners has advised us that it is not a member of the Financial Industry Regulatory Authority (“FINRA”) and is not an independent broker-dealer. The foregoing statements should not be construed as an admission by Mr. Hawkins or Mr. Hymers as to beneficial ownership of any securities held directly or indirectly by RH2 Equity Partners.
RH2 Equity Partners has represented to us that, at no time prior to the execution of the Purchase Agreement, did it, or any of its affiliates, agents, representatives, or any entity managed or controlled by it, engage in or effect, directly or indirectly, for its own principal account, any short sale (as defined in Rule 200 of Regulation SHO under the Exchange Act) or any hedging transaction that establishes a net short position with respect to our common stock. RH2 Equity Partners has further agreed that, during the term of the Purchase Agreement, neither it nor any of its affiliates, agents, representatives, or any entity managed or controlled by it will enter into or effect, directly or indirectly, any such transactions for its own principal account or the principal account of any other such entity.
Exhibit 10.18
EQUITY LINE OF CREDIT AGREEMENT
This Equity Line of Credit Agreement (this “Agreement”) is entered into effective as of August 28, 2025 (the “Execution Date”), by and American Picture House Corp., a Wyoming corporation (the “Company”), and RH2 Equity Partners, a Delaware limited partnership (the “Investor”). Each of the Seller and the Purchaser may be referred to herein individually as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, the parties desire that, upon the terms and subject to the conditions and limitations set forth herein, during the Commitment Period (as defined herein), the Company may issue and sell to the Investor, from time to time as provided herein, and the Investor shall purchase from the Company, up to One Hundred Million Dollars ($100,000,000) in aggregate gross purchase price of newly issued shares of Common Stock (as defined herein), with Purchase Prices based on either the lowest VWAP during the applicable Pricing Period or the lowest intraday trade price, as further set forth herein;
WHEREAS, such sales of Common Stock by the Company to the Investor will be made in reliance upon the exemption provided by Section 4(a)(2) of the Securities Act (“Section 4(a)(2)”) and/or Rule 506(b) of Regulation D, and upon such other exemption from the registration requirements of the Securities Act as may be available with respect to any or all of the issuances and sales of Common Stock by the Company to the Investor to be made hereunder;
WHEREAS, the parties hereto are concurrently entering into a Registration Rights Agreement of even date herewith, in the form attached hereto as Exhibit C (the “Registration Rights Agreement”), pursuant to which the Company shall register the resale of the Registrable Securities (as defined in the Registration Rights Agreement), upon the terms and subject to the conditions set forth therein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
| 1. | Certain Definitions |
| 1.1. | Defined Terms. As used in this Agreement, the following terms shall have the following meanings specified or indicated (such meanings to be equally applicable to both the singular and plural forms of the terms defined): |
“Agreement” shall have the meaning specified in the preamble hereof.
“Average Daily Trading Volume” shall mean the median daily trading volume of the Company’s Common Stock over the most recent five (5) Business Days immediately preceding the date of delivery of a Purchase Notice.
“Bankruptcy Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
“Beneficial Ownership Limitation” shall have the meaning specified in Section 7.2(g).
“Business Day” shall mean a day on which the Principal Market shall be open for business.
“Claim Notice” shall have the meaning specified in Section 9.3(a).
“Closing” shall mean the closing of a purchase and sale of shares of Common Stock as described in Section 2.1.
“Closing Date” means the second (2nd) Business Day following the applicable Purchase Notice Date or Rapid Purchase Notice Date, as applicable.
“Commitment Amount” shall mean One Hundred Million Dollars ($100,000,000).
“Commitment Period” shall mean the period commencing on the Execution Date and ending on the earlier of (i) the date on which the Investor shall have purchased an aggregate number of Purchase Notice Shares pursuant to this Agreement equal to the Commitment Amount or (ii) the second (2nd) anniversary of the Execution Date.
“Common Stock” shall mean the Company’s Common Stock, $0.0001 par value per share, and any shares of any other class of Common Stock whether now or hereafter authorized, having the right to participate in the distribution of dividends (as and when declared) and assets (upon liquidation of the Company).
“Common Stock Equivalents” means any securities of the Company entitling the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Company” shall have the meaning specified in the preamble to this Agreement.
“Current Report” has the meaning set forth in Section 6.2.
“Custodian” means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“Damages” shall mean any loss, claim, damage, liability, cost and expense (including, without limitation, reasonable attorneys’ fees and disbursements and costs and expenses of expert witnesses and investigation).
“Designated Brokerage Account” shall mean the brokerage account provided by the Investor for the delivery of the applicable Securities.
“Disclosure Schedules” means the Disclosure Schedules of the Company delivered concurrently herewith.
“DTC” shall mean The Depository Trust Company, or any successor performing substantially the same function for the Company.
“DTC/FAST Program” shall mean the DTC’s Fast Automated Securities Transfer Program.
“DWAC” shall mean Deposit Withdrawal at Custodian as defined by the DTC.
“DWAC Eligible” shall mean that (a) the Common Stock is eligible at DTC for full services pursuant to DTC’s Operational Arrangements, including, without limitation, transfer through DTC’s DWAC system, (b) the Company has been approved (without revocation) by the DTC’s underwriting department, (c) the Transfer Agent is approved as an agent in the DTC/FAST Program, (d) the Securities are otherwise eligible for delivery via DWAC, and (e) the Transfer Agent does not have a policy prohibiting or limiting delivery of the Securities, as applicable, via DWAC.
“DWAC Shares” means shares of Common Stock that are (i) issued in electronic form, (ii) freely tradable and transferable and without restriction on resale and (iii) timely credited by the Company to the Investor’s or its designee’s specified DWAC account with DTC under the DTC/FAST Program, or any similar program hereafter adopted by DTC performing substantially the same function.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Execution Date” shall have the meaning set forth in the first paragraph of this Agreement.
“Indemnified Party” shall have the meaning specified in Section 9.1. “Indemnifying Party” shall have the meaning specified in Section 9.1. “Indemnity Notice” shall have the meaning specified in Section 9.3(b). “Investment Amount” shall mean the gross price of the Purchase Notice Shares. “Investor” shall have the meaning specified in the preamble to this Agreement.
“Lien” means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Material Adverse Effect” shall mean any effect on the business, operations, properties, condition (financial or otherwise), or prospects of the Company that is material and adverse to the Company and/or any condition, circumstance, or situation that would prohibit or otherwise materially interfere with the ability of the Company to enter into and perform its obligations under any Transaction Document; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which the Company operates; (iii) any changes in financial, banking or securities markets in general, including any disruption thereof and any decline in the price of any security or any market index or any change in prevailing interest rates; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement or any action taken (or omitted to be taken) with the written consent of or at the written request of Investor; (vi) any matter of which Investor is aware on the date hereof; (vii) any changes in applicable laws or accounting rules (including GAAP) or the enforcement, implementation or interpretation thereof; (viii) the announcement, pendency or completion of the transactions contemplated by this Agreement, including losses or threatened losses of employees, customers, suppliers, distributors or others having relationships with the Company; (ix) any natural or man-made disaster or acts of God; (x) any epidemics, pandemics, disease outbreaks, or other public health emergencies; or (xi) any failure by the Company to meet any internal or published projections, forecasts or revenue or earnings predictions (provided that the underlying causes of such failures (subject to the other provisions of this definition) shall not be excluded); provided, further, the “Material Adverse Effect” shall include if any of events in (i)-(xi) occurs and affects the Company in a materially disproportionate manner as compared to other similarly situated companies.
“Maximum Common Stock Issuance” shall have the meaning set forth in Section 7.1.3.
“Minimum Price” shall have the meaning specified in Section 7.1.3.
“PEA Period” shall mean the period commencing at 9:30 a.m., New York City time, on the fifth (5th) Business Day immediately prior to the filing of any post-effective amendment to the Registration Statement or any new registration statement, or any annual and quarterly report, and ending at 9:30 a.m., New York City time, on the Business Day immediately following (i) the effective date of such post-effective amendment of the Registration Statement or such new registration statement, or (ii) the date of filing of such annual and quarterly report, as applicable.
“Person” shall mean an individual, a corporation, a partnership, an association, a trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“Principal Market” shall mean any of the national exchanges (i.e. NYSE, AMEX, Nasdaq) or other principal exchange or recognized quotation system which is at the time the principal trading platform or market for the Common Stock.
“Purchase Notice” shall mean a written notice from Company, substantially in the form of Exhibit A attached hereto (a “Rapid Purchase Notice Form”), or Exhibit B attached hereto (a “Purchase Notice Form”) to the Investor setting forth the Purchase Notice Shares which the Company requires the Investor to purchase pursuant to the terms of this Agreement.
“Purchase Notice Limit” shall mean, for any Purchase Notice, the Investor’s committed obligation under such Purchase Notice, shall not exceed the Maximum Percentage.
“Purchase Notice Shares” shall mean all shares of Common Stock that the Company shall be entitled to issue as set forth in all applicable Purchase Notices in accordance with the terms and conditions of this Agreement.
“Purchase Price” shall mean ninety percent (90%) of the Lowest Traded Price during the ten (10) consecutive Business Day period immediately preceding the applicable Purchase Notice Date.
“Rapid Closing Date” shall have the meaning specified in Section 2.2.
“Rapid Purchase Investment Amount” shall mean the applicable Purchase Notice Shares referenced in the Rapid Purchase Notice multiplied by the applicable Rapid Purchase Price.
“Rapid Purchase Notice” shall mean the closing of a purchase and sale of shares of Common Stock as described in Section 2.2.
“Rapid Purchase Notice Date” shall have the meaning specified in Section 2.2.
“Rapid Purchase Price” shall mean the lowest intraday traded price of the Common Stock that occurs during the Rapid Purchase Notice Date.
“Registration Rights Agreement” shall have the meaning specified in the Recitals. “Registration Statement” shall have the meaning specified in Section 6.3. “Regulation D” shall mean Regulation D promulgated under the Securities Act.
“Rule 144” shall mean Rule 144 under the Securities Act or any similar provision then in force under the Securities Act.
“SEC” shall mean the United States Securities and Exchange Commission.
“SEC Documents” shall have the meaning specified in Section 4.5.
“Securities” mean the Purchase Notice Shares and any other securities issued to the Investor by the Company pursuant to this Agreement.
“Securities Act” shall mean the Securities Act of 1933, as amended.
“Subsidiary” means any Person the Company wholly-owns or controls, or in which the Company, directly or indirectly, owns a majority of the voting stock or similar voting interest, in each case that would be disclosable pursuant to Item 601(b)(21) of Regulation S-K promulgated under the Securities Act.
“Termination” shall mean any termination outlined in Section 10.5.
“Transaction Documents” shall mean this Agreement, the Registration Rights Agreement and all schedules and exhibits hereto and thereto.
“Transfer Agent” shall mean the current transfer agent of the Company, and any successor transfer agent of the Company.
“Valuation Period” shall mean the VWAP Purchase Valuation Period or the Rapid Purchase Notice Date, as applicable.
“VWAP” means, for any Trading Day, the volume-weighted average price of the Common Stock on the Principal Market as reported by Bloomberg L.P. (or, if the Principal Market is not Bloomberg-compatible, another nationally recognized reporting service reasonably acceptable to the Investor) from 9:30 a.m. to 4:00 p.m., Eastern Time.
| 2. | Purchase and Sale of Common Stock |
| 2.1. | Purchase Notices. Upon the terms and conditions set forth herein (including, without limitation, the provisions of Section 7), the Company shall have the right, but not the obligation, to require the Investor, by its delivery to the Investor of a Purchase Notice, from time to time, to purchase Purchase Notice Shares; provided that the amount of Purchase Notice Shares shall not exceed the Purchase Notice Limit or the Beneficial Ownership Limitation set forth in Section 7.2.7 (each such purchase, a “Closing”). Furthermore, the Company shall not deliver any Purchase Notices to the Investor during the PEA Period. |
| 2.2. | Rapid Purchase Notice. At any time and from time to time during the Commitment Period, except as otherwise provided in this Agreement, the Company may deliver a Rapid Purchase Notice to Investor, subject to satisfaction of the conditions set forth in Article VII and otherwise provided herein. The Company shall deliver the Purchase Notice Shares as DWAC Shares to the Designated Brokerage Account simultaneously with the delivery of the Rapid Purchase Notice. A Rapid Purchase Notice shall be deemed delivered on the Business Day a Rapid Purchase Notice Form is received by 2:00 p.m. New York time by email by the Investor (the “Rapid Purchase Notice Date”). If the applicable Rapid Purchase Notice Form is received after 2:00 p.m. New York time, then the next Business Day shall be the Rapid Purchase Notice Date, unless waived by Investor in writing. Each party shall use its commercially reasonable efforts to perform or fulfill all conditions and obligations to be performed or fulfilled by it under this Agreement so that the transactions contemplated hereby shall be consummated as soon as practicable. Each party also agrees that it shall use its best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate and make effective Section 2.2 of this Agreement and the transactions contemplated herein. |
| 2.3. | Rapid Purchase Closing. The Closing of a Rapid Purchase Notice shall occur two (2) Business Days following the Rapid Purchase Notice Date (the “Rapid Closing Date”), whereby the Investor shall deliver to the Company, by 5:00 p.m. New York time on the Rapid Closing Date, the Rapid Purchase Investment Amount by wire transfer of immediately available funds to an account designated by the Company. |
| 2.4. | Purchase Notice (Standard). At any time and from time to time during the Commitment Period, except as otherwise provided in this Agreement, the Company may deliver a Purchase Notice (other than a Rapid Purchase Notice) to the Investor, subject to satisfaction of the conditions set forth in Section 7 and otherwise provided herein. The Company shall deliver the Purchase Notice Shares as DWAC Shares to the Designated Brokerage Account simultaneously with the delivery of the Purchase Notice. A Purchase Notice shall be deemed delivered on the Business Day that (i) an applicable Purchase Notice Form is received by 9:30 a.m. New York time by email by the Investor and (ii) the DWAC of the applicable Purchase Notice Shares has been initiated and completed as confirmed by the Investor’s Designated Brokerage Account by 9:30 a.m. New York time (the “Purchase Notice Date”). If the applicable Purchase Notice Form is received after 9:30 a.m. New York time, or the DWAC of the applicable Purchase Notice Shares has not been completed as confirmed by the Investor’s Designated Brokerage Account by 9:30 a.m. New York time, then the next Business Day shall be the Purchase Notice Date, unless waived by the Investor in writing. Each party shall use its commercially reasonable efforts to perform or fulfill all conditions and obligations to be performed or fulfilled by it under this Agreement so that the transactions contemplated hereby shall be consummated as soon as practicable. Each party also agrees that it shall use its best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate and make effective Section 2.1 of this Agreement and the transactions contemplated herein. |
| 2.5. | Purchase Closing (Standard). The Closing of a Purchase Notice (other than a Rapid Purchase Notice) shall occur two (2) Business Days following the Purchase Notice Date (the “Closing Date”), whereby the Investor shall deliver to the Company, by 5:00 p.m. New York time on the Closing Date, the Investment Amount by wire transfer of immediately available funds to an account designated by the Company. |
| 2.6. | Purchase Restriction. During the three (3) Trading Day-period following a Closing Date, the Company shall not be entitled to deliver another Purchase Notice, unless otherwise mutually agreed upon in writing. |
| 2.7. | Pricing Period. For each Purchase Notice, the Purchase Price shall be calculated as ninety percent (90%) of the Lowest VWAP during the ten (10) consecutive Business Day period immediately preceding the applicable Purchase Notice Date (the “Pricing Period”). |
| 2.8. | Purchase Amount Limit. For any Purchase Notice, the Company may, at its sole discretion, issue a Put Notice for an amount up to 150% of the average daily trading volume during the Pricing Period, not to exceed $500,000 or be less than $25,000, unless mutually agreed upon otherwise. |
| 2.9. | Rapid Put Option. The Company shall have the option to request a Rapid Put at the Investor’s discretion. The Purchase Price for a Rapid Put shall be 90% of the lowest intraday trade price on the day of the Rapid Put Notice. |
| 2.10. | Additional Investment Upon S-1 Effectiveness. Subject to the Company maintaining average daily trading volume of at least Twenty-Five Thousand Dollars ($25,000) for ten (10) consecutive Trading Days immediately prior to the date the Registration Statement is declared effective by the SEC, the Investor agrees to fund an additional investment of up to One Hundred Thousand Dollars ($100,000) in accordance with this Agreement, by submitting one or more Purchase Notices following the effectiveness of the Registration Statement. |
| 2.11. | Minimum Usage Requirement. Notwithstanding anything to the contrary herein, Investor agrees that the Company shall have the unconditional right to deliver Purchase Notices for a period of not less than twelve (12) months from the Execution Date (the “Minimum Commitment Period”), and Investor shall not cancel, terminate, or otherwise suspend its obligations hereunder during the Minimum Commitment Period, except in the event of a Company default under Section 7.2 or a material breach of this Agreement by the Company. |
| 2.12. | Use of Proceeds. The Company covenants that all proceeds received from the Investor under this Agreement shall be used for general corporate purposes, including working capital, repayment of trade payables, and other expenses disclosed to the Investor. The Company agrees to provide the Investor with a quarterly certification of the use of proceeds in reasonable detail. |
| 3. | Representations and Warranties of Investor |
| 3.1. | Intent. The Investor is entering into this Agreement for its own account, for investment purposes and not with a view towards, or for resale in connection with, the public sale or distribution thereof, except pursuant to sales registered under or exempt from the registration requirements of the Securities Act. The Investor reserves the right to dispose of the Securities at any time in accordance with federal and state securities laws applicable to such disposition. The Investor does not presently have any agreement or understanding, directly or indirectly, with any Person to sell or distribute any of the Securities. |
| 3.2. | Reliance on Exemptions The Investor understands that the Securities are being offered and sold to it in reliance on specific exemptions from the registration requirements of U.S. federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and the Investor’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Investor set forth herein in order to determine the availability of such exemptions and the eligibility of the Investor to acquire the Securities. |
| 3.3. | No Governmental Review. The Investor understands that no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Securities or the fairness or suitability of the investment in the Securities nor have such authorities passed upon or endorsed the merits of the offering of the Securities. |
| 3.4. | Accredited Investor. The Investor is an accredited investor as defined in Rule 501(a)(3) of Regulation D, and the Investor has such experience in business and financial matters that it is capable of evaluating the merits and risks of an investment in the Securities. The Investor acknowledges that an investment in the Securities is speculative and involves a high degree of risk. The Investor represents that it is able to bear any loss associated with an investment in the Company. |
| 3.5. | No General Solicitation. The Investor is not purchasing or acquiring the Securities as a result of any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with the offer or sale of the Securities. |
| 3.6. | Authority. The Investor has the requisite power and authority to enter into and perform its obligations under the Transaction Documents and to consummate the transactions contemplated hereby and thereby. The execution and delivery of the Transaction Documents and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action and no further consent or authorization of the Investor is required. The Transaction Documents to which it is a party has been duly executed by the Investor, and when delivered by the Investor in accordance with the terms hereof, will constitute the valid and binding obligations of the Investor enforceable against it in accordance with their terms, subject to applicable bankruptcy, insolvency, or similar laws relating to, or affecting generally the enforcement of, creditors’ rights and remedies or by other equitable principles of general application. |
| 3.7. | Not an Affiliate. The Investor is not an officer, director, or “affiliate” (as that term is defined in Rule 405 of the Securities Act) of the Company. |
| 3.8. | Organization and Standing; Compliance with Laws. The Investor is an entity duly incorporated or formed, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents. The Investor will comply with all U.S. federal securities laws applicable to its purchase and resale of the Securities, subject to the Company’s related compliance with all applicable laws as contemplated herein. |
| 3.9. | Absence of Conflicts. The execution and delivery of the Transaction Documents and the consummation of the transactions contemplated hereby and thereby and compliance with the requirements hereof and thereof, will not (a) violate any law, rule, regulation, order, writ, judgment, injunction, decree or award binding on the Investor, (b) violate any provision of any indenture, instrument or agreement to which the Investor is a party or is subject, or by which the Investor or any of its assets is bound, or conflict with or constitute a material default thereunder, (c) result in the creation or imposition of any lien pursuant to the terms of any such indenture, instrument or agreement, or constitute a breach of any fiduciary duty owed by the Investor to any third party, or (d) require the approval of any third-party (that has not been obtained) pursuant to any material contract, instrument, agreement, relationship or legal obligation to which the Investor is subject or to which any of its assets, operations or management may be subject. |
| 3.10. | Disclosure; Access to Information. The Investor had an opportunity to review copies of the SEC Documents filed on behalf of the Company and has had access to all publicly available information with respect to the Company. |
| 3.11. | Manner of Sale. At no time was the Investor presented with or solicited by or through any leaflet, public promotional meeting, television advertisement or any other form of general solicitation or advertising. |
| 3.12. | No Prior Short Sales. At no time prior to the date of this Agreement has any of the Investor, its agents, representatives or Affiliates engaged in or effected, in any manner whatsoever, directly or indirectly, any (i) “short sale” (as such term is defined in Rule 200 of Regulation SHO of the Exchange Act) of the Common Stock or (ii) hedging transaction, which establishes a net short position with respect to the Common Stock. |
| 4. | Representations and Warranties of the Company |
| 4.1. | Organization of the Company. The Company and each of its Subsidiaries is an entity duly incorporated or otherwise organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted. The Company and each of its Subsidiaries is not in violation or default of any of the provisions of its certificate of incorporation, bylaws or other organizational or charter documents. The Company and each of its Subsidiaries is duly qualified to conduct business and is in good standing as a foreign corporation in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, could not have or reasonably be expected to result in a Material Adverse Effect and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification. |
| 4.2. | Authority. The Company has the requisite corporate power and authority to enter into and perform its obligations under the Transaction Documents. The execution and delivery of the Transaction Documents by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action and no further consent or authorization of the Company or its Board of Directors or stockholders is required. The Transaction Documents have been duly executed and delivered by the Company and constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, or similar laws relating to, or affecting generally the enforcement of, creditors’ rights and remedies or by other equitable principles of general application. |
| 4.3. | Capitalization. As of the Execution Date, the authorized capital stock of the Company consists of 1,000,000,000 shares of Common Stock, of which 112,399,325 shares of Common Stock are issued and outstanding as of the Execution Date. Except as set forth in the SEC Documents, the Company has not issued any capital stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee stock options under the Company’s stock option plans, the issuance of shares of Common Stock to employees pursuant to the Company’s employee stock purchase plans or pursuant to inducement awards to employees, and pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding as of the date of the periodic report filed under the Exchange Act. Except as set forth in the SEC Documents, there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire any shares of Common Stock, or contracts, commitments, understandings or arrangements by which the Company is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents. Except as set forth in the SEC Documents, the issuance and sale of the Securities will not obligate the Company to issue shares of Common Stock or other securities to any Person (other than the Investor) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities. There are no stockholders agreements, voting agreements or other similar agreements with respect to the Company’s capital stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s stockholders. |
| 4.4. | Listing and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(g) of the Exchange Act and is currently quoted on the OTC Pink Limited Information Tier operated by OTC Markets Group, Inc. The Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act nor has the Company received any notification that the SEC is contemplating terminating such registration. The Company acknowledges that it is not designated as a “shell company” as defined in Rule 12b-2 under the Exchange Act. |
| 4.5. | SEC Documents; Disclosure. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “SEC Documents”). As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and other federal laws, rules and regulations applicable to such SEC Documents, and none of the SEC Documents when filed contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Documents comply as to form and substance in all material respects with applicable accounting requirements and the published rules and regulations of the SEC or other applicable rules and regulations with respect thereto. Such financial statements have been prepared in accordance with generally accepted accounting principles applied on a consistent basis during the periods involved (except (a) as may be otherwise indicated in such financial statements or the notes thereto or (b) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments). Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms that neither it nor any other Person acting on its behalf has provided the Investor or its agents or counsel with any information that it believes constitutes or might constitute material, non-public information. The Company understands and confirms that the Investor will rely on the foregoing representation in effecting transactions in securities of the Company. |
| 4.6. | Valid Issuances. The Securities are duly authorized and, when issued and paid for in accordance with the applicable Transaction Documents, will be duly and validly issued, fully paid, and non-assessable, free and clear of all Liens imposed by the Company other than restrictions on transfer provided for in the Transaction Documents. |
| 4.7. | No Conflicts. The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the Company of the transactions contemplated hereby and thereby, including, without limitation, the issuance of the Purchase Notice Shares, do not and will not: (a) result in a violation of the Company’s certificate or articles of incorporation, by-laws or other organizational or charter documents, (b) conflict with, or constitute a material default (or an event that with notice or lapse of time or both would become a material default) under, result in the creation of any Lien upon any of the properties or assets of the Company, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture, instrument or any “lock-up” or similar provision of any underwriting or similar agreement to which the Company is a party, or (c) result in a violation of any federal, state or local law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Company or by which any property or asset of the Company is bound or affected (except for such conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a Material Adverse Effect) nor is the Company otherwise in violation of, conflict with or in default under any of the foregoing. The business of the Company is not being conducted in violation of any law, ordinance or regulation of any governmental entity, except for possible violations that either singly or in the aggregate do not and will not have a Material Adverse Effect. The Company is not required under federal, state or local law, rule or regulation to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under the Transaction Documents (other than any SEC or state securities filings that may be required to be made by the Company in connection with the issuance of Purchase Notice Shares or subsequent to any Closing or any registration statement that may be filed pursuant hereto); provided that, for purposes of the representation made in this sentence, the Company is assuming and relying upon the accuracy of the relevant representations and agreements of Investor herein. |
| 4.8. | No Material Adverse Effect. No event has occurred that would have a Material Adverse Effect on the Company that has not been disclosed in the SEC Documents. |
| 4.9. | Litigation and Other Proceedings. There are no material actions, suits, investigations, inquiries or similar proceedings pending or, to the knowledge of the Company, threatened against or affecting the Company or its properties, nor has the Company received any written or oral notice of any such action, suit, proceeding, inquiry or investigation, which would have a Material Adverse Effect. No judgment, order, writ, injunction or decree or award has been issued by or, to the knowledge of the Company, requested of any court, arbitrator or governmental agency which would have a Material Adverse Effect. There has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation by the SEC involving the Company or any current or former director or officer of the Company. |
| 4.10. | Acknowledgment Regarding Investor’s Purchase of Securities. The Company acknowledges and agrees that the Investor is acting solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated hereby and thereby. The Company further acknowledges that the Investor is not (i) an officer or director of the Company, or (ii) an “affiliate” (as defined in Rule 144) of the Company. The Company further acknowledges that the Investor is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated hereby and thereby, and any advice given by the Investor or any of its representatives or agents in connection with the Transaction Documents and the transactions contemplated hereby and thereby is merely incidental to the Investor’s purchase of the Purchase Notice Shares. The Company further represents to the Investor that the Company’s decision to enter into the Transaction Documents has been based solely on the independent evaluation by the Company and its representatives. |
| 5. | Covenants of Investor |
| 5.1. | Short Sales and Confidentiality. Neither the Investor, nor any affiliate of the Investor acting on its behalf or pursuant to any understanding with it, will execute any Short Sales during the period from the Execution Date to the end of the Commitment Period. For the purposes hereof, and in accordance with Regulation SHO, the sale after delivery of the Purchase Notices of such number of shares of Common Stock purchased under the applicable Purchase Notice shall not be deemed a Short Sale. The parties acknowledge and agree that during the applicable Valuation Period, the Investor may contract for, or otherwise effect, the resale of the subject purchased Purchase Notice Shares to third- parties. The Investor shall, until such time as the transactions contemplated by the Transaction Documents are publicly disclosed by the Company in accordance with the terms of the Transaction Documents, maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents. “Short Sales” shall mean “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act. |
| 5.2. | Compliance with Law; Trading in Securities. The Investor’s trading activities with respect to shares of Common Stock will be in compliance with all applicable state and federal securities laws and regulations and the rules and regulations of FINRA and the Principal Market. |
| 6. | Covenants of the Company |
| 6.1. | Listing of Common Stock. The Company shall use commercially reasonable efforts to maintain, so long as any shares of Common Stock shall be so listed, the listing, if required, of all such Common Stock on the Principal Market from time to-time issuable hereunder. The Company shall use its commercially reasonable best efforts to continue the listing or quotation and trading of the Common Stock on the Principal Market (including, without limitation, maintaining sufficient net tangible assets, if required) and will comply in all respects with the Company’s reporting, filing and other obligations under the bylaws or rules of the Principal Market. |
| 6.2. | Filing of Current Report. The Company agrees that it shall file a Current Report on Form 8-K (or equivalent form required for foreign issuers), including the Transaction Documents as exhibits thereto, with the SEC within the time required by the Exchange Act, relating to the execution of the transactions contemplated by, and describing the material terms and conditions of, the Transaction Documents (the “Current Report”). The Company shall permit the Investor to review and comment upon the final pre-filing draft version of the Current Report at least two (2) Business Days prior to its filing with the SEC, and the Company shall give reasonable consideration to all such comments. The Investor shall use its reasonable best efforts to comment upon the final pre-filing draft version of the Current Report within one (1) Business Day from the date the Investor receives it from the Company. |
| 6.3. | Filing of Registration Statement. The Company shall file with the SEC, within thirty (30) calendar days after the Execution Date, a new Registration Statement on Form S-1 (the “Registration Statement”) in compliance with the terms of the Registration Rights Agreement, covering only the resale of the Securities by the Investor. The Registration Statement shall relate to the transactions contemplated by, and describing the material terms and conditions of, this Agreement and disclosing all information relating to the transactions contemplated hereby required to be disclosed in the Registration Statement and the prospectus supplement as of the date of the Registration Statement, including, without limitation, information required to be disclosed in the section captioned “Plan of Distribution” in the Registration Statement. |
The Company shall permit the Investor to review and comment upon the Registration Statement within a reasonable time prior to its filing with the SEC. The Company shall give reasonable consideration to all such comments, and the Company shall not file the Current Report or the Registration Statement with the SEC in a form to which the Investor reasonably objects.
The Investor shall furnish to the Company such information regarding itself, the Company’s securities beneficially owned by the Investor, and the intended method of distribution thereof, including any arrangement between the Investor and any other person or relating to the sale or distribution of the Company’s securities, as shall be reasonably requested by the Company in connection with the preparation and filing of the Current Report and the Registration Statement, and shall otherwise cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of the Current Report and the Registration Statement with the SEC.
| 6.4. | No Non-Public Information. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, which shall be disclosed pursuant to 6.2 and otherwise provided herein, the Company covenants and agrees that neither it, nor any other Person acting on its behalf will provide the Investor or its agents or counsel with any information that constitutes, or the Company reasonably believes constitutes, material non-public information, unless prior thereto the Investor shall have consented in writing to the receipt of such information and agreed with the Company to keep such information confidential. The Company understands and confirms that the Investor shall be relying on the foregoing covenant in effecting transactions in securities of the Company. To the extent that the Company delivers any material, non-public information to the Investor without such Investor’s consent, the Company hereby covenants and agrees that the Investor shall not have any duty of confidentiality to the Company, any of its Subsidiaries, or any of their respective officers, directors, agents, employees or Affiliates, not to trade on the basis of, such material, non-public information, provided that the Investor shall remain subject to applicable law. To the extent that any notice provided pursuant to any Transaction Document constitutes, or contains, material, non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the SEC pursuant to a Current Report on Form 8-K (or equivalent form for foreign issuers). |
| 6.5. | Use of Proceeds. The Company covenants that all proceeds received from the Investor under this Agreement shall be used for general corporate purposes, including working capital, repayment of trade payables, and other expenses disclosed to the Investor. The Company agrees to provide the Investor with a quarterly certification of the use of proceeds in reasonable detail. |
| 6.6. | No Additional Equity Lines Without Consent. During the Commitment Period, the Company shall not enter into any other equity line of credit agreement or similar standby equity purchase facility without the prior written consent of Investor, which consent shall not be unreasonably withheld, conditioned, or delayed. |
| 7. | Conditions to Delivery of Purchase Notice and Conditions to Closing |
| 7.1. | Conditions Precedent to the Right of the Company to Issue and Sell Purchase Notice Shares. The right of the Company to issue and sell the Purchase Notice Shares to the Investor is subject to the satisfaction of each of the conditions set forth below: |
| 7.1.1. | Accuracy of Investor’s Representations and Warranties. Unless waived by the Company, the representations and warranties of the Investor shall be true and correct as of the date of this Agreement and as of the date of each Closing as though made at each such time. |
| 7.1.2. | Performance by Investor. Unless waived by the Company, Investor shall have performed, satisfied and complied in all respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Investor at or prior to such Closing. |
| 7.1.3. | Maximum Common Stock Issuance. Notwithstanding anything contained herein to the contrary, the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement and the transactions contemplated hereby would exceed a number of shares equal to 19.99% of the shares of Common Stock issued and outstanding immediately prior to the Execution Date, which number of shares shall be reduced, on a share-for-share basis, by the number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of the Trading Market (such maximum number of shares, the “Maximum Common Stock Issuance”), unless the Company’s stockholders have approved the issuance of Common Stock pursuant to this Agreement in excess of the Maximum Common Stock Issuance in accordance with the applicable rules of the Principal Market. If such issuance of shares of Common Stock could cause a delisting on the Principal Market then the Maximum Common Stock Issuance shall first be approved by the Company’s stockholders in accordance with applicable law and the By-laws and the Certificate of Incorporation of the Company. The parties understand and agree that the Company’s failure to seek or obtain such stockholder approval shall in no way adversely affect the validity and due authorization of the issuance of Securities or the Investor’s obligation in accordance with the terms and conditions hereof to purchase the Shares in the Put Purchase Request Amount in the Put Purchase Request. |
| 7.1.4. | Limitation on Amount of Ownership. Notwithstanding anything to the contrary in this Agreement, in no event shall the Investor be entitled to purchase that number of Shares, which when added to the sum of the number of shares of Common Stock beneficially owned (as such term is defined under Section 13(d) and Rule 13d-3 of the Exchange Act), by the Investor, would exceed 4.99% of the number of shares of Common Stock outstanding on the Closing Date (the “Maximum Percentage”), as determined in accordance with Rule 13d-1(j) of the Exchange Act. By written notice to the Company, the Investor may increase the Maximum Percentage to 9.99%, but any such waiver will not be effective until the 61st day after delivery thereof. The foregoing 61- day notice requirement is enforceable, unconditional and non-waivable and shall apply to all affiliates and assigns of the Investor. |
| 7.2. | Conditions Precedent to the Obligation of Investor to Purchase the Purchase Notice Shares. The obligation of the Investor hereunder to purchase the Purchase Notice Shares is subject to the satisfaction of each of the following conditions: |
| 7.2.1. | Effective Registration Statement. The Registration Statement, and any amendment or supplement thereto, shall have been timely filed in compliance with the Registration Rights Agreement, shall have become effective, and shall remain effective for the offering of the Securities and (i) the Company shall not have received notice that the SEC has issued or intends to issue a stop order with respect to such Registration Statement or that the SEC otherwise has suspended or withdrawn the effectiveness of such Registration Statement, either temporarily or permanently, or intends or has threatened to do so, and (ii) no other suspension of the use of, or withdrawal of the effectiveness of, such Registration Statement or related prospectus shall exist. The Investor shall not have received any notice from the Company that the prospectus and/or any prospectus supplement fails to meet the requirements of Section 5(b) or Section 10 of the Securities Act. |
| 7.2.2. | Accuracy of the Company’s Representations and Warranties. The representations and warranties of the Company shall be true and correct as of the date of this Agreement and as of the date of each Closing (except for representations and warranties specifically made as of a particular date). |
| 7.2.3. | Performance by the Company. The Company shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company. |
| 7.2.4. | No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or adopted by any court or governmental authority of competent jurisdiction that prohibits or directly and materially adversely affects any of the transactions contemplated by the Transaction Documents, and no proceeding shall have been commenced that may have the effect of prohibiting or materially adversely affecting any of the transactions contemplated by the Transaction Documents. |
| 7.2.5. | Adverse Changes. Since the date of filing of the Company’s most recent annual or quarterly report, no event that had or is reasonably likely to have a Material Adverse Effect has occurred. |
| 7.2.6. | No Suspension of Trading in or Delisting of Common Stock. The trading of the Common Stock shall not have been suspended by the SEC or the Principal Market, or otherwise halted for any reason, and the Common Stock shall have been approved for listing or quotation on and shall not have been delisted from or no longer quoted on the Principal Market. In the event of a suspension, delisting, or halting for any reason of the trading of the Common Stock during an active Purchase Notice, as contemplated by this Section 7.2.6, the Investor shall purchase the applicable Purchase Notice Shares in the respective Purchase Notice at a value equal to the par value of the Company’s Common Stock. |
| 7.2.7. | Beneficial Ownership Limitation. The number of Purchase Notice Shares then to be purchased by the Investor shall not exceed the number of such shares that, when aggregated with all other shares of Common Stock then owned by the Investor beneficially or deemed beneficially owned by the Investor, would result in the Investor owning more than the Maximum Percentage, as determined in accordance with Section 13 of the Exchange Act. For purposes of this 7.2.7, in the event that the number of shares of Common Stock outstanding is greater or lesser on a date of a Closing (a “Closing Date”) than on the date upon which the Purchase Notice associated with such Closing Date is given, the amount of Common Stock outstanding on such issuance of a Purchase Notice shall govern for purposes of determining whether the Investor, when aggregating all purchases of Common Stock made pursuant to this Agreement, would own more than the Maximum Percentage following a purchase on any such Closing Date. In the event the Investor claims that compliance with a Purchase Notice would result in the Investor owning more than the Maximum Percentage, upon request of the Company the Investor will provide the Company with evidence of the Investor’s then existing shares beneficially or deemed beneficially owned. To the extent that the Maximum Percentage is exceeded, the number of shares of Common Stock issuable to the Investor shall be reduced void ab initio so it does not exceed the Maximum Percentage. |
| 7.2.8. | No Knowledge. The Company shall have no knowledge of any event more likely than not to have the effect of causing the effectiveness of the Registration Statement to be suspended or any prospectus or prospectus supplement failing to meet the requirement of Sections 5(b) or 10 of the Securities Act (which event is more likely than not to occur within the fifteen (15) Business Days following the Business Day on which such Purchase Notice is deemed delivered). |
| 7.2.9. | No Violation of Shareholder Approval Requirement. The issuance of the Purchase Notice Shares shall not violate the shareholder approval requirements of the Principal Market, If applicable. |
| 7.2.10. | DWAC Eligible. The Common Stock must be DWAC Eligible and not subject to a “DTC chill.” |
| 7.2.11. | SEC Documents. All reports, schedules, registrations, forms, statements, information and other documents required to have been filed by the Company with the SEC pursuant to the reporting requirements of the Exchange Act shall have been filed with the SEC. |
| 7.2.12. | Maximum Common Stock Issuance. The Maximum Common Stock Issuance has not been reached (to the extent the Maximum Common Stock Issuance is applicable pursuant to 7.1.3 hereof). |
| 7.3. | Market Protection. Investor agrees that neither it nor its affiliates shall engage in any short sales of the Company’s Common Stock during the Commitment Period, other than short sales expressly permitted under Regulation SHO that are fully covered by securities then owned and available for resale. |
| 8. | Legends |
| 8.1. | No Restrictive Stock Legend. No restrictive stock legend shall be placed on the share certificates representing the Purchase Notice Shares. |
| 8.2. | Investor’s Compliance. No restrictive legend shall be placed on the share certificates representing the Purchase Notice Shares, provided that such shares are registered for resale under the Securities Act or otherwise eligible for resale pursuant to Rule 144 without restriction or current public information requirements. |
| 9. | Indemnification |
| 9.1. | Indemnification. Each party (an “Indemnifying Party”) agrees to indemnify and hold harmless the other party along with its officers, directors, employees, and authorized agents, and each Person or entity, if any, who controls such party within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (an “Indemnified Party”) from and against any Damages, and any action in respect thereof to which the Indemnified Party becomes subject to, resulting from, arising out of this Agreement or relating to (i) any misrepresentation, breach of warranty or nonfulfillment of or failure to perform any covenant or agreement on the part of the Indemnifying Party contained in this Agreement (or an allegation of the foregoing), (ii) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any post- effective amendment thereof or prospectus or prospectus supplement, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus or contained in the final prospectus (as amended or supplemented, if the Company files any amendment thereof or supplement thereto with the SEC) or the omission or alleged omission to state therein any material fact necessary to make the statements made therein, in the light of the circumstances under which the statements therein were made, not misleading, or (iv) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any state securities law or any rule or regulation under the Securities Act, the Exchange Act or any state securities law, as such Damages are incurred, except to the extent such Damages result primarily from the Indemnified Party’s failure to perform any covenant or agreement contained in this Agreement or the Indemnified Party’s recklessness or willful misconduct in performing its obligations under this Agreement; provided, however, that the foregoing indemnity agreement shall not apply to any Damages of an Indemnified Party to the extent, but only to the extent, arising out of or based upon an Indemnified Party’s negligence or misconduct, any untrue statement or alleged untrue statement or omission or alleged omission made by an Indemnifying Party in reliance upon and in conformity with written information furnished to the Indemnifying Party by the Indemnified Party expressly for use in the Registration Statement, any post-effective amendment thereof, prospectus, prospectus supplement thereto, or any preliminary prospectus or final prospectus (as amended or supplemented). |
| 9.2. | Indemnification Procedure. |
| 9.2.1. | A party that seeks indemnification under 9.1 must promptly give the other party notice of any legal action. But a delay in notice does not relieve an Indemnifying Party of any liability to any Indemnified Party, except to the extent the Indemnifying Party shows that the delay prejudiced the defense of the action. |
| 9.2.2. | The Indemnifying Party may participate in the defense at any time or it may assume the defense by giving notice to the Indemnified Parties. After assuming the defense, the Indemnifying Party: |
| (i) | must select counsel (including local counsel if appropriate) that is reasonably satisfactory to the Indemnified Parties; | |
| (ii) | is not liable to the other party for any later attorney’s fees or for any other later expenses that the Indemnified Parties incur, except for reasonable investigation costs; | |
| (iii) | must not compromise or settle the action without the Indemnified Parties consent (which may not be unreasonably withheld); and | |
| (iv) | is not liable for any compromise or settlement made without its consent. |
| 9.2.3. | If the Indemnifying Party fails to assume the defense within 10 days after receiving notice of the action, the Indemnifying Party shall be bound by any determination made in the action or by any compromise or settlement made by the Indemnified Parties, and also remains liable to pay the Indemnified Parties’ legal fees and expenses. |
| 9.3. | Method of Asserting Indemnification Claims. All claims for indemnification by any Indemnified Party under 9.1 shall be asserted and resolved as follows: |
| 9.3.1. | In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under 9.1 is asserted against or sought to be collected from such Indemnified Party by a Person other than a party hereto or an affiliate thereof (a “Third Party Claim”), the Indemnified Party shall deliver a written notification, enclosing a copy of all papers served, if any, and specifying the nature of and basis for such Third Party Claim and for the Indemnified Party’s claim for indemnification that is being asserted under any provision of 9.1 against an Indemnifying Party, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of such Third Party Claim (a “Claim Notice”) with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the Indemnifying Party shall not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim to the extent that the Indemnifying Party’s ability to defend has been prejudiced by such failure of the Indemnified Party. The Indemnifying Party shall notify the Indemnified Party as soon as practicable within the period ending thirty (30) calendar days following receipt by the Indemnifying Party of either a Claim Notice or an Indemnity Notice (as defined below) (the “Dispute Period”) whether the Indemnifying Party disputes its liability or the amount of its liability to the Indemnified Party under 9.1 and whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Third Party Claim. |
| 9.3.2. | In the event any Indemnified Party should have a claim under 9.1 against the Indemnifying Party that does not involve a Third Party Claim, the Indemnified Party shall deliver a written notification of a claim for indemnity under 9.1 specifying the nature of and basis for such claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of such claim (an “Indemnity Notice”) with reasonable promptness to the Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party’s rights hereunder except to the extent that the Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim or the amount of the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim or the amount of the claim described in such Indemnity Notice, the amount of Damages specified in the Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under 9.1 and the Indemnifying Party shall pay the amount of such Damages to the Indemnified Party on demand. If the Indemnifying Party has timely disputed its liability or the amount of its liability with respect to such claim, the Indemnifying Party and the Indemnified Party shall proceed in good faith to negotiate a resolution of such dispute; provided, however, that if the dispute is not resolved within thirty (30) days after the Claim Notice, the Indemnifying Party shall be entitled to institute such legal action as it deems appropriate. |
| 10. | Miscellaneous |
| 10.1. | Governing Law; Jurisdiction. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Delaware without regard to the principles of conflicts of law. Each of the Company and the Investor hereby submits to the exclusive jurisdiction of the United States federal and state courts located in Wilmington, Delaware, with respect to any dispute arising under the Transaction Documents or the transactions contemplated thereby. |
| 10.2. | Jury Trial Waiver. The Company and the Investor hereby waive a trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto against the other in respect of any matter arising out of or in connection with the Transaction Documents. |
| 10.3. | Assignment. The Transaction Documents shall be binding upon and inure to the benefit of the Company and the Investor and their respective successors. Neither this Agreement nor any rights of the Investor or the Company hereunder may be assigned by either party to any other Person. |
| 10.4. | No Third-Party Beneficiaries. This Agreement is intended for the benefit of the Company and the Investor and their respective successors, and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except as contemplated by Section 9. |
| 10.5. | Termination. This Agreement shall remain in effect for a period of twelve (12) months from the date the Registration Statement becomes effective with the Commission (the “Minimum Term”). The Company may not terminate this Agreement during the Minimum Term unless it (i) has delivered at least two (2) Purchase Notices each for no less than the Minimum Put Amount set forth in Section 2.8, or (ii) pays a termination fee of Fifty Thousand Dollars ($50,000) to the Investor. After the Minimum Term, the Company may terminate this Agreement at any time by written notice to the Investor. In addition, this Agreement shall automatically terminate on the earlier of: (a) the end of the Commitment Period; (b) the date that, pursuant to or within the meaning of any Bankruptcy Law, the Company commences a voluntary case or any Person commences a proceeding against the Company, a Custodian is appointed for the Company or for all or substantially all of its property or the Company makes a general assignment for the benefit of its creditors; (c) the Common Stock ceases to be quoted on the Principal Market or is suspended from trading for more than three (3) consecutive trading days; (d) the Registration Statement is not declared effective within 120 calendar days of the Execution Date, unless extended in writing by the Investor. |
The provisions of Sections 3, 4, 5, 6, 9 and the agreements and covenants of the Company and the Investor set forth in this Section 10 shall survive the termination of this Agreement.
| 10.6. | Entire Agreement. The Transaction Documents, together with the exhibits thereto, contain the entire understanding of the Company and the Investor with respect to the matters covered herein and therein and supersede all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents and exhibits. |
| 10.7. | Shell Company Status. The Company hereby acknowledges and agrees that it is not currently a “shell company” as defined in Rule 12b-2 under the Exchange Act. The Company further acknowledges that (i) Rule 144 under the Securities Act imposes restrictions on the resale of securities initially issued by a shell company or an issuer that has at any time previously been a shell company, unless certain conditions are met, and (ii) the Company shall be required to disclose in its periodic reports filed with the SEC if it becomes a shell company in the future. The Company agrees to take all actions necessary to remain in compliance with applicable securities laws, including the continued filing of all required reports and disclosures regarding its status as a non-shell company. |
| 10.8. | Fees and Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees and expenses of its advisers, 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. |
| 10.9. | Counterparts. The Transaction Documents may be executed in multiple counterparts, each of which may be executed by less than all of the parties and shall be deemed to be an original instrument which shall be enforceable against the parties actually executing such counterparts and all of which together shall constitute one and the same instrument. The Transaction Documents may be delivered to the other parties hereto by email of a copy of the Transaction Documents bearing the signature of the parties so delivering this Agreement. |
| 10.10. | Severability. In the event that any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement shall continue in full force and effect without said provision; provided that such severability shall be ineffective if it materially changes the economic benefit of this Agreement to any party. |
| 10.11. | 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. |
| 10.12. | 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. |
| 10.13. | Equitable Relief. The Company recognizes that in the event that it fails to perform, observe, or discharge any or all of its obligations under this Agreement, any remedy at law may prove to be inadequate relief to the Investor. The Company therefore agrees that the Investor shall be entitled to temporary and permanent injunctive relief in any such case without the necessity of proving actual damages. In addition to being entitled to exercise all rights provided herein or granted by law, both parties will be entitled to specific performance under the Transaction Documents. The parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and hereby agree to waive and not to assert in any action for specific performance of any such obligation the defense that a remedy at law would be adequate. |
| 10.14. | Title and Subtitles. The titles and subtitles used in this Agreement are used for the convenience of reference and are not to be considered in construing or interpreting this Agreement. |
| 10.15. | Amendments; Waivers. No provision of this Agreement may be amended other than by a written instrument signed by both parties hereto, and no provision of this Agreement may be waived other than in a written instrument signed by the party against whom enforcement of such waiver is sought. No failure or delay in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other right, power or privilege. |
| 10.16. | Publicity. The Company and the Investor shall consult with each other in issuing any press releases or otherwise making public statements with respect to the transactions contemplated hereby and no party shall issue any such press release or otherwise make any such public statement, other than as required by law, without the prior written consent of the other parties, which consent shall not be unreasonably withheld or delayed, except that no prior consent shall be required if such disclosure is required by law, in which such case the disclosing party shall provide the other party with prior notice of such public statement. Notwithstanding the foregoing, the Company shall not publicly disclose the name of the Investor without the prior written consent of the Investor, except to the extent required by law. The Investor acknowledges that the Transaction Documents may be deemed to be “material contracts,” as that term is defined by Item 601(b)(10) of Regulation S-K, and that the Company may therefore be required to file such documents as exhibits to reports or registration statements filed under the Securities Act or the Exchange Act. The Investor further agrees that the status of such documents and materials as material contracts shall be determined solely by the Company, in consultation with its counsel. |
| 10.17. | Notices. All notices, demands, requests, consents, approvals, and other communications required or permitted hereunder shall be in writing and, unless otherwise specified herein, shall be (a) personally served, (b) delivered by reputable air courier service with charges prepaid, or (c) transmitted by hand delivery, or email as a PDF, addressed as set forth below or to such other address as such party shall have specified most recently by written notice given in accordance herewith. Any notice or other communication required or permitted to be given hereunder shall be deemed effective upon hand delivery or delivery by email at the address 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). |
The addresses for such communications shall be:
If to the Company:
American Picture House Corp.
477 Madison Avenue 6FL
New York, NY 10025
Email: Macgregor@americanpicturehouse.com
Attention: Bannor Michael MacGregor, CEO
with a copy (not constituting notice) to:
Harris Sarratt & Hodges, LLP
1620 Hillsborough Street, Suite 200
Raleigh, NC 27605
Email: dharris@hshllp.com
Attention: Donald J. Harris, Esq.,
If to the Investor:
RH2 Equity Partners
8 The Green, Suite R
Dover, DE 19901
Email: richard@rh2equitypartners.com
Attention: Richard Hawkins, Managing Member
with a copy (not constituting notice) to:
Vick Law Group
301 N. Lake Avenue, Suite 600
Pasadena, California 91101
Email: scott@vicklawgroup.com
Attention: Scott Vick
Either party hereto may from time to time change its address or email for notices under this 10.17 by giving prior written notice of such changed address to the other party hereto.
| 10.18. | Origination Fee. The Company agrees to pay Enclave Capital LLC (the “Placement Agent”) an origination fee equal to three percent (3%) of the net amount received by the Company from each Put, after deducting up to $1,000 per Put for reasonable transaction-related expenses including legal, compliance, and brokerage costs (“Net Proceeds”). Such fee shall be payable in cash or in registered shares of Common Stock, as directed by the Placement Agent. The fee shall be calculated based on the Net Proceeds at the time of each funding and shall be payable within two (2) Trading Days following the Company’s receipt of such funds. |
{Signature Page Follows}
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed by their respective officers thereunto duly authorized as of the Execution Date.
AMERICAN PICTURE HOUSE CORP.
| By: | /s/ Bannor Michael MacGregor | |
Bannor Michael MacGregor Chief Executive Officer |
||
RH2 EQUITY PARTNERS
| By: | /s/ Richard C. Hawkins | |
Richard C. Hawkins Managing Partner |
||
Exhibit A
Form of Rapid Purchase Notice
TO: RH2 EQUITY PARTNERS
We refer to the Equity Line of Credit Agreement, dated as of Jun 26, 2025 (the “Agreement”), entered into by and American Picture House Corp. and RH2 Equity Partners. Capitalized terms defined in the Agreement shall, unless otherwise defined herein, have the same meaning when used herein.
We hereby:
| 1) | Give you notice that we require you to purchase _________ Purchase Notice Shares at the Rapid Purchase Price; and | |
| 2) | Certify that, as of the date hereof, the conditions set forth in Section 7 of the Agreement are satisfied. |
American Picture House Corp.
| By: | ||
| Name: | Bannor Michael MacGregor | |
| Title: | Chief Executive Officer |
Exhibit B
Form of Purchase Notice
TO: RH2 EQUITY PARTNERS
We refer to the Equity Line of Credit Agreement, dated as of August 28, 2025 (the “Agreement”), entered into by and American Picture House Corp. and RH2 Equity Partners. Capitalized terms defined in the Agreement shall, unless otherwise defined herein, have the same meaning when used herein.
We hereby:
| 1) | Give you notice that we require you to purchase___________ Purchase Notice Shares at the Purchase Price; and | |
| 2) | Certify that, as of the date hereof, the conditions set forth in Section 7 of the Agreement are satisfied. |
American Picture House Corp.
| By: | ||
| Name: | Bannor Michael MacGregor | |
| Title: | Chief Executive Officer |
Exhibit C
Registration Rights Agreement
Exhibit 10.19
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (the “Agreement”), dated as of September 22, 2025, by and between American Picture House Corporation, a Wyoming corporation, with headquarters located at 2305 Historic Decatur Road, Ste. 100, New York, NY 10022 (the “Company”), and LABRYS FUND II, L.P., a Delaware limited partnership, with its address at 145 Tremont Street, Suite 201-1408, Boston, MA 02111 (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 Section 4(a)(2) of the Securities Act of 1933, as amended (the “1933 Act”) and Rule 506(b) promulgated by the United States Securities and Exchange Commission (the “SEC”) under the 1933 Act;
B. Buyer desires to purchase from the Company, and the Company desires to issue and sell to the Buyer, upon the terms and conditions set forth in this Agreement, a promissory note of the Company, in the aggregate principal amount of $115,000.00 (as the principal amount thereof may be increased pursuant to the terms thereof, and together with any note(s) issued in replacement thereof or as a dividend thereon or otherwise with respect thereto in accordance with the terms thereof, in the form attached hereto as Exhibit A, the “Note”), convertible into shares of common stock, $0.0001 par value per share, of the Company (the “Common Stock”), upon the terms and subject to the limitations and conditions set forth in such Note; and
C. The Buyer wishes to purchase, upon the terms and conditions stated in this Agreement, such principal amount of the Note as is set forth in this Agreement.
NOW THEREFORE, in consideration of the foregoing and of the agreements and covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company and the Buyer hereby agree as follows:
1. Purchase and Sale of Note.
a. Purchase of Note. On the Closing Date (as defined below), the Company shall issue and sell to the Buyer, and the Buyer agrees to purchase from the Company, the Note, as further provided herein. As used in this Agreement, the term “business day” shall mean any day other than a Saturday, Sunday, or a day on which commercial banks in the city of New York, New York are authorized or required by law or executive order to remain closed.
b. Form of Payment. On the Closing Date: (i) the Buyer shall pay the purchase price of$100,000.00 (the “Purchase Price”) for the Note, to be issued and sold to it at the Closing (as defined below), by wire transfer of immediately available funds to the Company, in accordance with the Company’s written wiring instructions, against delivery of the Note, and (ii) the Company shall deliver such duly executed Note on behalf of the Company, to the Buyer, against delivery of such Purchase Price. On the Closing Date, the Buyer shall withhold a non- accountable sum of $3,500.00 from the Purchase Price to cover the Buyer’s legal fees in connection with the transactions contemplated by this Agreement. On the Closing, the Buyer shall also withhold a sum of $5,000.00 from the Purchase Price to cover the payment of the Company’s fees owed to Enclave Capital LLC, a registered broker- dealer (CRD #22732) (the “Placement Agent”) in connection with the transactions contemplated by this Agreement.
c. Closing Date. Subject to the satisfaction (or written waiver) of the conditions thereto set forth in Section 6 and Section 7 below, the date and time of the issuance and sale of the Note pursuant to this Agreement (the “Closing Date”) shall be on the date that the Purchase Price for the Note is paid by Buyer pursuant to terms of this Agreement.
d. Closing. 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 (including via exchange of electronic signatures).
| 1 |
2. Buyer’s Representations and Warranties. The Buyer represents and warrants to the Company as of the Closing Date that:
a. Investment Purpose. As of the Closing Date, the Buyer is purchasing the Note (the Note and shares of Common Stock issuable upon conversion of or otherwise pursuant to the Note (the “Conversion Shares”) shall collectively be referred to herein as the “Securities”) for its own account and not with a present view towards the public sale or distribution thereof, except pursuant to sales registered or exempted from registration under the 1933 Act; provided, however, that by making the representations herein, the Buyer does not agree to hold any of the Securities for any minimum or other specific term and reserves the right to dispose of the Securities at any time in accordance with or pursuant to a registration statement or an exemption under the 1933 Act.
b. Accredited Investor Status. The Buyer is an “accredited investor” as that term is defined in Rule 501(a) of Regulation D (an “Accredited Investor”).
c. Reliance on Exemptions. The Buyer understands that the Securities are being offered and sold to it in reliance upon specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying upon the truth and accuracy of, and the Buyer’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Buyer set forth herein in order to determine the availability of such exemptions and the eligibility of the Buyer to acquire the Securities.
d. Information. The Buyer and its advisors, if any, have been, and for so long as the Note remains outstanding will continue to be, furnished with all materials relating to the business, finances and operations of the Company and materials relating to the offer and sale of the Securities which have been requested by the Buyer or its advisors. The Buyer and its advisors, if any, have been, and for so long as the Note remains outstanding will continue to be, afforded the opportunity to ask questions of the Company regarding its business and affairs. Notwithstanding the foregoing, the Company has not disclosed to the Buyer any material nonpublic information regarding the Company or otherwise and will not disclose such information unless such information is disclosed to the public prior to or promptly following such disclosure to the Buyer. Neither such inquiries nor any other due diligence investigation conducted by Buyer or any of its advisors or representatives shall modify, amend or affect Buyer’s right to rely on the Company’s representations and warranties contained in Section 3 below.
e. Governmental Review. The Buyer understands that no United States federal or state agency or any other government or governmental agency has passed upon or made any recommendation or endorsement of the Securities.
f. Transfer or Re-sale. The Buyer understands that (i) the sale or resale of the Securities has not been and is not being registered under the 1933 Act or any applicable state securities laws, and the Securities may not be transferred unless (a) the Securities are sold pursuant to an effective registration statement under the 1933 Act, (b) the Buyer shall have delivered to the Company, at the cost of the Company, an opinion of counsel (which may be the Legal Counsel Opinion (as defined below)) that shall be in form, substance and scope customary for opinions of counsel in comparable transactions to the effect that the Securities to be sold or transferred may be sold or transferred pursuant to an exemption from such registration, which opinion shall be accepted by the Company, (c) the Securities are sold or transferred to an “affiliate” (as defined in Rule 144 promulgated under the 1933 Act (or a successor rule) (“Rule 144”)) of the Buyer who agrees to sell or otherwise transfer the Securities only in accordance with this Section 2(f) and who is an Accredited Investor, (d) the Securities are sold pursuant to Rule 144 or other applicable exemption, or (e) the Securities are sold pursuant to Regulation S under the 1933 Act (or a successor rule) (“Regulation S”), and the Buyer shall have delivered to the Company, at the cost of the Company, an opinion of counsel that shall be in form, substance and scope customary for opinions of counsel in corporate transactions, which opinion shall be accepted by the Company; (ii) any sale of such Securities made in reliance on Rule 144 may be made only in accordance with the terms of said Rule and further, if said Rule is not applicable, any re-sale of such Securities under circumstances in which the seller (or the person through whom the sale is made) may be deemed to be an underwriter (as that term is defined in the 1933 Act) may require compliance with some other exemption under the 1933 Act or the rules and regulations of the SEC thereunder; and (iii) neither the Company nor any other person is under any obligation to register such Securities under the 1933 Act or any state securities laws or to comply with the terms and conditions of any exemption thereunder (in each case). Notwithstanding the foregoing or anything else contained herein to the contrary, the Securities may be pledged in connection with a bona fide margin account or other lending arrangement secured by the Securities, and such pledge of Securities shall not be deemed to be a transfer, sale or assignment of the Securities hereunder, and the Buyer in effecting such pledge of Securities shall not be required to provide the Company with any notice thereof or otherwise make any delivery to the Company pursuant to this Agreement or otherwise.
| 2 |
g. Legends. The Buyer understands that until such time as the Note and/or Conversion Shares, have been registered under the 1933 Act or may be sold pursuant to Rule 144, Rule 144A under the 1933 Act, Regulation S, or other applicable exemption without any restriction as to the number of securities as of a particular date that can then be immediately sold, the Securities may bear a restrictive legend in substantially the following form (and a stop-transfer order may be placed against transfer of such Securities):
“NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE [CONVERTIBLE/EXERCISABLE] HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL (WHICH COUNSEL SHALL BE SELECTED BY THE HOLDER), IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144, RULE 144A, REGULATION S, OR OTHER APPLICABLE EXEMPTION UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.”
The legend set forth above shall be removed and the Company shall issue a certificate or book entry statement for the applicable shares of Common Stock without such legend to the holder of any Security upon which it is stamped or (as requested by such holder) issue the applicable shares of Common Stock to such holder by electronic delivery by crediting the account of such holder’s broker with The Depository Trust Company (“DTC”), if, unless otherwise required by applicable state securities laws, (a) such Security is registered for sale under an effective registration statement filed under the 1933 Act or otherwise may be sold pursuant to Rule 144, Rule 144A, Regulation S, or other applicable exemption without any restriction as to the number of securities as of a particular date that can then be immediately sold, or (b) the Company or the Buyer provides the Legal Counsel Opinion (as contemplated by and in accordance with Section 4(l) hereof) 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 Company shall be responsible for the fees of its transfer agent and all DTC fees associated with any such issuance. 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, Rule 144A, Regulation S, or other applicable exemption at the Deadline (as defined in the Note), it will be considered an Event of Default pursuant to Section 3.2 of the Note.
h. Authorization; Enforcement. This Agreement has been duly and validly authorized by the Buyer and has been duly executed and delivered on behalf of the Buyer, and this Agreement constitutes a valid and binding agreement of the Buyer enforceable in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and except as may be limited by the exercise of judicial discretion in applying principles of equity.
3. Representations and Warranties of the Company. The Company represents and warrants to the Buyer as of the Closing Date 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 or formed, with full power and authority (corporate and other) to own, lease, use and operate its properties and to carry on its business as and where now owned, leased, used, operated and conducted. The SEC Documents set forth a list of all of the Subsidiaries of the Company and the jurisdiction in which each is incorporated. The Company and each of its Subsidiaries is duly qualified as a foreign corporation to do business and is in good standing in every jurisdiction in which its ownership or use of property or the nature of the business conducted by it makes such qualification necessary except where the failure to be so qualified or in good standing would not have a Material Adverse Effect. “Material Adverse Effect” means any material adverse effect on the business, operations,assets, financial condition or prospects of the Company 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. “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.
| 3 |
b. Authorization; Enforcement. The Company and Subsidiaries have all requisite corporate power and authority to enter into and perform the Transaction Documents and to consummate the transactions contemplated hereby and thereby and to issue the Securities, in accordance with the terms hereof and thereof. The Company represents and warrants that (i) the execution and delivery of the Transaction Documents, the Note, and Conversion Shares by the Company and the consummation by it of the transactions contemplated hereby and thereby (including without limitation, the issuance of the Note as well as the issuance and reservation for issuance of the Conversion Shares issuable upon conversion of the Note) have been duly authorized by the Company’s Board of Directors and no further consent or authorization of the Company, its Board of Directors, its shareholders, or its debt holders is required, (i) the Transaction Documents (together with any other instruments executed in connection herewith or therewith) have been duly executed and delivered by the Company and Subsidiaries by its authorized representatives, and such authorized representatives are the true and official representative with authority to sign the Transaction Documents and the other instruments documents executed in connection herewith or therewith and bind the Company and Subsidiaries accordingly, and (iii) the Transaction Documents constitute, and upon execution and delivery by the Company and Subsidiaries as applicable, each of such instruments will constitute, a legal, valid and binding obligation of the Company and Subsidiaries, enforceable against the Company and Subsidiaries in accordance with their terms.
c. Capitalization; Governing Documents. As of September 22, 2025, the authorized capital stock of the Company consists of: 1,000,000,000 authorized shares of Common Stock, of which 112,899,325 shares were issued and outstanding, 1,000,000 authorized shares of preferred stock, of which 3,839 shares of Series A preferred stock were issued and outstanding. All of such outstanding shares of capital stock of the Company and the Conversion Shares are, or upon issuance will be, duly authorized, validly issued, fully paid and non-assessable. No shares of capital stock of the Company are subject to preemptive rights or any other similar rights of the shareholders of the Company or any liens or encumbrances imposed through the actions or failure to act of the Company. As of the effective date of this Agreement, other than as publicly announced prior to such date and reflected in the SEC Documents of the Company (i) there are no outstanding options, warrants, scrip, rights to subscribe for, puts, calls, rights of first refusal, agreements, understandings, claims or other commitments or rights of any character whatsoever relating to, or securities or rights convertible into or exchangeable for any shares of capital stock of the Company or any of its Subsidiaries, or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries, (ii) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of its or their securities under the 1933 Act and (iii) there are no anti-dilution or price adjustment provisions contained in any security issued by the Company (or in any agreement providing rights to security holders) that will be triggered by the issuance of any of the Securities. The Company has furnished to the Buyer true and correct copies of the Company’s Certificate of Incorporation as in effect on the date hereof (“Certificate of Incorporation”), the Company’s By-laws, as in effect on the date hereof (the “By-laws”), and the terms of all securities convertible into or exercisable for Common Stock of the Company and the material rights of the holders thereof in respect thereto.
d. Issuance of Conversion Shares. The Conversion Shares are duly authorized and reserved for issuance and, upon conversion of the Note in accordance with its terms, will be validly issued, fully paid and non-assessable, and free from all taxes, liens, claims and encumbrances with respect to the issue thereof and shall not be subject to preemptive rights or other similar rights of shareholders of the Company and will not impose personal liability upon the holder thereof.
e. [Intentionally Omitted].
f. Acknowledgment of Dilution. The Company understands and acknowledges the potentially dilutive effect of the Conversion Shares upon the conversion of the Note to the Common Stock. The Company further acknowledges that its obligation to issue, upon conversion of the Note and/or the Conversion Shares, are absolute and unconditional regardless of the dilutive effect that such issuance may have on the ownership interests of other shareholders of the Company.
| 4 |
g. No Conflicts. The execution, delivery and performance of the Transaction Documents by the Company and Subsidiaries, and the consummation by the Company and Subsidiaries of the transactions contemplated hereby and thereby (including, without limitation, the issuance and reservation for issuance of the Conversion Shares) will not (i) conflict with or result in a violation of any provision of the Certificate of Incorporation or By-laws, or (ii) violate or conflict with, or result in a breach of any provision of, or constitute a default (or an event which with notice or lapse of time or both could become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, note, evidence of indebtedness, 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 is 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), or (iv) trigger any anti-dilution and/or ratchet provision contained in any other contract in which the Company is a party thereto or any security issued by the Company. Neither the Company nor any of its Subsidiaries is in violation of its Certificate of Incorporation, By-laws or other organizational documents and neither the Company nor any of its Subsidiaries is in default (and no event has occurred which with notice or lapse of time or both could put the Company or any of its Subsidiaries in default) under, and neither the Company nor any of its Subsidiaries has taken any action or failed to take any action that would give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Company or any of its Subsidiaries is a party or by which any property or assets of the Company or any of its Subsidiaries is bound or affected, except for possible defaults as would not, individually or in the aggregate, have a Material Adverse Effect. 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. Except as specifically contemplated by this Agreement and as required under the 1933 Act and any applicable state securities laws, the Company is not required to obtain any consent, authorization or order of, or make any filing or registration with, any court, governmental agency, regulatory agency, self-regulatory organization or stock market or any third party in order for it to execute, deliver or perform any of its obligations under this Agreement and the Note in accordance with the terms hereof or thereof or to issue and sell the Note in accordance with the terms hereof and, upon conversion of the Note, issue Conversion Shares. All consents, authorizations, orders, filings and registrations which the Company is required to obtain pursuant to the preceding sentence have been obtained or effected on or prior to the date hereof. The Company is not in violation of the listing requirements of the Principal Market (as defined herein) and does not reasonably anticipate that the Common Stock will be delisted by the Principal Market in the foreseeable future. The Company and its Subsidiaries are unaware of any facts or circumstances which might give rise to any of the foregoing. The “Principal Market” shall mean the principal securities exchange or trading market where such Common Stock is listed or traded, including but not limited to any tier of the OTC Markets, any tier of the NASDAQ Stock Market (including NASDAQ Capital Market), or the NYSE American, or any successor to such markets.
h. 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”). As of their respective dates, the SEC Documents complied in all material respects with the requirements of the 1934 Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. None of the statements made in any such SEC Documents is, or has been, required to be amended or updated under applicable law (except for such statements as have been amended or updated in subsequent filings prior the date hereof). As of their respective dates, the financial statements of the Company included in the SEC Documents complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto. Such financial statements have been prepared in accordance with United States generally accepted accounting principles, consistently applied, during the periods involved and fairly present in all material respects the 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). Except as set forth in the financial statements of the Company included in the SEC Documents, the Company has no liabilities, contingent or otherwise, other than (i) liabilities incurred in the ordinary course of business subsequent to June 30, 2025, and (ii) obligations under contracts and commitments incurred in the ordinary course of business and not required under generally accepted accounting principles to be reflected in such financial statements, which, individually or in the aggregate, are not material to the financial condition or operating results of the Company. The Company is subject to the reporting requirements of the 1934 Act. The Company has never been a “shell company” as described in Rule 144(i)(1)(i).
| 5 |
i. Absence of Certain Changes. Since June 30, 2025, 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.
j. Absence of Litigation. There is no action, suit, claim, proceeding, inquiry or investigation before or by any court, public board, government agency, self-regulatory organization or body pending or, to the knowledge of the Company 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 SEC Documents contain a complete list and summary description of any pending or, to the knowledge of the Company, threatened proceeding against or affecting the Company or any of its Subsidiaries, without regard to whether it would have a Material Adverse Effect. The Company and its Subsidiaries are unaware of any facts or circumstances which might give rise to any of the foregoing.
k. Intellectual Property. The Company and each of its Subsidiaries owns or possesses the requisite licenses or rights to use all patents, patent applications, patent rights, inventions, know-how, trade secrets, trademarks, trademark applications, service marks, service names, trade names and copyrights (“Intellectual Property”) necessary to enable it to conduct its business as now operated (and, as presently contemplated to be operated in the future); there is no claim or action by any person pertaining to, or proceeding pending, or to the Company’s knowledge threatened, which challenges the right of the Company or of a Subsidiary with respect to any Intellectual Property necessary to enable it to conduct its business as now operated (and, as presently contemplated to be operated in the future); to the best of the Company’s knowledge, the Company’s or its Subsidiaries’ current and intended products, services and processes do not infringe on any Intellectual Property or other rights held by any person; and the Company is unaware of any facts or circumstances which might give rise to any of the foregoing. The Company and each of its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of their Intellectual Property.
l. No Materially Adverse Contracts, Etc. Neither the Company nor any of its Subsidiaries is subject to any charter, corporate or other legal restriction, or any judgment, decree, order, rule or regulation which in the judgment of the Company’s officers has or is expected in the future to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is a party to any contract or agreement which in the judgment of the Company’s officers has or is expected to have a Material Adverse Effect.
m. Tax Status. The Company and each of its Subsidiaries has made or filed all federal, state and foreign income and all other tax returns, reports and declarations required by any jurisdiction to which it is subject (unless and only to the extent that the Company and each of its Subsidiaries has set aside on its books provisions reasonably adequate for the payment of all unpaid and unreported taxes) and has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and declarations, except those being contested in good faith and has set aside on its books provisions reasonably adequate for the payment of all taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company know of no basis for any such claim. The Company has not executed a waiver with respect to the statute of limitations relating to the assessment or collection of any foreign, federal, state or local tax. None of the Company’s tax returns is presently being audited by any taxingauthority.
n. Transactions with Affiliates. Except for arm’s length transactions pursuant to which the Company or any of its Subsidiaries makes payments in the ordinary course of business upon terms no less favorable than the Company or any of its Subsidiaries could obtain from third parties and other than the grant of stock options described in the SEC Documents, none of the officers, directors, or employees of the Company is presently a party to any transaction with the Company or any of its Subsidiaries (other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of the Company, any corporation, partnership, trust or other entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee or partner.
| 6 |
o. Disclosure. All information relating to or concerning the Company or any of its Subsidiaries set forth in this Agreement and provided to the Buyer pursuant to Section 2(d) hereof and otherwise in connection with the transactions contemplated hereby is true and correct in all material respects and the Company has not omitted to state any material fact necessary in order to make the statements made herein or therein, in light of the circumstances under which they were made, not misleading. No event or circumstance has occurred or exists with respect to the Company or any of its Subsidiaries or its or their business, properties, prospects, operations or financial conditions, which, under applicable law, rule or regulation, requires public disclosure or announcement by the Company but which has not been so publicly announced or disclosed (assuming for this purpose that the Company’s reports filed under the 1934 Act are being incorporated into an effective registration statement filed by the Company under the 1933 Act).
p. Acknowledgment Regarding Buyer’s Purchase of Securities. The Company acknowledges and agrees that the Buyer is acting solely in the capacity of arm’s length purchaser with respect to this Agreement and the transactions contemplated hereby. The Company further acknowledges that the Buyer is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to this Agreement and the transactions contemplated hereby and any statement made by the Buyer or any of its respective representatives or agents in connection with this Agreement and the transactions contemplated hereby is not advice or a recommendation and is merely incidental to the Buyer’s purchase of the Securities. The Company further represents to the Buyer that the Company’s decision to enter into this Agreement has been based solely on the independent evaluation of the Company and its representatives.
q. 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.
r. No Brokers; No Solicitation. Except with respect to the Placement Agent, the Company has taken no action which would give rise to any claim by any person for brokerage commissions, transaction fees or similar payments relating to this Agreement or the transactions contemplated hereby. The Company represents and warrants that neither the Buyer nor its employee(s), member(s), beneficial owner(s), or partner(s) solicited the Company to enter into this Agreement and consummate the transactions described in this Agreement. The Company represents and warrants that neither the Buyer nor its employee(s), member(s), beneficial owner(s), or partner(s) is required to be registered as a broker-dealer under the Securities Exchange Act of 1934 in order to (i) enter into or consummate the transactions encompassed by this Agreement, the Note, and the related transaction documents entered into in connection herewith (the “Transaction Documents”), (ii) fulfill the Buyer’s obligations under the Transaction Documents, or (iii) exercise any of the Buyer’s rights under the Transaction Documents (including but not limited to the sale of the Securities).
s. Permits; Compliance. The Company and each of its Subsidiaries is in possession of all franchises, grants, authorizations, licenses, permits, easements, variances, exemptions, consents, certificates, approvals and orders necessary to own, lease and operate its properties and to carry on its business as it is now being conducted (collectively, the “Company Permits”), and there is no action pending or, to the knowledge of the Company, threatened regarding suspension or cancellation of any of the Company Permits. Neither the Company nor any of its Subsidiaries is in conflict with, or in default or violation of, any of the Company Permits, except for any such conflicts, defaults or violations which, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. Since June 30, 2025, neither the Company nor any of its Subsidiaries has received any notification with respect to possible conflicts, defaults or violations of applicable laws, except for notices relating to possible conflicts, defaults or violations, which conflicts, defaults or violations would not have a Material Adverse Effect.
| 7 |
t. Environmental Matters.
(i) There are, to the Company’s knowledge, with respect to the Company or any of its Subsidiaries or any predecessor of the Company, no past or present violations of Environmental Laws (as defined below), releases of any material into the environment, actions, activities, circumstances, conditions, events, incidents, or contractual obligations which may give rise to any common law environmental liability or any liability under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 or similar federal, state, local or foreign laws and neither the Company nor any of its Subsidiaries has received any notice with respect to any of the foregoing, nor is any action pending or, to the Company’s knowledge, threatened in connection with any of the foregoing. The term “Environmental Laws” means all federal, state, local or foreign laws relating to pollution or protection of human health or the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata), including, without limitation, laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well as all authorizations, codes, decrees, demands or demand letters, injunctions, judgments, licenses, notices or notice letters, orders, permits, plans or regulations issued, entered, promulgated or approved thereunder.
(ii) Other than those that are or were stored, used or disposed of in compliance with applicable law, no Hazardous Materials are contained on or about any real property currently owned, leased or used by the Company or any of its Subsidiaries, and no Hazardous Materials were released on or about any real property previously owned, leased or used by the Company or any of its Subsidiaries during the period the property was owned, leased or used by the Company or any of its Subsidiaries, except in the normal course of the Company’s or any of its Subsidiaries’ business.
(iii) There are no underground storage tanks on or under any real property owned, leased or used by the Company or any of its Subsidiaries that are not in compliance with applicablelaw.
u. Title to Property. The Company and its Subsidiaries have good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by them which is material to the business of the Company and its Subsidiaries, in each case free and clear of all liens, encumbrances and defects except such as would not have a Material Adverse Effect. Any real property and facilities held under lease by the Company and its Subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as would not have a Material Adverse Effect.
v. Insurance. The Company and each of its Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as management of the Company believes to be prudent and customary in the businesses in which the Company and its Subsidiaries are engaged. Neither the Company nor any such Subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect. Upon written request the Company will provide to the Buyer true and correct copies of all policies relating to directors’ and officers’ liability coverage, errors and omissions coverage, and commercial general liability coverage.
w. Internal Accounting Controls. The Company and each of its Subsidiaries maintain a system of internal accounting controls sufficient, in the judgment of the Company’s board of directors, to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
x. Foreign Corrupt Practices. Neither the Company, nor any of its Subsidiaries, nor any director, officer, agent, employee or other person acting on behalf of the Company or any Subsidiary has, in the course of his actions for, or on behalf of, the Company, used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expenses relating to political activity; made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended, or made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any foreign or domestic government official or employee.
| 8 |
y. Solvency. The Company (after giving effect to the transactions contemplated by this Agreement) is solvent (i.e., its assets have a fair market value in excess of the amount required to pay its probable liabilities on its existing debts as they become absolute and matured) and currently the Company has no information that would lead it to reasonably conclude that the Company would not, after giving effect to the transaction contemplated by this Agreement, have the ability to, nor does it intend to take any action that would impair its ability to, pay its debts from time to time incurred in connection therewith as such debts mature. The Company’s financial statements for its most recent fiscal year end and interim financial statements have been prepared assuming the Company will continue as a going concern, which contemplates the realization of assets and the satisfaction of liabilities in the normal course of business.
z. 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.
aa. No Off Balance Sheet Arrangements. There is no transaction, arrangement, or other relationship between the Company or any of its Subsidiaries and an unconsolidated or other off balance sheet entity that is required to be disclosed by the Company in its 1934 Act filings and is not so disclosed or that otherwise could be reasonably likely to have a Material Adverse Effect.
bb. No Disqualification Events. None of the Company, any of its predecessors, any affiliated issuer, any director, executive officer, other officer of the Company participating in the offering hereunder, any beneficial owner of 20% or more of the Company’s outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the 1933 Act) connected with the Company in any capacity at the time of sale (each, an “Issuer Covered Person”) is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the 1933 Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3). The Company has exercised reasonable care to determine whether any Issuer Covered Person is subject to a Disqualification Event.
cc. Manipulation of Price. The Company has not, and to its knowledge no one acting on its behalf has: (i) taken, directly or indirectly, any action designed to cause or to result, or that could reasonably be expected to cause or result, in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of any of the Securities, (ii) sold, bid for, purchased, or paid any compensation for soliciting purchases of, any of the Securities, or (iii) paid or agreed to pay to any person any compensation for soliciting another to purchase any other securities of the Company.
dd. Bank Holding Company Act. Neither the Company nor any of its Subsidiaries is subject to the Bank Holding Company Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the “Federal Reserve”). Neither the Company nor any of its Subsidiaries or affiliates owns or controls, directly or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent (25%) or more of the total equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries or affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve.
ee. Illegal or Unauthorized Payments; Political Contributions. Neither the Company nor any of its Subsidiaries nor, to the Company’s knowledge, any of the officers, directors, employees, agents or other representatives of the Company or any of its Subsidiaries or any other business entity or enterprise with which the Company or any Subsidiary is or has been affiliated or associated, has, directly or indirectly, made or authorized any payment, contribution or gift of money, property, or services, whether or not in contravention of applicable law, (i) as a kickback or bribe to any person or (ii) to any political organization, or the holder of or any aspirant to any elective or appointive public office except for personal political contributions not involving the direct or indirect use of funds of the Company or any of its Subsidiaries.
ff. Breach of Representations and Warranties by the Company. The Company agrees that if the Company breaches any of the representations or warranties set forth in this Section 3 and in addition to any other remedies available to the Buyer pursuant to this Agreement, it will be considered an Event of Default under Section 3.4 of the Note.
| 9 |
4. ADDITIONAL COVENANTS, AGREEMENTS AND ACKNOWLEDGEMENTS.
a. Best Efforts. The parties shall use their best efforts to satisfy timely each of the conditions described in Section 6 and 7 of this Agreement.
b. Form D; Blue Sky Laws. The Company agrees to file a Form D with respect to the Securities if required under Regulation D and to provide a copy thereof to the Buyer promptly after such filing. The Company shall, on or before the Closing Date, take such action as the Company shall reasonably determine is necessary to qualify the Securities for sale to the Buyer at the applicable closing pursuant to this Agreement under applicable securities or “blue sky” laws of the states of the United States (or to obtain an exemption from such qualification), and shall provide evidence of any such action so taken to the Buyer on or prior to the ClosingDate.
c. Use of Proceeds. The Company shall use the Purchase Price for business development and general working capital, and not for any other purpose, including but not limited to (i) the repayment of any indebtedness owed to officers, directors or employees of the Company or their affiliates, (ii) the repayment of any debt issued in corporate finance transactions (including but not limited to promissory notes that have the ability to be converted into Common Stock), (iii) any loan to or investment in any other corporation, partnership, enterprise or other person (except in connection with the Company’s currently existing operations), (iv) any loan, credit, or advance to any officers, directors, employees, or affiliates of the Company, or (v) in violation or contravention of any applicable law, rule or regulation.
d. [Intentionally Omitted].
e. Usury. To the extent it may lawfully do so, the Company hereby agrees not to insist upon or plead or in any manner whatsoever claim, and will resist any and all efforts to be compelled to take the benefit or advantage of, usury laws wherever enacted, now or at any time hereafter in force, in connection with any action or proceeding that may be brought by the Buyer in order to enforce any right or remedy under this Agreement, the Note and any document, agreement or instrument contemplated thereby. Notwithstanding any provision to the contrary contained in this Agreement, the Note and any document, agreement or instrument contemplated thereby, it is expressly agreed and provided that the total liability of the Company under this Agreement, the Note or any document, agreement or instrument contemplated thereby for payments which under applicable law are in the nature of interest shall not exceed the maximum lawful rate authorized under applicable law (the “Maximum Rate”), and, without limiting the foregoing, in no event shall any rate of interest or default interest, or both of them, when aggregated with any other sums which under applicable law in the nature of interest that the Company may be obligated to pay under this Agreement, the Note and any document, agreement or instrument contemplated thereby exceed such Maximum Rate. It is agreed that if the maximum contract rate of interest allowed by law applicable to this Agreement, the Note and any document, agreement or instrument contemplated thereby is increased or decreased by statute or any official governmental action subsequent to the date hereof, the new maximum contract rate of interest allowed by law will be the Maximum Rate applicable to this Agreement, the Note and any document, agreement or instrument contemplated thereby from the effective date thereof forward, unless such application is precluded by applicable law. If under any circumstances whatsoever, interest in excess of the Maximum Rate is paid by the Company to the Buyer with respect to indebtedness evidenced by this Agreement, the Note and any document, agreement or instrument contemplated thereby, such excess shall be applied by the Buyer to the unpaid principal balance of any such indebtedness or be refunded to the Company, the manner of handling such excess to be at the Buyer’s election.
f. Restriction on Activities. Commencing as of the date first above written, and until the earlier of payment of the Note in full or full conversion of the Note, the Company shall not, directly or indirectly, without the Buyer’s prior written consent, which consent shall not be unreasonably withheld: (a) change the nature of its business; or (b) sell, divest, acquire, change the structure of any material assets other than in the ordinary course of business.
g. Listing. The Company will, so long as the Buyer owns any of the Securities, maintain the listing and trading of its Common Stock on the Principal Market or any equivalent replacement exchange or electronic quotation system (including but not limited to the Pink Sheets electronic quotation system) and will comply in all respects with the Company’s reporting, filing and other obligations under the bylaws or rules of the Financial Industry Regulatory Authority (“FINRA”) and such exchanges, as applicable. The Company shall promptly provide to the Buyer copies of any notices it receives from the Principal Market and any other exchanges or electronic quotation systems on which the Common Stock is then traded regarding the continued eligibility of the Common Stock for listing on such exchanges and quotation systems.
| 10 |
h. Corporate Existence. The Company will, so long as the Buyer beneficially owns any of the Securities, maintain its corporate existence and shall not sell all or substantially all of the Company’s assets, except in the event of a merger or consolidation with the written consent of the Buyer or sale of all or substantially all of the Company’s assets with the written consent of the Buyer, where the surviving or successor entity in such transaction (i) assumes the Company’s obligations hereunder and under the agreements and instruments entered into in connection herewith and (ii) is a publicly traded corporation whose Common Stock is listed for trading or quotation on the Principal Market, any tier of the NASDAQ Stock Market, the New York Stock Exchange or the NYSE American.
i. No Integration. The Company shall not make any offers or sales of any security (other than the Securities) under circumstances that would require registration of the Securities being offered or sold hereunder under the 1933 Act or cause the offering of the Securities to be integrated with any other offering of securities by the Company for the purpose of any stockholder approval provision applicable to the Company or its securities.
j. Compliance with 1934 Act; Public Information Failures. For so long as the Buyer beneficially owns the Note or any Conversion 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.
k. Legal Counsel Opinions. Upon the request of the Buyer from to time to time, the Company shall be responsible (at its cost) for promptly supplying to the Company’s transfer agent and the Buyer a customary legal opinion letter of its counsel (the “Legal Counsel Opinion”) to the effect that the resale of the Conversion Shares by the Buyer or its affiliates, successors and assigns is exempt from the registration requirements of the 1933 Act pursuant to Rule 144 (provided the requirements of Rule 144 are satisfied and provided the Conversion Shares are not then registered under the 1933 Act for resale pursuant to an effective registration statement) or other applicable exemption (provided the requirements of such other applicable exemption are satisfied). In addition, the Buyer may (at the Company’s cost) at any time secure its own legal counsel to issue the Legal Counsel Opinion, and the Company will instruct its transfer agent to accept such opinion. The Company hereby agrees that it may never take the position that it is a “shell company” in connection with its obligations under this Agreement or otherwise.
l. Piggy-Back Registration Rights. If the Company proposes to file any registration statement covering any of its securities (for sale by the Company, for resale by the holder(s) of such securities, or otherwise) (each a “Registration Statement”), the Company shall at each such time give written notice to Holder of its intention to do so (each a “Registration Notice”) at least seven (7) calendar days prior to the filing of such Registration Statement and of the registration rights granted under this Agreement. Upon the written request of Holder made to the Company within three (3) calendar days after the receipt of any such Registration Notice, the Company shall, at its sole cost and expense, effect the registration of all Conversion Shares underlying the Note which the Company has been so requested to register by Holder in such Registration Statement, by inclusion of such Conversion Shares in the Registration Statement, to the extent required to permit the resale and disposition (in accordance with the intended methods of disposition, including but not limited to sales at prevailing market prices) of the Conversion Shares by Holder.
m. [Intentionally Omitted].
n. Most Favored Nation. While the Note or any principal amount, interest or fees or expenses due thereunder remain outstanding and unpaid, the Company shall not enter into any public or private offering of its securities (including securities convertible into shares of Common Stock) with any individual or entity (an “Other Investor”) that has the effect of establishing rights or otherwise benefiting such Other Investor in a manner more favorable in any material respect to such Other Investor (even if the Other Investor does not receive the benefit of such more favorable term until a default occurs under such other security) than the rights and benefits established in favor of the Buyer by this Agreement or the Note unless, in any such case, the Buyer has been provided with such rights and benefits pursuant to a definitive written agreement or agreements between the Company and the Buyer.
| 11 |
o. Non-Public Information. The Company covenants and agrees that neither it, nor any other person acting on its behalf will provide the Buyer or its agents or counsel with any information that constitutes, or the Company reasonably believes constitutes, material non-public information, unless prior thereto the Buyer shall have consented to the receipt of such information and agreed with the Company to keep such information confidential. The Company understands and confirms that the Buyer shall be relying on the foregoing covenant in effecting transactions in securities of the Company. To the extent that the Company delivers any material, non-public information to the Buyer without such Buyer’s consent, the Company hereby covenants and agrees that such Buyer shall not have any duty of confidentiality to the Company, any of its Subsidiaries, or any of their respective officers, directors, agents, employees or affiliates, not to trade on the basis of, such material, non- public information, provided that the Buyer shall remain subject to applicable law. To the extent that any notice provided, information provided, or any other communications made by the Company, to the Buyer, constitutes or contains material non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice or other material information with the SEC pursuant to a Current Report on Form 8-K. In addition to any other remedies provided by this Agreement or the related transaction documents, if the Company provides any material non-public information to the Buyer without their prior written consent, and it fails to immediately (no later than that business day) file a Form 8-K disclosing this material non-public information, it shall pay the Buyer as partial liquidated damages and not as a penalty a sum equal to $3,000 per day beginning with the day the information is disclosed to the Buyer and ending and including the day the Form 8-K disclosing this information is filed.
p. D&O Insurance. Within 60 calendar days of the Closing, the Company shall purchase director and officer insurance on behalf of the Company’s (including its subsidiary) officers and directors for a period of 18 months after the Closing with respect to any losses, claims, damages, liabilities, costs and expense in connection with any actual or threatened claim or proceeding that is based on, or arises out of their status as a director or officer of the Company. The insurance policy shall provide for two years of tail coverage.
q. No Broker-Dealer Acknowledgement. Absent a final adjudication from a court of competent jurisdiction stating otherwise, the Company shall not to any person, institution, governmental or other entity, state, claim, allege, or in any way assert, that Buyer is currently, or ever has been, a broker-dealer under the Securities Exchange Act of 1934.
r. Breach of Covenants. The Company acknowledges and agrees that if the Company breaches any of the covenants set forth in this Section 4, in addition to any other remedies available to the Buyer pursuant to this Agreement, it will be considered an Event of Default under Section 3.3 of the Note.
5. Transfer Agent Instructions. The Company shall issue irrevocable instructions to the Company’s transfer agent to issue certificates and/or issue shares electronically at the Buyer’s option, registered in the name of the Buyer or its nominee, upon conversion of the Note, the Conversion Shares, in such amounts as specified from time to time by the Buyer to the Company in accordance with the terms thereof (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 reserved shares of Common Stock in the Reserved Amount (as defined in the Note)) signed by the successor transfer agent to the 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 Rule 144, Rule 144A, Regulation S, or other applicable exemption without any restriction as to the number of Securities as of a particular date that can then be immediately sold, all such certificates or book entry shares shall bear the restrictive legend specified in Section 2(g) of this Agreement. The Company warrants that: (i) no instruction other than the Irrevocable Transfer Agent Instructions referred to in this Section 5 will be given by the Company to its transfer agent and that the Securities shall otherwise be freely transferable on the books and records of the Company as and to the extent provided in this Agreement and the Note; (ii) it will not direct its transfer agent not to transfer or delay, impair, and/or hinder its transfer agent in transferring (or issuing)(electronically or in certificated form) any certificate for Securities to be issued to the Buyer upon conversion of or otherwise pursuant to the Note as and when required by the Note and this Agreement; (iii) it will not fail to remove (or directs its transfer agent not to remove or impairs, delays, and/or hinders its transfer agent from removing) any restrictive legend (or to withdraw any stop transfer instructions in respect thereof) on any certificate for any Securities issued to the Buyer upon conversion of or otherwise pursuant to the Note as and when required by the Note and/or this Agreement and (iv) it will provide any required corporate resolutions and issuance approvals to its transfer agent within 6 hours of each conversion of the Note. Nothing in this Section shall affect in any way the Buyer’s obligations and agreement set forth in Section 2(g) hereof to comply with all applicable prospectus delivery requirements, if any, upon re-sale of the Securities. If the Buyer provides the Company, at the cost of the Company, with (i) an opinion of counsel in form, substance and scope customary for opinions in comparable transactions, to the effect that a public sale or transfer of such Securities may be made without registration under the 1933 Act and such sale or transfer is effected or (ii) the Buyer provides reasonable assurances that the Securities can be sold pursuant to 144, Rule 144A, Regulation S, or other applicable exemption, the Company shall permit the transfer, and, in the case of the Securities, promptly instruct its transfer agent to issue one or more certificates, free from restrictive legend, in such name and in such denominations as specified by the Buyer. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Buyer, by vitiating the intent and purpose of the transactions contemplated hereby. Accordingly, the Company acknowledges that the remedy at law for a breach of its obligations under this Section 5 may be inadequate and agrees, in the event of a breach or threatened breach by the Company of the provisions of this Section, that the Buyer shall be entitled, in addition to all other available remedies, to an injunction restraining any breach and requiring immediate transfer, without the necessity of showing economic loss and without any bond or other security being required.
| 12 |
6. Conditions to the Company’s Obligation to Sell. The obligation of the Company hereunder to issue and sell the Note to the Buyer at the Closing is subject to the satisfaction, at or before the Closing Date, of each of the following conditions thereto, provided that these conditions are for the Company’s sole benefit and may be waived by the Company at any time in its sole discretion:
a. The Buyer shall have executed the Transaction Documents and delivered the same to the Company.
b. The Buyer shall have delivered the Purchase Price in accordance with Section 1(b) above.
c. The representations and warranties of the Buyer shall be true and correct in all material respects as of the date when made and as of the Closing Date, as though made at that time (except for representations and warranties that speak as of a specific date), and the Buyer shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Buyer at or prior to the Closing Date.
d. No litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement.
7. Conditions to The Buyer’s Obligation to Purchase. The obligation of the Buyer hereunder to purchase the Note, on the Closing Date, 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 and Subsidiaries, as applicable, shall have executed the Transaction Documents and delivered the same to the Buyer.
b. The Company shall have delivered to the Buyer the duly executed Note in such denominations as the Buyer shall request and 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 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.
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.
| 13 |
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. Trading in the Common Stock on the Principal Market shall not have been suspended by the SEC, FINRA or the Principal Market.
h. The Company shall have delivered to the Buyer (i) a certificate evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within ten (10) days of the Closing Date and (ii) resolutions adopted by the Company’s Board of Directors at a duly called meeting or by unanimous written consent authorizing this Agreement and all other documents, instruments and transactions contemplated hereby.
8. Governing Law; Miscellaneous.
a. Arbitration of Claims; Governing Law; Venue. The Company and Buyer shall submit all Claims (as defined in Exhibit B of this Purchase Agreement) (the “Claims”) arising under this Agreement or any other agreement between the Company and Buyer or their respective affiliates (including but not limited to the Transaction Documents) or any Claim relating to the relationship of the Company and Buyer or their respective affiliates to binding arbitration pursuant to the arbitration provisions set forth in Exhibit B of the Purchase Agreement (the “Arbitration Provisions”). The Company and Buyer hereby acknowledge and agree that the Arbitration Provisions are unconditionally binding on the Company and Buyer hereto and are severable from all other provisions of this Agreement. By executing this Agreement, Company represents, warrants and covenants that Company has reviewed the Arbitration Provisions carefully, consulted with legal counsel about such provisions (or waived its right to do so), understands that the Arbitration Provisions are intended to allow for the expeditious and efficient resolution of any dispute hereunder, agrees to the terms and limitations set forth in the Arbitration Provisions, and that Company will not take a position contrary to the foregoing representations. Company acknowledges and agrees that Buyer may rely upon the foregoing representations and covenants of Company regarding the Arbitration Provisions. This Agreement shall be construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation and performance of this Agreement shall be governed by, the internal laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of Delaware. The Company and Buyer consent to and expressly agree that the exclusive venue for arbitration of any Claims arising under this Agreement or any other agreement between the Company and Buyer or their respective affiliates (including but not limited to the Transaction Documents) or any Claim relating to the relationship of the Company and Buyer or their respective affiliates shall be in the Commonwealth of Massachusetts. Without modifying the Company’s and Buyer’s mandatory obligations to resolve disputes hereunder pursuant to the Arbitration Provisions, for any litigation arising in connection with any of the Transaction Documents (and notwithstanding the terms (specifically including any governing law and venue terms) of any transfer agent services agreement or other agreement between the Company’s transfer agent and the Company, such litigation specifically includes, without limitation any action between or involving Company and the Company’s transfer agent under the Irrevocable Transfer Agent Instructions or otherwise related to Buyer in any way (specifically including, without limitation, any action where Company seeks to obtain an injunction, temporary restraining order, or otherwise prohibit the Company’s transfer agent from issuing shares of Common Stock to Buyer for any reason)), each party hereto hereby (i) consents to and expressly submits to the exclusive personal jurisdiction of any state or federal court sitting in the Commonwealth of Massachusetts, (ii) expressly submits to the exclusive venue of any such court for the purposes hereof, (iii) agrees to not bring any such action (specifically including, without limitation, any action where Company seeks to obtain an injunction, temporary restraining order, or otherwise prohibit the Company’s transfer agent from issuing shares of Common Stock to Buyer for any reason) outside of any state or federal court sitting in the Commonwealth of Massachusetts, and (iv) waives any claim of improper venue and any claim or objection that such courts are an inconvenient forum or any other claim, defense or objection to the bringing of any such proceeding in such jurisdiction or to any claim that such venue of the suit, action or proceeding is improper. Notwithstanding anything in the foregoing to the contrary, nothing herein shall limit, or shall be deemed or construed to limit, the ability of the Buyer to realize on any collateral or any other security, or to enforce a judgment or other court ruling in favor of the Buyer, including through a legal action in any court of competent jurisdiction. The Company hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any objection to jurisdiction and venue of any action instituted hereunder, any claim that it is not personally subject to the jurisdiction of any such court, and any claim that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper (including but not limited to based upon forum non conveniens). THE COMPANY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTIONS CONTEMPLATED HEREBY. The Company irrevocably waives personal service of process and consents to process being served in any suit, action or proceeding in connection with this Agreement or any other agreement, certificate, instrument or document contemplated hereby or thereby by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to Company 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. The prevailing party in any action or dispute brought in connection with this Agreement or any other agreement, certificate, instrument or document contemplated hereby or thereby shall be entitled to recover from the other party its reasonable attorney’s fees and costs. If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of any provision of this Agreement in any other jurisdiction.
| 14 |
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. A facsimile or .pdf signature shall be considered due execution and shall be binding upon the signatory thereto with the same force and effect as if the signature were an original, not a facsimile or .pdf signature. Delivery of a counterpart signature hereto by facsimile or email/.pdf transmission shall be deemed validly delivery thereof.
c. Construction; Headings. This Agreement shall be deemed to be jointly drafted by the Company and the Buyer and shall not be construed against any person as the drafter hereof. 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, the Note, or any other agreement or instrument 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 this Agreement, the Note, or any other agreement, certificate, instrument or document contemplated hereby or thereby.
e. Entire Agreement; Amendments. This Agreement, the Note, 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 or any agreement or instrument contemplated hereby may be waived or amended other than by an instrument in writing signed by the Buyer.
| 15 |
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, e-mail 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 e-mail or facsimile, with accurate confirmation generated by the transmitting facsimile machine, at the address or number designated below (if delivered on a business day during normal business hours where such notice is to be received), or the first business day following such delivery (if delivered other than on a business day during normal business hours where such notice is to be received) or (b) on the second business day following the date of mailing by express courier service, fully prepaid, addressed to such address, or upon actual receipt of such mailing, whichever shall first occur. The addresses for such communications shall be:
If to the Company, to:
American Picture House Corporation
2305 Historic Decatur Road, Ste. 100
New York, NY 10022
Attention: Bannor Michael MacGregor
e-mail: macgregor@americanpicturehouse.com
If to the Buyer:
LABRYS FUND II, L.P.
145 Tremont Street, Suite 201-1408
Boston, MA 02111
e-mail: admin@labrysii.com
g. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns. The Company shall not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Buyer. The Buyer may assign its rights hereunder to any “accredited investor” (as defined in Rule 501(a) of the 1933 Act) in a private transaction from the Buyer or to any of its “affiliates,” as that term is defined under the 1934 Act, without the consent of the Company.
h. Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other person.
i. Survival. The representations and warranties of the Company and the agreements and covenants set forth in this Agreement shall survive the closing hereunder notwithstanding any due diligence investigation conducted by or on behalf of the Buyer. The Company agrees to indemnify and hold harmless the Buyer and all their officers, directors, employees and agents for loss or damage arising as a result of or related to any breach or alleged breach by the Company of any of its representations, warranties and covenants set forth in this Agreement or any of its covenants and obligations under this Agreement, including advancement of expenses as they are incurred.
j. Publicity. The Company, and the Buyer shall have the right to review a reasonable period of time before issuance of any press releases, SEC, Principal Market or FINRA filings, or any other public statements with respect to the transactions contemplated hereby; provided, however, that the Company shall be entitled, without the prior approval of the Buyer, to make any press release or SEC, Principal Market (or other applicable trading market) or FINRA filings with respect to such transactions as is required by applicable law and regulations (although the Buyer shall be consulted by the Company in connection with any such press release prior to its release and shall be provided with a copy thereof and be given an opportunity to comment thereon).
k. Further Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
l. No Strict Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party.
m. Indemnification. In consideration of the Buyer’s execution and delivery of this Agreement and acquiring the Securities hereunder, and in addition to all of the Company’s other obligations under this Agreement or the Note, the Company shall defend, protect, indemnify and hold harmless the Buyer and its stockholders, partners, members, officers, directors, employees and direct or indirect investors and any of the foregoing persons’ agents or other representatives (including, without limitation, those retained in connection with the transactions contemplated by this Agreement) (collectively, the “Indemnitees”) from and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and expenses in connection therewith (irrespective of whether any such Indemnitee is a party to the action for which indemnification hereunder is sought), and including reasonable attorneys’ fees and disbursements (the “Indemnified Liabilities”), incurred by any Indemnitee as a result of, or arising out of, or relating to (a) any misrepresentation or breach of any representation or warranty made by the Company in this Agreement, the Note or any other agreement, certificate, instrument or document contemplated hereby or thereby, (b) any breach of any covenant, agreement or obligation of the Company contained in this Agreement, the Note or any other agreement, certificate, instrument or document contemplated hereby or thereby or (c) any cause of action, suit or claim brought or made against such Indemnitee by a third party (including for these purposes a derivative action brought on behalf of the Company) and arising out of or resulting from (i) the execution, delivery, performance or enforcement of this Agreement, the Note or any other agreement, certificate, instrument or document contemplated hereby or thereby, (ii) any transaction financed or to be financed in whole or in part, directly or indirectly, with the proceeds of the issuance of the Securities, or (iii) the status of the Buyer or holder of the Securities as an investor in the Company pursuant to the transactions contemplated by this Agreement. To the extent that the foregoing undertaking by the Company may be unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities that is permissible under applicable law.
| 16 |
n. Remedies. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Buyer by vitiating the intent and purpose of the transaction contemplated hereby. Accordingly, the Company acknowledges that the remedy at law for a breach of its obligations under this Agreement, the Note, or any other agreement, certificate, instrument or document contemplated hereby or thereby will be inadequate and agrees, in the event of a breach or threatened breach by the Company of the provisions of this Agreement, the Note, or any other agreement, certificate, instrument or document contemplated hereby or thereby, that the Buyer shall be entitled, in addition to all other available remedies at law or in equity, and in addition to the penalties assessable herein, to an injunction or injunctions restraining, preventing or curing any breach of this Agreement, the Note, or any other agreement, certificate, instrument or document contemplated hereby or thereby, and to enforce specifically the terms and provisions hereof and thereof, without the necessity of showing economic loss and without any bond or other security being required.
o. Payment Set Aside. To the extent that the (i) Company makes a payment or payments to the Buyer hereunder, pursuant to the Note or pursuant to any other agreement, certificate, instrument or document contemplated hereby or thereby, or (ii) the Buyer enforces or exercises its rights hereunder or pursuant to the Note, or pursuant to any other agreement, certificate, instrument or document contemplated hereby or thereby, and such payment or payments or the proceeds of such enforcement or exercise or any part thereof (including but not limited to the sale of the Securities) are for any reason (i) subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, or disgorged by the Buyer, or (ii) are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver, government entity, or any other person or entity under any law (including, without limitation, any bankruptcy law, foreign, state or federal law, common law or equitable cause of action), then (i) to the extent of any such restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred and (ii) the Company shall immediately pay to the Buyer a dollar amount equal to the amount that was for any reason (i) subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, or disgorged by the Buyer, or (ii) required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver, government entity, or any other person or entity under any law (including, without limitation, any bankruptcy law, foreign, state or federal law, common law or equitable cause of action).
p. Failure or Indulgence Not Waiver. No failure or delay on the part of the Buyer in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other right, power or privileges. All rights and remedies of the Buyer existing hereunder are cumulative to, and not exclusive of, any rights or remedies otherwise available.
q. Electronic Signature. This Agreement may be executed and delivered in one or more counterparts (including by facsimile or electronic mail or in .pdf or any other form of electronic delivery (including any electronic signature complying with U.S. federal ESIGN Act of 2000)) and by different parties in separate counterparts, with the same effect as if all parties hereto had signed the same document. All counterparts so executed and delivered shall be construed together and shall constitute one and the same agreement.
[Signature Page Follows]
| 17 |
IN WITNESS WHEREOF, the undersigned Buyer and the Company have caused this Agreement to be duly executed as of the date first above written.
AMERICAN PICTURE HOUSE CORPORATION
| By: | ||
| Name: | BANNOR MICHAEL MACGREGOR | |
| Title: | CHIEF EXECUTIVE OFFICER |
LABRYS FUND II, L.P.
By: Labrys II GP, LLC, its General Partner
| By: | ||
| Name: | THOMAS SILVERMAN | |
| Title: | AUTHORIZED SIGNATORY |
| 18 |
EXHIBIT A FORM OF NOTE
[attached hereto]
| 19 |
EXHIBIT B
ARBITRATION PROVISIONS
1. Dispute Resolution. Each party consents to and expressly agrees that the exclusive venue for arbitration of any dispute arising out of or relating to any of the Transaction Documents or the relationship of the parties or their affiliates shall be in the Commonwealth of Massachusetts. For purposes of this Exhibit B, the term “Claims” means any disputes, claims, demands, causes of action, requests for injunctive relief, requests for specific performance, questions regarding severability of any provisions of the Transaction Documents, liabilities, damages, losses, or controversies whatsoever arising from, related to, or connected with the transactions contemplated in the Transaction Documents and any communications between the parties related thereto, including without limitation any claims of mutual mistake, mistake, fraud, misrepresentation, failure of formation, failure of consideration, promissory estoppel, unconscionability, failure of condition precedent, rescission, and any statutory claims, tort claims, contract claims, or claims to void, invalidate or terminate the Agreement (or these Arbitration Provisions (defined below)) or any of the other Transaction Documents. The parties to this Agreement (the “parties”) hereby agree that the Claims may be arbitrated in one or more Arbitrations pursuant to these Arbitration Provisions (one for an injunction or injunctions and a separate one for all other Claims). The parties hereby agree that the arbitration provisions set forth in this Exhibit B (“Arbitration Provisions”) are binding on each of them. As a result, any attempt to rescind the Agreement (or these Arbitration Provisions) or any other Transaction Document) or declare the Agreement (or these Arbitration Provisions) or any other Transaction Document invalid or unenforceable pursuant to Section 29 of the 1934 Act or for any other reason is subject to these Arbitration Provisions. These Arbitration Provisions shall also survive any termination or expiration of the Agreement. Any capitalized term not defined in these Arbitration Provisions shall have the meaning set forth in the Agreement.
2. Arbitration. Except as otherwise provided herein, all Claims must be submitted to arbitration (“Arbitration”) to be conducted exclusively in the Commonwealth of Massachusetts and pursuant to the terms set forth in these Arbitration Provisions. Subject to the arbitration appeal right provided for in Paragraph 5 below (the “Appeal Right”), the parties agree that the award of the arbitrator rendered pursuant to Paragraph 4 below (the “Arbitration Award”) shall be (a) final and binding upon the parties, (b) the sole and exclusive remedy between them regarding any Claims, counterclaims, issues, or accountings presented or pleaded to the arbitrator, and (c) promptly payable in United States dollars free of any tax, deduction or offset (with respect to monetary awards). Subject to the Appeal Right, any costs or fees, including without limitation attorneys’ fees, incurred in connection with or incident to enforcing the Arbitration Award shall, to the maximum extent permitted by law, be charged against the party resisting such enforcement. The Arbitration Award shall include Default Interest (as defined or otherwise provided for in the Note, “Default Interest”) (with respect to monetary awards) at the rate specified in the Note for Default Interest both before and after the Arbitration Award. Judgment upon the Arbitration Award will be entered and enforced by any state or federal court sitting in the Commonwealth of Massachusetts.
3. The Arbitration Act. The parties hereby incorporate herein the provisions and procedures set forth in the Massachusetts Uniform Arbitration Act, G.L. c. 251 (as amended or superseded from time to time, the “Arbitration Act”). Notwithstanding the foregoing, pursuant to, and to the maximum extent permitted by, the Arbitration Act, in the event of conflict or variation between the terms of these Arbitration Provisions and the provisions of the Arbitration Act, the terms of these Arbitration Provisions shall control and the parties hereby waive or otherwise agree to vary the effect of all requirements of the Arbitration Act that may conflict with or vary from these Arbitration Provisions.
4. Arbitration Proceedings. Arbitration between the parties will be subject to the following:
4.1 Initiation of Arbitration. The parties agree that a party may initiate Arbitration by giving written notice to the other party (“Arbitration Notice”) in the same manner that notice is permitted under Section 8(f) of the Agreement; provided, however, that the Arbitration Notice may not be given by email or fax. Arbitration will be deemed initiated as of the date that the Arbitration Notice is deemed physically delivered to such other party under Section 8(f) of the Agreement (the “Service Date”). After the Service Date, information may be delivered, and notices may be given, by email or fax pursuant to Section 8(f) of the Agreement or any other method permitted thereunder. The Arbitration Notice must describe the nature of the controversy, the remedies sought, and the election to commence Arbitration proceedings. All Claims in the Arbitration Notice must be pleaded consistent with the Massachusetts Rules of Civil Procedure.
4.2 Selection and Payment of Arbitrator.
| (a) | Within ten (10) calendar days after the Service Date, Buyer shall select and submit to Company the names of three (3) arbitrators that are designated as “neutrals” or qualified arbitrators by JAMS (https://www.jamsadr.com/) or other arbitration service provider agreed upon by the parties (such three (3) designated persons hereunder are referred to herein as the “Proposed Arbitrators”). Within five (5) calendar days after Buyer has submitted to Company the names of the Proposed Arbitrators, Company must select, by written notice to Buyer, one (1) of the Proposed Arbitrators to act as the arbitrator for the parties under these Arbitration Provisions. If Company fails to select one of the Proposed Arbitrators in writing within such 5-day period, then Buyer may select the arbitrator from the Proposed Arbitrators by providing written notice of such selection to Company. The date that the Proposed Arbitrator selected pursuant to this Paragraph 4.2 agrees in writing (including via email) delivered to both parties to serve as the arbitrator hereunder is referred to herein as the “Arbitration Commencement Date”. If an arbitrator resigns or is unable to act during the Arbitration, a replacement arbitrator shall be chosen by Buyer in accordance with this Paragraph 4.2 to continue the Arbitration. If JAMS or other arbitration service provider agreed upon by the parties ceases to exist or to provide a list of neutrals and there is no successor thereto, then the arbitrator shall be selected under the then prevailing rules of the American Arbitration Association. |
| 20 |
4.3 Applicability of Certain Massachusetts Rules. The parties agree that the Arbitration shall be conducted generally in accordance with the Massachusetts Rules of Civil Procedure and the Massachusetts Rules of Evidence. More specifically, the Massachusetts Rules of Civil Procedure shall apply, without limitation, to the filing of any pleadings, motions or memoranda, the conducting of discovery, and the taking of any depositions. The Massachusetts Rules of Evidence shall apply to any hearings, whether telephonic or in person, held by the arbitrator. Notwithstanding the foregoing, it is the parties’ intent that the incorporation of such rules will in no event supersede these Arbitration Provisions. In the event of any conflict between the Massachusetts Rules of Civil Procedure or the Massachusetts Rules of Evidence and these Arbitration Provisions, these Arbitration Provisions shall control.
4.4 Answer and Default. An answer and any counterclaims to the Arbitration Notice shall be required to be delivered to the party initiating the Arbitration within twenty (20) calendar days after the Arbitration Commencement Date. If an answer is not delivered by the required deadline, the arbitrator must provide written notice to the defaulting party stating that the arbitrator will enter a default award against such party if such party does not file an answer within five (5) calendar days of receipt of such notice. If an answer is not filed within the five (5) day extension period, the arbitrator must render a default award, consistent with the relief requested in the Arbitration Notice, against a party that fails to submit an answer within such time period.
4.5 [Intentionally Omitted].
4.6 Discovery. The parties agree that discovery shall be conducted in accordance with the Arbitration Act.
4.6 Dispositive Motions. Each party shall have the right to submit dispositive motions pursuant to the Massachusetts Rules of Civil Procedure (a “Dispositive Motion”). The party submitting the Dispositive Motion may, but is not required to, deliver to the arbitrator and to the other party a memorandum in support (the “Memorandum in Support”) of the Dispositive Motion. Within seven (7) calendar days of delivery of the Memorandum in Support, the other party shall deliver to the arbitrator and to the other party a memorandum in opposition to the Memorandum in Support (the “Memorandum in Opposition”). Within seven (7) calendar days of delivery of the Memorandum in Opposition, as applicable, the party that submitted the Memorandum in Support shall deliver to the arbitrator and to the other party a reply memorandum to the Memorandum in Opposition (“Reply Memorandum”). If the applicable party shall fail to deliver the Memorandum in Opposition as required above, or if the other party fails to deliver the Reply Memorandum as required above, then the applicable party shall lose its right to so deliver the same, and the Dispositive Motion shall proceed regardless.
4.7 Confidentiality. All information disclosed by either party (or such party’s agents) during the Arbitration process (including without limitation information disclosed during the discovery process or any Appeal (defined below)) shall be considered confidential in nature. Each party agrees not to disclose any confidential information received from the other party (or its agents) during the Arbitration process (including without limitation during the discovery process or any Appeal) unless (a) prior to or after the time of disclosure such information becomes public knowledge or part of the public domain, not as a result of any inaction or action of the receiving party or its agents, (b) such information is required by a court order, subpoena or similar legal duress to be disclosed if such receiving party has notified the other party thereof in writing and given it a reasonable opportunity to obtain a protective order from a court of competent jurisdiction prior to disclosure, or
(c) such information is disclosed to the receiving party’s agents, representatives and legal counsel on a need to know basis who each agree in writing not to disclose such information to any third party.
4.8 Authorization; Timing; Scheduling Order. Subject to all other portions of these Arbitration Provisions, the parties hereby authorize and direct the arbitrator to take such actions and make such rulings as may be necessary to carry out the parties’ intent for the Arbitration proceedings to be efficient and expeditious. The parties hereby agree that an Arbitration Award must be made within one hundred twenty (120) calendar days after the Arbitration Commencement Date.
4.9 Relief. The arbitrator shall have the right to award or include in the Arbitration Award (or in a preliminary ruling) any relief which the arbitrator deems proper under the circumstances, including, without limitation, specific performance and injunctive relief, provided that the arbitrator may not award exemplary or punitive damages.
4.10 Fees and Costs. As part of the Arbitration Award, the arbitrator is hereby directed to require the losing party (the party being awarded the least amount of money by the arbitrator, which, for the avoidance of doubt, shall be determined without regard to any statutory fines, penalties, fees, or other charges awarded to any party) to (a) pay the full amount of any unpaid costs and fees of the Arbitration, and (b) reimburse the prevailing party for all reasonable attorneys’ fees, arbitrator costs and fees, deposition costs, other discovery costs, and other expenses, costs or fees paid or otherwise incurred by the prevailing party in connection with the Arbitration.
| 21 |
5. Arbitration Appeal.
5.1 Initiation of Appeal. Following the entry of the Arbitration Award, either party (the “Appellant”) shall have a period of thirty (30) calendar days in which to notify the other party (the “Appellee”), in writing, that the Appellant elects to appeal (the “Appeal”) the Arbitration Award (such notice, an “Appeal Notice”) to a panel of arbitrators in accordance with the Arbitration Act.
5.2 Fees and Costs. As part of the Appeal Panel Award, the Appeal Panel is hereby directed to require the losing party (the party being awarded the least amount of money by the arbitrator, which, for the avoidance of doubt, shall be determined without regard to any statutory fines, penalties, fees, or other charges awarded to any party) to (a) pay the full amount of any unpaid costs and fees of the Arbitration and the Appeal Panel, and (b) reimburse the prevailing party (the party being awarded the most amount of money by the Appeal Panel, which, for the avoidance of doubt, shall be determined without regard to any statutory fines, penalties, fees, or other charges awarded to any part) the reasonable attorneys’ fees, arbitrator and Appeal Panel costs and fees, deposition costs, other discovery costs, and other expenses, costs or fees paid or otherwise incurred by the prevailing party in connection with the Arbitration (including without limitation in connection with the Appeal).
6. Miscellaneous.
6.1 Severability. If any part of these Arbitration Provisions is found to violate or be illegal under applicable law, then such provision shall be modified to the minimum extent necessary to make such provision enforceable under applicable law, and the remainder of the Arbitration Provisions shall remain unaffected and in full force and effect.
6.2 Governing Law. Except as otherwise expressly provided for in these Arbitration Provisions, these Arbitration Provisions shall be governed by the laws of the State of Delaware without regard to the conflict of laws principles therein.
6.3 Interpretation. The headings of these Arbitration Provisions are for convenience of reference only and shall not form part of, or affect the interpretation of, these Arbitration Provisions.
6.4 Waiver. No waiver of any provision of these Arbitration Provisions shall be effective unless it is in the form of a writing signed by the party granting the waiver.
6.5 Time is of the Essence. Time is expressly made of the essence with respect to each and every provision of these Arbitration Provisions.
[Remainder of page intentionally left blank]
| 22 |
Exhibit 14.1
AMERICAN PICTURE HOUSE CORPORATION
CODE OF ETHICS AND BUSINESS CONDUCT
(Effective December 2021)
Introduction
The Board of Directors (the “Board”) of American Picture House Corporation (together with its subsidiaries, the “Company”) has adopted this Code of Ethics and Business Conduct (the “Code”) in order to:
| (a) | Promote honest and ethical conduct, including the ethical handling of actual or apparent conflicts of interest; | |
| (b) | Promote full, fair, accurate, timely and understandable disclosure in reports and documents that the Company files with, or submits to, the Securities and Exchange Commission (the “SEC”) and in other public communications made by the Company; | |
| (c) | Promote compliance with applicable governmental laws, rules and regulations; | |
| (d) | Promote the protection of Company assets, including corporate opportunities and confidential information; | |
| (e) | Promote fair dealing practices; | |
| (f) | Deter wrongdoing; and | |
| (g) | Ensure accountability for adherence to the Code. |
All directors, officers and employees are required to be familiar with the Code, comply with its provisions and report any suspected violations as described below in the section titled “Reporting and Enforcement.”
Honest and Ethical Conduct
The Company’s policy is to promote high standards of integrity by conducting its affairs honestly and ethically.
Each director, officer and employee must act with integrity and observe the highest ethical standards of business conduct in his or her dealings with the Company’s customers, suppliers, partners, service providers, competitors, employees and anyone else with whom he or she has contact in the course of performing his or her job.
Conflicts of Interest
A conflict of interest occurs when an individual’s private interest (or the interest of a member of his or her family) interferes, or even appears to interfere, with the interests of the Company as a whole. A conflict of interest can arise when an employee, officer or director (or a member of his or her family) takes actions or has interests that may make it difficult to perform his or her work for the Company objectively and effectively. Conflicts of interest also arise when an employee, officer or director (or a member of his or her family) receives improper personal benefits as a result of his or her position in the Company.
Loans by the Company to, or guarantees by the Company of obligations of, employees or their family members are of special concern and could constitute improper personal benefits to the recipients of such loans or guarantees, depending on the facts and circumstances. Loans by the Company to, or guarantees by the Company of obligations of, any director or executive officer or their family members are expressly prohibited.
| 1 | Page |
Whether or not a conflict of interest exists or will exist can be unclear. Conflicts of interest should be avoided unless specifically authorized as described immediately below.
Persons other than directors and executive officers who have questions about a potential conflict of interest or who become aware of an actual or potential conflict should discuss the matter with, and seek a determination and prior authorization or approval from, the Company’s general counsel (the “General Counsel”). A supervisor may not authorize or approve conflict of interest matters or make determinations as to whether a problematic conflict of interest exists without first providing the General Counsel with a written description of the activity and seeking the General Counsel’s written approval. If the supervisor is himself or herself involved in the potential or actual conflict, the matter should instead be discussed directly with the General Counsel.
Directors and executive officers must seek determinations and prior authorizations or approvals of potential conflicts of interest exclusively from the Audit Committee (the “Audit Committee”) of the Board.
Compliance
Employees, officers and directors should comply, both in letter and spirit, with all applicable laws, rules and regulations in the cities, states and countries in which the Company operates.
Although not all employees, officers and directors are expected to know the details of all applicable laws, rules and regulations, it is important to know enough to determine when to seek advice from appropriate personnel. Questions about compliance should be addressed to the Company’s legal department.
No director, officer or employee may purchase or sell any Company securities while in possession of material non-public information regarding the Company, nor may any director, officer or employee purchase or sell another company’s securities while in possession of material non-public information regarding that company. It is against Company policies and illegal for any director, officer or employee to use material non-public information regarding the Company or any other company to:
| (a) | Obtain profit for himself or herself; or | |
| (b) | directly or indirectly “tip” others who might make an investment decision on the basis of that information. |
Disclosure
The Company’s periodic reports and other documents filed with the SEC, including all financial statements and other financial information, must comply with applicable federal securities laws and SEC rules.
Each director, officer and employee who contributes in any way to the preparation or verification of the Company’s financial statements and other financial information must ensure that the Company’s books, records and accounts are accurately maintained. Each director, officer and employee must cooperate fully with the Company’s accounting and internal audit departments, as well as the Company’s independent public accountants and counsel.
Each director, officer and employee who is involved in the Company’s disclosure process must:
| (a) | be familiar with and comply with the Company’s disclosure controls and procedures and its internal control over financial reporting; and | |
| (b) | take all necessary steps to ensure that all filings with the SEC and all other public communications about the financial and business condition of the Company provide full, fair, accurate, timely and understandable disclosure. |
| 2 | Page |
Protection and Proper Use of Company Assets
All directors, officers and employees should protect the Company’s assets and ensure their efficient use. Theft, carelessness and waste have a direct impact on the Company’s profitability and are prohibited.
All Company assets should be used only for legitimate business purposes. Any suspected incident of fraud or theft should be reported to the General Counsel and/or Board for investigation immediately.
The obligation to protect Company assets includes the Company’s proprietary information. Proprietary information includes intellectual property such as trade secrets, patents, trademarks, and copyrights, as well as business and marketing plans, engineering and manufacturing ideas, designs, databases, records and any non-public financial data or reports. Unauthorized use or distribution of this information is prohibited and could also be illegal and result in civil or criminal penalties.
Corporate Opportunities
All directors, officers and employees owe a duty to the Company to advance its interests when the opportunity arises. Directors, officers and employees are prohibited from taking for themselves personally(or for the benefit of friends or family members) opportunities that are discovered through the use of Company assets, property, information or position. Directors, officers and employees may not use Company assets, property, information or position for personal gain (including gain of friends or family members). In addition, no director, officer or employee may compete with the Company.
Confidentiality
Directors, officers and employees should maintain the confidentiality of information entrusted to them by the Company or by its customers, suppliers or partners, except when disclosure is expressly authorized or is required or permitted by law. Confidential information includes all non-public information (regardless of its source) that might be of use to the Company’s competitors or harmful to the Company or its customers, suppliers or partners if disclosed.
Fair Dealing
Each director, officer and employee must deal fairly with the Company’s customers, suppliers, partners, service providers, competitors, employees and anyone else with whom he or she has contact in the course of performing his or her job. No director, officer or employee may take unfair advantage of anyone through manipulation, concealment, abuse or privileged information, misrepresentation of facts or any other unfair dealing practice.
Reporting and Enforcement
Reporting and Investigation of Violations
| (a) | Actions prohibited by this code involving directors or executive officers must be reported to the Audit Committee. | |
| (b) | Actions prohibited by this code involving anyone other than a director or executive officer must be reported to the General Counsel. |
| 3 | Page |
| (c) | After receiving a report of an alleged prohibited action, the Audit Committee or the General Counsel (as the case may be) must promptly take all appropriate actions necessary to investigate. | |
| (d) | All directors, officers and employees are expected to cooperate in any internal investigation of misconduct. |
Enforcement
| (a) | The Company must ensure prompt and consistent action against violations of this Code. | |
| (b) | If, after investigating a report of an alleged prohibited action by a director or executive officer, the Audit Committee determines that a violation of this Code has occurred, the Audit Committee will report such determination to the Board. | |
| (c) | If, after investigating a report of an alleged prohibited action by any other person, the General Counsel determines that a violation of this Code has occurred, the General Counsel will report such determination to the Audit Committee. | |
| (d) | Upon receipt of a determination that there has been a violation of this Code, the Board or the Audit Committee will take such preventative or disciplinary action as it deems appropriate, including, but not limited to, reassignment, demotion, dismissal and, in the event of criminal conduct or other serious violations of the law, notification of appropriate governmental authorities. |
Waivers
| (a) | Each of the Board (in the case of a violation by a director or executive officer) and the Audit Committee (in the case of a violation by any other person) may, in its discretion, waive any violation of this Code. | |
| (b) | Any waiver for a director or an executive officer shall be disclosed as required by SEC and applicable exchange listing rules. |
Prohibition on Retaliation
The Company does not tolerate acts of retaliation against any director, officer or employee who makes a good faith report of known or suspected acts of misconduct or other violations of this Code.
| 4 | Page |
ACKNOWLEDGMENT OF RECEIPT AND REVIEW
(To be signed and returned to the General Counsel)
I, , acknowledge that I have received and read a copy of the American Picture Hose Corporation. Code of Ethics and Business Conduct. I understand the contents of the Code and I agree to comply with the policies and procedures set out in the Code.
I understand that I should approach the General Counsel if I have any questions about the Code generally or any questions about reporting a suspected conflict of interest or other violation of the Code.
| x | |
| Date | |
| [Print name and sign above] |
| 5 | Page |
Exhibit 14.2
AMERICAN PICTURE HOUSE CORPORATION
CODE OF ETHICS
FOR THE CHIEF EXECUTIVE OFFICER AND SENIOR FINANCIAL OFFICERS
American Picture House Corporation (together with its subsidiaries, the “Company”) has developed and adopted this Code of Ethics (this “Code of Ethics”) applicable to its Chief Executive Officer and senior financial officers to promote honest and ethical conduct; full, fair, accurate, timely and understandable disclosure; and compliance with applicable laws, rules and regulations.
As used herein, “senior financial officers” means the Company’s principal financial officer and principal accounting officer or controller, or persons performing similar functions. The Company’s Chief Executive Officer and senior financial officers are also subject to the following specific polices (Code of Ethics referred to in Item 406 of Regulation S-K promulgated by the United States Securities and Exchange Commission (the “SEC”):
| 1. | The Chief Executive Officer and each senior financial officer shall, at all times, conduct himself or herself in an honest and ethical manner, including the ethical handling of actual or apparent conflicts of interest between personal and professional relationships. | |
| 2. | The Chief Executive Officer and each senior financial officer are responsible for full, fair, accurate, timely and understandable disclosure in: (a) the reports and documents that the Company files with, or submits to, the SEC, and; (b) the Company’s other communications with the public, including both written and oral disclosures, statements and presentations. It shall be the responsibility of the Chief Executive Officer and each senior financial officer to promptly bring to the attention of the Company’s Board of Directors (the “Board”) or Audit Committee of the Board (the “Audit Committee”) any material information of which he or she may become aware that may render the disclosures made by the Company in its public filings or other public communications materially misleading, and to assist the Company’s Board and Audit Committee in fulfilling their responsibilities. | |
| 3. | The Chief Executive Officer and all senior financial officers shall not, directly or indirectly, take any action to coerce, manipulate, mislead or fraudulently influence any independent, public or certified public accountant engaged in the performance of any audit or review of the financial statements of the Company that are required to be filed with the SEC if such person knew (or was unreasonable in not knowing) that such action, if successful, could result in rendering such financial statements materially misleading. For purposes of this Code of Ethics, actions that “if successful, could result in rendering such financial statements materially misleading” include, but are not limited to, actions taken at any time with respect to the professional engagement period to coerce, manipulate, mislead or fraudulently influence, an auditor: |
| ● | To issue a report on the Company’s financial statements that is not warranted in the circumstances (due to material violations of generally accepted accounting principles, generally accepted auditing standards or other applicable standards); | |
| ● | Not to perform audit, review or other procedures required by generally accepted auditing standards or other applicable professional standards; | |
| ● | Not to withdraw an issued report; or | |
| ● | Not to communicate matters to the Company’s Audit Committee. |
| 4. | The Chief Executive Officer and each senior financial officer shall promptly bring to the attention of the Company’s Audit Committee any information he or she may have concerning: |
| ● | Significant deficiencies or control weaknesses in the design or operation of internal control over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information; or | |
| ● | Any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. |
| 5. | The Chief Executive Officer and each senior financial officer shall promptly bring to the attention of the Company’s General Counsel or the Chief Executive Officer or, where he or she deems it appropriate, directly to the Company’s Board or Audit Committee, any information he or she may have concerning any violations of this Code of Ethics. | |
| 6. | The Company intends to prevent the occurrence of conduct not in compliance with this Code of Ethics and to halt any such conduct that may occur as soon as reasonably possible after its discovery. Allegations of non-compliance will be investigated whenever necessary and evaluated at the proper level(s). Those found to be in violation of this Code of Ethics are subject to appropriate disciplinary action, up to and including termination of employment. Criminal misconduct may be referred to the appropriate legal authorities for prosecution. |
| 1 | Page |
Exhibit 19.1
Introduction
The Board of Directors of APH has adopted this policy to provide guidelines to all directors, officers, associates and consultants of APH with respect to trading in APH securities, as well as the securities of publicly traded companies with whom APH has a business relationship.
This policy has been designed to prevent insider trading or even allegations of insider trading. Your strict adherence to this policy will help safeguard APH’s reputation and will further ensure that APH conducts its business with the highest level of integrity and in accordance with the highest ethical standards. Each APH associate is responsible for the consequences of his or her actions. You are responsible for understanding and complying with this policy.
Federal and state securities laws prohibit the purchase or sale of a company’s securities by anyone who is aware of material information about that company that is not generally known or available to the public. These laws also prohibit anyone who is aware of material nonpublic information from disclosing this information to others who may trade. Companies and their controlling persons may also be subject to liability if they fail to take reasonable steps to prevent insider trading by company personnel.
It is important that you understand the breadth of activities that constitute illegal insider trading and the consequences, which can be severe. Cases have been successfully prosecuted against trading by individuals through foreign accounts, trading by family members and friends, and trading involving only a small number of shares. Both the U.S. Securities and Exchange Commission (the “SEC”) and the Financial Industry Regulatory Authority (“FINRA”) investigate and are very effective at detecting insider trading. Both the SEC and the U.S. Department of Justice pursue insider trading violations vigorously.
Sanctions and Penalties
Violations of the insider trading laws can result in severe civil and criminal sanctions. For example, under U.S. securities laws, individuals may be subject to imprisonment for up to 20 years, criminal fines of up to $5 million and civil fines of up to three times the profit gained or loss avoided. Failure to comply with this policy may also subject you to sanctions imposed by APH, up to and including immediate dismissal for cause, whether or not your failure to comply with this policy results in a violation of law.
Persons Covered
As a director, officer, associate or consultant of APH or its subsidiaries, this policy applies to you. The same restrictions that apply to you apply to your family members who reside with you, anyone else who lives in your household, and any family members who do not live in your household but whose transactions in APH securities are directed by you or are subject to your influence or control (such as parents or children who consult with you before they trade in APH securities). You are responsible for making sure that any transaction in securities covered by this policy by any of these people complies with this policy.
Definition of Material Non-Public Information
“Material non-public information” is any material information about APH that has not yet become publicly available.
Information is “material” if a reasonable investor would likely consider it important in making a decision to buy, hold or sell securities. Any information that could reasonably be expected to affect the price of the security is material. The information may be positive or negative. Financial information is frequently material, even if it covers only part of a fiscal period or less than all of APH’s operations, since either of these might convey enough information about APH’s consolidated results to be considered material information. Other common examples of information that may be material include:
| ● | information regarding sales, revenues or earnings (including projections); | |
| ● | financial forecasts of any kind, including earnings estimates or changes in previously announced earnings estimates; | |
| ● | significant business trends and metrics; | |
| ● | significant proposed mergers, acquisitions, investments or divestitures; | |
| ● | significant developments in products or services; | |
| ● | gain or loss of substantial customers; | |
| ● | execution or termination of significant contracts; | |
| ● | financings or restructurings; | |
| ● | significant unusual gains or losses; | |
| ● | changes in business strategies; | |
| ● | developments in significant litigation or government investigations; | |
| ● | public or private debt or equity offerings; | |
| ● | significant changes in senior management; | |
| ● | APH share repurchases; or | |
| ● | stock splits or dividend information. |
It is not possible to define all categories of material information, and you should recognize that the public, the media and the courts may use hindsight in judging what is material. Therefore, it is important to err on the safe side and assume information is material if there is any doubt.
Information is “non-public” if it is not generally known or available to the public. Information may still be non-public even though it is widely known within APH.
Release of information to the media does not immediately mean the information has become publicly available. Information is considered to be available to the public only when it has been released broadly to the marketplace (such as by a press release or an SEC filing) and the investing public has had time to absorb and evaluate it. Ordinarily, information about APH should not be considered public until at least one full trading day has passed following its formal release to the market. For example, if APH announces earnings before trading begins on a Tuesday, the first time you can buy or sell APH securities is the opening of the market on Wednesday (assuming you are not aware of other material non-public information at that time). If, however, APH announces earnings after trading begins that Tuesday, the first time you can buy or sell APH securities is the opening of the market on the Thursday.
Requirements Applicable to Everyone
No trading in APH securities while aware of material non-public information
You are prohibited from engaging in any transaction in APH securities while aware of material non-public information about APH. It makes no difference whether or not you relied upon or used material non-public information in deciding to trade – if you are aware of material non-public information about APH, the prohibition applies. You should avoid even the appearance of an improper transaction to preserve APH’s reputation for adhering to the highest ethical standards of conduct.
This prohibition covers virtually all transactions in APH securities. “Securities” includes common stock, options to purchase common stock, debt securities, preferred stock and derivative securities such as put and call options, warrants, swaps, caps and collars. Transactions in APH securities include purchases, sales, pledges, hedges, loans and gifts of APH securities, as well as other direct or indirect transfers of APH securities. Certain of these transactions are addressed in more detail below and may not be permitted under this policy. This prohibition extends to trades of APH securities in which you have any “beneficial” or other interest, or over which you exercise investment control, including:
| ● | transactions in APH securities held in joint accounts or accounts of persons or entities controlled directly or indirectly by you; | |
| ● | transactions in APH securities for which you act as trustee, executor or custodian; and | |
| ● | transactions in any other account or investment involving in any way any APH securities over which you exercise any direct or indirect control. |
Stock Option Exercises. This prohibition does not apply to the exercise of stock options issued under APH plans if the exercise price is paid in cash or through APH withholding a portion of the shares underlying the options. Similarly, APH may withhold underlying shares to satisfy tax withholding requirements. This prohibition does apply, however, to sales of the underlying stock and broker-assisted cashless exercises of options, as well as to any other market sales for the purpose of generating the cash needed to cover the costs of exercise.
Vesting of Restricted Stock or other Stock Awards. This prohibition does not apply to the automatic deduction of shares by APH from your restricted stock or other stock award account to satisfy the minimum statutory tax withholding liability upon the vesting of restricted stock or other stock award. The prohibition does apply, however, to any open market sale of vested shares, including to satisfy tax liabilities.
10b5-1 Plans. This prohibition does not apply to trades made pursuant to a valid “10b5-1 plan” approved by APH as described below.
Dividend Reinvestment Plan. This prohibition does not apply to purchases of APH stock under the APH dividend reinvestment plan that result from your reinvestment of dividends paid on APH stock held in such plan. This prohibition does apply, however, to other purchases of APH stock under the plan that result from additional contributions you choose to make to the dividend reinvestment plan, or to increases or decreases in your level of participation in the plan. This prohibition also applies to your sale of any APH securities purchased pursuant to the plan.
Event-specific restricted periods may apply
Although you are always responsible for monitoring for yourself whether you possess material non-public information, from time to time APH may decide to impose a special “restricted period” on those who are aware of particular information that APH determines may be considered material non-public information. This kind of restricted period may be imposed in connection with a potential acquisition, a financial analyst conference, an anticipated positive or negative earnings announcement or other material development. If you are subject to the restricted period, you may not trade in any APH securities, except pursuant to a 10b5 1 plan previously approved by APH, until notified that the restricted period has ended.
The Chief Executive Officer, the Chief Financial Officer and Treasurer, will determine whether an event-specific restricted period should be imposed. The existence of an event-specific restricted period will not be generally announced. If you are covered by the event-specific restricted period, you will be notified by CEO. Any person made aware of an event-specific restricted period should not disclose the existence of the restricted period to anyone else.
No trading in securities of other companies while aware of material non-public information
APH may engage in business transactions with companies whose securities are publicly traded. These transactions may include, among other things, mergers, acquisitions, divestitures or renewal or termination of significant contracts or other arrangements. Information learned in connection with these transactions or relationships may constitute material non-public information about the other company. You are prohibited from trading in the securities of these companies while aware of material non-public information about the companies and from communicating that information to any other person for such use.
No “tipping” of material non-public information
You may not pass material non-public information about APH or any other company on to others or otherwise make unauthorized disclosure or use of this information, regardless of whether you profit or intend to profit by the tipping, disclosure, or use. This practice, known as “tipping”, also violates the securities laws and can result in the same civil and criminal penalties that apply to insider trading, even though you did not trade and did not gain any benefit from another’s trading.
Frequent trading of APH securities is strongly discouraged
Frequent trading of APH securities can create an appearance of wrongdoing even if the decision to trade was based solely on public information such as stock price ranges and other market events. You are strongly discouraged from trading in APH securities for short-term trading profits. Daily or frequent trading, which can be time-consuming and distracting, is strongly discouraged. APH reserves the right to request brokerage account statements to assure compliance with this and other provisions of the policy.
No short sales of APH securities
You may not engage in short sales of APH securities (sales of securities that are not then owned), including “sales against the box” (short sales not exceeding the number of shares already owned). Generally, short sales are transactions whereby a person will benefit from a decline in the price of the securities, and APH believes it is inappropriate for a director, officer, associate or consultant to engage in these transactions with respect to APH securities.
No trading in derivatives of APH
You may not trade in derivatives of an APH security, such as exchange-traded put or call options and forward transactions.
No hedging transactions
Certain forms of hedging or monetization transactions may offset a decrease, or limit your ability to profit from an increase, in the value of APH securities you hold, enabling you to continue to own APH securities without the full risks and rewards of ownership. APH believes that such transactions separate the holder’s interests from those of other stockholders. Therefore, you and any person acting on your behalf are prohibited from purchasing any financial instruments (such as prepaid variable forward contracts, equity swaps, collars or exchange funds) or otherwise engaging in any transactions that hedge or offset any decrease in the market value of APH securities or limit your ability to profit from an increase in the market value of APH securities.
No margin accounts or pledges
Securities held in a margin account or pledged as collateral for a loan may be sold without your consent by the broker if you fail to meet a margin call or by the lender in foreclosure if you default on the loan. Because a margin or foreclosure sale may occur at a time when you are aware of material nonpublic information or otherwise are not permitted to trade in APH securities, you are prohibited from holding APH securities in a margin account or pledging APH securities as collateral for a loan.
Limited use of standing orders
Standing orders should be used only for three business days. A standing order placed with a broker to sell or purchase stock at a specified price leaves you with no control over the timing of the transaction. A standing order transaction executed by the broker when you are aware of material nonpublic information may result in unlawful insider trading. A standing order incorporated into a 10b5-1 plan approved by APH is permitted.
No trading on rumors
Rumors within APH concerning matters which, if true, would be material non-public information are deemed to constitute material non-public information for purposes of this policy. Accordingly, you should not trade on the basis of these rumors.
Material non-public information must be kept confidential
Material non-public information about APH or its business partners is the property of APH, and unauthorized disclosure or use of that information is prohibited. That information should be maintained in strict confidence and should be discussed, even within APH, only with persons who have a “need to know.” You should exercise the utmost care and circumspection in dealing with information that may be material non-public information. Conversations in public places, such as hallways, elevators, restaurants and airplanes, involving information of a sensitive or confidential nature should be avoided. Written information should be appropriately safeguarded and should not be left where it may be seen by persons not entitled to the information. The unauthorized disclosure of information could result in serious consequences to APH, whether or not the disclosure is made for the purpose of facilitating improper trading in securities.
Participation in electronic bulletin boards, chat rooms, blogs or websites must be consistent with this Policy
Any written or verbal statement that would be prohibited under the law or under this policy is equally prohibited if made on electronic bulletin boards, chat rooms, blogs, websites or any other form of social media, including the disclosure of material non-public information about APH or material nonpublic information with respect to other companies that you come into possession of as a director, officer, associate or consultant of APH.
Public disclosures should be made only by designated persons
No individuals other than specifically authorized personnel should release material information to the public or respond to inquiries from the media, analysts, investors or others outside of APH. You should not respond to these inquiries unless expressly authorized to do so and should refer any inquiries to the Vice President, Investor Relations or the Vice President, Corporate Marketing.
Post-employment transactions may be prohibited
The portions of this policy relating to trading while in possession of material non-public information and the use or disclosure of that information continue to apply to transactions in APH securities even after termination of employment or association with APH. If you are aware of material non-public information about APH when your employment or other business relationship with APH ends, you may not trade in APH securities or disclose the material non-public information to anyone else until that information is made public or becomes no longer material.
Exceptions
In certain limited circumstances, a transaction otherwise prohibited by this policy may be permitted if, prior to the transaction, the CEO determines that the transaction is not inconsistent with the purposes of this policy. The existence of a personal financial emergency does not excuse you from compliance with this policy and will not be the basis for an exception to the policy for a transaction that is inconsistent with the purposes of the policy.
Additional Requirements Applicable to Restricted Persons
“Restricted Persons” are those who are at an enhanced risk of possessing material nonpublic information and who therefore must exercise greater diligence to comply with insider trading prohibitions. This group includes all members of the Board of Directors, officers and certain senior finance, legal, HR, business development, investor relations, corporate communication and management associates at corporate headquarters and in APH’s business units, as well as any other associates in a role that makes it likely they will have involvement with material nonpublic information. This list is updated on a quarterly basis by the CEO in consultation with the Chief Financial Officer. You will be notified by the CEO if you are considered a Restricted Person under this policy.
If you are a Restricted Person that is not a director or executive officer, the procedures set forth in this section of the policy will cease to apply to your transactions in APH securities upon the expiration of any restricted period that is applicable to your transactions at the time your employment or other relationship with APH ends. Directors will remain Restricted Persons for a period of six months following the last day of service as a director of APH, and executive officers will remain Restricted Persons for a period of six months following the last day of employment with APH.
Quarterly restricted periods
No Restricted Person may engage in any transaction (including gifts) in APH securities during a quarterly restricted period, regardless of whether they are then actually aware of material nonpublic information.
A quarterly restricted period is in effect with respect to each quarterly earnings announcement, starting on the 15th day of the third month of the applicable APH fiscal quarter and ending when one full trading day has passed following the public announcement of APH’s quarterly financial results. APH has selected this period because it is the time when there is likely to be material nonpublic information about APH that may be available to Restricted Persons.
For certain Restricted Persons designated by the CEO, the Chief Financial Officer and Treasurer from time to time, the quarterly restricted period may start prior to the 15th day of the third month of the quarter.
Notwithstanding the above, a quarterly restricted period does not prohibit trading in APH securities pursuant to a valid pre-existing 10b5-1 plan approved by APH as described below.
Trading pre-clearance requirement for certain Restricted Persons
Certain Restricted Persons designated by the CEO, in consultation with the Chief Executive Officer, the Chief Financial Officer and the Treasurer from time to time, must obtain pre-clearance by APH’s CEO or, in his or her absence, APH’s Chief Financial Officer (each an “Approving Person”) before engaging in any transaction involving APH securities, including, but not limited to, purchases, sales, and gifts. Those Restricted Persons who are required to obtain pre-clearance will be notified from time to time by the CEO of the applicable pre-clearance or other procedures applicable to them. Each Approving Person should consult with the other Approving Person, or his or her designee, prior to granting pre-clearance for trades. Neither Approving Person may engage in a transaction in APH securities unless the other Approving Person has pre-cleared the transaction.
The Approving Persons are under no obligation to approve a transaction submitted for pre-clearance and may determine not to permit a transaction, even if it would not violate the federal securities laws or a specific provision of this policy. In certain circumstances, other associates may be asked to clear with an Approving Person all proposed transactions before initiating them. The fact that a particular intended trade has been denied pre-clearance should be treated as confidential information and should not be disclosed to any person unless authorized by the Approving Person.
If a request for pre-clearance is approved, you have three business days to effect the transaction (or, if sooner, before commencement of a quarterly or event-specific restricted period). Under no circumstance may a person trade while aware of material non-public information about APH, even if pre-cleared. Thus, if you become aware of material nonpublic information after receiving pre-clearance, but before the trade has been executed, you must not effect the pre-cleared transaction.
APH’s approval of any particular transaction under this pre-clearance procedure does not insulate any Restricted Person from liability under the securities laws. Under the law, the ultimate responsibility for determining whether an individual is aware of material non-public information about APH rests with that individual in all cases.
10b5-1 Plans
SEC Rule 10b5-1(c) of the Securities Exchange Act of 1934 permits corporate insiders to establish written trading plans (commonly referred to as “10b5-1 plans”) that can be useful in enabling insiders to plan ahead without fear that they might become exposed to material non-public information that will prevent them from trading. Where a valid 10b5-1 plan has been established at a time when the insider was not in possession of material non-public information, trades executed as specified by the plan do not violate the securities laws or this policy even if the insider is in possession of material non-public information at the time the trade is executed. Trades executed as specified by the plan are not subject to the pre-clearance requirement.
To qualify as a 10b5-1 plan for purposes of this policy, the plan must be approved in advance by the CEO, and you should allow at least five business days for that approval. One of the factors that the CEO may consider in determining whether to approve a 10b5-1 plan is compliance with APH’s applicable minimum stock ownership guidelines. These pre-planned trading programs are available only to officers and such other APH associates as may be designated from time to time by the Chief Executive Officer, the Chief Financial Officer and the CEO. For more information about how to establish a 10b5-1 plan, please contact the CEO. APH reserves the right to disapprove any submitted plan, and to suspend or instruct you to terminate any plan that it has previously approved.
Inquiries
Any questions about this policy, its application to a proposed transaction, or the requirements of applicable laws should be directed to the CEO.
Effective: December 15, 2023
Exhibit 31.1
CERTIFICATIONS
I, Bannor Michael MacGregor, certify that:
| 1. | I have reviewed this quarterly report on Form 10-Q of American Picture House Corp.; |
| 2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
| 3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
| 4. | The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
| (a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
| (b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
| (c) | Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
| (d) | Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
| 5. | The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): |
| (a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize, and report financial information; and |
| (b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
Date: November 6, 2025
| By: | /s/ Bannor Michael MacGregor | |
| Bannor Michael MacGregor | ||
| Chief Executive Officer |
Exhibit 31.2
CERTIFICATIONS
I, Daniel Hirsch, certify that:
| 1. | I have reviewed this quarterly report on Form 10-Q of American Picture House Corp.; |
| 2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
| 3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
| 4. | The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
| (a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
| (b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
| (c) | Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
| (d) | Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
| 5. | The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): |
| (a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize, and report financial information; and |
| (b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
Date: November 6, 2025
| By: | /s/ Daniel Hirsch | |
| Daniel Hirsch | ||
| Treasurer |
Exhibit 32.1
Rule 13a-14(a)/15d-14(a)
Certification of Chief Executive Officer
CERTIFICATION
I, Bannor M. MacGregor, certify that:
1. I have reviewed this quarterly report on Form 10-Q of American Picture House Corporation;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
| a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; | |
| b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; | |
| c) | Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and | |
| d) | Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
| Date: November 6, 2025 | ||
| /s/ Bannor Michael MacGregor | ||
| Bannor Michael MacGregor | ||
| Chairman and Chief Executive Officer |
Exhibit 32.1
Section 1350
Certification of Chief Executive Officer
Pursuant to 18 U.S.C. Section 1350, the undersigned officer of American Picture House Corporation (the “Company”), hereby certifies that the Company’s quarterly Report on Form 10-Q for the period ended December 31, 2025 (the “Report”) fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and that the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
| Date: By: November 6, 2025 | ||
| /s/ Bannor Michael MacGregor | ||
| Bannor Michael MacGregor | ||
| Chairman and Chief Executive Officer |
Exhibit 32.2
Rule 13a-14(a)/15d-14(a)
Certification of Treasurer
CERTIFICATION
I, Daniel J. Hirsch, certify that:
1. I have reviewed this quarterly report on Form 10-Q of American Picture House Corporation;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
| a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; | |
| b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; | |
| c) | Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and | |
| d) | Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
| a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and | |
| b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
| Date: November 6, 2025 | ||
| /s/ Daniel J. Hirsch | ||
| Daniel J. Hirsch | ||
| Treasurer |
Exhibit 32.2
Section 1350
Certification of Chief Executive Officer
Pursuant to 18 U.S.C. Section 1350, the undersigned officer of American Picture House Corporation (the “Company”), hereby certifies that the Company’s Quarterly Report on Form 10-Q for the period ended September 30, 2025 (the “Report”) fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and that the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
| Date: November 6, 2025 | ||
| /s/ Daniel J. Hirsch | ||
| Daniel J. Hirsch | ||
| Treasurer |