Odyssey Health, Inc S-1, filed Nov 23, 2020
Odyssey Health, Inc. (ODYY)
As filed with the Securities and Exchange Commission on November 23, 2020.
Registration No. 333-200785
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-1
REGISTRATION STATEMENT
Under
The Securities Act of 1933
Odyssey Group International, Inc.
(Exact name of Registrant as specified in its charter)
| Nevada (State or Other Jurisdiction of Incorporation or Organization) |
3841 (Primary Standard Industrial Classification Code Number) |
47-1022125 (I.R.S. Employer Identification Number) |
2372 Morse
Ave.,
Irvine, CA 92614
(619) 832-2900
(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
Joseph
Michael Redmond
President and Chief Executive Officer
Odyssey Group International, Inc.
2372 Morse Ave.,
Irvine, CA 92614
(619) 832-2900
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Please
send copies of all communications to:
Joshua D. Brinen
Brinen & Associates, LLC
90 Broad Street, Tenth Floor
New York, New York 10004
(212) 330-8151
Approximate
date of commencement of the proposed sale to the public:
As soon as practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
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. (Check one):
| Large accelerated filer ☐ | Accelerated filer ☐ | Non-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 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
| Title of Each Class of Securities to be Registered |
Amount to be Registered |
Proposed Maximum Offering Price Per Share(2) |
Proposed Maximum Aggregate Offering Price |
Amount of Registration Fee (3) | ||||
| Common Stock, $0.001 par value per share(1)(4) | 20,065,166 | $0.171 | $3,431,143 | $374.34 | ||||
| (1) | Represents 20,065,166 shares of common stock that are issued or issuable pursuant to a purchase agreement with Lincoln Park Capital Fund, LLC. |
| (2) | Pursuant to Rule 457(c) of the Securities Act of 1933, as amended, calculated on the basis of the high and low prices per share of the registrant’s common stock as reported by the OTCQB Market on November 20, 2020. |
| (3) | The fee is calculated by multiplying the aggregate offering amount by .00010910, pursuant to Section 6(b) of the Securities Act of 1933. |
| (4) | Pursuant to Rule 416(a) of the Securities Act of 1933, as amended, this Registration Statement also covers any additional shares of common stock which may become issuable to prevent dilution from stock splits, stock dividends and similar events. |
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment that specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. The selling stockholder may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities, and the selling stockholder is not soliciting offers to buy these securities in any state or other jurisdiction where the offer or sale of these securities is not permitted.
SUBJECT TO COMPLETION, DATED November 23, 2020
PROSPECTUS
20,065,166 Shares
Common Stock
This prospectus relates to the sale of up to 20,065,166 shares of our common stock by Lincoln Park Capital Fund, LLC, or Lincoln Park.
The shares of our common stock to which this prospectus relates have been or may be issued by us to Lincoln Park pursuant to a purchase agreement, dated as of August 14, 2020, we entered into with Lincoln Park, which we refer to in this prospectus as the Purchase Agreement. On August 14, 2020, we sold 602,422 shares of our common stock to Lincoln Park in an initial purchase under the Purchase Agreement for a total purchase price of $250,000. We also issued 793,802 shares of our common stock to Lincoln Park as consideration for its irrevocable commitment to purchase our common stock under the Purchase Agreement.
We will not receive proceeds from the sale of the shares by Lincoln Park. However, we may receive proceeds of up to an additional $10 million from the sale of our common stock to Lincoln Park pursuant to the purchase agreement from time to time after the registration statement of which this prospectus is a part is declared effective.
Lincoln Park is referred to herein as the selling stockholder.
The selling stockholder is an “underwriter” within the meaning of the Securities Act of 1933, as amended. Lincoln Park may sell the shares of common stock described in this prospectus in a number of different ways and at varying prices. See “Plan of Distribution” for more information about how the selling stockholder may sell the shares of common stock being registered pursuant to this prospectus.
We will pay the expenses of registering these shares, but all selling and other expenses incurred by the selling stockholder will be paid by the selling stockholder. See “Plan of Distribution.”
Our common stock is quoted on the Over the Counter Venture (OTCQB) exchange under the trading symbol “ODYY” On November 20, 2020, the last reported sale price per share of our common stock was $0.171 per share.
You should read this prospectus, together with additional information described under the headings “Incorporation of Certain Information by Reference” and “Where You Can Find More Information”, carefully before you invest in any of our securities.
Investing in our securities involves a high degree of risk. See “Risk Factors” on page 5 of this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is November 23, 2020.
Page
We incorporate by reference important information into this prospectus. You may obtain the information incorporated by reference without charge by following the instructions under the section of this prospectus entitled “Where You Can Find More Information.” You should carefully read this prospectus as well as additional information described under the section of this prospectus entitled “Incorporation of Certain Information by Reference,” before deciding to invest in our common shares.
Unless the context otherwise requires, the terms “Odyssey,” “we,” “us” and “our” in this prospectus refer to Odyssey Group International, Inc., and “this offering” refers to the offering contemplated in this prospectus.
Neither we nor the selling stockholder authorized anyone to provide any information or to make any representations other than those contained in this prospectus or in any free writing prospectus prepared by or on behalf of us or to which we have referred you. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. This prospectus is an offer to sell only the shares offered hereby, but only under the circumstances and in the jurisdictions where it is lawful to do so. The information contained in this prospectus or in any applicable free writing prospectus is current only as of its date, regardless of its time of delivery or any sale of shares of our common stock. Our business, financial condition, results of operations and prospects may have changed since that date. We are not, and the selling stockholder is not, making an offer of these securities in any jurisdiction where such offer is not permitted.
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the information incorporated by reference herein contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act, that involve a number of risks and uncertainties and that are intended to be covered by the “safe harbor” created by those sections. Although our forward-looking statements reflect the good faith judgment of our management, these statements can only be based on facts and factors currently known by us. Consequently, these forward-looking statements are inherently subject to known and unknown risks, uncertainties and other factors that may cause actual results and outcomes to differ materially from results and outcomes discussed in the forward-looking statements.
Forward-looking statements can generally be identified by the use of forward-looking terms such as “believe,” “hope,” “expect,” “may,” “will,” “should,” “could,” “would,” “seek,” “intend,” “plan,” “estimate,” “anticipate” and “continue,” or other comparable terms (including their use in the negative), or by discussions of future matters. All statements other than statements of historical facts included in this prospectus and the documents incorporated by reference herein are forward-looking statements. These statements include but are not limited to statements under the captions “Prospectus Summary—The Company,” “Risk Factors,” “Use of Proceeds” and “The Lincoln Park Transaction” and in other sections included in this prospectus or incorporated by reference from our Annual Report on Form 10-K and Quarterly Reports on Form 10-Q and Form 10-Q/A (as amended November 13, 2020), as applicable, as well as our other filings with the SEC. You should be aware that the occurrence of any of the events discussed under the heading “Risk Factors” in this prospectus and any documents incorporated by reference herein could substantially harm our business, operating results and financial condition and that if any of these events occurs, it could adversely affect the value of an investment in our securities.
The cautionary statements made in this prospectus supplement are intended to be applicable to all related forward-looking statements wherever they may appear in this prospectus or any documents incorporated by reference herein. We urge you not to place undue reliance on these forward-looking statements, which speak only as of the date they are made. Except as required by law, we assume no obligation to update our forward-looking statements, even if new information becomes available in the future.
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This summary highlights selected information that is presented in greater detail elsewhere in this prospectus. Because it is only a summary, it does not contain all of the information you should consider before investing in our common stock and it is qualified in its entirety by, and should be read in conjunction with, the more detailed information included elsewhere in this prospectus. Before you decide whether to purchase shares of our common stock, you should read this entire prospectus carefully, including the risks of investing in our securities discussed under the section of this prospectus entitled “Risk Factors” and similar headings in the other documents that are incorporated by reference into this prospectus. You should also carefully read the information incorporated by reference into this prospectus, including our financial statements, and the exhibits to the registration statement of which this prospectus is a part.
The Company
Odyssey was formed as a publicly held holding company with an emphasis on the development and acquisition of medical products and health related technologies. We are focused on building and acquiring assets in areas that have an identified technological advantage and a substantial market opportunity within significant target markets across the globe.
The corporate mission is to create or acquire distinct products, intellectual property, and technologies with an emphasis on acquisition targets that will generate positive cash flow. Our strategic mission is to deliver financial results, which yield high rates of returns for our shareholders and partners. The Company’s leadership team has significant experience and capabilities to further refine the technologies and submit to the appropriate regulatory agencies for marketing approval.
Our business model is to develop or acquire unique medical related products, engage third parties to manufacture such products and then distribute the products through various distribution channels, including third parties. The Company has development projects in three different life saving technologies; the CardioMap® heart monitoring and screening device, the Save A Life choking rescue device and a unique neurosteroid drug compound intended to treat rare brain disorders.
We intend to acquire other technologies and assets and plan to be a trans-disciplinary product development company involved in the discovery, development and commercialization of products and technologies that may be applied over various medical markets.
We intend to license, improve and/or develop our products and identify and select distribution channels. We intend to establish agreements with distributors to get products to market quickly as well as to undertake and engage in our own direct marketing efforts. We will determine the most effective method of distribution for each unique product that we include in our portfolio.
We intend to engage third party research and development firms who specialize in the creation of medical products to assist us in the development. We intend to apply for trademarks and patents as we develop proprietary products.
For a complete description of our business, financial condition, results of operations and other important information, we refer you to our filings with the SEC that are incorporated by reference in this Annual Report, including our Annual Report on Form 10-K for the year ended July 31, 2020 filed on November 16, 2020 and our Quarterly Reports on Form 10-Q for the periods ended October 31, 2019, January 31, 2020 and April 30, 2020, as amended by the filings of Quarterly Reports on Form 10-Q/A for the periods ended October 31, 2019, January 31, 2020 and April 30, 2020 filed and with the Securities and Exchange Commission on November 13, 2020. For instructions on how to find copies of these documents, see the section entitled “Where You Can Find More Information.”
Corporate Information
Odyssey was formed as a Nevada corporation on March 19, 2014. Our principal executive offices are located at 2372 Morse Ave., Irvine, CA 92614. The registration statement effectuating our initial public offering became effective in July 2015.
Currently our shares of common stock are quoted on the Over the Counter Venture (OTCQB) exchange and there is currently very little public market for our common stock.
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| Common Stock Being Offered by the Selling Stockholder |
20,065,166 shares of common stock, consisting of: |
| · | 793,802 shares of common stock issued to Lincoln Park upon the execution of the Purchase Agreement (the “Commitment Shares”). | ||
| · | 602,422 shares of common stock issued to Lincoln Park upon the execution of the Purchase Agreement for a total purchase price of $250,000 (the “Initial Purchase Shares”); and | ||
| · | 18,668,942 additional shares of common stock that we may sell to Lincoln Park pursuant to the Purchase Agreement from time to time after the registration statement of which this prospectus is a part is declared effective. |
| Common Stock Outstanding Before the Offering | 90,570,202 shares (as of November 23, 2020) (including the 793,802 Commitment Shares and 602,422 Initial Purchase Shares already issued to Lincoln Park pursuant to the Purchase Agreement). | |
| Common Stock Outstanding After the Offering | 109,239,144 shares (assuming the issuance after the date of this prospectus by us to the selling stockholder pursuant to the Purchase Agreement of all of the shares that are being offered by this). | |
| Use of proceeds |
We will receive no proceeds from the sale of shares of common stock by Lincoln Park in this offering. We have received $250,000 gross proceeds from Lincoln Park in the initial purchase under the Purchase Agreement, which we completed at the time we executed the Purchase Agreement, and we may receive up to an additional $10 million in gross proceeds that we may sell to Lincoln Park pursuant to the Purchase Agreement from time to time after the registration statement of which this prospectus is a part is declared effective. Any proceeds from the Lincoln Park that we receive under the Purchase Agreement are expected to be used for general corporate purposes, capital expenditures, working capital and general and administrative expenses. As the remainder of the proceeds are intended to be used for working capital, research and development and operational expenses, some of such proceeds may be used from time to time to pay officer and director compensation. | |
| Risk factors | Investing in our securities involves a high degree of risk. See “Risk Factors” beginning on page 5 and the other information included in this prospectus for a discussion of factors you should carefully consider before deciding to invest in our common stock. | |
| OTCQB Trading Symbol | “ODYY” |
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The number of shares of common stock to be outstanding after this offering is based on 90,570,202 shares of common stock outstanding at November 23, 2020, (including 793,802 Commitment Shares issued to Lincoln Park and 602,422 Initial Purchase Shares purchased by Lincoln Park upon execution of the Purchase Agreement that are being registered herein) plus an additional 18,668,942 shares being registered herein and excludes the following as of November 23, 2020:
| · | 650,000 shares of common stock issuable upon exercise of outstanding stock options; |
| · | 450,283 shares issuable upon conversion of convertible notes plus accrued interest to date of $360,226 convertible at $0.80 per share; |
| · | 34,500 shares of common stock issuable upon exercise of outstanding warrants, with a weighted average exercise price of $1.50 per share; |
| · | 1,750,000 shares of common stock underlying restricted stock units granted to our directors, officers and consultants, for which shares of our common stock are issuable upon the passage of time or the occurrence of certain events as set forth in the respective award agreements; |
| · | 550,000 shares of common stock issuable upon exercise of warrants to purchase common stock issued to Alliance Global Partners (“A.G.P”).; and |
| · | Up to 1,140,000 shares of common stock which may become issuable upon conversion of certain amounts due to Labrys Fund, LP pursuant to a 12% self-amortization promissory note issued on August 14, 2020. |
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Before you make a decision to invest in our securities, you should consider carefully the risks described below, together with other information in this prospectus and the information incorporated by reference herein, including those risks identified under “Item 1A. Risk Factors” in our Annual Report on Form 10-K for the year ended July 31, 2020, as filed with the SEC on November 13, 2020, and our Quarterly Reports on Form 10-Q for the periods ended October 31, 2019, January 31, 2020 and April 30, 2020, as filed with the SEC on December 6, 2019, March 12, 2020 and June 4, 2020, respectively, and as amended by the filings of Quarterly Reports on Form 10-Q/A for the periods ended October 31, 2019, January 31, 2020 and April 30, 2020 filed and with the Securities and Exchange Commission on November 13, 2020, which are incorporated by reference in this prospectus and which may be amended, supplemented or superseded by other reports that we subsequently file with the SEC. If any of the following events actually occur, our business, operating results, prospects or financial condition could be materially and adversely affected. This could cause the trading price of our common stock to decline and you may lose all or part of your investment. The risks described below are not the only ones that we face. Additional risks not presently known to us or that we currently deem immaterial may also significantly impair our business operations and could result in a complete loss of your investment. Please also read carefully the section entitled “Special Note Regarding Forward-Looking Statements.”
Risks Related to This Offering
The sale or issuance of our common stock to Lincoln Park may cause dilution and the sale of the shares of common stock acquired by Lincoln Park, or the perception that such sales may occur, could cause the price of our common stock to fall.
On August 14, 2020, we entered into the Purchase Agreement with Lincoln Park and on that date we sold 602,422 shares of our common stock to Lincoln Park in an initial purchase under the Purchase Agreement for a total purchase price of $250,000. We also issued 793,802 shares of our common stock to Lincoln Park as consideration for its irrevocable commitment to purchase our common stock under the Purchase Agreement. The remaining shares of our common stock that may be issued under the Purchase Agreement may be sold by us to Lincoln Park at our discretion from time to time over a 36-month period commencing after the satisfaction of certain conditions set forth in the Purchase Agreement, including that the SEC has declared effective the registration statement of which this prospectus is a part and that such registration statement remains effective. The purchase price for the shares that we may sell to Lincoln Park under the Purchase Agreement will fluctuate based on the price of our common stock. Depending on market liquidity at the time, sales of such shares may cause the trading price of our common stock to fall.
Subject to the terms of the Purchase Agreement, we generally have the right to control the timing and amount of any future sales of our shares to Lincoln Park. Additional sales of our common stock, if any, to Lincoln Park will depend upon market conditions and other factors to be determined by us. We may ultimately decide to sell to Lincoln Park all, some, or none of the additional shares of our common stock that may be available for us to sell pursuant to the Purchase Agreement. If and when we do sell shares to Lincoln Park, after Lincoln Park has acquired the shares, Lincoln Park may resell all or some of those shares at any time or from time to time in its discretion. Therefore, sales to Lincoln Park by us could result in substantial dilution to the interests of other holders of our common stock. Additionally, the sale of a substantial number of shares of our common stock to Lincoln Park, or the anticipation of such sales, could make it more difficult for us to sell equity or equity-related securities in the future at a time and at a price that we might otherwise wish to effect sales.
We may require additional financing to sustain our operations, without which we may not be able to continue operations, and the terms of subsequent financings may adversely impact our stockholders.
We may direct Lincoln Park to purchase up to $10,000,000 worth of shares of our common stock under our agreement over a 36-month period generally in amounts up to 200,000 shares of our common stock (such purchases, “Regular Purchases”), which may be increased to up to 100,000 shares of our common stock depending on the market price of our common stock at the time of sale, and, Lincoln Park’s committed obligation under any Regular Purchase shall not exceed $50,000 unless the median aggregate dollar value of the volume of shares of common stock during the 20 consecutive trading day period ending on the date of the applicable Regular Purchase equals or exceeds $100,000, in which case Lincoln Park’s committed obligation under such single Regular Purchase shall not exceed $500,000.
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The extent we rely on Lincoln Park as a source of funding will depend on a number of factors including the prevailing market price of our common stock and the extent to which we are able to secure working capital from other sources. If obtaining sufficient funding from Lincoln Park were to prove unavailable or prohibitively dilutive, we will need to secure another source of funding in order to satisfy our working capital needs. Even if we sell all $10,250,000 under the Purchase Agreement to Lincoln Park, we may still need additional capital to finance our future production plans and working capital needs, and we may have to raise funds through the issuance of equity or debt securities. Depending on the type and the terms of any financing we pursue, stockholders’ rights and the value of their investment in our common stock could be reduced. A financing could involve one or more types of securities including common stock, convertible debt or warrants to acquire common stock. These securities could be issued at or below the then prevailing market price for our common stock. In addition, if we issue secured debt securities, the holders of the debt would have a claim to our assets that would be prior to the rights of stockholders until the debt is paid. Interest on these debt securities would increase costs and negatively impact operating results. If the issuance of new securities results in diminished rights to holders of our common stock, the market price of our common stock could be negatively impacted.
Should the financing we require to sustain our working capital needs be unavailable or prohibitively expensive when we require it, the consequences could be a material adverse effect on our business, operating results, financial condition and prospects.
Our management will have broad discretion over the use of the net proceeds from our sale of shares of common stock to Lincoln Park, you may not agree with how we use the proceeds and the proceeds may not be invested successfully.
Our management will have broad discretion as to the use of the net proceeds from our sale of shares of common stock to Lincoln Park, and we could use them for purposes other than those contemplated at the time of commencement of this offering. Accordingly, you will be relying on the judgment of our management with regard to the use of those net proceeds, and you will not have the opportunity, as part of your investment decision, to assess whether the proceeds are being used appropriately. It is possible that, pending their use, we may invest those net proceeds in a way that does not yield a favorable, or any, return for us. The failure of our management to use such funds effectively could have a material adverse effect on our business, financial condition, operating results and cash flows.
An active trading market for our common stock may not be sustained.
Although our common stock is listed on the OTCQB Market, the market for our shares has demonstrated varying levels of trading activity. Furthermore, the current level of trading may not be sustained in the future. The lack of an active market for our common stock may impair investors’ ability to sell their shares at the time they wish to sell them or at a price that they consider reasonable, may reduce the fair market value of their shares and may impair our ability to raise capital to continue to fund operations by selling shares and may impair our ability to acquire additional intellectual property assets by using our shares as consideration.
We do not anticipate paying dividends on our common stock and, accordingly, stockholders must rely on stock appreciation for any return on their investment.
We have never declared or paid cash dividends on our common stock and do not expect to do so in the foreseeable future. The declaration of dividends is subject to the discretion of our board of directors and limitations under applicable law, and will depend on various factors, including our operating results, financial condition, future prospects and any other factors deemed relevant by our board of directors. You should not rely on an investment in our company if you require dividend income from your investment in our company. The success of your investment will likely depend entirely upon any future appreciation of the market price of our common stock, which is uncertain and unpredictable. There is no guarantee that our common stock will appreciate in value.
We face risks related to health epidemics and other outbreaks, which could significantly disrupt our operations.
Our business has been and could continue to be adversely impacted by the effects of Novel Coronavirus (“COVID-19”) or other epidemics. A public health epidemic, including COVID-19 poses the risk that we or our employees, contractors, suppliers, and other partners may be prevented from conducting business activities for an indefinite period of time, including due to shutdowns that may be requested or mandated by governmental authorities. The extent to which COVID-19 impacts our results will depend on future developments that are highly uncertain and cannot be predicted, including new information that may emerge concerning the severity of the virus and the actions to contain its impact.
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This prospectus relates to shares of our common stock that may be offered and sold from time to time by Lincoln Park. We will receive no proceeds from the sale of shares of common stock by Lincoln Park in this offering. We received $250,000 from Lincoln Park as its initial purchase pursuant to the Purchase Agreement, and we may receive up to an additional $10.0 million in gross proceeds under the Purchase Agreement from any sales we make to Lincoln Park pursuant to the Purchase Agreement after the date of this prospectus. We estimate that the net proceeds to us from the sale of our common stock to Lincoln Park pursuant to the Purchase Agreement would be up to $10.25 million over an approximately 36-month period, assuming that we sell the full amount of our common stock that we have the right, but not the obligation, to sell to Lincoln Park under the Purchase Agreement, and after other estimated fees and expenses. See “Plan of Distribution” elsewhere in this prospectus for more information.
Any proceeds from the Lincoln Park that we receive under the Purchase Agreement are expected to be used for general corporate purposes, capital expenditures, working capital and general and administrative expenses. As the remainder of the proceeds are intended to be used for working capital, research and development and operational expenses, some of such proceeds may be used from time to time to pay officer and director compensation. As we are unable to predict the timing or amount of potential issuances of all of the additional shares issuable to the Purchase Agreement, we cannot specify with certainty all of the particular uses for the net proceeds that we will have from the sale of such additional shares. Accordingly, our management will have broad discretion in the application of the net proceeds. We may use the proceeds for purposes that are not contemplated at the time of this offering. It is possible that no additional shares will be issued under the Purchase Agreement.
We will incur all costs associated with this prospectus and the registration statement of which it is a part.
MARKET FOR COMMON STOCK AND DIVIDEND POLICY
Our common stock is traded on the OTCQB Market under the symbol “ODYY.” The last reported sale price of our common stock on November 20, 2020 on the OTCQB Market was $$0.171 per share. As of November 20, 2020, there were 124 holders of record of our common stock.
We cannot provide any assurance that we will declare or pay cash dividends on our common stock. Any future determination to declare cash dividends will be made at the discretion of our board of directors, subject to applicable laws, and will depend on our financial condition, results of operations, capital requirements, general business conditions and other factors that our board of directors may deem relevant.
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Executive Officers and Directors
The following table sets forth information about our executive officers and directors as of the date of this filing:
| Name | Age | Position | Current Term Expires |
| Executive Officers: | |||
| Joseph Michael Redmond | 60 | CEO, President, CFO and Director | 2020 (4) |
| Directors: | |||
| Joseph Michael Redmond | 60 | CEO, President, CFO and Director | 2021 (4) |
| Jerry Casey | 61 | Director (2)(3) | 2021 (4) |
| Jeff Conroy | 54 | Director (1)(2)(3) | 2021 (4) |
| John Gandolfo | 60 | Director (1)(3) | 2021 (4) |
| Jacob Vanlandingham | 46 | Director (1)(2) | 2021 (4) |
(1) Member of the Compensation Committee
(2) Member of the Corporate Governance and Nominating Committee
(3) Member of the Audit Committee
(4) Members serve for 2 years
Executive Officer and Director
Joseph Michael Redmond joined Odyssey in December 2017, as our CEO, President and CFO and has served as a Director since that time. Mr. Redmond has over 30 years commercial experience in medical device companies. Prior to joining Odyssey, Mr. Redmond served as CEO of Parallax Health Sciences, Inc., a healthcare related company, from 2010 to 2017 where he acquired two businesses and three different patented technologies. Prior to this, Mr. Redmond was V.P. of Business Development for DxTech, Inc., a start-up company developing a unique point of care diagnostic testing platform, from 2007 to 2009 when the company was sold. Prior to this, Mr. Redmond served as the V.P. of Sales and Marketing for Bioject Medical Technologies, Inc. (“Bioject”), a medical device company specializing in unique drug delivery technologies, from 1996 to 2007. While at Bioject, Mr. Redmond helped raise over $15 million in capital, entered into several licensing and distribution deals with major biotech and pharmaceutical companies and grew the market cap of the company from under $10 million to over $400 million. Prior to this, Mr. Redmond held various sales and marketing positions at Abbott Laboratories a multi-billion dollar healthcare company and helped start KMC Systems Inc., now a leading private label developer and manufacturer of medical devices and instrumentation. Mr. Redmond was in charge of Sales and Marketing and grew the company from start-up to over $50 million in revenue. Mr. Redmond has a B.A. degree from Denison University.
We believe that Mr. Redmond possesses specific attributes that qualify him to serve on the board of directors, including his extensive experience in the life science, therapeutics and medical device industries, while working with and managing companies within the industries. As a board member his knowledge about product strategies and marketing will assist the Company in developing businesses. Mr. Redmond has management experience in multiple publicly traded companies.
Directors
Jerry Casey has been a Director since September 2019. Mr. Casey has been a leader in the life science industry for over 30 years. Mr. Casey served as a senior executive at Genzyme Corporation, a biotechnology company, from 1989 to 2011. Mr. Casey was the driver behind Genzyme’s commercial success in the diagnostics arena, building a $175 million business which Genzyme sold to Japan-based Sekisui Chemical in 2011. Mr. Casey then became the President and COO of the new entity, Sekisui Diagnostics, LLC, until the end of 2014. While President and COO, Mr. Casey established the strategic direction for the company; led the global organization, including the commercial, operations, research and development, finance, human resources, and legal functions; and achieved the annual and long-term financial objectives of the business. Since 2015, Mr. Casey has been actively involved in several life sciences ventures, both as an advisor and an investor, while serving on multiple Boards. Mr. Casey holds an M.B.A. degree in Finance and a B.A. degree in Political Science from the University of Connecticut.
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We believe that Mr. Casey possesses specific attributes that qualify him to serve on the board of directors, including his extensive experience in the diagnostics and pharmaceutical industries, as well as his management experience. Mr. Casey has management experience in a publicly traded company.
Jeff Conroy has been a Director since August 2019. Mr. Conroy is an operating and business development executive with over 30 years in the life science industry across therapeutics and medical devices. Mr. Conroy has served as the Chairman and CEO of Embody, a DARPA-funded medical device company developing regenerative implants for tendon and ligament repair, from July 2015 to present. From 2012 to 2019, he served as the Head of Corporate Development for Especificos Stendhal S.A. de C.V., a Latin American specialty pharmaceutical company. Mr. Conroy is also currently the Managing Director of Windward Investments, where he structures licensing partnerships for life science companies. Mr. Conroy is an independent director of Cingulate Therapeutics, a CNS company developing ADHD therapeutics. Mr. Conroy holds a B.S. degree in Business Administration from Providence College.
We believe that Mr. Conroy possesses specific attributes that qualify him to serve on the board of directors, including his extensive experience in the specialty pharmaceutical, therapeutic and medical device industries, as well as his global business development experience. Mr. Conroy has management experience in a publicly traded company.
John Gandolfo has been a Director since October 2019. Mr. Gandolfo has approximately 33 years of experience as a Chief Financial Officer (“CFO”) of multiple rapidly growing private and publicly held companies with a primary focus in the life sciences, healthcare and medical device areas. Mr. Gandolfo has had direct responsibility over capital raising, including five public offerings, financial management, mergers and acquisition transactions and SEC reporting throughout his professional career. Mr. Gandolfo served as CFO of Eyenovia, Inc., a late-stage ophthalmic biopharmaceutical company, from January 2018 to present. Prior to this, Mr. Gandolfo was CFO of Xtant Medical Holdings, Inc., a biologics company, from July 2010 through September 2017. Prior to this, he served as the CFO for Progenitor Cell Therapy LLC from January 2009 to June 2010 and, before that, as CFO of Power Medical Interventions, Inc. from January 2007 to January 2009. Mr. Gandolfo was the CFO of Bioject Medical Technologies, Inc. prior to this. He was also the CFO of Capital Access Network, Inc., from 2000 through September 2001, and Xceed, Inc. from 1999 to 2000. From 1994 to 1999, Mr. Gandolfo was CFO and COO of Impath, Inc. From 1987 through 1994, he was CFO of Medical Resources, Inc. Mr. Gandolfo received his B.A. degree in Business Administration from Rutgers University. Mr. Gandolfo is currently a member of the Board of Directors of Electrocore, Inc. and sits on their audit committee.
We believe that Mr. Gandolfo possesses specific attributes that qualify him to serve on the board of directors, including his extensive experience in the life sciences, healthcare and medical device industries. As a board member, his knowledge as a CFO brings financial expertise to the Company. Mr. Gandolfo has management experience in a publicly traded company.
Dr. Jacob ‘Jake’ W. Vanlandingham has been a Director since June 2019. Dr. Vanlandingham founded Prevacus, Inc., a development stage company focusing on new treatments for concussions, in 2013. He has served as its President since that time. Dr. Vanlandingham spent three years working with neurologically impaired children with brain injuries in and around the time of birth. His Ph.D. is in Neuroscience with a molecular biology focus on disease. His Post-doctoral work was in translational research and neurobehavioral aspects of diseases at Emory University. At Emory, he also oversaw the clinical biomarker study for the ProTECT clinical trial using progesterone for acute treatment of severe to moderate traumatic brain injury, as the Assistant Director of the Brain Research Laboratory, the largest laboratory in the Emergency Medicine Department. Dr. Vanlandingham has an excellent teaching record and has won multiple awards with both graduate and undergraduate students. He was a Year One Director of the Florida State University Medical School for eight years before devoting all of his time to Prevacus, Inc. starting in 2015. Dr. Vanlandingham holds a Ph.D. in Neuroscience from Florida State University, and a B.S. in Physical Therapy from Florida A & M University. He is a member of the Society for Neuroscience, American Society for Nutritional Sciences, National Neurotrauma Society, Faculty for Undergraduate Research in Neuroscience, and the International Association of Medical Science Educators.
We believe that Mr. Vanlandingham possesses specific attributes that qualify him to serve on the board of directors, including his extensive experience in clinical research and studies. As a board member, his scientific knowledge will assist the Company in clinical research projects.
Code of Ethics
We have adopted a Code of Ethics that applies to our directors, officers and all employees. It may be obtained free of charge by writing to Odyssey Group International, Inc., Attn: Chief Executive Officer, 2372 Morse Ave, Irvine, CA 92614.
Board of Directors
Our board of directors currently consists of five members. Our bylaws permit our board of directors to establish by resolution the authorized number of directors, and five directors are currently authorized. In fiscal 2020, the board held 4 board meetings and 4 audit committee meeting. All directors attended at least 75% of the board meeting and committee meetings.
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Director Independence
Under the rules of the national securities exchanges, a majority of a listed company’s board of directors must be comprised of independent directors, and each member of a listed company’s audit, compensation, and nominating and corporate governance committees must be independent as well. Under the same rules, a director will only qualify as an “independent director” if that company’s board of directors affirmatively determines that such director has no material relationship with that company, either directly or as a partner, shareholder or officer of an organization that has a relationship with that company. We evaluate independence by the standards for director independence established by applicable laws, rules, and listing standards including, without limitation, the standards for independent directors established by The New York Stock Exchange, Inc., the NASDAQ National Market, and the Securities and Exchange Commission.
Subject to some exceptions, these standards generally provide that a director will not be independent if (a) the director is, or in the past three years has been, an employee of ours; (b) a member of the director’s immediate family is, or in the past three years has been, an executive officer of ours; (c) the director or a member of the director’s immediate family has received more than $120,000 per year in direct compensation from us other than for service as a director (or for a family member, as a non-executive employee); (d) the director or a member of the director’s immediate family is, or in the past three years has been, employed in a professional capacity by our independent public accountants, or has worked for such firm in any capacity on our audit; (e) the director or a member of the director’s immediate family is, or in the past three years has been, employed as an executive officer of a company where one of our executive officers serves on the compensation committee; or (f) the director or a member of the director’s immediate family is an executive officer of a company that makes payments to, or receives payments from, us in an amount which, in any twelve-month period during the past three years, exceeds the greater of $1,000,000 or two percent of that other company’s consolidated gross revenues. Based on these standards, we have determined that our director is not an independent director.
Our board of directors has determined Messrs. Casey, Conroy and Gandolfo are “independent directors” as defined in the NASDAQ listing standards and applicable SEC rules.
In addition, following the effectiveness of the registration statement of which this report is a part, the members of our audit committee must satisfy the independence criteria set forth in Rule 10A-3 under the Securities Exchange Act of 1934, as amended, or Rule 10A-3. In order to be considered to be independent for purposes of Rule 10A-3, no member of the audit committee may, other than in his capacity as a member of the audit committee, the board of directors or any other board committee: (1) accept, directly or indirectly, any consulting, advisory or other compensatory fee from the company or any of its subsidiaries or (2) be an affiliated person of the company or any of its subsidiaries.
Committees of our Board of Directors
In October 2019, the Board of Directors of the Company established audit, compensation and nominating and corporate governance, committees. Our Board of Directors currently consists of five members, three of whom are considered independent.
Audit Committee. We established an audit committee, which consists of three independent directors. The audit committee's duties are to recommend to the Company's board of directors, the engagement of independent auditors to audit our financial statements and to review its accounting and auditing principles. The audit committee reviews the scope, timing and fees for the annual audit and the results of audit examinations performed by the internal auditors and independent public accountants, including their recommendations to improve the system of accounting and internal controls. The audit committee is composed exclusively of directors who are, in the opinion of our Board of Directors, free from any relationship which would interfere with the exercise of independent judgment as a committee member and who possess an understanding of financial statements and generally accepted accounting principles. Mr. Gandolfo is the Audit Chair and qualifies as a financial expert as defined by SEC rules and Messrs. Casey and Conroy serve as members. There were three audit committee meetings and all members were in attendance.
Compensation Committee. We established a compensation committee, which consists of three independent directors. The compensation committee responsible for determining executive and director compensation. In considering and determining executive and director compensation, our compensation committee will be responsible for reviewing compensation that is paid by other similar public companies to its officers and will take that into consideration in determining the compensation to be paid to the Company’s officers. The compensation committee determines and approves any non-cash compensation to any employee. We have not and do not intend to engage consultants in determining or recommending the compensation to our officers or employees. Mr. Conroy is the Compensation Committee Chair and Messrs. Casey and Gandolfo serve as members. The Committee did not meet in 2020.
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Corporate Governance and Nominating Committee. We established a corporate governance and nominating committee, which consists of three independent directors. The nominating committee is a committee of the Company established to support the board of directors in fulfilling its fiduciary duties to appoint the best-qualified candidates for the board of directors, board president-elect and CEO positions. Mr. Casey is the Corporate Governance and Nominating Committee Chair and Messrs. Conroy and Gandolfo serve as members. The Committee did not meet in 2020.
Summary Compensation Table
The following Summary Compensation Table provides certain summary information concerning the compensation of our Chief Executive Officer and Controller.
| Name and Principal Position | Year | Salary ($) |
Stock Awards ($) |
Total Compensation ($) |
||||||||||||
| Joseph Michael Redmond, | 2020 | 161,538 | (1) | -0- | 161,538 | |||||||||||
| President, CEO and CFO | 2019 | 18,461 | 47,000 | (2) | 65,461 | |||||||||||
| Christine Farrell, | 2020 | 15,000 | 448,000 | (3) | 463,000 | |||||||||||
| Controller and Secretary | 2019 | 15,000 | 6,000 | (4) | 21,000 | |||||||||||
| (1) | Mr. Redmond agreed to accrue salary payments until we have raised additional capital. All accrued salary will be paid either in cash or stock, at the employee’s election. If an employee elects to receive shares of our stock in lieu of cash, the number of shares will be determined based upon the fair market value on the date the employee notifies us of such election. At July 31, 2020 Mr. Redmond had $183,846 in accrued salary. Excludes other compensation in the form of perquisites and other personal benefits that constitute less than $10,000. |
| (2) | 4.7 million shares of common stock issued at $0.01 per share related to Mr. Redmond’s employment agreement. |
| (3) | 200,000 restricted stock units were granted March 9, 2020. 100,000 shares vested immediately and 100,000 shares vest on the first anniversary. |
| (4) | 100,000 shares of common stock issued at a fair value of $6,000. |
Outstanding Equity Awards at Year-End
| Options Awards | Stock Awards | |||||||||||||||||
| Name | Number of Securities Underlying Unexercised Options Unexercisable (#) | Option Exercise Price ($) | Option Expiration Date | Number of Shares
or Units of Stock That Have Not Vested (#) | Market Value
of Shares or Unites of stock That Have Not Vested ($) | |||||||||||||
| Joseph Michael Redmond, President, CEO and CFO | 15,000,000 | $ | 0.25 | 9/16/2020 | ||||||||||||||
| Christine Farrell, Controller and Secretary | 100,000 | $ | 47,680 | |||||||||||||||
Pension Benefits
We currently do not maintain any pension plan or arrangement under which our named executive officers are entitled to participate or receive post-retirement benefits.
Non-Qualified Deferred Compensation
We currently do not maintain any nonqualified deferred compensation plan or arrangement under which our named executive officers are entitled to participate.
Employee Benefit Plans
We currently do not maintain any employee benefit plan of any kind for our employees.
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Summary Director Compensation Table
The following table shows information regarding the compensation earned or paid during 2020 to non-employee directors who served on the board of directors during the year.
| Name and Principal Position | Year |
Restricted Stock Unit Awards ($) |
Total ($) | ||||||||||
| Jerry Casey Director |
2020 | 875,000 | (1) | 875,000 | |||||||||
| Jeff Conroy Director |
2020 | 875,000 | (2) | 875,000 | |||||||||
| John P. Gandolfo Director |
2020 | 675,000 | (3) | 675,000 | |||||||||
| Jacob Vanlandingham Director | 2020 | – | – | ||||||||||
| (1) | 500,000 restricted stock units were granted upon becoming a Director on September 20, 2019. 200,000 shares vested upon becoming a board member, 200,000 shares vested on the first anniversary and 100,000 will vest on the second anniversary. |
| (2) | 500,000 restricted stock units were granted upon becoming a Director on August 28, 2019. 200,000 shares vested upon becoming a board member, 200,000 shares vested on the first anniversary and 100,000 will vest on the second anniversary. |
| (3) | 500,000 restricted stock units were granted upon becoming a Director on October 23, 2019. 200,000 shares vested upon becoming a board member, 200,000 shares vested on the first anniversary and 100,000 will vest on the second anniversary. |
Narrative Disclosure to Summary Director Compensation Table
At this time, members of our board of directors are not entitled to compensation for service on our board of directors, nor on any other committee thereof. They receive restricted stock units upon becoming a director that vest over a two-year period. In addition, they may be reimbursed for certain expenses in connection with attendance at meetings of our board of directors and committees thereof.
Limitation of Liability and Indemnification Matters
Our articles of incorporation contain provisions that limit the liability of our directors for monetary damages to the fullest extent permitted by Nevada law.
Our articles of incorporation and bylaws authorize our company to provide indemnification to our directors and officers and persons who are or were serving at our request as a director, officer, manager or trustee of another corporation or of a partnership, limited liability company, joint venture, trust or other enterprise to the fullest extent permitted by Nevada law. Our articles of incorporation and bylaws also authorize our company, by action of our board of directors, to provide indemnification to employees and agents of our company and persons who are serving or did serve at our request as an employee or agent of another corporation or of a partnership, limited liability company, joint venture, trust or other enterprise with the same scope and effect as provided to our directors and officers as described above.
No pending litigation or proceeding involving a director, officer, employee or other agent of our company currently exists as to which indemnification is being sought. We are not aware of any threatened litigation that may result in claims for indemnification by any director, officer, employee or other agent of our company.
We anticipate obtaining director and officer liability insurance with respect to possible director and officer liabilities arising out of certain matters, including matters arising under the Securities Act. See “Disclosure of SEC Position on Indemnification for Securities Act Liabilities.”
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General
On August 14, 2020, we entered into the Purchase Agreement with Lincoln Park, which we refer to in this prospectus as the Purchase Agreement, pursuant to which Lincoln Park has agreed to purchase from us up to an aggregate of $10,250,000 of our common stock (subject to certain limitations) from time to time over the term of the Purchase Agreement. Also on August 14, 2020, we entered into a registration rights agreement with Lincoln Park, which we refer to in this prospectus as the Registration Rights Agreement, pursuant to which we have filed with the Securities and Exchange Commission (the “SEC”) the registration statement that includes this prospectus to register for resale under the Securities Act of 1933, as amended, or the Securities Act, the shares of common stock that have been or may be issued to Lincoln Park under the Purchase Agreement.
This prospectus covers the resale by the Lincoln Park of 20,065,166 shares of our common stock, comprised of: (i) 793,802 shares that we already issued to Lincoln Park as Commitment Shares for making the commitment under the Purchase Agreement, (ii) 602,422 shares that we sold to Lincoln Park for $250,000 on August 14, 2020 as Initial Purchase Shares under the Purchase Agreement, and (iii) an additional 18,668,942 shares we may issue to Lincoln Park in the future under the Purchase Agreement, if and when we sell shares to Lincoln Park under the Purchase Agreement.
Other than 793,802 Commitment Shares that we have already issued to Lincoln Park pursuant to the terms of the Purchase Agreement as consideration for its commitment to purchase shares of our common stock under the Purchase Agreement, and 602,422 Initial Purchase Shares issued to Lincoln Park for its initial $250,000 purchase of common stock on August 14, 2020, we do not have the right to commence any sales of our common stock to Lincoln Park under the Purchase Agreement until all of the conditions set forth in the Purchase Agreement have been satisfied, including that the SEC has declared effective the registration statement that includes this prospectus registering the shares that will be issued and sold to Lincoln Park, which we refer to in this prospectus as the Commencement. Thereafter, we may, from time to time and at our sole discretion for a period of 36-months, on any business day that we select on which the closing price of our common stock equals or exceeds $0.10 (subject to adjustment for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction as provided in the Purchase Agreement), direct Lincoln Park to purchase up to 100,000 shares of common stock, which amounts may be increased depending on the market price of our common stock at the time of sale, which we refer to in this prospectus as “regular purchases.” In addition, at our discretion, Lincoln Park has committed to purchase other “accelerated amounts” and/or “additional accelerated amounts” under certain circumstances. We will control the timing and amount of any sales of our common stock to Lincoln Park. The purchase price of the shares that may be sold to Lincoln Park in regular purchases under the Purchase Agreement will be based on an agreed upon fixed discount to the market price of our common stock immediately preceding the time of sale as computed under the Purchase Agreement. The purchase price per share will be equitably adjusted for any reorganization, recapitalization, non-cash dividend, stock split, or other similar transaction as set forth in the Purchase Agreement. We may at any time in our sole discretion terminate the Purchase Agreement without fee, penalty or cost upon one business day notice. There are no restrictions on future financings, rights of first refusal, participation rights, penalties or liquidated damages in the Purchase Agreement or Registration Rights Agreement, other than a prohibition on our entering into certain types of transactions that are defined in the Purchase Agreement as “Variable Rate Transactions.” Lincoln Park may not assign or transfer its rights and obligations under the Purchase Agreement.
As of November 23, 2020, there were 90,570,202 shares of our common stock outstanding, of which 67,770,202 shares were held by non-affiliates, including the 1,396,224 shares that we have already issued to Lincoln Park under the Purchase Agreement. Although the Purchase Agreement provides that we may sell up to an aggregate of $10,250,000 of our common stock to Lincoln Park, only 20,065,166 shares of our common stock are being offered under this prospectus to Lincoln Park, which represents the 1,396,224 shares that we have already issued to Lincoln Park under the Purchase Agreement and 18,668,942 additional shares which may be issued to Lincoln Park in the future under the Purchase Agreement, if and when we sell shares to Lincoln Park under the Purchase Agreement. Depending on the market prices of our common stock at the time we elect to issue and sell shares to Lincoln Park under the Purchase Agreement, we may need to register for resale under the Securities Act additional shares of our common stock in order to receive aggregate gross proceeds equal to the $10,250,000 total commitment available to us under the Purchase Agreement. If all of the 20,065,166 shares offered by Lincoln Park under this prospectus were issued and outstanding as of the date hereof, such shares would represent approximately 18.4% of the total number of shares of our common stock outstanding and approximately 23.2% of the total number of outstanding shares held by non-affiliates, in each case as of the date hereof. If we elect to issue and sell more than the 20,065,166 shares offered under this prospectus to Lincoln Park, which we have the right, but not the obligation, to do, we must first register for resale under the Securities Act any such additional shares, which could cause additional substantial dilution to our stockholders. The number of shares ultimately offered for resale by Lincoln Park is dependent upon the number of shares we sell to Lincoln Park under the Purchase Agreement.
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The Purchase Agreement also prohibits us from directing Lincoln Park to purchase any shares of common stock if those shares, when aggregated with all other shares of our common stock then beneficially owned by Lincoln Park and its affiliates, would result in Lincoln Park and its affiliates having beneficial ownership, at any single point in time, of more than 4.99% of the then total outstanding shares of our common stock, as calculated pursuant to Section 13(d) of the Securities Exchange Act of 1934, as amended, or the Exchange Act, and Rule 13d-3 thereunder, which limitation we refer to as the Beneficial Ownership Cap.
Issuances of our common stock in this offering will not affect the rights or privileges of our existing stockholders, except that the economic and voting interests of each of our existing stockholders will be diluted as a result of any such issuance. Although the number of shares of common stock that our existing stockholders own will not decrease, the shares owned by our existing stockholders will represent a smaller percentage of our total outstanding shares after any such issuance to Lincoln Park.
Purchase of Shares Under the Purchase Agreement
Under the Purchase Agreement, upon Commencement, on any business day that we select on which the closing price of our common stock equals or exceeds $0.10 (subject to adjustment for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction as provided in the Purchase Agreement), we may direct Lincoln Park to purchase up to 100,000 shares of our common stock in a regular purchase on such business day, which is referred to as a Regular Purchase in this prospectus, provided, however, that (i) the Regular Purchase may be increased to up to 150,000 shares, provided that the closing sale price of our common stock is not below $1.00 on the purchase date and (ii) the Regular Purchase may be increased to up to 200,000 shares, provided that the closing sale price of our common stock is not below $1.50 on the purchase date (such share amount limitation, the “Regular Purchase Share Limit”). In each case, Lincoln Park’s maximum commitment in any single Regular Purchase may not exceed $50,000 unless the median aggregate dollar value of the volume of shares of common stock during the 20 consecutive trading day period ending on the date of the applicable Regular Purchase equals or exceeds $100,000, in which case Lincoln Park’s committed obligation under such single Regular Purchase shall not exceed $500,000. The Regular Purchase Share Limit is subject to proportionate adjustment in the event of a reorganization, recapitalization, non-cash dividend, stock split or other similar transaction; provided, that if after giving effect to such full proportionate adjustment, the adjusted Regular Purchase Share Limit would preclude us from requiring Lincoln Park to purchase common stock at an aggregate purchase price equal to or greater than $75,000 in any single Regular Purchase, then the Regular Purchase Share Limit will not be fully adjusted, but rather the Regular Purchase Share Limit for such Regular Purchase shall be adjusted as specified in the Purchase Agreement, such that, after giving effect to such adjustment, the Regular Purchase Share Limit will be equal to (or as close as can be derived from such adjustment without exceeding) $75,000.
The purchase price per share for each such Regular Purchase will be equal to the lower of:
| · | the lowest sale price for our common stock on the purchase date of such shares; and |
| · | the arithmetic average of the three lowest closing sale prices for our common stock during the 12 consecutive business days ending on the business day immediately preceding the purchase date of such shares. |
In addition to Regular Purchases described above, we may also direct Lincoln Park, on any business day on which we have properly submitted a Regular Purchase notice directing Lincoln Park to purchase the maximum number of shares of our common stock that we are then permitted to include in a single Regular Purchase notice and the closing price of our common stock on such business day is not less than $0.10 per share (subject to adjustment for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction as provided in the Purchase Agreement), to purchase an additional amount of our common stock, which we refer to as an Accelerated Purchase, not to exceed the lesser of:
| · | 30% of the aggregate shares of our common stock traded during all or, if certain trading volume or market price thresholds specified in the Purchase Agreement are crossed on the applicable Accelerated Purchase date, which is defined as the next business day following the purchase date for the corresponding Regular Purchase, the portion of the normal trading hours on the applicable Accelerated Purchase date prior to such time that any one of such thresholds is crossed, which period of time on the applicable Accelerated Purchase date we refer to as the Accelerated Purchase Termination Time; and |
| · | three times the number of purchase shares purchased pursuant to the corresponding Regular Purchase. |
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The purchase price per share for each such Accelerated Purchase will be equal to 93% of the lower of:
| · | the volume weighted average price of our common stock during the Accelerated Purchase Termination Time on the applicable Accelerated Purchase date; and |
| · | the closing sale price of our common stock on the applicable Accelerated Purchase date. |
We may also direct Lincoln Park, not later than 1:00 p.m., Eastern time, on a business day on which an Accelerated Purchase has been completed and all of the shares to be purchased thereunder (and under the corresponding Regular Purchase) have been properly delivered to Lincoln Park in accordance with the Purchase Agreement prior to such time on such business day, and provided that the closing price of our common stock on the business day immediately preceding such business day is not less than $0.10 per share (subject to adjustment for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction as provided in the Purchase Agreement), to purchase an additional amount of our common stock, which we refer to as an Additional Accelerated Purchase, of up to the lesser of:
| · | 30% of the aggregate shares of our common stock traded during a certain portion of the normal trading hours on such Accelerated Purchase date as determined in accordance with the Purchase Agreement, which period of time we refer to as the Additional Accelerated Purchase Termination Time; and |
| · | three times the number of purchase shares purchased pursuant to the Regular Purchase corresponding to the Accelerated Purchase that was completed on such Accelerated Purchase date on which an Additional Accelerated Purchase notice was properly received. |
We may, in our sole discretion, submit multiple Additional Accelerated Purchase notices to Lincoln Park prior to 1:00 p.m., Eastern time, on a single Accelerated Purchase date, provided that all prior Accelerated Purchases and Additional Accelerated Purchases (including those that have occurred earlier on the same day) have been completed and all of the shares to be purchased thereunder (and under the corresponding Regular Purchase) have been properly delivered to Lincoln Park in accordance with the Purchase Agreement and the closing sale price of our common stock on the business day immediately preceding the delivery of multiple Additional Accelerated Purchase notices is greater than $0.10.
The purchase price per share for each such Additional Accelerated Purchase will be equal to 93% of the lower of:
| · | the volume weighted average price of our common stock during the applicable Additional Accelerated Purchase Termination Time on the applicable Additional Accelerated Purchase date; and |
| · | the closing sale price of our common stock on the applicable Additional Accelerated Purchase date. |
In the case of the Initial Purchase, Regular Purchases, Accelerated Purchases and Additional Accelerated Purchases, the purchase price per share will be equitably adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction occurring during the business days used to compute the purchase price.
Other than as described above, there are no trading volume requirements or restrictions under the Purchase Agreement, and we will control the timing and amount of any sales of our common stock to Lincoln Park.
Events of Default
Events of default under the Purchase Agreement include the following:
| · | the effectiveness of the registration statement of which this prospectus forms a part lapses for any reason (including, without limitation, the issuance of a stop order), or any required prospectus supplement and accompanying prospectus are unavailable for the resale by Lincoln Park of our common stock offered hereby, and such lapse or unavailability continues for a period of 10 consecutive business days or for more than an aggregate of 30 business days in any 365-day period; |
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| · | suspension by our principal market of our common stock from trading for a period of one business day; |
| · | the de-listing of our common stock from the OTCQB Markets, our principal market, provided our common stock is not immediately thereafter trading on the New York Stock Exchange, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the NYSE American, the NYSE Arca or the OTC Bulletin Board (or nationally recognized successor thereto); |
| · | the failure of our transfer agent to issue to Lincoln Park shares of our common stock within two business days after the applicable date on which Lincoln Park is entitled to receive such shares; |
| · | any breach of the representations or warranties or covenants contained in the Purchase Agreement or Registration Rights Agreement that has or could have a material adverse effect on us and, in the case of a breach of a covenant that is reasonably curable, that is not cured within five business days; |
| · | any voluntary or involuntary participation or threatened participation in insolvency or bankruptcy proceedings by or against us; |
| · | a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (i) is for relief against us in an involuntary case, (ii) appoints a Custodian for us or for all or substantially all of our property, or (iii) orders the liquidation of us or our subsidiaries; |
| · | the failure to be insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as reasonably prudent and customary for companies engaged in the businesses in which we and our subsidiaries are engaged, at a cost that would not materially and adversely affect the condition, financial or otherwise, or the earnings, business or operations of us and our subsidiaries, taken as a whole; or |
| · | if at any time we are not eligible to transfer our common stock electronically as DWAC shares. |
Lincoln Park does not have the right to terminate the Purchase Agreement upon any of the events of default set forth above. During an event of default, all of which are outside of Lincoln Park’s control, we may not direct Lincoln Park to purchase any shares of our common stock under the Purchase Agreement.
Our Termination Rights
We have the unconditional right, at any time, for any reason and without any payment or liability to us, to give notice to Lincoln Park to terminate the Purchase Agreement. In the event of bankruptcy proceedings by or against us, the Purchase Agreement will automatically terminate without action of any party.
No Short-Selling or Hedging by Lincoln Park
Lincoln Park has agreed that neither it nor any of its affiliates shall engage in any direct or indirect short-selling or hedging of our common stock during any time prior to the termination of the Purchase Agreement.
Prohibitions on Variable Rate Transactions
There are no restrictions on future financings, rights of first refusal, participation rights, penalties or liquidated damages in the Purchase Agreement or Registration Rights Agreement other than a prohibition on entering into a “Variable Rate Transaction,” as defined in the Purchase Agreement.
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Effect of Performance of the Purchase Agreement on Our Stockholders
All 20,065,166 shares registered in this offering which have been or may be issued or sold by us to Lincoln Park under the Purchase Agreement are expected to be freely tradable. It is anticipated that shares registered in this offering will be sold over a period of up to 36-months commencing on the date that the registration statement including this prospectus becomes effective. The sale by Lincoln Park of a significant amount of shares registered in this offering at any given time could cause the market price of our common stock to decline and to be highly volatile. Sales of our common stock to Lincoln Park, if any, will depend upon market conditions and other factors to be determined by us. We may ultimately decide to sell to Lincoln Park all, some or none of the additional shares of our common stock that may be available for us to sell pursuant to the Purchase Agreement. If and when we do sell shares to Lincoln Park, after Lincoln Park has acquired the shares, Lincoln Park may resell all, some or none of those shares at any time or from time to time in its discretion. Therefore, sales to Lincoln Park by us under the Purchase Agreement may result in substantial dilution to the interests of other holders of our common stock. In addition, if we sell a substantial number of shares to Lincoln Park under the Purchase Agreement, or if investors expect that we will do so, the actual sales of shares or the mere existence of our arrangement with Lincoln Park may make it more difficult for us to sell equity or equity-related securities in the future at a time and at a price that we might otherwise wish to effect such sales. However, we have the right to control the timing and amount of any additional sales of our shares to Lincoln Park and the Purchase Agreement may be terminated by us at any time at our discretion without any cost to us.
Pursuant to the terms of the Purchase Agreement, we have the right, but not the obligation, to direct Lincoln Park to purchase up to $10,250,000 of our common stock, which includes the $250,000 initial purchase of shares following execution of the Purchase Agreement. Depending on the price per share at which we sell our common stock to Lincoln Park pursuant to the Purchase Agreement, we may need to sell to Lincoln Park under the Purchase Agreement more shares of our common stock than are offered under this prospectus in order to receive aggregate gross proceeds equal to the $10,250,000 total commitment available to us under the Purchase Agreement. If we choose to do so, we must first register for resale under the Securities Act such additional shares of our common stock, which could cause additional substantial dilution to our stockholders. The number of shares ultimately offered for resale by Lincoln Park under this prospectus is dependent upon the number of shares we direct Lincoln Park to purchase under the Purchase Agreement.
On August 13, 2020, our board of directors approved the issuance of 1,396,224 shares of our common stock under the Purchase Agreement and approved the reservation of up to an additional 18,668,942 shares for the future issuance of up to $10,000,000 worth of shares of our common stock under the Purchase Agreement. We would seek additional board of director approval before agreeing to any increase in the value of the shares of common stock we may issue to Lincoln Park under the Purchase Agreement and any such increase would require us and Lincoln Park to enter into a new purchase agreement.
The following table sets forth the amount of gross proceeds we would receive from Lincoln Park from our sale of shares to Lincoln Park under the Purchase Agreement at varying purchase prices:
| Assumed Average Purchase Price Per Share | Number of Registered Shares to be Issued if Full Purchase(1) | Percentage of Outstanding Shares After Giving Effect to the Issuance to Lincoln Park(2) | Proceeds from the Sale of Shares to Lincoln Park Under the Purchase Agreement(1) | |||||||||||
| $ | 0.10 | 18,668,942 | 18.4% | $ | 1,866,894 | |||||||||
| $ | 0.17 | (3) | 18,668,942 | 18.4% | $ | 3,192,389 | ||||||||
| $ | 0.25 | 18,668,942 | 18.4% | $ | 4,667,236 | |||||||||
| $ | 0.50 | 18,668,942 | 18.4% | $ | 9,334,471 | |||||||||
| $ | 1.00 | 10,000,000 | 11.3% | $ | 10,000,000 | |||||||||
| $ | 1.50 | 6,666,667 | 8.3% | $ | 10,000,000 | |||||||||
| (1) Although the Purchase Agreement provides that we may sell up to $10,250,000 of our common stock to Lincoln Park, we are only registering 20,065,166 shares under this prospectus, including 793,802 shares issued to Lincoln Park as a commitment fee and 602,422 shares already sold to Lincoln Park for $250,000 as an initial purchase, which leaves a maximum of 18,668,942 additional shares to be issued for future purchases. Accordingly, depending on the assumed average price per share, we may or may not be able to ultimately sell to Lincoln Park a number of shares of our common stock with a total value of $10,000,000. |
| (2) The numerator is based on the number of shares issuable at the corresponding assumed purchase price as set forth in the adjacent column plus the 1,396,224 shares already owned by Lincoln Park. The denominator is based on 90,570,202 shares outstanding as of November 23, 2020 plus the number of shares set forth in the adjacent column. The table does not give effect to the prohibition contained in the Purchase Agreement that prevents us from selling to Lincoln Park the number of shares such that, after giving effect to such sale, Lincoln Park and its affiliates would beneficially own more than 4.99% of the then outstanding shares of our common stock. Assuming the closing stock price of $0.17 per share on November 20, 2020 and the 4.99% limitation mentioned above, the total number of shares we could sell to Lincoln Park would be 3,287,263 for total proceeds of $558,834. |
| (3) The closing sale price of our shares on November 20, 2020. |
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The selling stockholder may, from time to time, offer and sell any or all of the shares of our common stock set forth below pursuant to this prospectus. When we refer to the “selling stockholder” in this prospectus, we mean Lincoln Park Capital Fund, LLC and their respective pledgees, donees, permitted transferees, assignees, successors and others who later come to hold any of the selling stockholder’s interests in shares of our common stock other than through a public sale.
The following table sets forth, as of the date of this prospectus, the name of the selling stockholder for whom we are registering shares for sale to the public, the number of shares of common stock beneficially owned by the selling stockholder prior to this offering, the total number of shares of common stock that the selling stockholder may offer pursuant to this prospectus and the number of shares of common stock that the selling stockholder will beneficially own after this offering. The percentages in the table below reflect the shares beneficially owned by the selling stockholder as a percentage of the 90,570,202 shares of common stock outstanding as of November 23, 2020, adjusted as required by rules promulgated by the SEC. These rules attribute beneficial ownership of shares of common stock issuable upon conversion of convertible securities (options and restricted stock units) or upon exercise of warrants that are convertible or exercisable, as applicable, either immediately or on or before the date that is 60 days after November 23, 2020. These shares are deemed to be outstanding and beneficially owned by the person holding such convertible securities or warrants for the purpose of computing the percentage ownership of that person, but they are not treated as outstanding for the purpose of computing the percentage ownership of any other person. Except as noted below, the selling stockholder does not have, or within the past three years has not had, any material relationship with us or any of our predecessors or affiliates and the selling stockholder is not or was not affiliated with registered broker-dealers.
Based on the information provided to us by the selling stockholder, assuming that the selling stockholder sell all of the shares of our common stock beneficially owned by them that have been registered by us and does not acquire any additional shares during the offering, the selling stockholder will not own any shares other than those appearing in the column entitled “Beneficial Ownership After This Offering.” We cannot advise you as to whether the selling stockholder will in fact sell any or all of such shares of common stock. In addition, the selling stockholder may have sold, transferred or otherwise disposed of, or may sell, transfer or otherwise dispose of, at any time and from time to time, the shares of our common stock in transactions exempt from the registration requirements of the Securities Act after the date on which it provided the information set forth in the table below.
| Beneficial Ownership Prior to this Offering | Beneficial Ownership After this Offering (1) | |||||||||||||||||||
| Number of Shares Beneficially Owned Before this Offering | % | Shares of Common Stock Being Offered | Number of Shares | % | ||||||||||||||||
| Lincoln Park Capital Fund, LLC (2) | 1,396,224 | (3) | 1.5 (4) | 20,065,166 | 0 | 0 | ||||||||||||||
| (1) | Assumes the sale of all shares of common stock registered pursuant to this prospectus, although the selling stockholder is under no obligation known to us to sell any shares of common stock at this time. |
| (2) | Josh Scheinfeld and Jonathan Cope, the Managing Members of Lincoln Park Capital, LLC, the manager of the selling stockholder, are deemed to be beneficial owners of all of the ordinary shares owned by the selling stockholder. Messrs. Cope and Scheinfeld have shared voting and investment power over the ordinary shares being offered under this prospectus. Neither Lincoln Park Capital, LLC, nor the selling stockholder, is a licensed broker-dealer or an affiliate of a licensed broker-dealer. |
| (3) | As of the date of this prospectus, 1,396,224 shares of our common stock have been acquired by Lincoln Park under the Purchase Agreement, consisting of 793,802 shares we issued to Lincoln Park as Commitment Shares and 602,422 shares of common stock as Initial Purchase Shares. In accordance with Rule 13d-3(d) under the Exchange Act, we have excluded from the number of ordinary shares beneficially owned prior to the offering all of the additional ordinary shares that we may issue and sell to Lincoln Park pursuant to the Purchase Agreement from and after Commencement, because the issuance and sale of such ordinary shares to Lincoln Park under the Purchase Agreement is solely at our discretion and is subject to certain conditions, the satisfaction of all of which are outside of Lincoln Park’s control, including the registration statement of which this prospectus is a part becoming and remaining effective under the Securities Act. Furthermore, under the terms of the Purchase Agreement, issuances and sales of ordinary shares to Lincoln Park under the Purchase Agreement are subject to certain limitations on the amounts we may sell to Lincoln Park at any time, including the Beneficial Ownership Cap. See the description under the heading “The Lincoln Park Transaction” for more information about the Purchase Agreement. |
| (4) | Calculated by dividing (i) the total number of shares of common stock beneficially owned by Lincoln Park on November 23, 2020, which pursuant to Rule 13d-3 under the Exchange Act (A) consists of the 793,802 Commitment Shares issued to Lincoln Park as a commitment fee for making the commitment under the Purchase Agreement and the 602,422 Initial Purchase Shares already sold to Lincoln Park on August 14, 2020 for a total purchase price of $250,000 in an initial purchase under the Purchase Agreement, and (B) excludes the 18,668,942 additional shares which we may sell to Lincoln Park from time to time after Commencement under the Purchase Agreement, by (ii) the number of shares of our common stock outstanding as of November 23, 2020, which includes the 793,802 Commitment Shares and the 602,422 Initial Purchase Shares referred to in clause (i)(A) above. |
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An aggregate of up to 20,065,166 shares of our common stock may be offered by this prospectus by Lincoln Park pursuant to the Purchase Agreement. The common stock may be sold or distributed from time to time by Lincoln Park or A.G.P. directly to one or more purchasers or through brokers, dealers, or underwriters who may act solely as agents at market prices prevailing at the time of sale, at prices related to the prevailing market prices, at negotiated prices, or at fixed prices, which may be changed. The sale of the 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, or underwriters who may act solely as agents; |
| · | “at the market” into an existing market for the 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.
Lincoln Park is an “underwriter” within the meaning of Section 2(a)(11) of the Securities Act.
Lincoln Park has informed us that it intends to use an unaffiliated broker-dealer to effectuate all sales, if any, of the common stock that it may purchase 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 unaffiliated broker-dealer will be an underwriter within the meaning of Section 2(a)(11) of the Securities Act. Lincoln Park has informed us that each such broker-dealer will receive commissions from Lincoln Park that will not exceed customary brokerage commissions.
Brokers, dealers, underwriters or agents participating in the distribution of the shares as agents may receive compensation in the form of commissions, discounts, or concessions from Lincoln Park and/or purchasers of the common stock for whom the broker-dealers may act as agent. The compensation paid to a particular broker-dealer may be less than or in excess of customary commissions. Neither we nor Lincoln Park can presently estimate the amount of compensation that any agent will receive. We know of no existing arrangements between Lincoln Park or any other stockholder, broker, dealer, underwriter or agent relating to the sale or distribution of the shares offered by this prospectus. At the time a particular offer of shares is made, a prospectus supplement, if required, will be distributed that will set forth the names of any agents, underwriters or dealers and any compensation from Lincoln Park, and any other required information.
We will pay the expenses incident to the registration, offering, and sale of the shares to Lincoln Park. We have agreed to indemnify Lincoln Park and certain other persons against certain liabilities in connection with the offering of shares of 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. Lincoln Park has agreed to indemnify us against liabilities under the Securities Act that may arise from certain written information furnished to us by Lincoln Park specifically for use in this prospectus or, if such indemnity is unavailable, to contribute amounts required to be paid in respect of such liabilities.
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Lincoln Park has represented to us that at no time prior to the Purchase Agreement has it 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. Lincoln Park has agreed that during the term of the Purchase Agreement, it, its agents, representatives or affiliates will not enter into or effect, directly or indirectly, any of the foregoing transactions.
We have advised Lincoln Park that they are required to comply with Regulation M promulgated under the Exchange Act. With certain exceptions, Regulation M precludes Lincoln Park, 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 offered by this prospectus have been sold by Lincoln Park.
Our common stock is quoted on the Over the Counter Venture (OTCQB) exchange under the trading symbol “ODYY.”
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Our authorized capital stock consists of 500,000,000 shares of common stock, par value $0.001 per share, and 100,000,000 shares of preferred stock, par value $0.001 per share.
| Authorized and Issued Stock | ||||||||||||
| Number of shares at November 23, 2020 | ||||||||||||
| Title of Class | Authorized | Outstanding | Reserved | |||||||||
| Common stock, par value $0.001 per share | 500,000,000 | 90,570,202 | 20,065,166 | |||||||||
| Preferred stock, par value $0.001 per share | 100,000,000 | -0- | -0- | |||||||||
Common Stock
Dividends. Each share of our common stock is entitled to receive an equal dividend, if one is declared. We cannot provide any assurance that we will declare or pay cash dividends on our common stock in the future. Any future determination to declare cash dividends will be made at the discretion of our board of directors, subject to applicable laws, and will depend on our financial condition, results of operations, capital requirements, general business conditions and other factors that our board of directors may deem relevant. Our board of directors may determine it to be necessary to retain future earnings (if any) to finance our growth. See “Item 1A. Risk Factors” in our Annual Report on Form 10-K for the year ended July 31, 2020, as filed with the SEC on November 13, 2020, and “Dividend Policy.”
Liquidation. If our company is liquidated, then assets that remain (if any) after the creditors are paid and the owners of preferred stock receive liquidation preferences (as applicable) will be distributed to the owners of our common stock pro rata.
Voting Rights. Each share of our common stock entitles the owner to one vote. All matters are decided by majority vote other than as required by law and the election of directors. For example, under Nevada law, two-thirds of the voting power of our issued and outstanding stock is required to remove a director, and 60% of the voting power of disinterested shareholders may be required in certain circumstances to approve certain interested transactions. A plurality of votes is sufficient to elect a director at a meeting; election by written consent to fill a vacancy, however, requires a majority vote. There is no cumulative voting.
Preemptive Rights. Owners of our common stock have no preemptive rights. We may sell shares of our common stock to third parties without first offering such shares to current stockholders.
Redemption Rights. We do not have the right to buy back shares of our common stock except in extraordinary transactions, such as mergers and court approved bankruptcy reorganizations. Owners of our common stock do not ordinarily have the right to require us to buy their common stock. We do not have a sinking fund to provide assets for any buy back.
Conversion Rights. Shares of our common stock cannot be converted into any other kind of stock except in extraordinary transactions, such as mergers and court approved bankruptcy reorganizations.
Nonassessability. All outstanding shares of our common stock are fully paid and nonassessable.
Preferred Stock
Our articles of incorporation authorize our board of directors to issue “blank check” preferred stock. The board of directors may divide this preferred stock into series and establish the rights, preferences and privileges thereof. The board of directors may, without prior stockholder approval, issue any or all of the shares of this preferred stock with dividend, liquidation, conversion, voting or other rights that could adversely affect the relative voting power or other rights of our common stock. Preferred stock could be used as a method of discouraging, delaying or preventing a takeover or other change in control of our company. Issuances of preferred stock in the future could have a dilutive effect on our common stock. See “Item 1A. Risk Factors— Risks Relating to Investors” in our Annual Report on Form 10-K for the year ended July 31, 2020, as filed with the SEC on November 16, 2020.
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As of the date of this prospectus, there are no shares of our preferred stock outstanding.
Nevada Anti-Takeover Statutes
Nevada law provides that an acquiring person who acquires a controlling interest in a corporation may only exercise the voting rights of control shares if those voting rights are conferred by a majority vote of the corporation’s disinterested stockholders at a special meeting held upon the request of the acquiring person. If the acquiring person is accorded full voting rights and acquires control shares with at least a majority of all the voting power, then stockholders who did not vote in favor of authorizing voting rights for those control shares are entitled to payment for the fair value of such stockholders’ shares. A “controlling interest” is an interest that is sufficient to enable the acquiring person to exercise at least one-fifth of the voting power of the corporation in the election of directors. “Control shares” are outstanding voting shares that an acquiring person or associated persons acquire or offer to acquire in an acquisition and those shares acquired during the 90-day period before the person involved became an acquiring person.
We may be or in the future we may become subject to Nevada's control share law. A corporation is subject to Nevada's control share law if it has more than 200 stockholders, at least 100 of whom are stockholders of record and residents of Nevada, and if the corporation does business in Nevada or through an affiliated corporation. As of the date of this prospectus, we do not have 100 stockholders of record that are residents of Nevada. Therefore, these provisions of Nevada law do not apply to acquisitions of our shares and will not so apply until such time as both of the foregoing conditions are satisfied. At such time as these provisions of Nevada law may apply to us, they may discourage companies or persons interested in acquiring a significant interest in or control of our company, regardless of whether such acquisition may be in the interest of our stockholders.
In addition to the control share law, Nevada has a business combination law, which restricts the ability of a corporation to engage in any combination with an interested stockholder for three years from when the interested stockholder acquires shares that cause the stockholder to become an interested stockholder, unless the combination or purchase of shares by the interested stockholder is approved by the board of directors before the stockholder became an interested stockholder. If the combination was not previously approved, then the interested stockholder may only effect a combination after the three-year period if the stockholder receives approval from a majority of the disinterested shares or the offer satisfies certain fair price criteria.
For purposes of Nevada law, an “interested stockholder” is a person who is:
| · | the beneficial owner, directly or indirectly, of 10% or more of the voting power of the outstanding voting shares of the corporation; or |
| · | an affiliate or associate of the corporation and, at any time within three years immediately before the date in question, was the beneficial owner, directly or indirectly of 10% or more of the voting power of the then outstanding shares of the corporation. |
The definition of the term "business combination" is sufficiently broad to cover virtually any kind of transaction that would allow a potential acquirer to use the corporation's assets to finance the acquisition or otherwise to benefit its own interests rather than the interests of the corporation and its other stockholders.
Our articles of incorporation and bylaws do not exclude us from these restrictions.
These provisions are intended to enhance the likelihood of continuity and stability in the composition of the board of directors and in the policies formulated by the board of directors and to discourage some types of transactions that may involve the actual or threatened change of control of our company. These provisions are designed to reduce our vulnerability to an unsolicited proposal for the potential restructuring or sale of all or a part of our company. However, these provisions could discourage potential acquisition proposals and could delay or prevent a change in control of our company. They also may have the effect of preventing changes in our management.
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The validity of the shares of common stock offered hereby will be passed upon for us by Brinen & Associates, LLC.
The financial statements as of July 31, 2019 and for the period then ended incorporated by reference in this Prospectus and in the Registration Statement have been so incorporated in reliance on the report of Piercy Bowler Taylor & Kern, Certified Public Accountants, an independent registered public accounting firm, incorporated herein by reference, given on the authority of said firm as experts in auditing and accounting. The report on the financial statements contains an explanatory paragraph regarding the Company's ability to continue as a going concern.
The financial statements as of July 31, 2020 and for the period then ended incorporated by reference in this Prospectus and in the Registration Statement have been so incorporated in reliance on the report of Turner, Stone, & Co., LLP, an independent registered public accounting firm, incorporated herein by reference, given on the authority of said firm as experts in auditing and accounting. The report on the financial statements contains an explanatory paragraph regarding the Company's ability to continue as a going concern.
No expert or counsel named in this Prospectus as having prepared or certified any part of this Prospectus or having given an opinion upon the validity of the securities being registered or upon other legal matters in connection with the registration or Offering of the Common Stock was employed on a contingency basis, or had, or is to receive, in connection with the Offering, a substantial interest, direct or indirect, in the registrant. Nor was any such person connected with the registrant as a promoter, managing or principal underwriter, voting trustee, director, officer, or employee.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-1 (including exhibits, schedules, and amendments) under the Securities Act with respect to the shares of common stock offered by this prospectus. This prospectus does not contain all the information set forth in the registration statement. For further information about us and the shares of common offered by this prospectus, you should refer to the registration statement. Statements contained in this prospectus relating to the contents of any contract, agreement or other document are not necessarily complete and are qualified in all respects by the complete text of the applicable contract, agreement or other document, a copy of which has been filed as an exhibit to the registration statement. Whenever this prospectus refers to any contract, agreement, or other document, you should refer to the exhibits that are a part of the registration statement for a copy of the contract, agreement, or document.
We are subject to the reporting and information requirements of the Exchange Act and, as a result, file, or will file, periodic reports, proxy statements and other information with the SEC. These periodic reports and other information are available for inspection and copying at the SEC’s public reference room and the website of the SEC, in each case, referred to below. We also maintain a website at http://www.odysseygi.com/ and make available free of charge through this website our annual report on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and amendments to those reports filed or furnished pursuant to Sections 13(a) and 15(d) of the Exchange Act. We make these reports available through our website as soon as reasonably practicable after we electronically file such reports with, or furnish such reports to, the SEC. The information contained on, or that can be accessed through, our website is not a part of this prospectus. The reference to our web address does not constitute incorporation by reference of the information contained in, or that can be accessed through, our website.
You may read and copy this information at the SEC’s Public Reference Room at 100 F Street, N.E., Washington D.C. 20549, on official business days during the hours of 10:00 am to 3:00 pm. You may obtain information regarding the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC also maintains a website (http://www.sec.gov) that contains reports, proxy and information statements and other information regarding issuers that file electronically with the SEC.
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DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES Liabilities
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers, and persons controlling us pursuant to the provisions described in Item 14 of the registration statement of which this prospectus is a part or otherwise, we have been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. In the event that a claim for indemnification against such liabilities (other than our payment of expenses incurred or paid by our directors, officers, or controlling persons in the successful defense of any action, suit, or proceeding) is asserted by our directors, officers, or controlling persons in connection with the common stock being registered, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by us is against public policy as expressed in the Securities Act and will be governed by the final adjudication of the issue.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC permits us to “incorporate by reference” the information contained in documents we file with the SEC, which means that we can disclose important information to you by referring you to those documents rather than by including them in this prospectus. Information that is incorporated by reference is considered to be part of this prospectus and you should read it with the same care that you read this prospectus. Information that we file later with the SEC will automatically update and supersede the information that is either contained, or incorporated by reference, in this prospectus, and will be considered to be a part of this prospectus from the date those documents are filed.
We incorporate by reference the documents listed below, all filings filed by us pursuant to the Exchange Act after the date of the registration statement of which this prospectus supplement forms a part, and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the time that all securities covered by this prospectus supplement have been sold; provided, however, that we are not incorporating any documents or information deemed to have been furnished and not filed in accordance with SEC rules:
| · | our Annual Report on Form 10-K for the fiscal year ended July 31, 2020, filed with the SEC on November 16, 2020; |
| · | our Quarterly Report on Form 10-Q for the quarter ended October 31, 2019, filed with the SEC on December 6, 2019 and as amended on Form 10-Q/A on November 13, 2020; |
| · | our Quarterly Report on Form 10-Q for the quarter ended January 31, 2020, filed with the SEC on March 12, 2020 and as amended on Form 10-Q/A on November 13, 2020; |
| · | our Quarterly Report on Form 10-Q for the quarter ended April 30, 2020, filed with the SEC on June 4, 2020 and as amended on Form 10-Q/A on November 13, 2020; |
| · | our Current Reports on Form 8-K filed on March 11, 2020, March 13, 2020, May 11, 2020, May 18, 2020, May 20, 2020, June 08, 2020, July 21, 2020, August 4, 2020, August 6, 2020, August 14, 2020, August 17, 2020, August 19, 2020, October 15, 2020, October 27, 2020, and November 19, 2020; and |
| · | the description of our common stock contained in our Registration Statement on Form 8-A12G, filed on August 14, 2020, including any amendments thereto or reports filed for the purposes of updating this description. |
In addition, all documents subsequently filed by us pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act before the date our offering is terminated or completed are deemed to be incorporated by reference into, and to be a part of, this prospectus.
Any statement contained in this prospectus or in a document incorporated or deemed to be incorporated by reference into this prospectus will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or any other subsequently filed document that is deemed to be incorporated by reference into this prospectus modifies or supersedes the statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
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We will provide to each person, including any beneficial holder, to whom a prospectus is delivered, at no cost, upon written or oral request, a copy of any or all of the information that has been incorporated by reference in the prospectus but not delivered with the prospectus. You should direct any requests for copies to us at Attention: Secretary, 2372 Morse Ave., Irvine, CA 92614 or you may call us at (619) 832-2900. Exhibits to the filings will not be sent, however, unless those exhibits have specifically been incorporated by reference into this prospectus.
You should rely only on information contained in, or incorporated by reference into, this prospectus. We have not authorized anyone to provide you with information different from that contained in this prospectus, or incorporated by reference in this prospectus and in any free writing prospectus that we have authorized for use in connection with this offering. We are not making offers to sell the securities in any jurisdiction in which such an offer or solicitation is not authorized or in which the person making such offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make such offer or solicitation.
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20,065,166 Shares
Common Stock
PROSPECTUS
November 23, 2020
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
The following table sets forth the fees and expenses in connection with the issuance and distribution of the securities being registered (excluding the underwriting discount). Except for the Securities and Exchange Commission registration fee, all amounts are estimates.
| Amount Paid or to be Paid | ||||
| SEC registration fee | $ | 374.34 | ||
| Legal fees and expenses | 18,384 | |||
| Accounting fees and expenses | 2,000 | |||
| Miscellaneous fees and expenses | – | |||
| Total | $ | 20,758.34 | ||
Item 14. Indemnification of Directors and Officers.
Sections 78.751 and 78.7502 of the Nevada Revised Statutes (NRS) provides that directors and officers of Nevada corporations may, under certain circumstances, be indemnified against expenses (including attorneys’ fees) and other liabilities actually and reasonably incurred by them as a result of any suit brought against them in their capacity as a director or officer, if they acted in good faith and in a manner that they reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, if they had no reasonable cause to believe their conduct was unlawful. Section 78.7502 of the NRS also provides that directors and officers of Nevada corporations may also be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by them in connection with a derivative suit if they acted in good faith and in a manner that they reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification may be made without court approval if such person was adjudged liable to the corporation.
Section 78.751 of the NRS states that any discretionary indemnification pursuant to NRS 78.7502, unless ordered by a court or advanced pursuant to subsection 2, may 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. Such determination must be made by: (a) the stockholders; (b) the board of directors by majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding; (c) if a majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding so orders, by independent legal counsel in a written opinion; or (d) if a quorum consisting of directors who were not parties to the action, suit or proceeding cannot be obtained, by independent legal counsel in a written opinion.
Article VIII of our articles of incorporation provides that we shall, to the fullest extent permitted by the laws of the State of Nevada, indemnify our directors, officers and certain other persons, and that we shall have the power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation against any liability asserted against such person in any such capacity or arising out of such person’s status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the NRS.
Article V, Section 1 of our bylaws provides that our directors, officers and certain other persons shall be indemnified and held harmless by us to the fullest extent permitted by the laws of the State of Nevada.
| II-1 |
Item 15. Recent Sales of Unregistered Securities
Set forth below is information regarding securities we have issued within the past three years that were not registered under the Securities Act:
1. On August 14, 2020, we entered into a Securities Purchase Agreement with Labrys Fund, LP (“Labrys”) pursuant to which Labrys purchased a Self-Amortization Promissory Note (the “Note”) in the principal amount of $350,000 for $315,000 in immediately available funds. We also issued Labrys 420,000 shares of common stock as a condition of the Securities Purchase Agreement. 350,000 such shares issued will be returned to us if the Note is fully repaid and satisfied on or prior to August 14, 2021, subject further to the terms and conditions of the Note.
2. On August 14, 2020, we entered into the Purchase Agreement with Lincoln Park which provides that upon the terms and subject to the conditions and limitations set forth in the agreement, Lincoln Park is committed to purchase up to an aggregate of $10,250,000 million shares of our common stock. We issued 1,396,224 shares of our common stock to Lincoln Park in consideration for entering into the Purchase Agreement.
3. From July 16, 2019 to May 8, 2020, we entered into various promissory note agreements with accredited investors. The investment totaled $695,000 and each note carried an interest rate of 7%. Each note matures one year after the date of issuance.
4. The Company and Vivakor Inc. (“Vivakor”) are parties to certain convertible debt agreements dated January 4, 2017, which were subsequently amended on November 15, 2017 and February 1, 2018 (as so amended, the “Convertible Debt Agreements”). On June 4, 2020, pursuant to the Convertible Debt Agreements, Vivakor converted the debt and interest under the Convertible Debt Agreements into common stock of the Company. The amount converted was $809,578 and the conversion price was $1 per share resulting in a total of 809,578 shares of the Company’s common stock being issued.
5. The Company has issued a number of warrants to accredited investors with effective dates ranging from July 17, 2019 to May 12, 2020. The warrants have an exercise price of $1.50 and total 69,500 shares of our common stock in the aggregate of which 34,500 are outstanding.
6. On August 6, 2020, we engaged A.G.P A.G.P., as a placement agent to help us raise capital in connection with a private offering. A.G.P. introduced us to Lincoln Park and as part of the Lincoln Park Transaction described herein, we agreed to pay A.G.P. a fee of 8% of the amount of the funds received from Lincoln Park. In consideration for the service provided by A.G.P., we granted them warrants to purchase the number of shares of common stock equal to $275,000, payable in the form of 550,000 penny warrants at a $0.50 purchase price, exercisable at any time and from time to time, in whole or in part, during a four-year period with registration rights (including a one-time demand registration right and unlimited piggyback rights).
On August 6, 2020, we engaged A.G.P. as a placement agent to help us raise capital in connection with Labrys and this private offering. A.G.P. introduced us to Lincoln Park, for which we agreed to pay A.G.P. a fee of 8% of the amount of the funds received from Lincoln Park. In consideration for the service provided by A.G.P., we granted them warrants to purchase the number of shares of common stock equal to $275,000, payable in the form of 550,000 penny warrants at a $0.50 purchase price, exercisable at any time and from time to time, in whole or in part, during a four-year period with registration rights (including a one-time demand registration right and unlimited piggyback rights). These warrants and underlying common stock are not part of this registrations statement.
The offers, sales and issuances of the securities described above were deemed to be exempt from registration under the Securities Act in reliance upon Section 4(a)(2) of the Securities Act as transactions by an issuer not involving any public offering. All recipients of these securities were accredited investors within the meaning of Rule 501 of Regulation D of the Securities Act who were acquiring the applicable securities for investment and not distribution and had represented that they could bear the risks of the investment. Each of the recipients of securities in these transactions had adequate access, through employment, business or other relationships, to information about us.
The purchasers of securities in the transactions described in this Item 15 received written disclosures that the securities had not been registered under the Securities Act and that any resale must be made pursuant to a registration statement or an available exemption from the registration requirements of the Securities Act. Appropriate legends were affixed to the securities issued in these transactions.
| II-2 |
Item 16. Exhibits and Financial Statement Schedules.
(a) Exhibits
The exhibits to the registration statement are listed in the Exhibit Index attached hereto and incorporated by reference herein.
(b) Financial Statement Schedules
All financial statement schedules have been omitted because they are not required or because the required information is given in the financial statements or notes to those statements.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement.
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that subparagraphs (i), (ii) and (iii) above do not apply if the information required to be included in a post-effective amendment by those subparagraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
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(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424 (§230.424 of this chapter);
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6) That, for purposes of determining any liability under the Securities Act of 1933:
(a) each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof;
(b) the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective; and
(c) each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(7) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
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EXHIBIT INDEX
| † | Previously furnished. |
| * | Previously filed. |
| ** | Filed herewith. |
| *** | Indicates a management contract or compensatory plan or arrangement. |
| II-5 |
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Irvine, State of California on November 23, 2020.
| ODYSSEY GROUP INTERNATIONAL, INC. | ||||
| By: |
/s/ JOSEPH MICHAEL REDMOND
Joseph Michael Redmond.
| |||
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Joseph Michael Redmond and Christine Farrell, or either of them, as his true and lawful attorneys-in-fact and agents, with full powers of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including post-effective amendments and any related registration statements filed pursuant to Rule 462 and otherwise), and to file the same with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents and full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he might or could do in person, hereby ratifying and confirming that said attorney-in-fact and agent, or any substitute or resubstitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.
| NAME | TITLE | DATE | ||
| /s/ JOSEPH MICHAEL REDMOND | President, Chief Executive Officer, | November 23, 2020 | ||
| Joseph Michael Redmond | Chief Financial Officer and Director (Principal Executive Officer and Principal Financial and Accounting Officer) | |||
| /s/ JERRY CASEY | Director | November 23, 2020 | ||
| Jerry Casey | ||||
| /s/ JEFF CONROY | Director | November 23, 2020 | ||
| Jeff Conroy | ||||
| /s/ JOHN P. GANDOLFO | Director | November 23, 2020 | ||
| John P. Gandolfo | ||||
| /s/ JACOB VANLANDINGHAM | Director | November 23, 2020 | ||
| Jacob Vanlandingham |
| II-6 |
Exhibit 5.1
 |
Joshua D. Brinen Attorney at Law New York Office jbrinen@brinenlaw.com |
| Member New York, New Jersey, Florida, California, Texas & Nevada Bar | |
| LL.M. in Taxation | |
November 23, 2020
Odyssey Group International, Inc.
2372 Morse Ave.
Irvine, CA 92614
Dear Ladies and Gentlemen:
We are legal counsel to Odyssey Group International, Inc., a Nevada corporation (the "Company"), and have represented the Company in connection with the preparation and filing of that certain Registration Statement on Form S-1 (the "Registration Statement") to be filed with the Securities and Exchange Commission (the "Commission") on the date hereof, for the purpose of registering under the Securities Act of 1933, as amended (the "Securities Act"), Twenty Million, Sixty-Five Thousand, One Hundred Sixty-Six (20,065,166) shares of the Company's common stock, par value $0.001 per share (the "Shares"), which have been issued to the selling shareholders named in the Registration Statement.
In connection with the foregoing, we have examined such documents, corporate records and matters of law as we have deemed necessary or appropriate in connection with this opinion.
In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed, photostatic or facsimile copies and the authenticity of the originals of such latter documents. In making our examination of executed documents, we have assumed that the parties thereto, other than the Company, its directors and officers, had the power, corporate or otherwise, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or otherwise, and execution and delivery by such parties of such documents and the validity and binding effect thereof on such parties. As to any facts material to the opinions expressed herein that were not independently established or verified, we have relied upon oral or written statements and representations of officers and other representatives of the Company and others. The opinion expressed below is limited to matters governed by Federal securities laws and by the General Corporation Law of the State of Nevada, and we express no opinion as to the effect of the laws of any other jurisdictions. This opinion is limited to the laws, including the rules and regulations, as in effect on the date hereof.
Based upon and subject to the foregoing and to the other qualifications and limitations set forth herein, we are of the opinion that the Shares have been duly authorized and are duly and validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. We also hereby consent to the use of our name under the heading "Legal Matters" in the prospectus which forms a part of the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder. We disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.
Sincerely,
Should you have any questions, please do not hesitate to contact me at the New York office or via electronic mail at jbrinen@brinenlaw.com.
| Yours truly, | |
| Brinen & Associates, LLC | |
| /s/ Joshua D. Brinen | |
| Joshua D. Brinen |
Exhibit 10.5
AGREEMENT TO TRANSFER LICENSE RIGHTS
This Agreement is made and entered effective the 31th day of January 2019, (the Effective Date) by and between Electromedica LLC. a Wyoming Limited Liability Company with an address at 214 via Emilia, Palm Beach Gardens Florida 33418, its successor or assigns (hereinafter “Electromedica”) and Odyssey Group International Inc. a Nevada Corporation whose address is 2372 Morse Ave., Irvine, CA 92614 (hereinafter ODYY)
RECITALS
1. Electromedica, entered into a License Agreement with Pegasus Pharmaceuticals Inc. and Heartview LLC dated January 30, 2019 (the License Agreement) giving Electromedica an exclusive license to use certain Intellectual Property, Proprietary Marks, Confidential Information, and Technology (capitalized terms are defined below and described in Exhibit A) and now, and for good and valuable consideration, Electromedica wishes to transfer and assign all rights provided by the License Agreement to ODYY.
2. ODYY wishes to obtain all rights from Electromedica in the License Agreement related to the Intellectual Property,
THEREFORE, in consideration of the promises, covenants and undertakings set forth herein, the parties hereto, intending to be legally bound, agree as follows:
ARTICLE 1
DEFINITIONS
1.1 “Intellectual Property shall mean the Proprietary Marks, Confidential Information and Technology licensed by Electromedica and listed on Exhibit A, including the USPTO Patent No. US 7,519,416 B2, Issued on April 14, 2009 and assigned to Heartview LLC.
1.2 “Documentation” shall mean any online or written manuals, program listings, data models, flow charts, source code, logic diagrams, functional specifications, or communications of any nature whatsoever, whether in text or code forms, associated with or relating to the Intellectual Property.
1.3 “Proprietary Marks” shall refer to the patents, trade marks, trade names, copyrights, logos and registered designs, details related to diagnosing human cardiac conditions. Electromedica agrees this term is to be broadly construed to the benefit of Transfer ODYY.
1.4 “Confidential Information” shall mean all confidential and proprietary commercial information, data and material, whether disclosed in writing, orally or by inspection, or which either party has reason to believe is treated as confidential by the other party, regarding (a) work product resulting from or related to the Technology (as hereinafter defined); (b) computer software, including Documentation; (c) the condition, assets, liabilities, business, systems, methods and manner of operation, including but not limited to internal personnel, financial, marketing, and other business information; (d) strategic, operational, and other business plans and forecasts. All information, in whatever form, that relates to Proprietary Marks, the Technology that is not publicly known is “Confidential Information.” Electromedica agrees this term is to be broadly construed to the benefit of ODYY .
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1.5 “Technology” shall mean the Proprietary Marks, and all right, title, and interest therein, together with all information, know-how, data, code, software, drawings, designs, operating experience and techniques, documents, models, test or performance reports, specifications and shop practices, ideas, trade secrets, techniques, processes, practices and any design, development, and manufacturing data relating to the Intellectual Property. Electromedica agrees this term is to be broadly construed to the benefit of ODYY.
ARTICLE 2
GRANT OF LICENSE AND OBLIGATIONS
OF ODYY
2.1 Transfer of License. Electromedica, herby transfers, assigns and grants to ODYY all its rights and interest in the License Agreement. The License Agreement provides for an exclusive, royalty-free, perpetual right to use the Intellectual Property, Proprietary Marks, Confidential Information and Technology in all areas of the world for any reason whatsoever. Electromedica will not grant any other business entity or person(s) any rights to the license to utilize the Intellectual Property. ODYY may transfer, assign or sub-license its rights to the Intellectual Property, Proprietary Marks, Confidential Information and Technology in its sole discretion. Electromedica agrees that upon the Effective Date, all rights to the Intellectual Property will cease for Electromedica and all rights to the Intellectual Property in the License Agreement will transfer to ODYY.
2.2 Ownership. As written in paragraph 2.1 of the License Agreement, Electromedica warrants that it possesses or has the licensing rights to the Intellectual Property, Proprietary Marks, Confidential Information and Technology. Paragraph 2.1 further allows for Electromedica to transfer and or sub-license the Inellectual Property.
ARTICLE 3
CONSIDERATION
3.1 Consideration. As consideration for the License, ODYY will pay to Electromedica fifteen million (15,000,000) shares of ODYY common stock. There will be no cash consideration or royalty paid to Electromedica. The shares will be delivered to Electromedica in certificate form within seven days after the execution of this agreement.
ARTICLE 4
TERM
4.1 Term. The term of this Agreement commences on the date set forth above and shall continue in perpetuity.
ARTICLE 5
INDEMNIFICATION
5.1 By Electromedica. Electromedica shall indemnify, defend and hold harmless ODYY from any and all damages, liabilities, costs and expenses (including reasonable attorneys’ fees) incurred by ODYY as a result of any claim that the Proprietary Marks, when used within the scope of this Agreement, infringes any intellectual property right or trade secret of any third party; provided ODYY promptly notifies Electromedica, in writing, of any such claim and promptly tenders the control of the defense and settlement of any such claim to Electromedica at Electromedica’s expense and discretion. ODYY shall reasonably cooperate with Electromedica, in defending or settling such claim and ODYY may join in defense with counsel of its choice should Electromedica elect to defend ODYY
6.1 By ODYY. ODYY shall indemnify, hold harmless and defend Electromedica from and against any and all claims, liabilities, damages and expenses (including reasonable attorneys’ fees) incurred by Electromedica as a result of any breach by ODYY of the terms of this Agreement.
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ARTICLE 11
MISCELLANEOUS
7.1 Assignment. This Agreement and all the rights of ODYY hereunder may be assigned or transferred at the sole discretion of ODYY and shall inure to the benefit of its successors and assigns.
8.1 Severability. In the event that any provision in this Agreement shall be held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof or thereof will not in any way be affected or impaired thereby.
9.1 Third Party Beneficiaries . The parties intend that this Agreement shall not benefit or create any right or cause of action in or on behalf of or impose any obligation upon any person or entity other than the parties hereto and their respective successors and permissible assigns.
10.1 Notices. Any notice or other communication required or permitted hereunder shall be in writing and shall be sufficiently given if delivered in person or sent by email, registered or certified mail with postage prepaid, Federal Express or similar overnight service, or Express Mail, addressed as follows:
If to ODYY:
Michael Redmond
President and CEO of Odyssey Group International
2372 Morse Ave., Irvine, CA 92614
If to Electromedica:
David Banner
214 via Emilia,
Palm Beach Garden Florida 33418
Such addresses and numbers may be changed by written notice. Such notice or communication shall be deemed to have been given when received.
11.5 Governing Law . The interpretation and construction of this Agreement, and all matters relating to it, shall be governed by the laws of the State of California.
11.6 Captions and Language . The Article and Section captions used in this Agreement are for reference purposes only, and shall not in any way affect the meaning or interpretation of this Agreement. Whenever used in this Agreement, the singular number shall include the plural, and vice versa, whenever appropriate. This Agreement shall be construed in accordance with its plain meaning, and not strictly for or against any party.
11.7 Entire Agreement . This Agreement, including all Schedules and all exhibits thereto, contain the entire understanding of the parties hereto with respect to the subject matter contained herein, and there are no other agreements or understandings, written or oral, in effect between the parties relating to the subject matter hereof. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter.
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11.8 Waivers and Amendments . This Agreement may not be amended or modified orally, but only by an agreement in writing signed by both parties. This Agreement or any provision hereof may be waived, amended, supplemented, superseded, canceled, renewed, extended or modified only by a written instrument signed by the parties. No delay on the part of any party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of such party of any such right, power, or privilege, nor any single or partial exercise of any such right, power, or privilege, preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege. No waiver of any provision of this Agreement shall be deemed or constitute a waiver of any other provision hereof (regardless of the similarity of such provisions), nor shall any such waiver constitute a continuing waiver unless expressly so provided.
11.9 Authority. The parties represent and warrant, each to the other, that they have the right, power and authority to enter this Agreement, and by so doing, the party is not causing a breach to any other agreements or contracts entered by the party.
IN WITNESS WHEREOF this Agreement has been entered into the day and year first above written.
Electromedica, LLC
By: /s/ David Banner
Its: President and CEO
Odyssey Group International.
By:/s/ Joseph M. Redmond
Its: President and CEO
| 4 |
Exhibit A
1. US Patent Number: Patent Number 7,519,416 B2, Issued on April 14, 2009
2. Heartview algorithm, Code, Master Software
3. Trademarks and service marks related to Heartview
4. Key trade secrets and proprietary know-how related to
5. Source Code or object code escrows, Open source software used in (or used to create) the seller’s products or services, if any.
| 5 |
Exhibit 10.6
MASTER AGREEMENT FOR A JOINT VENTURE AND
INTELLECTUAL PROPERTY PURCHASE AGREEMENT
by and among
ODYSSEY GROUP INTERNATIONAL INC.,
AND
PREVACUS, INC.
This MASTER AGREEMENT FOR A JOINT VENTURE AND INTELLECTUAL PROPERTY PURCHASE AGREEMENT, dated as of June 26, 2019 (this “Agreement”), by and among Prevacus Inc. a Delaware Corporation “Prevacus”), and, Odyssey Group International Inc., a Nevada corporation (“Odyssey” ), whose address is 2372 Morse Ave. Irvine, CA 92614. Odyssey, and Prevacus are referred to collectively herein as the “Parties”.
WHEREAS, Odyssey is a publically traded company focused on developing and commercializing medical products, including pharmaceutical and medical devices. (the “Business”); and
WHEREAS, Prevacus desires to sell fifty percent of its interest, and Odyssey desires to purchase fifty percent of, the Purchased Assets (as defined below) upon the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing, he mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
Section 1.1 Purchase and Sale of Assets.
On, and subject to, the terms and conditions of this Agreement, at the Closing, Prevacus shall sell, assign, transfer, convey and deliver to Odyssey, and Odyssey shall purchase and acquire from Prevacus, free and clear of all Encumbrances, fifty percent of Prevacus’s right, title and interest, as of the Closing, in and to the following assets, properties and rights (collectively, the “Purchased Assets”):
| a) | The world wide and USPTO Patent Numbers | |
| b) | The patent relates to a neurosteroid developed by Prevacus. | |
| c) | All the assets set forth in Exhibit “A” to this Agreement. |
| 1 |
Section 1.2 Excluded Liabilities and Assets.
Prevacus is not selling any of its assets to Odyssey other than the Purchased Assets. Odyssey does not assume any liability or obligation of Prevacus, in connection with the Purchased Assets pursuant to Odyssey’s purchase of such assets in connection with this Agreement.
Section 1.3 Purchase Consideration.
| a) | Equity. In partial consideration for the sale by Prevacus of the Purchased Assets to Odyssey, at the Closing, Odyssey shall grant Prevacus two-million (2,000,000) shares of Odyssey common stock. The Parties will execute a Stock Grant Agreement in the form attached hereto it as Exhibit “E”. |
| b) | Joint Venture. In partial consideration for the sale by Prevacus of the Purchased Assets to Odyssey, within 90 days after the Closing, Odyssey and Prevacus shall enter into a Joint Venture whereby the Parties will create a limited Liability Company (LLC) in the State of Florida. The LLC will be owned equally by the Parties. Odyssey will be responsible for raising a total of $2,500,000 for developing the Purchased Assets though a phase I clinical trial. Prevacus will be responsible for assigning all rights and title of the Purchased Assets to the LLC. |
| c) | Employment or Consultant Agreement. At the Closing, the LLC shall enter into an Employment Agreement with Jake VanLandingham (“Consulting Agreement”) to oversee the development of the Purchase assets. The annual salary will be $200,000.00 in the form attached hereto as Exhibit “B”. Payments will not begin until a minimum of Five hundred thousand ($500,000.00) has been raised for the LLC to operate. |
| d) | Share Exchange Agreement: In partial consideration for the Purchased Assets the Parties will enter into a Share Exchange Agreement (“SEA”) in the form attached hereto as Exhibit “C” whereby Odyssey will grant Prevacus three million shares (3,000,000) of Odyssey common stock and Prevacus will issue Odyssey one million shares (1,000,000) of Prevacus stock. The SEA will have a claw back provision stating that if, within one year of the Effective Date, Odyssey has not raised a minimum of five hundred thousand ($500,000) to fund the LLC, then each party may have their shares either returned to the original owner or cancelled. |
| e) | Patent Assignment. In partial consideration for the sale by Prevacus of the Purchased Assets to Odyssey and the LLC, Prevacus shall enter a Patent Assignment Agreement (“Patent Assignment”) in the form attached hereto as Exhibit “D” providing a recordable assignment of the US Patents described in the Purchased Assets to Odyssey. The Patent Assignment will take place when Odyssey has funded the LLC with a minimum of five hundred thousand dollars ($500,000.00) |
| f) | Board of Directors Agreement. An agreement appointing Jake VanLandingham to the Odyssey Board of Directors will be executed by the Parties. Jake will become a Board member of Odyssey and the Agreement will have compensation to as one million shares of Odyssey common stock. |
| g) | Non Compete by Prevacus. Prevacus agrees not to assist, work for or in any way provide services that in any way relates to the development, manufacturing, sales, marketing or distribution of a product containing the Purchased Assets, except on behalf of Odyssey. |
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Section 1.4 Closing Transactions.
(a) Closing. Unless this Agreement shall have been terminated in accordance with Section 8.1, and subject to the satisfaction or, if permissible, waiver of the conditions set forth in Article VII, the closing of the Transactions (the “Closing”) will take place at 12:00 noon, Los Angeles, California time, on a date to be specified by the Parties but no later than July 31, 2019 (the “Closing Date”), which shall be not later than the second Business Day after the satisfaction or, if permissible, waiver of the conditions set forth in Article VII (other than those that by their terms are to be satisfied or waived at the Closing), at the offices of Odyssey Group International, Inc. at 2372 Morse Ave Irvine CA , unless another time, date or place is agreed to in writing by the Parties; provided, however, that the Parties shall use reasonable efforts to conduct the Closing by mail and overnight delivery so as not to require the personal attendance of the parties at the Closing. If the parties agree, the Closing may be telephonic.
(b) Actions and Deliveries by Prevacus. At the Closing, Prevacus shall deliver to Odyssey:
(i) the certificates and documents required to be delivered by Prevacus pursuant to Sections 7.1 and 7.2;
(ii) all such other instruments of assignment and transfer as are reasonably required to effect the transfer to Odyssey of all of Prevacus’ right, title and interest in and to the Purchased Assets in accordance with this Agreement, in form and substance reasonably satisfactory to Odyssey and Prevacus; and
(iii) Duly executed copies of all the agreements referred to in this Agreement.
(c) Actions and Deliveries by Odyssey (as required). At the Closing, Odyssey (as required) shall deliver to Prevacus:
(ii) the Stock Grant Agreement in the form of Exhibit E dated the Closing Date and duly executed by Odyssey;
(iii) the Share Exchange Agreement in the form of Exhibit C dated the Closing Date and duly executed by Odyssey;
(iv) The Board of Directors Agreement
(v) The Employment Agreement for Jake VanLandingham
(v) the certificates and documents required to be delivered by Odyssey pursuant to Sections 7.1 and 7.3.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF PREVACUS
Prevacus hereby represents and warrants to Odyssey that, to the best of “Prevacus’s Knowledge” (as hereinafter defined) and except as set forth in the disclosure schedule delivered by Prevacus to Odyssey and attached hereto and made a part hereof (the “Prevacus Disclosure Schedule”). Such warranties and representation shall be true as of the date of execution and the date of Closing:
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Section 2.1 Organization.
Prevacus is duly incorporated, validly existing and in good standing under the laws of Delaware and has the requisite corporate power and authority to own, operate or lease the properties that it purports to own, operate or lease and to carry on its business as it is now being conducted.
Section 2.2 Authority Relative to this Agreement and Related Matters.
Prevacus have all necessary personal or corporate power and authority to enter into this Agreement and to carry out its obligations hereunder. The execution and delivery by Prevacus of this Agreement and the consummation by Prevacus of the transactions contemplated hereby (the “Transactions”) have been duly authorized by all necessary corporate action on the part of Prevacus. This Agreement has been duly executed and delivered by Prevacus and, assuming the due authorization, execution and delivery hereof by Odyssey, no further action or approval, corporate or otherwise, is required in order to constitute this Agreement as a valid and binding obligation of Prevacus enforceable in accordance with its terms.
Section 2.3 No Conflict; Required Filings and Consents.
The execution and delivery of this Agreement by Prevacus does not, and the consummation by Prevacus of the Transactions will not, (a) conflict with or violate the certificate of incorporation or bylaws, each as amended to date, of Prevacus, (b) conflict with or violate any Law or Order applicable to Prevacus or by which Prevacus or any of its properties is bound, (c) result in a breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give rise to any right of termination, acceleration or cancellation under, or result in the creation of an Encumbrance on any of the Purchased Assets pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license or other instrument or obligation to which Prevacus is a party or by which Prevacus or any of its properties is bound, or (d) require Prevacus to obtain any consent, approval, authorization or permit of, or to make any filing with or notification to, any Governmental Authority, except (i) as set forth in Section 2.3 of the Prevacus Disclosure Schedule, or (ii) for any filings required pursuant to the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”).
Section 2.4 Absence of Litigation.
Except as disclosed in Section 2.4 of the Prevacus Disclosure Schedule, as of the date hereof, (a) there is no private or governmental action, suit, proceeding, litigation, arbitration or investigation (“Action”) pending or, to the knowledge of Prevacus, threatened against Prevacus before any Governmental Authority that, if adversely determined, would prohibit, prevent, enjoin, restrict or materially impair or delay any of the Transactions, and (b) there is no legally binding judgment, decree, order, injunction, decision or award of any Governmental Authority (“Order”) against Prevacus that would prohibit, prevent, enjoin, restrict or materially impair or delay any of the Transactions.
Section 2.5 Purchased Assets.
Prevacus owns (beneficially and of record) all right, title and interest in and to all Purchased Assets, free and clear of all Encumbrances. Purchased Assets have been duly filed in the jurisdiction named in each such application, are being actively prosecuted and have not been abandoned or allowed to lapse. There is no Action that is pending or, to the knowledge of Prevacus, threatened that challenges the rights of Prevacus in respect of any Purchased Assets or the validity, enforceability or effectiveness thereof. Prevacus has not received any written communication alleging that it has infringed the Intellectual Property rights of any third party and there are no Actions that are pending or, to the knowledge of Prevacus, threatened against Prevacus with respect thereto. To the knowledge of Prevacus, there is no unauthorized use, infringement or misappropriation of the Purchased Assets by any third party and there is no Action that is pending or threatened by Prevacus with respect thereto. Notwithstanding anything to the contrary, this representation shall not limit or restrict the transfer to Odyssey pursuant to this Agreement of all right, title and interest in and to the Purchased Assets owned by Prevacus throughout the world; provided, however, that Prevacus does not represent, warrant or covenant that any rights in or to the Purchased Assets exist anywhere outside of the United States of America.
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Section 2.6 Prevacus’s Knowledge.
The term "Prevacus' Knowledge" as used herein means the actual knowledge (and not the implied or constructive knowledge) without any duty of investigation or inquiry of the following person: Jake Van Landingham, Prevacus.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF ODYSSEY
Odyssey hereby represent and warrants to Prevacus that, except as set forth in the disclosure schedule delivered by Odyssey to Prevacus and attached hereto and made a part hereof (the “Odyssey Disclosure Schedule”). Such warranties and representation shall be true as of the date of execution and the date of Closing:
Section 3.1 Organization.
Odyssey is duly incorporated, validly existing and in good standing under the Laws of each of their respective jurisdictions of organization and each has the requisite corporate power and authority to own, operate or lease the properties that it purports to own, operate or lease and to carry on its business as it is now being conducted.
Section 3.2 Authority Relative to this Agreement and Related Matters.
Odyssey has all necessary corporate power and authority, as the case may be, to enter into this Agreement and to carry out each of their respective obligations hereunder. The execution and delivery by Odyssey of this Agreement and the consummation by the Odyssey of the Transactions have been duly authorized by all necessary corporate action on the part of the Odyssey. This Agreement has been duly executed and delivered by the Odyssey, and, assuming the due authorization, execution and delivery hereof by Prevacus, constitutes the legal, valid and binding obligation of the Odyssey, enforceable against each the Odyssey in accordance with its terms.
Section 3.3 No Conflict; Required Filings and Consents.
The execution and delivery of this Agreement by Odyssey does not, and the consummation of the Transactions will not, (a) conflict with or violate the organizational or governing documents of Odyssey and/or Odyssey, (b) conflict with or violate any Law or Order applicable to Odyssey or by which Odyssey or or any of their respective properties is bound, (c) result in a breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give rise to any right of termination, acceleration or cancellation under, any note, bond, mortgage, indenture, contract, agreement, lease, license or other instrument or obligation to which Odyssey is a party or by which Odyssey or Odyssey or any of their respective properties is bound, or (d) require Odyssey or Odyssey to obtain any consent, approval, authorization or permit of, or to make any filing with or notification to, any Governmental Authority, except (i) as set forth in Section 3.3 of the Odyssey Disclosure Schedule, or (ii) for any filings required pursuant to the Exchange Act.
Section 3.4 Absence of Litigation.
Except as disclosed in Section 3.4 of the Odyssey Disclosure Schedule, as of the date hereof, (a) there is no Action pending or, to the knowledge of Odyssey, threatened against Odyssey or Odyssey before any Governmental Authority that, if adversely determined, would prohibit, prevent, enjoin, restrict or materially impair or delay any of the Transactions, and (b) there is no Order against Odyssey that would prohibit, prevent, enjoin, restrict or materially impair or delay any of the Transactions contemplate hereby.
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ARTICLE IV
COVENANTS OF PREVACUS
Section 4.1 Conduct of Prevacus Pending the Closing.
Prevacus shall not, between the date of this Agreement and the Closing Date or the earlier termination of this Agreement, do or agree to do any of the following without the prior written consent of Odyssey:
(a) take or fail to take, or agree to take or fail to take, any action which would make any representation or warranty made by Prevacus herein untrue or incorrect in any material respect as of the date of this Agreement or the date of the Closing;
(b) sell, lease, license, encumber, transfer or otherwise dispose of any Purchased Assets; and
(c) agree to do any of the foregoing.
Section 4.2 Notification of Certain Events.
Prevacus shall give prompt notice to Odyssey if any of the following occurs after the date of this Agreement: (i) there has been a material failure of Prevacus to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it hereunder; (ii) receipt by Prevacus of any material notice or other communication from any Governmental Authority in connection with the Transactions; (iii) the occurrence of an event which would cause a condition in Section 7.2 not to be satisfied; or (iv) the commencement or threat, in writing, of any Action against Prevacus, or any of its properties, with respect to the Transactions and/or any of the Purchased Assets. No such notice to Odyssey shall have any effect on the determination of whether or not any of the conditions to Closing or to the consummation of the Transactions have been satisfied or in determining whether or not any of the representations, warranties or covenants contained in this Agreement have been breached.
ARTICLE V
COVENANTS OF ODYSSEY
Section 5.1 Representations and Warranties.
Odyssey covenants and agrees that, except as otherwise contemplated by this Agreement or unless Prevacus shall give its prior written consent, Odyssey shall not, between the date of this Agreement and the Closing Date or the earlier termination of this Agreement, take or fail to take, or agree to take or fail to take, any action which would make any representation or warranty made by Odyssey herein untrue or incorrect in any material respect.
Section 5.2 Notification of Certain Events.
Odyssey shall give prompt notice to Prevacus if any of the following occurs after the date of this Agreement: (i) there has been a material failure of Odyssey to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it hereunder; (ii) receipt by Odyssey of any material notice or other communication from any Governmental Authority in connection with the Transactions; (iii) the occurrence of an event which would cause a condition in Section 7.3 not to be satisfied; or (iv) the commencement or threat, in writing, of any Action against Odyssey, or any of its properties, with respect to the Transactions. No such notice to Prevacus shall have any effect on the determination of whether or not any of the conditions to Closing or to the consummation of the Transactions have been satisfied or in determining whether or not any of the representations, warranties or covenants contained in this Agreement have been breached.
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Section 5.3 Condition of Purchased Assets.
ODYSSEY ACKNOWLEDGES THAT IT IS A SOPHISTICATED INVESTOR IN ASSET PURCHASES OF THE TYPE CONTEMPLATED BY THIS AGREEMENT AND THAT ITS VALUATION OF AND DECISION TO PURCHASE THE PURCHASED ASSETS IS BASED UPON ITS OWN INDEPENDENT EXPERT EVALUATIONS OF SUCH FACTS AND MATERIALS DEEMED RELEVANT BY ODYSSEY. ODYSSEY ACKNOWLEDGES AND AGREES THAT, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN SECTION 2 ABOVE, PREVACUS HAS NOT MADE, AND PREVACUS HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATION, WARRANTY, GUARANTY, PROMISE, COVENANT OR AGREEMENT, IN EACH CASE WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING, OR WITH RESPECT TO THE PURCHASED ASSETS. ODYSSEY ACKNOWLEDGES AND AGREES THAT, HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PURCHASED ASSETS, ODYSSEY IS RELYING SOLELY ON ITS OWN INVESTIGATION OF THE PURCHASED ASSETS, AND NOT ON ANY MATERIALS AND OTHER INFORMATION PROVIDED OR TO BE PROVIDED BY PREVACUS EXCEPT FOR THE REPRESENTATIONS SET FORTH IN THIS AGREEMENT. ODYSSEY FURTHER ACKNOWLEDGES THAT ANY INFORMATION PROVIDED AND TO BE PROVIDED WITH RESPECT TO THE PURCHASED ASSETS WAS OBTAINED FROM A VARIETY OF SOURCES AND PREVACUS (i) HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION; AND (ii) MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. EXCEPT AS OTHERWISE EXPRESSLY SPECIFIED HEREIN, ODYSSEY AGREES TO ACCEPT THE PURCHASED ASSETS AND ACKNOWLEDGES THAT THE SALE OF THE PURCHASED ASSETS AS PROVIDED FOR HEREIN IS CONDITIONED ON THE FACT THAT THE PROPERTY IS "AS IS, WHERE IS AND WITH ALL FAULTS". WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ODYSSEY EXPRESSLY ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, PREVACUS MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE VALUE, NATURE, QUALITY OR CONDITION OF THE PURCHASED ASSETS (OR ANY PORTION THEREOF), (B) THE INCOME TO BE DERIVED FROM THE PURCHASED ASSETS (OR ANY PORTION THEREOF), (C) THE SUITABILITY OF THE PURCHASED ASSETS (OR ANY PORTION THEREOF) FOR ANY AND ALL ACTIVITIES AND USES WHICH ODYSSEY MAY CONDUCT THEREWITH, (D) THE COMPLIANCE OF OR BY THE PURCHASED ASSETS (OR ANY PORTION THEREOF) OR ITS USE WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (E) THE MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PURCHASED ASSETS (OR ANY PORTION THEREOF), (F) THE MANNER OR QUALITY OF THE OPERATIONSENABLED BY THE PURCHASED ASSETS (OR ANY PORTION THEREOF), (G) THE MANNER, QUALITY, OR STATE OF THE PURCHASED ASSETS (OR ANY PORTION THEREOF), (H) THE PAST, PRESENT OR FUTURE USE OF THE PURCHASED ASSETS (OR ANY PORTION THEREOF), (I) THE RELIABILITY, ACCURACY OR COMPLETENESS OF ANY OF THE PURCHASED ASSETS FOR THE USES INTENDED BY ODYSSEY; AND ODYSSEY HEREBY WAIVES ANY RIGHT TO MAKE ANY CLAIM BASED ON ANY OF THE FOREGOING.
ARTICLE VI
ADDITIONAL AGREEMENTS OF THE PARTIES
Section 6.1 Commercially Reasonable Efforts.
(a) Upon the terms and subject to the conditions hereof, each of the Parties agrees to use its commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and make effective as promptly as practicable the Transactions and to vest in Odyssey (and any transferee of Odyssey) good and marketable title to the Purchased Assets, including obtaining all consents, waivers, authorizations and approvals from Governmental Authorities and other third parties required for the consummation of the Transactions.
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(b) From time to time after the Closing, at the request of Odyssey (or any transferee of Odyssey) and at such requesting party’s expense, and without further consideration, Prevacus agrees on its own behalf, as well as on behalf of its subsidiaries, affiliates, successors, assigns and legal representatives, to execute and deliver to Odyssey any further documents or instruments and perform any further acts that may reasonably be deemed necessary to vest, record, perfect, support and/or confirm the rights herein conveyed, or intended so to be, to Odyssey (and any transferee of Odyssey) with respect to the Purchased Assets, including without limitation such assignments, agreements and limited powers of attorney as may be needed for recording or effectuating the transfer of the Purchased Assets in the United States. Nothing herein shall be deemed a waiver by Odyssey of its right to receive at the Closing an effective assignment of such rights by Prevacus as otherwise set forth in this Agreement. Without limiting the generality of the foregoing, Prevacus shall execute and deliver to Odyssey or obtain for delivery to Odyssey, at the request of Odyssey and at Odyssey’s expense, and without further consideration, any documents required to update record title to the owned Purchased Assets to reflect Odyssey (and any transferee of Odyssey) as the record owner in each jurisdiction in which such Purchased Assets exists. At the request of Odyssey and at Odyssey’s expense, and without further consideration, Prevacus shall reasonably cooperate with Odyssey (and any transferee of Odyssey) in connection with the registration of the Purchased Assets in jurisdictions outside of the United States.
(c) From time to time after the Closing, at the request of Odyssey and at Odyssey’s expense, and without further consideration, Prevacus shall assist Odyssey (and any transferee of Odyssey) to the extent reasonably necessary for the defense or prosecution of any claim by or against any third party with respect to the ownership, validity, enforceability, infringement or other violation of or by the Purchased Assets, so long as Prevacus is not named as a party adverse to the Odyssey in any such proceeding.
Section 6.2 Public Announcements.
Each of the Parties agrees that a press release or announcement concerning this Agreement or the Transactions shall be issued by it. Such release or announcement may also be required by applicable Law or the rules or regulations of any securities exchange.
ARTICLE VII
CONDITIONS TO THE CLOSING
Section 7.1 Conditions to Obligations of Each Party.
The respective obligations of each Party to consummate the Transactions shall be subject to the condition that no Governmental Authority shall have enacted, issued, promulgated, enforced, initiated, or entered any Law or Order (whether temporary, preliminary or permanent) that is then in effect and has the effect of making the Transactions illegal or otherwise preventing or prohibiting consummation of the Transactions.
Section 7.2 Additional Conditions to Obligations of Odyssey.
The obligation of Odyssey to consummate the Transactions shall also be subject to the satisfaction or waiver (where permissible), on or prior to the Closing Date, of each of the following conditions:
(a) The representations and warranties of Prevacus set forth in Article II of this Agreement (i) that are qualified by the words “material” or “material adverse effect” shall be true and correct in all respects on and as of the Closing Date as if made on and as of such date and (ii) that are not so qualified shall be true and correct in all material respects on and as of the Closing Date as if made on and as of such date, except in any such case (x) for changes contemplated by this Agreement and by the Prevacus Disclosure Schedule, and (y) to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall remain true and correct (in all material respects, as the case may be) as of such date.
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(b) Prevacus shall in all material respects have performed or complied with each obligation and covenant to be performed or complied with by Prevacus hereunder on or prior to the Closing Date, including the deliveries under Section 1.4(b).
(c) Odyssey shall have received a certificate of Prevacus, dated the Closing Date, signed by an officer of Prevacus, to the effect that the conditions specified in Sections 7.2(a) and (b) have been satisfied.
Section 7.3 Additional Conditions to Obligations of Prevacus.
The obligation of Prevacus to consummate the Transactions shall also be subject to the satisfaction or waiver (where permissible), on or prior to the Closing Date, of each of the following conditions:
(a) The representations and warranties of Odyssey set forth in Article III of this Agreement shall be true and correct in all material respects on and as of the Closing Date as if made on and as of such date, except in any such case (x) for changes contemplated by this Agreement and by the Odyssey Disclosure Schedule, and (y) to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall remain true and correct (in all material respects, as the case may be) as of such date.
(b) Odyssey shall in all material respects have performed or complied with each obligation and covenant to be performed or complied with by it hereunder on or prior to the Closing Date, including the deliveries under Section 1.4(c).
(c) Prevacus shall have received a certificate of Odyssey, dated the Closing Date, signed by an executive officer of Odyssey, to the effect that the conditions specified in Sections 7.3(a) and (b) have been satisfied.
ARTICLE VIII
TERMINATION
Section 8.1 Termination.
This Agreement may not be terminated at any time prior to the Closing Date except:
(a) By mutual written consent of Odyssey and Prevacus;
(b) by either Prevacus or Odyssey, if the Closing shall not have occurred on or before July 31, 2019 (the “Outside Date”); provided, however, that the right to terminate this Agreement under this Section 8.1(b) shall not be available to any Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Transactions to be consummated on or before the Outside Date;
(c) by either Prevacus or Odyssey if any Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Law or Order that is, in each case, then in effect and is final and non-appealable and has the effect of making the Transactions illegal or otherwise preventing or prohibiting consummation of the Transactions; provided, however, that the right to terminate this Agreement under this Section 8.1(c) shall not be available to any Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, any such Law or Order to have been enacted, issued, promulgated, enforced or entered;
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(d) by Odyssey (if Odyssey is not in material breach of any of the terms or conditions of this Agreement), if there has been a material breach by Prevacus of any terms or conditions of this Agreement, or if any representation or warranty of Prevacus shall have become inaccurate, in either case that would result in a failure of a condition set forth in Section 7.2(a) or 7.2(b) (a “Terminating Prevacus Breach”); provided, that if such Terminating Prevacus Breach is reasonably curable by Prevacus, within 30 days after Prevacus has received written notice from Odyssey of such Terminating Prevacus Breach, through the exercise of its commercially reasonable efforts and for as long as Prevacus continues to exercise such commercially reasonable efforts, Odyssey may not terminate this Agreement under this Section 8.1(d) until the earlier of the expiration of such 30-day period and the Outside Date; and
(e) by Prevacus (if Prevacus is not in material breach of any of its representations, warranties, covenants or agreements under this Agreement), if there has been a material breach by Odyssey of any of terms or conditions of this Agreement, or if any representation or warranty of Odyssey shall have become inaccurate, in either case that would result in a failure of a condition set forth in Section 7.3(a) or 7.3(b) (a “Terminating Odyssey Breach”); provided, that if such Terminating Odyssey Breach is reasonably curable by Odyssey, within 30 days after Odyssey has received written notice from Prevacus of such Terminating Odyssey Breach, through the exercise of its commercially reasonable efforts and for as long as Odyssey continues to exercise such commercially reasonable efforts, Prevacus may not terminate this Agreement under this Section 8.1(e) until the earlier of the expiration of such 30-day period and the Outside Date.
Section 8.2 Effect of Termination.
In the event of the termination of this Agreement pursuant to Section 8.1, this Agreement shall forthwith become void, and there shall be no liability on the part of any Party hereto or any of their respective Affiliates or the directors, officers, partners, members, managers, employees, agents or other representatives of any of them, and all rights and obligations of each Party hereto shall cease, except that nothing herein shall relieve any Party from liability for any breach of this Agreement committed before such termination. Without limiting the foregoing, Section 6.2, this Section 8.2 and Article X shall survive the termination of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, nothing shall limit or prevent any Party from exercising any rights or remedies it may have under Section 10.9 hereof in lieu of terminating this Agreement pursuant to Section 8.1. Notwithstanding anything to the contrary contained in this Agreement, nothing shall limit or prevent any Party from exercising any rights or remedies it may have under any of the agreements attached as Exhibits to this Agreement, whether or not this Agreement has been terminated.
ARTICLE IX
INDEMNIFICATION PROVISIONS
Section 9.1 Prevacus Indemnification Obligation.
Prevacus agrees that, from and after the Closing, it shall indemnify, defend and hold harmless Odyssey and their respective officers, directors, Affiliates, partners, members, managers, employees, agents and other representatives (“Odyssey Indemnified Parties”) from and against any damages, claims, losses, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) (each, a “Liability” and, collectively, “Liabilities”) incurred by any of the foregoing Persons arising out of (a) any misrepresentation in or breach of any representation or warranty of Prevacus contained in Article II of this Agreement and/or (b) any breach of any covenant or agreement of Prevacus contained in this Agreement, and/or (c) any action, suit, litigation, proceeding at law or in equity, arbitration or governmental investigation against, or threatened against, Odyssey relating to any pre-Closing matter regarding the Purchased Assets, except in all cases to the extent any Liabilities arise out of any breach of the Odyssey's representations, warranties, covenants or agreements set forth in this Agreement.
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Section 9.2 Odyssey’s Indemnification Obligation.
Odyssey agrees that, from and after the Closing, it shall indemnify, defend and hold harmless Prevacus and its officers, directors, Affiliates, partners, members, managers, employees, agents and other representatives (“Prevacus Indemnified Parties”) from and against any Liabilities incurred by any of the foregoing Persons arising out of (a) any misrepresentation in or breach of any representation or warranty of Odyssey contained in Article III of this Agreement, (b) any breach of any covenant or agreement of Odyssey contained in this Agreement, or (c) any action, suit, litigation, proceeding at law or in equity, arbitration or governmental investigation against, or threatened against, Prevacus relating to any post-Closing matter regarding the Purchased Assets, except in all cases to the extent any Liabilities arise out of any breach of the Prevacus's representations, warranties, covenants or agreements set forth in this Agreement.
Section 9.3 Procedures for Indemnification for Third Party Claims.
For purposes of this Article IX, any Party entitled to be indemnified under Article IX is referred to herein as an “Indemnified Party,” and any Party obligated to provide indemnification under Article IX is referred to herein as an “Indemnifying Party.” The obligations and liabilities of the Parties under this Article IX with respect to, relating to or arising out of claims of third parties (individually, a “Third Party Claim” and, collectively, the “Third Party Claims”) shall be subject to the following terms and conditions:
(a) The Indemnified Party shall give the Indemnifying Party prompt written notice of any Liability regarding which it seeks indemnification. In the event a Liability is the result of a Liability asserted against the Indemnified Party by a third-party to this Agreement (a “Third Party Claim”), the Indemnifying Party may undertake the defense of that claim by representatives chosen by it with the written consent of the Indemnified Party, which consent may not be unreasonably withheld, conditioned or delayed, provided, that, in such event, the Indemnified Party will have the right to participate in such defense through counsel of its own choice. Any such notice of a Liability shall identify with reasonable specificity the basis for the indemnification claimed, the facts giving rise to the Liability and the amount of the Liability (or, if such amount is not yet known, a reasonable estimate of the amount of the Liability). The Indemnified Party shall make available to the Indemnifying Party copies of all relevant documents and records in its possession at the expense of the Indemnifying Party. Failure of an Indemnified Party to give prompt notice shall not relieve the Indemnifying Party of its obligation to indemnify, except to the extent that the failure to so notify materially prejudices the Indemnifying Party’s ability to defend such claim against a third party.
(b) If the Indemnifying Party, within ten (10) days after notice from the Indemnified Party of any such Liability, notifies the Indemnified Party in writing of its election not to, or fails to, assume the defense thereof in accordance with Section 9.3(a) of this Agreement, the Indemnified Party shall have the right (but not the obligation) to undertake the defense of the Liability. Any failure on the part of the Indemnifying Party to notify the Indemnified Party within the time period provided above regarding its election shall be deemed an election by the Indemnifying Party not to assume and control the defense of the Liability.
(c) Anything in this Section 9.3 to the contrary notwithstanding, the Indemnifying Party shall not, and does not have any authority to, without the prior written consent of the Indemnified Party, settle or compromise any Liability or consent to the entry of judgment which does not include as an unconditional term thereof the unconditional release of the Indemnified Party, or consent to the entry of judgment with respect thereto, any Liability regarding which it has delivered notice of a claim for indemnification to the Indemnifying Party, without first obtaining the written consent of the Indemnifying Party (which shall not be unreasonably withheld or delayed). An Indemnifying Party shall be deemed to have consented to a settlement, compromise, payment or judgment by the Indemnified Party if it does not respond to written notice from the Indemnified Party seeking such consent within ten (10) days after delivery of such notice to the Indemnifying Party.
Section 9.4 Indemnification Limitations.
(a) Time Limits On Indemnification. No claim on account of a breach or inaccuracy of a representation or warranty shall be made after the expiration of the survival periods referred to in Section 10.1 of this Agreement. Notwithstanding the foregoing, if a written claim or written notice is given under Article IX with respect to any representation or warranty prior to the expiration of its survival period, the claim with respect to such representation or warranty shall continue until such claim is finally resolved.
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(b) Limitations on Damages.
(i) In no event shall Prevacus be liable for indemnification pursuant to Section 9.1(a) unless and until the aggregate of all Liabilities which are incurred or suffered by the Odyssey Indemnified Parties exceeds $50,000 (the “Basket”), in which case the Odyssey Indemnified Parties shall be entitled to indemnification for all such Liabilities including the Basket (subject to Section 9.4(b)(ii)). In no event shall Odyssey be liable for indemnification pursuant to Section 9.2(a) unless and until the aggregate of all Liabilities which are incurred or suffered by the Prevacus Indemnified Parties exceeds the Basket, in which case the Prevacus Indemnified Parties shall be entitled to indemnification for all such Liabilities including the Basket (subject to Section 9.4(b)(ii)).
(ii) Notwithstanding anything to the contrary in this Agreement, the maximum aggregate liability of Prevacus pursuant to Section 9.1(a) shall not exceed (1) the amount of money actually paid to and received by the Prevacus from the Odyssey and Odyssey or their Affiliates pursuant to the terms of this Agreement and any of the Agreements attached as Exhibits hereto as of the date the notice of requested indemnification is delivered to the Prevacus, less (2) any amounts of money currently due the Prevacus from the Odyssey, Odyssey or their Affiliates pursuant to the terms of this Agreement and any of the Agreements attached as Exhibits hereto. For purposes of this provision, the right to purchase Odyssey stock at its par value or the shares, if purchased, shall be valued at the greater of its book value or its then current market price.
The maximum aggregate liability of Odyssey pursuant to Section 9.2(a) shall not exceed $7,500,000.
(iii) Notwithstanding anything to the contrary contained in this Agreement or otherwise, no Party to this Agreement shall be liable to any Indemnified Party for any special, incidental, punitive, consequential or similar damages except, in the event a Third Party Claim results in a judgment against an Indemnified Party by the third-party claimant, then such damages shall be included in the amount of indemnification due the Indemnified Party.
Section 9.5 Exclusive Remedy.
The remedies provided in this Article IX shall be the sole and exclusive remedies of the Parties with respect to the matters arising from or related to this Agreement or the Transactions, except that nothing herein shall prevent a Party from seeking specific performance pursuant to Section 10.9, subject to the provisions thereof, including with respect to the obligations in Section 6.1.
ARTICLE X
GENERAL PROVISIONS
Section 10.1 Survival of Representations and Warranties.
The representations and warranties made by Prevacus in Article II of this Agreement shall survive until the date that is fifteen (15) months after the Closing Date. The representations and warranties made by Odyssey in Article III of this Agreement shall survive until the date that is fifteen (15) months after the Closing Date.
Section 10.2 Notices.
All notices and other communications under this Agreement shall be in writing and shall be deemed given (a) when delivered personally by hand (with written confirmation of receipt) or (b) one Business Day following the day sent by nationally-recognized overnight courier (with written confirmation of receipt), in each case at the following addresses (or to such other address as a Party may have specified by notice given to the other Party pursuant to this provision)
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| (a) | if to Odyssey: | |
Odyssey Group International, Inc. 1327 Morse Ave Irvine, CA 90401 Attention: Michael Redmond | ||
| (b) | Prevacus | |
| Jake VanLandingham. |
with a copy to:
Any notice or other communication that has been given or made as of a date that is not a Business Day shall be deemed to have been given or made on the next succeeding day that is a Business Day.
Section 10.3 Headings.
The headings contained in this Agreement and the disclosure schedules are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement or the disclosure schedules. Unless the context of this Agreement otherwise requires, words of any gender are deemed to include each other gender and words using the singular or plural number also include the plural or singular number, respectively.
Section 10.4 Entire Agreement.
This Agreement, together with the exhibits and schedules attached hereto, constitutes the entire agreement, and supersede all prior agreements and undertakings, both written and oral, between the Parties with respect to the subject matter hereof. There are no agreements, commitments, promises, or representations that are not contained herein.
Section 10.5 Assignment: Parties in Interest.
This Agreement and any rights or obligations hereunder can be assigned by any Party without the prior written consent of the other Party. This Agreement shall be binding upon and inure solely to the benefit of each Party hereto and its successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to confer upon any other Person any rights or remedies of any nature whatsoever under this Agreement, other than Article IX hereof (which is intended to be for the benefit of the Persons covered thereby and may be enforced by such Persons).
Section 10.6 Governing Law; Consent to Jurisdiction.
This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Florida applicable to contracts executed in and to be performed entirely in that State, without regard to conflicts of Laws principles thereof to the extent that the general application of the Laws of another jurisdiction would be required thereby.
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Section 10.7 Counterparts.
This Agreement may be executed and delivered (including by facsimile transmission or .pdf) in one or more counterparts, and by the Parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
Section 10.8 Severability.
In case any provision in this Agreement shall be held invalid, illegal or unenforceable in a jurisdiction, such provision shall be modified or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other jurisdiction.
Section 10.9 Specific Performance.
The Parties hereto 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. Accordingly, the Parties further agree that each Party shall be entitled to seek an injunction or restraining order to prevent breaches of this Agreement and to seek to enforce specifically the terms and provisions hereof, this being in addition to any other right or remedy to which such Party may be entitled under this Agreement, at law or in equity.
Section 10.10 Fees and Expenses.
All fees, costs and expenses incurred in connection with this Agreement and the Transactions shall be paid by the Party incurring the same, regardless of the termination, if any, of this Agreement pursuant to Section 8.1. Notwithstanding the foregoing, in the event the Parties engage in litigation relating to or arising out of this Agreement or the performance thereof, the Parties agree that the Court shall be asked to determine which Party is the prevailing Party to the proceeding or proceedings, and the non-prevailing Party or Parties shall, jointly and severally, be liable to the prevailing Party in the amount of all reasonable attorney’s fees, court costs, and all other expenses, incurred by the prevailing Party to the proceeding in addition to any other relief to which the prevailing Party may be entitled.
Section 10.11 Amendment.
This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written agreement executed by Odyssey, Odyssey, and Prevacus.
Section 10.12 Waiver.
At any time prior to the Closing Date, any Party hereto may (a) extend the time for the performance of any of the obligations or other acts of the other Party hereto, (b) waive any inaccuracies in the representations and warranties contained herein or in any document delivered pursuant hereto and (c) waive compliance with any of the agreements or conditions contained herein. Any such extension or waiver shall be valid if set forth in an instrument in writing signed by the Parties hereto. The failure of any Party hereto to assert any of its rights hereunder shall not constitute a waiver of such rights.
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ARTICLE XI
CERTAIN DEFINITIONS
For purposes of this Agreement, the term:
“Action” shall have the meaning ascribed to it in Section 2.4.
“Affiliate” of a Person means a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified. “Agreement” shall have the meaning ascribed to it in the preamble.
“Business Day” means any calendar day which is not a Saturday, Sunday or federal holiday.
“Odyssey” shall have the meaning ascribed to it in the Preamble.
“Odyssey Disclosure Schedule” shall have the meaning ascribed to it in the preamble to Article III.
“Closing” shall have the meaning ascribed to it in Section 1.4(a).
“Closing Date” shall have the meaning ascribed to it in Section 1.4(a).
“Control” (including the terms “Controlled by” and “under common Control with”) means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, as trustee or executor, by contract or credit arrangement or otherwise.
“Data” means all information gathered in the use or operation of any of the Purchased Assets that identifies or describes an individual or an individual’s record of behavior or action, including without limitation, name, telephone, postal address, phone number, email, date of birth, gender, or any other information identifiable to a specific person, including “personal health information” as that term is defined in the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), as amended, to the extent such information exists as of the Closing Date.
“Encumbrance” means any charge, claim, community property interest, condition, easement, covenant, warrant, demand, encumbrance, equitable interest, lien, mortgage, option, purchase right, pledge, security interest, right of first refusal or other right of third parties or restriction of any kind, including any restriction on use, voting, transfer, receipt of income or exercise of any other attribute of ownership.
“Exchange Act” shall have the meaning ascribed to it in Section 2.3.
“Governmental Authority” means any United States federal, state or local government, governmental, regulatory or administrative authority, agency, self-regulatory body, instrumentality or commission, and any court, tribunal or judicial or arbitral body (including private bodies) and any political or other subdivision, department or branch of any of the foregoing.
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“Indemnified Party” shall have the meaning ascribed to it in Section 9.3.
“Indemnifying Party” shall have the meaning ascribed to it in Section 9.3.
“Intellectual Property” means all United States and foreign intellectual property and all other similar proprietary rights, including all (i) patents and patent applications, including divisionals, continuations, continuations-in-part, reissues, reexaminations and extensions thereof and counterparts claiming priority therefrom; utility models; invention disclosures; and statutory invention registrations and certificates; (ii) registered, pending and unregistered trademarks, service marks, trade dress, logos, trade names, corporate names and other source identifiers, domain names, Internet sites and web pages; and registrations and applications for registration for any of the foregoing, together with all of the goodwill associated therewith; (iii) registered copyrights, and registrations and applications for registration thereof; rights of publicity; and copyrightable works; (iv) all inventions and design rights (whether patentable or unpatentable) and all categories of trade secrets as defined in the Uniform Trade Secrets Act, including business, technical and financial information; and (v) confidential and proprietary information, including know-how.
“Prevacus’s Knowledge” shall have the meaning ascribed to it in Section 2.6.
“Laws” means any federal, state or local statute, law, rule, ordinance, code or regulation of any Governmental Authority.
“Liability” and, collectively, “Liabilities” shall have the meaning ascribed to it in Section 9.1.
“Order” shall have the meaning ascribed to it in Section 2.4.
“Outside Date” shall have the meaning ascribed to it in Section 8.1(b).
“Parties” shall have the meaning ascribed to it in the preamble.
“Patent(s) means: The patents and Patent Applications described on Exhibit “A”.
“Patent Assignment” means the Patent Assignment Agreement whereby, as part of this Agreement, Prevacus assigns Patent and Patent applications described on Exhibit “A”.
“Permitted Encumbrance” means: (i) statutory liens for Taxes, assessments and governmental charges or levies not yet due and payable or that are being contested in good faith by appropriate proceedings; (ii) mechanics’, materialmen’s, carriers’, warehousemen’s or similar statutory liens for amounts not yet due or being diligently contested in good faith in appropriate proceedings; and (iii) pledges or deposits to secure obligations under workers’ compensation laws or similar legislation or to secure public or statutory obligations.
“Person” means an individual, corporation, partnership, limited liability company, association, trust, unincorporated organization or other entity.
“Purchase Price” shall have the meaning ascribed to it in Section 1.3.
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“Purchased Assets” shall have the meaning ascribed to it in Section 1.1.
“Prevacus” shall have the meaning ascribed to it in the Preamble.
“Prevacus Disclosure Schedule” shall have the meaning ascribed to it in the preamble to Article II.
“Subsidiary” means any Person with respect to which a specified Person directly or indirectly (A) owns a majority of the equity interests, (B) has the power to elect a majority of that Person’s board of directors or similar governing body, or (C) otherwise has the power, directly or indirectly, to direct the business and policies of that Person.
“Tax” or “Taxes” means any and all taxes, fees, levies, duties, tariffs, imposts and other charges of any kind (together with any and all interest, penalties, additions to tax and additional amounts imposed with respect thereto) imposed by any Governmental Authority, including: taxes or other charges on or with respect to income, franchise, windfall or other profits, gross receipts, property, sales, use, equity interests, payroll, employment, social security, workers’ compensation, unemployment compensation or net worth; taxes or other charges in the nature of excise, withholding, ad valorem, stamp, transfer, value-added or gains taxes; license, registration and documentation fees; and customers’ duties, tariffs and similar charges.
“Terminating Odyssey Breach” shall have the meaning ascribed to it in Section 8.1(e).
“Terminating Prevacus Breach” shall have the meaning ascribed to it in Section 8.1(d).
“Third Party Claim” and, collectively, “Third Party Claims” shall have the meaning ascribed to it in Section 9.3.
“Transactions” shall have the meaning ascribed to it in Section 2.2.
[Signature page follows]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed as of the date first written above.
| PREVACUS: | ||
| By: | /s/ Jake VanLandingham | |
Name: Title: |
Jake VanLandingham President | |
| ODYSSEY: | ||
| By: | /s/ J. Michael Redmond | |
| Name: | J. Michael Redmond | |
| Title: | President | |
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Exhibit “A”
PURCHASED ASSETS
Families |
Matter-No | Case | Appl | Publish Patent | Appl | Country Name Filing Date | Publ Date | Inventor |
| Type | Number | Number | Status |
| (1) | PROPHYLACTIC AND POST-ACUTE USE OF PROGESTERONE IN CONJUNCTION WITH ITS ENANTIOMER FOR USE |
IN TREATMENT OF TRAUMATIC BRAIN INJURIES
| (2) | SYNTHESIS OF ENT-PROGESTERONE AND INTERMEDIATES THEREOF |
| FSURF/ | 48691-504/P01 | PRO | 61/790,366 | Converted | USA | 15-Mar-2013 |
CRAN | |
| PREVACUS | 48691-504/001 | ORD | 14/214,864 | US-2014-0275572-A1 | Published | USA | 15-Mar-2014 | 18-Sept-2014HAN |
| 48691-504/001 | ORD | PCT/US2014/030040 | WO 2014/145302 | Inactive | PCT | 15-Mar-2014 |
18-Sept-2014 ZHANG | |
| 48691-504/C01 | CON | 14/855,072 | Pending | USA | 15-Sep-2015 | |||
| 48691-504/N01 | PCT | 14/777,267 | Pending | USA | 15-Sep-2015 | |||
| 48691-504/N01 | PCT | 2014-233156 | Pending | Australia | 15-Mar-2014 | |||
| 48691-504/N01 | PCT | BR112015022794-5 | Pending | Brazil | 15-Mar-2014 | |||
| 48691-504N01 | PCT | 2907320 | Pending | Canada | 15-Mar-2014 | |||
| 48691-504/N01 | PCT | 201502766 | Pending | Chile | 15-Mar-2014 | |||
| 48691-504/N01 | PCT | 2014-80026814.0 | Pending | China | 15-Mar-2014 | |||
| 48691-504/N01 | PCT | 201591790 | Pending | Eurasia | 15-Mar-2014 | |||
| 48691-504/N01 | PCT | 14764927.1 | 2968576 | Published | EPO | 15-Mar-2014 | 20-Jan-2016 | |
| 48691-504/N01 | PCT | 5408/CHENP/2015 | Pending | India | 15-Mar-2014 | |||
| 48691-504/N01 | PCT | 241348 | Pending | Israel | 15-Mar-2014 | |||
| 48691-504/N01 | PCT | Pending | Japan | 15-Mar-2014 | ||||
| 48691-504/N01 | PCT | 10-2015-7029352 | Pending | Korea | 15-Mar-2014 | |||
| 48691-504/N01 | PCT | MX/a/2015/012902 | Pending | Mexico | 15-Mar-2014 | |||
| 48691-504/N01 | PCT | 712624 | Pending | New Zealand | 15-Mar-2014 | |||
| 48691-504/N01 | PCT | 2009-2015 | Pending | Peru | 15-Mar-2014 | |||
| 48691-504/N01 | PCT | 2015/06787 | Pending | South Africa | 15-Mar-2014 |
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Exhibit “B”
FORM OF EMPLOYMENT AGREEMENT
This Employment Agreement (“Agreement”), dated as of ______ (the “Effective Date”), is made by and among Jacob VanLandingham (“Executive”) with an address at _________________ and LLC. a Florida Company with an address at________________________________ or any successor company, (the “Company”).
WHEREAS, Executive will be employed by the Company as its President and will maintain a position on the Company’s Board; and
WHEREAS, the Company desires to enter into an employment agreement with Executive, which employment agreement will have a term from ______ through ______; and
WHEREAS, the agreed upon terms and conditions of Executive’s continued employment are embodied in this Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and Executive do hereby agree as follows:
Section 1. Employment and Duties. On the terms and subject to the conditions set forth in this Agreement, the Company agrees to employ Executive and Executive agrees to render such services as would be customary in developing an orphan drug.
Section 2. Performance.
(a) Executive accepts the employment as set forth in Section 1 herein and agrees to concentrate such time, attention and skill as may be necessary to assure the full performance of the services described therein.
Section 3. Term/Termination.
3.1 Term. The term of employment under this Agreement (the “Employment Period”) shall commence on ______ and terminate on July 31, 2022, unless earlier terminated pursuant to the termination provisions set forth herein. Notwithstanding anything to the contrary herein, the parties acknowledge and agree that the Company may only terminate Executive’s employment for Due Cause (as hereinafter defined).
3.2 Termination for Due Cause. The Company may only terminate the Employment Period for Due Cause. The Company, by a vote of a majority of the Board of Directors (a “Termination Vote”) may terminate the Employment Period for Due Cause, effective upon written notice of such termination to Executive only in the event of Due Cause as defined by (i) the dissolving, recession or bankruptcy of the LLC;
(ii) violations of the law by Executive for theft or embezzlement of property of the Company and/or conviction by Executive of a felony crime resulting in a material injury to the businesses, properties of the Company or any of its affiliates; (iii) violations of any laws or regulations relating to the Securities and Exchange Commission. All compensation paid to Executive shall immediately cease upon termination for Due Cause hereunder except accrued and unpaid compensation and all unvested Stock Options shall immediately expire.
3.3 Termination Due to Death. The Employment Period shall be terminated upon the death of Executive. All compensation paid to Executive shall immediately cease upon such termination except for accrued and unpaid compensation pursuant to Section 4.1 herein and earned but unpaid bonus payments pursuant to Section 4.2 herein. All unvested Stock Options shall immediately become vested.
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3.4 Termination Due to Permanent Total Disability. The Employment Period shall be terminated upon the Permanent Total Disability (as defined in this Section 3.4) of Executive following written notice from the Company. Permanent Total Disability is defined as an inability by Executive to perform substantially all of the services required pursuant to this Agreement for a continuous period of one hundred eighty (180) days when such inability is caused by illness or a physical or mental disability. Such Permanent Total Disability shall be determined by a physician selected jointly by the parties hereto.
3.5 Termination Other Than Due Cause, Death, Disability or Resignation. In the event that Executive’s employment is terminated for reasons other than Due Cause, death, Permanent Total Disability or resignation, then all Stock grants not fully vested are immediately vested. The Company shall pay severance compensation, to Executive equal to twelve months salary compensation at his then annual salary compensation rate. Any severance compensation paid to Executive shall be paid ratably over the remaining payment period following termination.
3.6 Termination by Executive. Executive may terminate the Employment Period at Executive’s convenience upon thirty days written notice.
3.7 Surrender of Position and Properties. Upon termination of Executive’s employment with the Company, regardless of the cause therefore, Executive shall promptly be deemed to have resigned from the Company’s Board of Directors and as an officer and director of any of the Company’s affiliates, if serving as such at that time, and shall surrender to the Company or its affiliates all property provided to him by the Company.
3.8 Survival of Covenants. The covenants of Executive set forth in Section 5 and 6 herein shall survive the termination of the Employment Period or termination of this Agreement.
Section 4. Compensation/Expenses.
4.1 Salary. In exchange for the services to be rendered by Executive hereunder, the Company agrees to pay, after raising a minimum of $500,000.00 for the LLC to operate, a salary at a rate of;
Salary:
$300,000 per year
Salary will be paid bi-weekly.
4.2 Business Expenses. Executive shall be reimbursed for business-related expenses that Executive incurs pursuant to employment with the Company, such expenses to be timely submitted with supporting documentation and other substantiation of such expenses that conform to the reporting requirements of the Company and requirements of the Internal Revenue Service. Company will reimburse expenses to Executive within thirty days of receipt.
Section 5. Confidentiality.
5.1 Confidentiality. At any time during the Term of this Agreement , Executive shall not disclose or make any use of, for his own benefit or for the benefit of a business or entity other than the Company or its affiliates, any secret or Confidential Information, lists of customers and prospective customers or any other information of or pertaining to the Company or its affiliates that is not generally known within the trade of the Company or its affiliates or which is not publicly available.
Confidential Information. For purposes of this Agreement, the term "Confidential Information" shall mean Information regarding Company's business including, Information regarding cardiac related medical device products for determining EKG, processing and manufacturing capabilities of the EKG device.
Exceptions to Confidentiality Obligations. The obligations of this Agreement shall not apply to Confidential Information which:
1. is or becomes publicly available
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Section 6. Indemnification. In addition to any rights Executive may have under the Company's charter or by-laws, the Company agrees to indemnify Executive and hold Executive harmless, both during the Term and thereafter, against all costs, expenses (including, without limitation, fines, excise taxes and attorneys' and accountants’ fees) and liabilities (other than settlements to which the Company does not consent, which consent shall not be unreasonably withheld) (collectively, "Losses") reasonably incurred by Executive in connection with any claim, action, proceeding or investigation brought against or involving Executive with respect to, arising out of or in any way relating to Executive's employment with the Company or Executive's service as a director of the Company; provided, however, that the Company shall not be required to indemnify Executive for Losses incurred as a result of Executive's intentional misconduct or gross negligence (other than matters where Executive acted in good faith and in a manner he reasonably believed to be in and not opposed to the Company's best interests). Executive shall promptly notify the Company of any claim, action, proceeding or investigation under this paragraph and the Company shall be entitled to participate in the defense of any such claim, action, proceeding or investigation and, if it so chooses, to assume the defense with counsel selected by the Company; provided that Executive shall have the right to employ counsel to represent him (at the Company's expense) if Company counsel would have a "conflict of interest" in representing both the Company and Executive. The Company shall not settle or compromise any claim, action, proceeding or investigation without Executive's consent, which consent shall not be unreasonably withheld; provided, however, that such consent shall not be required if the settlement entails only the payment of money and the Company fully indemnifies Executive in connection therewith. The Company further agrees to advance any and all expenses (including, without limitation, the fees and expenses of counsel) reasonably incurred by the Executive in connection with any such claim, action, proceeding or investigation. The Company, as soon as reasonably possible, will maintains a policy of directors' and officers' liability insurance covering Executive and, notwithstanding the expiration or earlier termination of this Agreement, the Company shall maintain a directors' and officers' liability insurance policy covering Executive for a period of time following such expiration or earlier termination equal to the statute of limitations for any claim that may be asserted against Executive for which coverage is available under such directors' and officers' liability insurance policy. The provisions of this paragraph shall survive the termination of this Agreement for any reason.
Section 7. Notice. Any notice required or permitted hereunder shall be made in writing (i) either by actual delivery of the notice into the hands of the party hereunder entitled, or (ii) by the mailing of the notice in the United States mail, certified mail, return receipt requested, Federal Express, United Parcel Service with all postage prepaid and addressed to the party to whom the notice is to be given at the party’s respective address set forth below, or such other address as the parties may from time to time designate by written notice as provided herein and (iii) via email to the email addresses provided by the Parties below. Notice will hereby be deemed to be satisfied via the delivery of any of the methods listed above.
If to the Company:
Attn: LLC
If to Executive:
Jacob VanLandingham
The notice shall be deemed to be received in case (i) on the date of actual receipt by the party and in case (ii) three days following the date of the mailing.
Section 8. Amendment and Waiver. No amendment or modification of this Agreement shall be valid or binding upon: (i) the Company unless made in writing and signed by an officer of the Company, duly authorized by the Board of Directors of the Company or; (ii) Executive unless made in writing and signed by him. The waiver by the Company or Executive of the breach of any Provision of this Agreement by the other party shall not operate or be construed as a waiver of any subsequent breach of such party.
Section 9. Governing Law. (a) The validity and effect of this Agreement and the rights and obligations of the parties hereto shall be governed by, and construed in accordance with, the laws of the State of Florida.
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Section 10. Entire Agreement. This Agreement contains all of the terms agreed upon by the parties with respect to the subject matter hereof and supersedes all prior agreements, arrangements and communications between the parties dealing with such subject matter, whether oral or written, but limited to the Employment Period.
Section 11. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the transferees, successors and assigns of the Company, including any company or entity with which the Company may merge or consolidate.
Section 12. Headings. Numbers and titles to paragraphs hereof are for information purposes only and, where inconsistent with the text, are to be disregarded.
Section 13. Severability – General. If any provision of this Agreement or the application of any such provision to any person or circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision hereof
Section 14. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which together shall be deemed to be one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the date first set forth above.
| Company | Executive | |
| By: ______________________ | By: ______________________ | |
| Printed: | Printed: | |
| Title: | ||
| Date: _____________________ | Date: _____________________ | |
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Exhibit “C”
SHARE EXCHANGE AGREEMENT
This Share Exchange Agreement (this "Agreement") is entered into as of June 26 2019, by and among Odyssey, Inc., a Nevada corporation ("Odyssey"), and Prevacus, Inc. a Delaware corporation, ("Prevacus") Odyssey, are sometimes hereinafter referred to individually as a “Party” and together as the “Parties.”
RECITALS
A. Whereas, Prevacus is a Delaware corporation that is engaged in the business of identifying, developing and commercializing chemical drug compounds for treatment of brain related medical issues.
B. Whereas, Prevacus Stockholders hold all of the issued and outstanding capital stock of Prevacus.
C. Whereas, Odyssey is a reporting corporation presently subject to the reporting requirements as provided by Section 13 and 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”). The common stock of Odyssey is presently quoted on the OTC Bulletin Board under the symbol “ODYY.”
D. Whereas, Odyssey and Prevacus have each agreed to the acquisition by Odyssey of the equitable and other legal rights, title and interests in and to one-million (1,000,000) shares of Prevacus stock and by Prevacus of the equitable and other legal rights, title and interests in three-million (3,000,000) shares of Odyssey stock pursuant to a voluntary share exchange transaction (the "Share Exchange"), and the other transactions provided herein and have adopted this Agreement, in each case after determining that the Share Exchange and the consummation of the other transactions contemplated herein are advisable, fair to, and in the best interests of Odyssey, Prevacus and, their respective stockholders;
E. Whereas, in order to implement their common long-term business and financial goals, the Parties to this Agreement desire to implement a strategy through which the drug development of a chemical compound known as a neurosteroid will become the asset of a joint venture company owned equally by Prevacus and Odyssey,
F. Whereas, in furtherance thereof, the Board of Directors of Odyssey has approved the Share Exchange in accordance with the applicable provisions of the Nevada Revised Statutes (“NRS”) and upon the terms and subject to the conditions set forth herein;
G. Whereas, in furtherance thereof, the Board of Directors and the Prevacus have approved the Share Exchange in accordance with the applicable provisions of the laws of the State of Delaware and upon the terms and subject to the conditions set forth herein; and
H. Whereas, for United States federal income tax purposes, the parties intend that the Share Exchange shall constitute a tax-free reorganization within the meaning of Sections 368 and 1032 of the Code.
AGREEMENT
NOW, THEREFORE, in consideration of the premises, and the mutual covenants and agreements contained herein, the parties do hereby agree as follows:
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a)
DEFINITIONS
a) Defined Terms. When used in this Agreement, the following terms shall have the respective meanings specified below.
"Affiliate" shall mean, as to any Person, any other Person controlled by, under the control of, or under common control with, such Person. As used in this definition, "control" shall mean possession, directly or indirectly, of the power to direct or cause the direction of management or policies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise), provided that, in any event, any Person which owns or holds directly or indirectly five per cent (5%) or more of the voting securities or five per cent (5%) or more of the partnership or other equity interests of any other Person (other than as a limited partner of such other Person) will be deemed to control such other Person.
"Agreement" means this Share Exchange Agreement.
"Odyssey" means Odyssey, Inc., a Nevada corporation.
"Odyssey Balance Sheet" has the meaning set forth in Section 5.6.
"Odyssey Balance Sheet Date" has the meaning set forth in Section 5.6
"Odyssey Business" the development and commercialization of life saving medical products.
"Odyssey Common Stock" means the common stock, par value $0.001 per share, of Odyssey.
"Odyssey Financial Information" has the meaning set forth in Section 5.6.
"Odyssey SEC Reports" has the meaning set forth in Section 5.13.
"Applicable Law" or "Applicable Laws" means any and all laws, ordinances, constitutions, regulations, statutes, treaties, rules, codes, licenses, certificates, franchises, permits, principles of common law, requirements and Orders adopted, enacted, implemented, promulgated, issued, entered or deemed applicable by or under the authority of any Governmental Body having jurisdiction over a specified Person or any of such Person's properties or assets.
"Best Efforts" means the efforts that a prudent Person desirous of achieving a result would use in similar circumstances to achieve that result as expeditiously as possible, provided, however, that a Person required to use Best Efforts under this Agreement will not be thereby required to take actions that would result in a Material Adverse Effect in the benefits to such Person of this Agreement and the Share Exchange.
"Breach" means any breach of, or any inaccuracy in, any representation or warranty or any breach of, or failure to perform or comply with, any covenant or obligation, in or of this Agreement or any other Contract.
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"Business Day" means any day other than (a) Saturday or Sunday or (b) any other day on which banks in Tallahassee, FL are permitted or required to be closed.
“CGCL” means the California General Corporation Law, as amended from time to time, and the rules and regulations promulgated thereunder. Section references to the CGCL are to the CGCL as in effect at the date of this Agreement.
"Closing" shall mean the completion of the Share Exchange and the consummation of the transactions set forth herein.
"Closing Date" shall mean the date on which the Closing is completed.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Confidential Information" means any information pertaining to the business, operations, marketing, customers, financing, forecasts and plans of any Party provided to or learned by any other Party during the course of negotiation of the Share Exchange. Information shall be treated as Confidential Information whether such information has been marked "confidential" or in a similar manner.
"Consent" means any approval, consent, license, permits, ratification, waiver or other authorization.
"Contract" means any agreement, contract, lease, license, consensual obligation, promise, undertaking, understanding, commitment, arrangement, instrument or document (whether written or oral and whether express or implied), whether or not legally binding.
“DGCL” means the Delaware General Corporation Law, as amended from time to time, and the rules and regulations promulgated thereunder. Section references to the DGCL are to the DGCL as in effect at the date of this Agreement.
"Encumbrance" means and includes:
with respect to any personal property, any security or other property interest or right, claim, lien, pledge, option, charge, security interest, contingent or conditional sale, or other title claim or retention agreement or lease or use agreement in the nature thereof, interest or other right or claim of third parties, whether voluntarily incurred or arising by operation of law, and including any agreement to grant or submit to any of the foregoing in the future; and
with respect to any Real Property (whether and including owned real estate or Real Estate subject to a Real Property Lease), any mortgage, lien, easement, interest, right-of-way, condemnation or eminent domain proceeding, encroachment, any building, use or other form of restriction, encumbrance or other claim (including adverse or prescriptive) or right of Third Parties (including Governmental Bodies), any lease or sublease, boundary dispute, and agreements with respect to any real property including: purchase, sale, right of first refusal, option, construction, building or property service, maintenance, property management, conditional or contingent sale, use or occupancy, franchise or concession, whether voluntarily incurred or arising by operation of law, and including any agreement to grant or submit to any of the foregoing in the future.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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"GAAP" means at any particular time generally accepted accounting principles in the United States, consistently applied on a going concern basis, using consistent audit scope and materiality standards.
"Governing Documents" means with respect to any particular entity, the articles or certificate of incorporation and the bylaws (or equivalent documents for entities of foreign jurisdictions); all equity holders' agreements, voting agreements, voting trust agreements, joint venture agreements, registration rights agreements or other agreements or documents relating to the organization, management or operation of any Person or relating to the rights, duties and obligations of the equity holders of any Person; and any amendment or supplement to any of the foregoing.
"Governmental Authorization" means any Consent, license, registration or permit issued, granted, given or otherwise made available by or under the authority of any Governmental Body or pursuant to any Applicable Law.
"Governmental Body" means any instrumentality, subdivision, court, administrative agency, commission, official or other authority of the United States or any other country or any state, province, prefect, municipality, locality or other government or political subdivision thereof, or any quasi-governmental or private body exercising any regulatory, taxing, importing or other governmental or quasi-governmental authority.
"IRS" means the United States Internal Revenue Service and, to the extent relevant, the United States Department of the Treasury.
"Knowledge" means actual knowledge without independent investigation.
"Land" means all parcels and tracts of land in which any Person has an ownership or leasehold interest.
"Material Adverse Effect" or "Material Adverse Change" means:
with respect to Prevacus or the Major Stockholders, an effect that is or would reasonably be expected to be materially adverse (A) to the Prevacus Business, results of operations or financial condition of Prevacus; or (B) to Prevacus’ or the Major Stockholders’ ability to perform any of their respective obligations under this Agreement or to consummate the transactions contemplated in this Agreement; or
with respect to the Odyssey, an effect that is or would reasonably be expected to be materially adverse (A) to the Odyssey Business, results of operation or financial condition of the Odyssey considered as a whole; or (B) to the ability of the Odyssey to perform any of their respective obligations under this Agreement or to consummate the transactions contemplated in the Agreement;
provided, however, that in determining whether a Material Adverse Effect has occurred there shall be excluded any effect on the referenced party the cause of which is: (A) general changes in the financial markets or in the global or United States economy so long as any such change does not materially effect the referenced party to a materially different extent than other similarly situated Persons, (B) any action or omission of the parties permitted or required by the Agreement, and (C) the announcement of the transactions contemplated hereby.
"NRS" shall mean the Nevada Revised Statutes, as amended.
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"Order" means any writ, directive, order, injunction, judgment, decree, ruling, assessment or arbitration award of any Governmental Body or arbitrator.
"Ordinary Course of Business" means an action taken by a Person will be deemed to have been taken in the Ordinary Course of Business only if that action: (i) is consistent in nature, scope and magnitude with the past practices of such Person and is taken in the ordinary course of the normal, day-to-day operations of such Person; (ii) does not require authorization by the board of directors or Stockholders of such Person (or by any Person or group of Persons exercising similar authority) and does not require any other separate or special authorization of any nature; and (iii) is similar in nature, scope and magnitude to actions customarily taken, without any separate or special authorization, in the ordinary course of the normal, day-to-day operations of other Persons that are in the same line of business as such Person.
"Party" or "Parties" means Prevacus, the Prevacus Stockholders, the Major Stockholders and/or Odyssey.
"Person" means and includes an individual, a partnership, a joint venture, a corporation, a limited liability company, a limited liability partnership, a trust, an incorporated organization or a Governmental Body.
"Proceeding" means any action, arbitration, audit, hearing, investigation, litigation or suit (whether civil, criminal, administrative, judicial or investigative, whether formal or informal, whether public or private) commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental Body or arbitrator.
"Real Property" means any Land and Improvements and all privileges, rights, easements, hereditaments and appurtenances belonging to or for the benefit of any Land.
"Real Property Lease" means any lease, rental agreement or rights to use any Land or Real Property.
"Representative" means with respect to a particular Person, any director, officer, manager, employee, agent, consultant, advisor, accountant, financial advisor, legal counsel or other Representative of that Person.
"Prevacus" has the meaning set forth in the preamble.
"Prevacus Balance Sheet" has the meaning set forth in Section 5.6.
"Prevacus Balance Sheet Date" has the meaning set forth in Section 5.6.
"Prevacus Board" has the meaning set forth in Section 5.4.
"Prevacus Business" means the biotechnology business as presently conducted by Prevacus.
"Prevacus Financial Information" has the meaning set forth in Section 5.6.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
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"Security Interest" means any mortgage, pledge, security interest, Encumbrance, charge, claim, or other lien, other than: (a) mechanic's, materialmen's and similar liens; (b) liens for Taxes not yet due and payable or for Taxes that the taxpayer is contesting in good faith through appropriate Proceedings; (c) liens arising under worker's compensation, unemployment insurance, social security, retirement and similar legislation; (d) liens arising in connection with sales of foreign receivables; (e) liens on goods in transit incurred pursuant to documentary letters of credit; (f) purchase money liens and liens securing rental payments under capital lease arrangements; and (g) other liens arising in the Ordinary Course of Business and not incurred in connection with the borrowing of money.
"Share Exchange" has the meaning set forth in the preamble.
"Shares" has the meaning set forth in Section 2.1
"Subsidiary" means with respect to any Person (the "Owner"), any corporation or other Person of which securities or other interests having the power to elect a majority of that corporation's or other Person's board of directors or similar governing body, or otherwise having the power to direct the business and policies of that corporation or other Person (other than securities or other interests having such power only upon the happening of a contingency that has not occurred), are held by the Owner or one or more of its Subsidiaries.
"Tangible Personal Property" means all machinery, equipment, tools, furniture, office equipment, computer hardware, supplies, materials, vehicles and other items of tangible personal property of every kind owned or leased by a Party (wherever located and whether or not carried on a Party's books), together with any express or implied warranty by the manufacturers or sellers or lessors of any item or component part thereof and all maintenance records and other documents relating thereto.
"Tax" or "Taxes" means all taxes, assessments, charges, duties, fees, levies or other similar governmental charges, including all U.S. and non-U.S. federal, state, local and other income, franchise, profits, capital gains, capital stock, transfer, sales, use, occupation, property, excise, severance, windfall profits, stamp, license, payroll, withholding and other taxes, assessments, charges, duties, fees, levies or other similar governmental charges (whether payable directly or by withholding and whether or not requiring the filing of a Tax Return), all estimated taxes, deficiency assessments, additions to tax, penalties and interest and shall include any liability for such amounts as a result either of being a member of a combined, consolidated, unitary or affiliated group or of a contractual obligation to indemnify any Person or other entity.
"Tax Return" means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.
"Third Party" means a Person that is not a Party to this Agreement.
b)
THE SHARE EXCHANGE
a) The Share Exchange. Upon the terms and subject to the conditions set forth in this Agreement and in accordance with the NRS, at the Closing, the parties shall cause the Share Exchange to be consummated by taking all appropriate actions to ensure that all equitable and legal rights, title and interests in and to the one-million shares of capital stock of Prevacus is assigned, delivered and transferred to Odyssey, in exchange for the issuance of an aggregate of three-million restricted shares of Odyssey Common Stock (the "Shares") to escrow until $500k is raised.
b) Closing. The Closing will occur via e-mail and facsimile on such date and time to be agreed upon by the parties (the "Closing Date"), following satisfaction or waiver of the conditions set forth in Article VII.
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c)
d)
COVENANTS, REPRESENTATIONS AND
WARRANTIES OF PREVACUS STOCKHOLDERS
a) Investment Purpose. Prevacus acknowledges and agree that they are acquiring the Shares for investment purposes and will not offer, sell or otherwise transfer, pledge or hypothecate any of the Shares issued to them (other than pursuant to an effective Registration Statement under the Securities Act) directly or indirectly unless:
The sale is to Odyssey;
the sale is made pursuant to the exemption from registration under the Securities Act, provided by Rule 144 thereunder; or
the Shares are sold in a transaction that does not require registration under the Securities Act, or any applicable United States state laws and regulations governing the offer and sale of securities, and the vendor has furnished to Odyssey an opinion of counsel to that effect or such other written opinion as may be reasonably required by Odyssey.
b) Share Legend. The Prevacus Stockholders acknowledge and agree that the certificates representing the Shares shall bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY APPLICABLE STATE SECURITIES LAWS. WITHOUT SUCH REGISTRATION, SUCH SECURITIES MAY NOT BE SOLD OR OTHERWISE TRANSFERRED AT ANY TIME WHATSOEVER UNLESS IN THE OPINION OF COUNSEL SATISFACTORY TO THE COMPANY REGISTRATION IS NOT REQUIRED FOR SUCH TRANSFER AND THAT SUCH TRANSFER WILL NOT BE IN VIOLATION OF THE APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR ANY RULE OR REGULATION PROMULGATED THEREUNDER.
c) Acknowledgements.
Prevacus acknowledge that the shares being issued hereunder are subject to significant restrictions on transfer as imposed by state and federal securities laws, including but not limited to a minimum holding period of six (6) months before such shares can be sold pursuant to Rule 144; and
Prevacus are not aware of any advertisement of any of the shares being issued hereunder.
The Prevacus Stockholders acknowledge and agree that Odyssey will refuse to register any transfer of the shares not made pursuant to an effective registration statement under the Securities Act or pursuant to an available exemption from the registration requirements of the Securities Act and in accordance with applicable state and provincial securities laws;
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The Prevacus Stockholders acknowledge and agree that offers and sales of any of the Shares, after six (6) months but prior to the expiration of a period of one year from the date of Closing (the “Distribution Compliance Period”), shall only be made pursuant to Rule 144, the registration provisions of the Securities Act or an exemption therefrom, and that all offers and sales after one year shall be made only in compliance with the registration provisions of the Securities Act or an exemption therefrom and in each case only in accordance with all applicable securities laws;
Prevacus acknowledges and agrees not to engage in any hedging transactions involving the Shares prior to the end of the Distribution Compliance Period unless such transactions are in compliance with the provisions of the Securities Act; and
Prevacus hereby acknowledge and agree to Odyssey making a notation on its records or giving instructions to the registrar and transfer agent of Odyssey in order to implement the restrictions on transfer set forth and described herein.
e)
REPRESENTATIONS AND WARRANTIES OF PREVACUS
As a material inducement for Odyssey to enter into this Agreement and to consummate the transactions contemplated hereby, Prevacus makes the following representations and warranties as of the date hereof and as of the Closing Date, each of which is relied upon by Odyssey regardless of any investigation made or information obtained by Odyssey (unless and to the extent specifically and expressly waived in writing by Odyssey on or before the Closing Date):
a) Organization and Good Standing.
Prevacus is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Prevacus is duly qualified to do business in each jurisdiction in which it conducts business activities and is in good standing under the laws of each jurisdiction in which either the ownership or use of the properties owned or used by it, or the nature of the activities conducted by it, requires such qualification and the failure to be so qualified would have a Material Adverse Effect on Prevacus.
Prevacus has no Subsidiaries and does not own any shares of capital stock or other securities of any other Person.
b) Capitalization of Prevacus. The entire authorized capital stock of Prevacus consists of ____________ shares of common stock no par value, of which ____________ shares are issued and outstanding. All issued and outstanding shares of common stock have been duly authorized, are validly issued, fully paid and nonassessable.
c) Authorization of Transaction.
Prevacus has full power and authority to execute and deliver this Agreement and the Related Agreements and to perform its obligations hereunder. On the Closing Date, this Agreement shall be duly and validly authorized by all necessary action on the part of Prevacus in accordance with Applicable Laws and Prevacus' Governing Documents. This Agreement constitutes the valid and legally binding obligation of Prevacus, enforceable in accordance with its terms and conditions. The Board of Directors of Prevacus (the "Prevacus Board") has duly and validly authorized the execution and delivery of this Agreement and approved the consummation of the transactions contemplated hereby.
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d) Noncontravention. Neither the execution nor delivery of this Agreement, nor consummation of the Share Exchange, by Prevacus will:
violate any Applicable Law, Order, stipulation, charge or other restriction of any Governmental Body to which Prevacus is subject or any provision of its Governing Documents; or
conflict with, result in a Breach of, constitute a default under, result in the acceleration of, create in any Person the right to accelerate, terminate, modify or cancel, or require any notice under any contract, lease, sublease, license, sublicense, franchise, permit, indenture, agreement or mortgage for borrowed money, instrument of indebtedness, Security Interest or other arrangement to which Prevacus is a party or by which it is bound or to which any of its assets is subject (or result in the imposition of any Security Interest upon any of its assets), except where the violation, conflict, Breach, default, acceleration, termination, modification, cancellation, failure to give notice, or Security Interest would not have a Material Adverse Effect on the financial condition of Prevacus or on the ability of the Parties to consummate the Share Exchange.
e) Events Subsequent to Prevacus Balance Sheet. Since the Prevacus Balance Sheet Date, and except as disclosed on Schedule 5.7, there has not been, occurred or arisen, with respect to Prevacus:
any change or amendment in its Governing Documents;
any reclassification, split up or other change in, or amendment of or modification to, the rights of the holders of any of its capital stock;
any direct or indirect redemption, purchase or acquisition by any Person of any of its capital stock or of any interest in or right to acquire any such stock;
any issuance, sale, or other disposition of any capital stock, or any grant of any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any capital stock;
any declaration, set aside, or payment of any dividend or any distribution with respect to its capital stock (whether in cash or in kind) or any redemption, purchase, or other acquisition of any of its capital stock;
the organization of any Subsidiary or the acquisition of any shares of capital stock by any Person or any equity or ownership interest in any business;
any damage, destruction or loss of any of its properties or assets whether or not covered by insurance;
any material sale, lease, transfer, or assignment of any of its assets, tangible or intangible, other than for a fair consideration in the Ordinary Course of Business;
the execution of, or any other commitment to any agreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses) outside the Ordinary Course of Business;
any acceleration, termination, modification, or cancellation of any agreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses) involving more than $10,000 to which it is a party or by which it is bound;
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any Security Interest or Encumbrance imposed upon any of its assets, tangible or intangible;
any grant of any license or sublicense of any rights under or with respect to any material Prevacus Intellectual Property;
any sale, assignment or transfer (including transfers to any employees, Affiliates or Stockholders) of any material Prevacus Intellectual Property;
any capital expenditure (or series of related capital expenditures) involving more than $25,000 and outside the Ordinary Course of Business;
any delay or postponement of the payment of accounts payable or other liabilities, other than those being contested in good faith;
any cancellation, compromise, waiver, or release of any right or claim (or series of related rights and claims) involving more than $25,000 and outside the Ordinary Course of Business;
any loan to, or any entrance into any other transaction with, any of its directors, officers, and employees either involving more than $1,000 individually or $5,000 in the aggregate;
the adoption, amendment, modification, or termination of any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its directors, officers, and employees (or taken any such action with respect to any other Employee Benefit Plan);
any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement;
any increase in the base compensation of any of its directors, officers, and employees that is greater than $25,000 per annum;
any charitable or other capital contribution in excess of $2,500;
any taking of other action or entrance into any other transaction other than in the Ordinary Course of Business, or entrance into any transaction with any insider of Prevacus, except as disclosed in this Agreement and the Disclosure Schedules;
any other event or occurrence that may have or could reasonably be expected to have a Material Adverse Effect on Prevacus (whether or not similar to any of the foregoing); or
any agreement or commitment, whether in writing or otherwise, to do any of the foregoing.
f) Tax Matters.
Except as set forth on Schedule 5.8 Prevacus:
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has timely paid or caused to be paid all material Taxes required to be paid by it though the date hereof and as of the Closing Date (including any Taxes shown due on any Tax Return);
has filed or caused to be filed in a timely and proper manner (within any applicable extension periods) all Tax Returns required to be filed by it with the appropriate Governmental Body in all jurisdictions in which such Tax Returns are required to be filed; and all tax returns filed on behalf of Prevacus were complete and correct in all material respects; and
has not requested or caused to be requested any extension of time within which to file any Tax Return, which Tax Return has not since been filed.
has not been notified since January 1, 2019 by any Governmental Body that any material issues have been raised (and no such issues are currently pending) by any Governmental Body in connection with any Tax Return filed by or on behalf of Prevacus; there are no pending Tax audits and no waivers of statutes of limitations have been given or requested with respect to Prevacus; no Tax liens have been filed against Prevacus or unresolved deficiencies or additions to Taxes have been proposed, asserted or assessed against Prevacus;
has made full and adequate accrual (A) on the Prevacus Balance Sheet, and the books and records of Prevacus for all income taxes currently due and all accrued Taxes not yet due and payable by Prevacus for all periods ending on or prior to the Prevacus Balance Sheet Date, and (B) on the books and records of Prevacus for all Taxes payable by Prevacus for all periods beginning after the Prevacus Balance Sheet Date;
has not incurred any liability for Taxes from and after the Prevacus Balance Sheet Date other than Taxes incurred in the Ordinary Course of Business and consistent with past practices;
has complied in all material respects with all Applicable Laws relating to the collection or withholding of Taxes (such as Taxes or withholding of Taxes from the wages of employees); and
does not have any liability in respect of any Tax sharing agreement with any Person;
Prevacus has incurred any liability to make any payments either alone or in conjunction with any other payments that would constitute a "parachute payment" within the meaning of Section 280G of the Code (or any corresponding provision of state local or foreign Applicable Law related to Taxes);
No claim has been made within the last three years by any taxing authority in a jurisdiction in which Prevacus does not file Tax Returns that Prevacus is or may be subject to taxation by that jurisdiction;
The consummation of the Share Exchange will not trigger the realization or recognition of intercompany gain or income to Prevacus or any Affiliate of Prevacus under the Federal consolidated return regulations with respect to Federal, state or local taxes; and
Prevacus is not currently, nor has it been at any time during the previous five years, a "U.S. real property holding corporation" and, therefore, the Shares are not "U.S. real property interests," as such terms are defined in Section 897 of the Code.
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g) Title to Assets. Prevacus has good and marketable title to, or a valid leasehold interest in, the properties and assets owned or leased and used by it to operate the Prevacus Business in the manner presently operated by it, as reflected in the Prevacus Financial Information.
h) Real Property.
Except as set forth in Schedule 5.10(a) Prevacus does not own or hold an ownership interest in any Real Property.
Leased Real Property. Except as set forth in Schedule 5.10(b) Prevacus does not own or a leasehold interest in any Real Property.
i) Condition of Facilities.
To the knowledge of Prevacus, the use of the Real Property of Prevacus for the various purposes for which it is presently being used is permitted as of right under all Applicable Laws related to zoning and is not subject to "permitted nonconforming" use or structure classifications. To the knowledge of the Prevacus, all Improvements are in compliance with all Applicable Laws, including those pertaining to zoning, building and the disabled, are in good repair and in good condition, ordinary wear and tear excepted, and are free from latent and patent defects. To the knowledge of the Prevacus, no part of any Improvement encroaches on any real property not included in the Real Property of Prevacus or the Prevacus, and there are no buildings, structures, fixtures or other Improvements primarily situated on adjoining property which encroach on any part of the Land.
Each item of Tangible Personal Property is in good repair and good operating condition, ordinary wear and tear excepted, is suitable for immediate use in the Ordinary Course of Business and is free from latent and patent defects. No item of Tangible Personal Property is in need of repair or replacement other than as part of routine maintenance in the Ordinary Course of Business. All Tangible Personal Property used in the Prevacus Business is in the possession of Prevacus.
j) Powers of Attorney. There are no outstanding powers of attorney executed on behalf of Prevacus.
k) Litigation. Except as set forth on Schedule 5.16:
there is no pending or, to Prevacus' Knowledge, threatened Proceeding:
by or against Prevacus or that otherwise relates to or may affect the Prevacus Business which, if adversely determined, would have a Material Adverse Effect; or
that challenges, or that may have the effect of preventing, delaying, making illegal or otherwise interfering with, the Share Exchange.
to the Knowledge of Prevacus, no event has occurred or circumstance exists that is reasonably likely to give rise to or serve as a basis for the commencement of any such Proceeding. Prevacus has delivered to Odyssey copies, if any, of all pleadings, correspondence and other documents relating to each Proceeding.
there is no material Order to which Prevacus or the Prevacus Business is subject; and
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To the knowledge of the Prevacus, no officer, director, agent or employee of Prevacus is subject to any Order that prohibits such officer, director, agent or employee from engaging in or continuing any conduct, activity or practice relating to the Prevacus Business.
Prevacus has been and is in compliance with all of the terms and requirements of each Order to which it or the Prevacus Business is or has been subject;
no event has occurred or circumstance exists that is reasonably likely to constitute or result in (with or without notice or lapse of time) a violation of or failure to comply with any term or requirement of any Order to which Prevacus or the Prevacus Business is subject; and
Prevacus has not received any notice or other communication (whether oral or written) from any Governmental Body or any other Person regarding any actual, alleged, possible or potential violation of, or failure to comply with, any term or requirement of any Order to which Prevacus or the Prevacus Business is subject.
l) Legal Compliance. Prevacus is in material compliance with all Applicable Laws (including rules and regulations thereunder) of any Governmental Bodies having jurisdiction over Prevacus , including any requirements relating to antitrust, consumer protection, currency exchange, equal opportunity, health, occupational safety, pension and securities matters.
m) Brokers' Fees. Prevacus has no liability or obligation to pay any fees or commissions to any broker, finder or agent with respect to the Share Exchange for which Prevacus could become liable or obligated.
n) Disclosure. The representations and warranties of Prevacus contained in this Agreement do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements and information contained herein not misleading.
f)
REPRESENTATIONS AND WARRANTEES OF ODYSSEY
As a material inducement for Prevacus to enter into this Agreement and to consummate the transactions contemplated hereby, Odyssey hereby makes the following representations and warranties as of the date hereof and as of the Closing Date, each of which is relied upon by Prevacus regardless of any investigation made or information obtained by Prevacus (unless and to the extent specifically and expressly waived in writing by Prevacus on or before the Closing Date):
a) Organization and Good Standing.
Odyssey is a corporation duly organized, validly existing and in good standing under the laws of State of Nevada. Odyssey is duly qualified to do business as a foreign corporation and is in good standing under the laws of each state or other jurisdiction in which either the ownership or use of the properties owned or used by it, or the nature of the activities conducted by it, requires such qualification and the failure to be so qualified would have a Material Adverse Effect on Odyssey.
Except as set forth on Schedule 6.1(b), Odyssey has no Subsidiary and does not own any shares of capital stock or other securities of any other Person.
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b) Capitalization of Odyssey. The entire authorized capital stock of Odyssey consists of 250,000,000 shares of common stock having a par value of $0.001 per share.
c) Authorization of Transaction. Odyssey has the corporate power to execute, deliver and perform this Agreement, the Related Agreements, and, subject to the satisfaction of the conditions precedent set forth herein, has taken all action required by law, its Governing Documents or otherwise, to authorize the execution, delivery, and performance of this Agreement and such related documents. The execution and delivery of this Agreement has been approved by the Board of Directors of Odyssey. This Agreement is a valid obligation of Odyssey and is legally binding on Odyssey in accordance with its terms.
d) Noncontravention. Neither the execution nor delivery of this Agreement, nor consummation of the Share Exchange, will:
violate any Applicable Law, Order, stipulation, charge or other restriction of any Governmental Body to which Odyssey is subject or any provision of its Governing Documents; or
conflict with, result in a Breach of, constitute a default under, result in the acceleration of, create in any Person the right to accelerate, terminate, modify or cancel, or require any notice under any contract, lease, sublease, license, sublicense, franchise, permit, indenture, agreement or mortgage for borrowed money, instrument of indebtedness, Security Interest, or other arrangement to which Odyssey is a party or by which it is bound or to which any of its assets is subject (or result in the imposition of any Security Interest upon any of its assets), except where the violation, conflict, Breach, default, acceleration, termination, modification, cancellation, failure to give notice, or Security Interest would not have a Material Adverse Effect on the financial condition of Odyssey or on the ability of the Parties to consummate the Share Exchange.
e) Affiliate Transactions. No officer, director, or employee of Odyssey or any member of the immediate family of any such officer, director or employee, or any entity in which any of such persons owns any beneficial interest (other than any publicly-held corporation whose stock is traded on a national securities exchange or in the over-the-counter market and less than one percent of the stock of which is beneficially owned by any of such Persons), has any agreement with Odyssey or any interest in any of their property of any nature, used in or pertaining to the Odyssey Business. None of the foregoing Persons has any direct or indirect interest in any competitor, supplier or customer of Odyssey or in any Person from whom or to whom Odyssey leases any property or transacts business of any nature.
f) Odyssey Financial Information.
The audited balance sheet and statements of income, changes in Stockholders' equity and cash flow as of and for the fiscal years ended 2018 for Odyssey (collectively, the “Odyssey Financial Information”) are set forth in its Annual Reports on Form 10-K as filed with the Securities and Exchage Commission. The audited balance sheet as of July 31, 2018, as set forth in its Form 10-K, shall be referred to herein as the "Odyssey Balance Sheet" and July 31, 2018 shall be sometimes referred to herein as the "Odyssey Balance Sheet Date." Odyssey Financial Information presents fairly the financial condition of Odyssey as of such dates and the results of operations of Odyssey for such periods, in accordance with GAAP and are consistent with the books and records of Odyssey (which books and records are correct and complete).
g) Tax Matters.
Except as set forth on Schedule 6.8, Odyssey:
has timely paid or caused to be paid all Taxes required to be paid by it though the date hereof and as of the Closing Date (including any Taxes shown due on any Tax Return);
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has filed or caused to be filed in a timely and proper manner (within any applicable extension periods) all Tax Returns required to be filed by it with the appropriate Governmental Body in all jurisdictions in which such Tax Returns are required to be filed; and all tax returns filed on behalf of Odyssey and each Odyssey Tax Affiliate were completed and correct in all material respects; and
has not requested or caused to be requested any extension of time within which to file any Tax Return, which Tax Return has not since been filed.
has previously delivered true, correct and complete copies of all Federal Tax Returns filed by or on behalf of Odyssey through the date hereof for the periods ending after December 31, 2018.
since June 1, 2019 has not been notified by the IRS or any other Governmental Body that any issues have been raised (and no such issues are currently pending) by the IRS or any other Governmental Body in connection with any Tax Return filed by or on behalf of Odyssey or any Odyssey Tax Affiliate; there are no pending Tax audits and no waivers of statutes of limitations have been given or requested with respect to Odyssey or any present or former Affiliate of Odyssey (for years that it was an Affiliate); no Tax liens have been filed against Odyssey or unresolved deficiencies or additions to Taxes have been proposed, asserted or assessed against Odyssey or any present or former Affiliate (for the years that it was an Affiliate);;
has made full and adequate accrual (i) on the Odyssey Balance Sheet, and the books and records of Odyssey for all income Taxes currently due and all accrued Taxes not yet due and payable by Odyssey for all periods ending on or prior to the Odyssey Balance Sheet Date, and (ii) on the books and records of Odyssey and for all Taxes payable by Odyssey for all periods beginning after the Odyssey Balance Sheet Date;
has not incurred any liability for Taxes from and after the Odyssey Balance Sheet Date other than Taxes incurred in the Ordinary Course of Business and consistent with past practices;
has not (i) made an election (or had an election made on its behalf by another person) to be treated as a “consenting corporation” under Section 341(f) of the Code or (ii) a “personal holding company” within the meaning of Section 542 of the Code;
has complied in all material respects with all Applicable Laws relating to the collection or withholding of Taxes (such as Taxes or withholding of Taxes from the wages of employees);
does not have any liability in respect of any Tax sharing agreement with any Person and all Tax sharing agreements to which Odyssey has been bound have been terminated;
has not incurred any Liability to make any payments either alone or in conjunction with any other payments that:
shall be non-deductible under, or would otherwise constitute a “parachute payment” within the meaning of Section 280G of the Code (or any corresponding provision of state local or foreign income Tax Law); or
are or may be subject to the imposition of an excise Tax under Section 4999 of the Code;
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has not agreed to (nor has any other Person agreed to on its behalf) and is not required to make any adjustments or changes on, before or after the Closing Date, to its accounting methods pursuant to Section 481 of the Code, and the Internal Revenue Service has not proposed any such adjustments or changes in the accounting methods of Odyssey; and
No claim has been made within the last three years by any taxing authority in a jurisdiction in which Odyssey does not file Tax Returns that Odyssey is or may be subject to taxation by that jurisdiction;
The consummation of the Share Exchange will not trigger the realization or recognition of intercompany gain or income to Odyssey under the Federal consolidated return regulations with respect to Federal, state or local Taxes;
Odyssey is not is not currently, nor has it been at any time during the previous five years, a “U.S. real property holding corporation” and, therefore, the Odyssey Common Stock is not “U.S. real property interests,” as such terms are defined in Section 897 of the Code.
h) Condition of Facilities.
Use of the Real Property of Odyssey for the various purposes for which it is presently being used is permitted as of right under all Applicable Laws related to zoning and is not subject to “permitted nonconforming” use or structure classifications. All Improvements are in compliance with all Applicable Laws, including those pertaining to zoning, building and the disabled, are in good repair and in good condition, ordinary wear and tear excepted, and are free from latent and patent defects. To the Knowledge of Odyssey, no part of any Improvement encroaches on any real property not included in the Real Property of Odyssey, and there are no buildings, structures, fixtures or other Improvements primarily situated on adjoining property which encroach on any part of the Land.
Each item of Tangible Personal Property is in good repair and good operating condition, ordinary wear and tear excepted, is suitable for immediate use in the Ordinary Course of Business and is free from latent and patent defects. No item of Tangible Personal Property is in need of repair or replacement other than as part of routine maintenance in the Ordinary Course of Business.
i) SEC Reports and Financial Statements. Odyssey has filed with the SEC all reports and other filings required to be filed by Odyssey in accordance with the Securities Act and the Exchange Act and the rules and regulations promulgated thereunder (the “Odyssey SEC Reports”). As of their respective dates, Odyssey SEC Reports complied in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the respective rules and regulations promulgated thereunder applicable to such Odyssey SEC Reports and, except to the extent that information contained in any Odyssey SEC Report has been revised or superseded by a later Odyssey SEC Report filed and publicly available prior to the date of this Agreement, none of the Odyssey SEC Reports contained any untrue statement of a material fact or omitted to state any 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 Odyssey included in Odyssey SEC Reports were prepared from and are in accordance with the accounting books and other financial records of Odyssey, were prepared in accordance with GAAP (except, in the case of unaudited statements, as permitted by the rules of the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and presented fairly the consolidated financial position of Odyssey 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 Odyssey SEC Reports, Odyssey has no liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) other than liabilities or obligations incurred in the Ordinary Course of Business since the Odyssey Balance Sheet Date. The Odyssey SEC Reports accurately disclose (i) the terms and provisions of all stock option plans, (ii) transactions with Affiliates, and (iii) all material contracts required to be disclosed pursuant to Item 601(b)(10) of Regulation S-K promulgated by the SEC.
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j) Powers of Attorney. There are no outstanding powers of attorney executed on behalf of Odyssey.
k) Litigation. Except as set forth in Schedule 6.16:
There is no pending or, to Odyssey’s Knowledge, threatened Proceeding:
by or against Odyssey or that otherwise relates to or may affect the Odyssey Business which, if adversely determined, would have a Material Adverse Effect; or
that challenges, or that may have the effect of preventing, delaying, making illegal or otherwise interfering with, the Share Exchange.
To the Knowledge of Odyssey, no event has occurred or circumstance exists that is reasonably likely to give rise to or serve as a basis for the commencement of any such Proceeding.
l) Legal Compliance. To the knowledge of Odyssey, Odyssey is in material compliance with all Applicable Laws of any Governmental Bodies having jurisdiction over Odyssey, including any requirements relating to antitrust, consumer protection, currency exchange, equal opportunity, health, occupational safety, pension and securities matters.
m) Brokers' Fees. Odyssey has no liability or obligation to pay any fees or commissions to any broker, finder or agent with respect to the Share Exchange for which Odyssey could become liable or obligated.
n) Disclosure. The representations and warranties of Odyssey contained in this Agreement do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements and information contained herein not misleading.
g)
COVENANTS
a) Preservation of Business.
Prior to the Closing or the termination of this Agreement, Prevacus will use its Best Efforts to preserve the Prevacus Business, to keep available to Odyssey the services of the present employees of Prevacus, and to preserve for Odyssey the goodwill of the suppliers, customers and others having business relations with Prevacus. Prevacus shall conduct its Business only in the Ordinary Course of Business, including, without limitation, its policies and practices relating to the collection of accounts receivable and the payment of accounts payable and other liabilities, and not introduce any new methods of management, operations or accounting, without Odyssey’s prior written consent (which shall not be unreasonably withheld); maintain its assets in as good working order and condition as at present, ordinary wear and tear excepted; perform all material obligations under material agreements and leases relating to or affecting it, and keep in full force and effect present insurance policies.
Prior to the Closing or the termination of this Agreement, Odyssey will use its Best Efforts to preserve the Odyssey Business, to keep available to Odyssey the services of the present employees of Odyssey, and to preserve for Odyssey the goodwill of the suppliers, customers and others having business relations with Odyssey. Odyssey shall conduct the Odyssey Business only in the Ordinary Course of Business, including, without limitation, its policies and practices relating to the collection of accounts receivable and the payment of accounts payable and other liabilities, and not introduce any new methods of management, operations or accounting, without the prior written consent of Prevacus (which shall not be unreasonably withheld); maintain its assets in as good working order and condition as at present, ordinary wear and tear excepted; perform all material obligations under material agreements and leases relating to or affecting it, and keep in full force and effect present insurance policies.
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b) Current Information.
During the period from the date of this Agreement to the Closing, each Party hereto shall promptly notify each other Party of any (i) significant change in the normal course of business or operations of its business, (ii) Proceeding (or communications indicating that the same may be contemplated), or the institution or threat or settlement of Proceedings, in each case involving such Party, the outcome of which, if adversely determined, could reasonably be expected to have a Material Adverse Effect on the Party, taken as a whole or (iii) event which such Party reasonably believes could be expected to have a Material Adverse Effect on the ability of any Party to consummate the Share Exchange.
During the period from the date of this Agreement to the Closing, Odyssey shall promptly notify Prevacus of any correspondence received from the SEC and shall deliver a copy of such correspondence to Prevacus within one (1) Business Day of receipt.
c) Public Disclosures. Odyssey and Prevacus will consult with each other before issuing any press release or otherwise making any public statement with respect to the transactions contemplated by this Agreement, and shall not issue any such press release or make any such public statement prior to such consultation except as may be required by Applicable Law. The Parties shall issue a joint press release, mutually acceptable to Prevacus and Odyssey, promptly upon execution and delivery of this Agreement.
d) Confidentiality. Odyssey and Prevacus shall hold, and shall use their Best Efforts to cause their respective auditors, attorneys, financial advisors, bankers and other consultants and advisors to hold, in strict confidence, unless compelled to disclose by judicial or administrative process or by other requirements of law, all Confidential Information, and each Party shall not release or disclose such Confidential Information to any other Person, except its auditors, attorneys, financial advisors, bankers and other consultants and advisors in connection with the transactions contemplated by this Agreement.
h)
CONDITIONS TO CLOSING
a) Mutual Conditions. The respective obligations of each Party to effect the Share Exchange shall be subject to the satisfaction, at or prior to the Closing Date, of the following conditions (any of which may be waived in writing by Odyssey and Prevacus:
None of Odyssey, or Prevacus shall be subject to any Order by a court of competent jurisdiction which (i) prevents or materially delays the consummation of the Share Exchange or (ii) would impose any material limitation on the ability of Odyssey effectively to exercise full rights of ownership of the common stock of Prevacus or any material portion of the assets or Business, taken as a whole.
No statute, rule or regulation, shall have been enacted by any Governmental Body that makes the consummation of the Share Exchange illegal.
Odyssey and Prevacus shall have received all Consents of Third Parties that are required of such Third Parties prior to the consummation of the Share Exchange, in form and substance acceptable to Odyssey or Prevacus, as the case may be, except where the failure to obtain such consent, approval or authorization would not have a Material Adverse Effect.
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b) Conditions to the Obligations of Odyssey to Close. The obligations of Odyssey under this Agreement are subject to the satisfaction, at or before the Closing, of each of the following conditions:
Prevacus shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions required by this Agreement to be performed or complied with by Prevacus at or prior to the Closing.
There shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Body requesting or looking toward an Order that (a) restrains or prohibits the consummation of the Share Exchange, (b) could have a Material Adverse Effect on Odyssey's ability to exercise control over or manage the Prevacus after the Closing or (c) could have a Material Adverse Effect on Prevacus.
On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Share Exchange.
All Consents of all Third Parties and Governmental Bodies shall have been obtained that are necessary, in the opinion of Odyssey Counsel, in connection with (a) the execution and delivery by Prevacus of this Agreement and the Related Agreements to which it is a Party or (b) the consummation by Prevacus of the Share Exchange and copies of all such Consents shall have been delivered to Odyssey.
c) Conditions to the Obligations of Prevacus. The obligations of Prevacus and the Prevacus Stockholders under this Agreement are subject to the satisfaction, at or before the Closing, of each of the following conditions:
The representations and warranties of Odyssey contained herein that are qualified as to materiality shall be true in all respects on and as of the Closing Date (except for such representations and warranties made as of a specific date which shall be true as of such date) with the same force and effect as though made on and as of such date, and each of the representations and warranties of Odyssey that are not so qualified shall be true in all material respects on and as of the Closing Date (except for such representations and warranties made as of a specific date which shall be true in all material respects as of such date).
Odyssey shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions required by this Agreement to be so performed or complied with by Odyssey at or prior to the Closing.
There shall not be threatened, instituted or pending any Proceeding by or before any court or Governmental Body requesting or looking toward an Order, that (a) restrains or prohibits the consummation of the Share Exchange or (b) could have a Material Adverse Effect on Odyssey.
On the Closing Date, there shall be no effective Order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Share Exchange.
All Consents of all Third Parties and Governmental Bodies shall have been obtained that are necessary, in the opinion of counsel to Prevacus, in connection with (a) the execution and delivery by Odyssey of this Agreement to which either of them is a party, and (b) the consummation by Odyssey of the transactions contemplated hereby or thereby, and copies of all such Consents shall have been delivered to Prevacus.
Odyssey shall deliver to Prevacus or place in escrow a certificate evidencing ownership of the Shares described in Section 2.1.
The Stockholders of Odyssey shall have given all necessary approvals and consents required under NRS.
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i)
TERMINATION, AMENDMENT, CLAWBACK AND WAIVER
a) Termination. This Agreement may be terminated at anytime prior to the Closing:
by mutual written consent of Odyssey and Prevacus;
by Odyssey or Prevacus:
if the Share Exchange shall not have been consummated on or before July 31, 2019, unless the failure to consummate the Share Exchange is the result of a willful and material Breach of this Agreement by the Party seeking to terminate this Agreement;
if any court of competent jurisdiction or other Governmental Body shall have issued an Order or taken any other action permanently enjoining, restraining or otherwise prohibiting the Share Exchange and such order, decree, ruling or other action shall have become final and non-appealable;
in the event of a Breach by the other Party of any representation, warranty, covenant or other agreement contained in this Agreement which cannot be or has not been cured within ten (10) days after the giving of written notice to the breaching Party of such Breach (provided that the terminating Party is not then in Breach of any representation, warranty, covenant or other agreement contained in this Agreement);
if there shall have occurred prior to the Closing changes in Applicable Law that, in the aggregate, shall have a Material Adverse Effect on either Party.
(v) if within one year, Odyssey has not funded the LLC (as defined in the Master Agreement) to the minimum amount of $500,000.00.
b) Effect of Termination. In the event of termination of this Agreement as provided in Section 11.1, this Agreement shall forthwith become void and have no effect, without any liability or obligation on the part of any Party except to the extent that such termination results from the willful and material Breach by a Party of any of its representations, warranties, covenants or other agreements set forth in this Agreement, in which case the terminating Party shall have the right to pursue any remedies available to it at law or in equity. If this Agreement is terminated under provision 9.1(v) in the preceding paragraph then Prevacus will cancel or return the Odyssey common stock in its entirety and Odyssey will return or cancel the Prevacus stock in its entirety.
c) Amendment. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the Parties.
d) Extension; Waiver. At any time prior to the Closing, the Parties may (i) extend the time for the performance of any of the obligations or other acts of the other Parties, (ii) waive any inaccuracies in the representations and warranties contained in this Agreement or in any document delivered pursuant to this Agreement or (iii) waive compliance with any of the agreements or conditions contained in this Agreement. Any agreement on the part of a Party to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such Party.
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j)
MISCELLANEOUS
a) Notices. All notices, requests, demands and other communications under this Agreement, shall be in writing and shall be deemed to have been duly given on the date of service if served personally on the party to whom notice is to be given or within five (5) business days if mailed to the party to whom notice is to be given, by first-class mail, registered, or certified, postage prepaid and properly addressed as follows:
If to Odyssey:
Odyssey, Inc.
Attn: Michael redmond
2375 Morse Ave
Irvine, CA
If to Prevacus:
Prevacuss
Attn: _____________
__________________
__________________
b) Further Assurances. Each Party hereby agrees to perform any further acts and to execute and deliver any documents, which may be reasonably necessary to carry out the provisions of this Agreement.
c) Governing Law; Venue. This Agreement is being executed and delivered, and is intended to be performed, in the State of Florida, and to the extent permitted by law, the execution, validity, construction, and performance of this Agreement shall be construed and enforced in accordance with the laws of the State of Florida without giving effect to conflict of law principles.
d) Entire Agreement. This Agreement including all Exhibits and Disclosure Schedules attached hereto and thereto contain the entire agreement of the Parties and supersede any and all prior or contemporaneous agreements between the Parties, written or oral, with respect to the transactions contemplated hereby. Such agreement may not be changed or terminated orally, but may only be changed by an agreement in writing signed by the Party or Parties against whom enforcement of any waiver, change, modification, extension, discharge or termination is sought.
e) Expenses. Except as expressly provided otherwise, each party hereto will bear its own costs and expenses (including fees and expenses of auditors, attorneys, financial advisors, bankers, brokers and other consultants and advisors) incurred in connection with this Agreement, the Related Agreements and the transactions contemplated hereby and thereby.
f) Counterparts. This Agreement may be executed in several counterparts, each of which, when so executed, shall be deemed to be an original, and such counterparts shall together constitute and be one and the same instrument. Facsimile signatures shall be sufficient for execution of this Agreement.
g) Binding Effect. This Agreement shall be binding on, and shall inure to the benefit of, the Parties hereto, and their respective successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement. No Party may assign any right or obligation hereunder without the prior written consent of the other Parties.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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SIGNATURE PAGE OF ODYSSEY AND PREVACUS
TO
SHARE EXCHANGE AGREEMENT
IN WITNESS WHEREOF, Odyssey and Prevacus have caused this Share Exchange Agreement to be executed by their respective duly authorized officers, all as of the day and year first above written.
| ODYSSEY, INC. | |
|
Dated: 06-25-19 |
/s/ J. Michael Redmond By: J. Michael Redmond Its: President and CEO |
| PREVACUSS | |
|
Dated: 06-25-19 |
/s/ Jake Vanlandingham By: Jake Vanlandingham Its: President and CEO |
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Exhibit “D”
FORM OF ASSIGNMENT OF PATENT
Effective _____, 202_ (the “Effective Date”) Prevacus, Inc. whose address is _______________________________ (“Assignor”), with its principal address at and Odyssey Group International, Inc., a Nevada corporation (“Assignee”) with its principle address at 2372 Morse Ave Irvine, CA 92614.
ARTICLE I
BACKGROUND
WHEREAS, Assignor has developed and deployed a certain technology and known as “________________________________________ (the “Platform”); and
| a) | WHEREAS, Assignor is the owner of all intellectual property rights in or to US Patents, __________________________ |
WHEREAS, Assignee is engaged in the development of medical products for commercial use and application, and desires to own the Platform and Assignor’s intellectual property rights in and to the same; and
WHEREAS, Assignor and Assignee, are parties to that certain Intellectual Property Purchase Agreement whereby Assignor agreed to assign ___________________, and
In consideration of the Mater Agreement for a Joint Venture and Intellectual Property Purchase Agreement and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, Assignor does hereby transfer and assign to Assignee, its successors, assigns and legal representatives all its right, title and interest in and to the patents and the invention entitled:
“______________________________________”
Invented by __________________and described in the:
_____________________________________________________________________________
and all United States Letters Patent which may be granted therefor, and all divisions, reissues, continuations and extensions thereof, the said interest being the entire ownership of the said Patents when granted, to be held and enjoyed by the said Assignee, its successors, assigns or other legal representatives, to the full end of the term for which said Patent may be granted, as fully and entirely as the same would have been held and enjoyed by Assignor if this assignment and sale had not been made;
And I hereby authorize and request the Commissioner of Patents and Trademarks to transfer and assign said Patent to the said Assignee.
ASSIGNOR
Prevacus, Inc.
By: /s/ Jake Vanlandingham
Jake Vanlandingham Date
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STATE OF FLORIDA:
: to wit:
CITY OF ___________:
I HEREBY CERTIFY that on this ____ day of _____, 20__, before me, the undersigned Notary Public of the jurisdiction aforesaid personally appeared ___________, and acknowledged himself to be the individual owner of the Platform and that he, being authorized so to do, executed the foregoing instrument for the purposes therein contained.
IN WITNESS MY Hand and Notarial Seal.
| (SEAL) | |
| Notary Public | |
Notary Public, state of Florida NO. _____________________ Qualified in _____________ Counties My Commission expires: _________ |
Registration # : ______________ |
| ACKNOWLEDGED AND ACCEPTED: | |
| Odyssey Group International, Inc. | |
By: /s/J. Michael Redmond J. Michael Redmond President/CEO Odyssey Group international Inc. |
Date |
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Exhibit “E”
STOCK GRANT AGREEMENT
THIS AGREEMENT is made and entered into this 25TH day June 2019, by and between Odyssey Group International, Inc., a Nevada corporation ("Grantor'') and Prevacus, Inc. a Delaware Corporation ("Prevacus").
WHEREAS, Grantor is the record owner and holder of the issued and outstanding shares of the capital stock of Odyssey Group International, Inc. ("Corporation"), a Nevada corporation, which Corporation has authorized two hundred and fifty million (250,000,000) shares of Common stock and; and
WHEREAS, Prevacus desires to acquire the number of shares of said stock as specified in Exhibit "A" hereto (the "Granted Shares") and the Grantor desires to Grant the Granted Shares, upon the terms and subject to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in the Agreement, and in order to consummate the purchase and the sale of the Purchased Shares, it is hereby agreed as follows:
| 1. | Grant of Shares: Subject to the terms and conditions hereinafter set forth, at the closing of the transaction contemplated hereby, Grantor shall convey, transfer, and deliver to Prevacus certificates representing the Granted Shares, in consideration of the Purchased Assets set forth in the Master Agreement. |
| 2. | NUMBER OF PURCHASED SHARES. The number of Granted Shares and total consideration for the purchase of the Purchased Shares are fully set out in Exhibit "A" attached hereto and made a part hereof. |
| 3. | REPRESENTATIONS AND WARRANTIES OF GRANTOR. Grantor hereby warrants and represent: |
| a. | Organization and Standing. Corporations is a corporation duly organized, validly existing and in good standing under the laws of the State Nevada and has the corporate power and authority to carry on its business as it is now being conducted. |
| b. | Restrictions on Stock. |
| i. | Seller is not a party to any agreement, written or oral, creation rights in respect to the Granted Shares in any third person or relation to the voting of the Corporation's Stock. | |
| ii. | Granter is the lawful owner of the Granted Shares, free and clear of all security interests, liens, encumbrances, equities and other charges. | |
| iii. | there are no existing warrants, options, stock purchase agreements, redemption agreements, restrictions of any nature, calls or rights to subscribe of any character relating to the Granted Shares, nor are there any securities convertible into such stock. |
| 4. | REPRESENTATIONS AND WARRANTIES OF GRANTOR AND PREVACUS. Grantor and Prevacus hereby represent and warrant that there has been no act or omission by Grantor, Prevacus or the Corporation which would give rise to any valid claim against any of the parties hereto for a brokerage commission, finder's fee, or other like payment in connection with the transaction contemplated hereby. |
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| 5. | GENERAL PROVISIONS |
| a. | Entire Agreement. This agreement (including the exhibits hereto and any written agreements hereof executed by the parties) constitutes the entire Agreement and supersedes all prior agreements and understandings, oral and written, between the parties hereto with respect to the subject matter hereof. |
| b. | Section and Other Heading. The section and other headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. |
| c. | Governing Law. This agreement and all transactions contemplated hereby, shall be governed by, construed and enforced in accordance with the laws of the State of Florida. |
| d. | Amendment. This Agreement shalt only be amended, modified, or supplemented by a writing signed by all parties hereto. |
(The remainder of the page left intentionally blank)
| 49 |
IN WITNESS WHEREOF, This Agreement has been executed by each of the individual parties hereto on the date first above written.
Signed:
By: /s/Joseph Michael Redmond Joseph Michael Redmond President/CEO Odyssey Group International, Inc. |
6-25-19 Date |
By: /s/ Jake Vanlandingham Jake Vanlandingham President Prevacus, Inc. |
6-25-19 Date |
'
| 50 |
EXHIBIT "A"
NUMBER OF SHARES TO BE PURCHASED
a. Two Million (2,000,000) shares of common stock of Odyssey Group International Inc., trading on the OTCQB under the symbol "ODYY".
| 51 |
Exhibit 10.7
INTELLECTUAL PROPERTY PURCHASE AGREEMENT
by and among
ODYSSEY GROUP INTERNATIONAL INC.,
DE LUCA AND
MURDOCK CAPITAL PARTNERS INC.
This INTELLECTUAL PROPERTY PURCHASE AGREEMENT, dated as of June 26, 2019 (this “Agreement”), by and among James De Luca an individual whose address is 15 Wendover Road, Forest Hills Gardens, NY 11375 (“De Luca” or “Seller”), on the one hand, and Murdock Capital Partners, Inc., whose address is 15 West 53rd Street, 24th Floor, New York, NY 10019 (“MCP” or “Seller”), and, Odyssey Group International Inc., a Nevada corporation (“Odyssey” or “Buyer”), whose address is 2372 Morse Ave. Irvine, CA 92614. Odyssey/Buyer, and Seller are referred to collectively herein as the “Parties.” De Luca and MCP together may be referred to collectively as “Sellers”.
WHEREAS, Buyer is a publically traded company focused on developing and commercializing medical products, including medical devices. (the “Business”); and
WHEREAS, Seller desires to sell, and Buyer desires to purchase, the Purchased Assets (as defined below) upon the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing, he mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
Section 1.1 Purchase and Sale of Assets.
On, and subject to, the terms and conditions of this Agreement, at the Closing, Seller shall sell, assign, transfer, convey and deliver to Buyer, and Buyer shall purchase and acquire from Seller, free and clear of all Encumbrances, all of Seller’s right, title and interest, as of the Closing, in and to the following assets, properties and rights (collectively, the “Purchased Assets”):
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| a) | United States Letters Patent No. 7,559,921, entitled “Device for Removing a Lodged Mass” which issued on July 14, 2009 and which was Reissued on June 2, 2015 and received U.S. Reissue Patent No. Re 45,535 and U. S. Patent No.8,454,624 also entitled “Device for Removing a Lodged Mass” which issued on June 4, 2013 |
| b) | “Second Chance” is an anti choking device in prototype form developed by Seller. |
Section 1.2 Excluded Liabilities and Assets.
Seller is not selling any of its assets to Buyer other than the Purchased Assets. Buyer does not assume any liability or obligation of Seller, in connection with the Purchased Assets pursuant to Buyer’s purchase of such assets in connection with this Agreement.
Section 1.3 Purchase Consideration.
| a) | Equity. In partial consideration for the sale by Seller of the Purchased Assets to Buyer, at the Closing, Odyssey shall grant Seller the equivalent of twenty five thousand dollars ($25,000) in free selling shares of Odyssey common stock. The stock certificate will be delivered to De Luca within 60 days after the Closing. In addition, Odyssey will grant Seller an option to purchase a total of six hundred thousand (600,000) shares of Odyssey common stock and will enter into a Common Stock Purchase Agreement (“Stock Purchase”) in the form attached as Exhibit “A” to this Agreement. The strike price of the options will be the closing price of Odyssey common stock on the day immediately preceding the Closing. The options will vest as follows: two-hundred fifty thousand on the day of the Closing; one hundred thousand (100,000) one year from the Effective Date at the strike price of the stock on the day of closing and two hundred fifty thousand (250,000) two (2) years from the Effective Date or upon the FDA submission for approval, whichever occurs first. The Equity portion of the consideration detailed above will be split between De Luca and MCP, sixty (60) percent will go to De Luca and forty (40) percent will go to MCP. | |
| b) | Royalty Agreement. In partial consideration for the sale by Seller of the Purchased Assets to Buyer, at the Closing, Buyer shall enter into a Royalty Agreement (“Seller Royalty”) with Seller in the form attached as Exhibit “B” to this Agreement providing for payment of three percent (3%) of the net profits from the commercial sale of products that contain the Purchased Assets in perpetuity, collected by Buyer on the terms and conditions set forth therein. Net profits will be determined according to GAAP. The Royalty portion of the consideration will be split between De Luca and MCP, sixty (60) percent will go to De Luca and forty (40) percent will go to MCP. | |
| c) | Consulting Agreement. In partial consideration for the sale by Seller of the Purchased Assets to Buyer, at the Closing, Buyer shall enter into a Consulting Agreement (“Consulting Agreement”) with De Luca and Murdock Capital Partners in the form attached hereto as Exhibit “C” to this Agreement. | |
| d) | Cash Payment: A onetime cash payment totaling two hundred fifty thousand dollars ($250,000) will be paid to Sellers upon FDA clearance of the product containing the Intellectual Property. The total payment will be split between the Sellers, De Luca will be paid sixty (60) percent of the total and MCP will be paid forty (40) percent of the total. | |
| e) | Patent Assignment. In partial consideration for the sale by Seller of the Purchased Assets to Buyer, at the Closing, Seller shall enter a Patent Assignment Agreement (“Patent Assignment”) in the form attached hereto as Exhibit “D,” providing a recordable assignment of the US Patents described in the Purchased Assets to Buyer. |
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| f) | Security Interest. Buyer shall grant to De LUCA, a security interest in the Purchased Assets as collateral security for the prompt and complete payment and performance when due of Odyssey’s obligations as defined herein. If Buyer fails to make any of the above payments, whether cash or equity, then the ownership of the Purchased Assets will revert back to Sellers. However, any improvements to the Purchased Assets made after the Closing will remain the property of Buyer. | |
| g) | Non-Compete by Seller. Seller agrees not to assist, work for or in any way provide services that in any way relates to the development, manufacturing, sales, marketing or distribution of an anti-choking device or any device that rescues a person from choking except on behalf of Buyer. |
Section 1.4 Closing Transactions.
(a) Closing. Unless this Agreement shall have been terminated in accordance with Section 8.1, and subject to the satisfaction or, if permissible, waiver of the conditions set forth in Article VII, the closing of the Transactions (the “Closing”) will take place at 12:00 noon, Los Angeles, California time, on a date to be specified by the Parties but no later than June 30, 2019 (the “Closing Date”), which shall be not later than the second Business Day after the satisfaction or, if permissible, waiver of the conditions set forth in Article VII (other than those that by their terms are to be satisfied or waived at the Closing), at the offices of Odyssey Group International, Inc. at 2372 Morse Ave Irvine CA , unless another time, date or place is agreed to in writing by the Parties; provided, however, that the Parties shall use reasonable efforts to conduct the Closing by mail and overnight delivery so as not to require the personal attendance of the parties at the Closing. If the parties agree, the Closing may be telephonic.
(b) Actions and Deliveries by Seller. At the Closing, Seller shall deliver to Buyer and Odyssey:
(i) the Patent Assignment in the form of Exhibit D dated the Closing Date and duly executed by Seller;
(iii) the Consulting Agreement in the form of Exhibit C dated the Closing Date and duly executed by De Luca and Murdock ;
(iv) the certificates and documents required to be delivered by Seller pursuant to Sections 7.1 and 7.2;
(v) all such other instruments of assignment and transfer as are reasonably required to effect the transfer to Buyer of all of Seller’s right, title and interest in and to the Purchased Assets in accordance with this Agreement, in form and substance reasonably satisfactory to Buyer and Seller; and
(vi) Duly executed copies of all the agreements referred to in this Agreement.
(c) Actions and Deliveries by Buyer and/or Odyssey (as required). At the Closing, Buyer and/or Odyssey (as required) shall deliver to Seller:
(ii) the Stock Option Agreement in the form of Exhibit A dated the Closing Date and duly executed by Buyer;
(iii) the Seller Royalty Agreement in the form of Exhibit B dated the Closing Date and duly executed by Buyer;
(iv) the certificates and documents required to be delivered by Buyer pursuant to Sections 7.1 and 7.3.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer that, to the best of “Seller’s Knowledge” (as hereinafter defined) and except as set forth in the disclosure schedule delivered by Seller to Buyer and attached hereto and made a part hereof (the “Seller Disclosure Schedule”). The De Luca Seller makes no representation or warranty as to MCP and MCP makes no representation or warranty as to De Luca. Such respective warranties and representations shall be true as of the date of execution and the date of Closing:
Section 2.1 Organization.
MCP is duly incorporated, validly existing and in good standing under the Laws of the Commonwealth of New York and has the requisite corporate power and authority to own, operate or lease the properties that it purports to own, operate or lease and to carry on its business as it is now being conducted.
Section 2.2 Authority Relative to this Agreement and Related Matters.
Sellers respectively have all necessary personal or corporate power and authority to enter into this Agreement and to carry out its obligations hereunder. The execution and delivery by Sellers of this Agreement and the consummation by Sellers of the transactions contemplated hereby (the “Transactions”) have been duly authorized by all necessary corporate action on the part of each Seller. This Agreement has been duly executed and delivered by Sellers and, assuming the due authorization, execution and delivery hereof by Buyer, no further action or approval, corporate or otherwise, is required in order to constitute this Agreement as a valid and binding obligation of Seller enforceable in accordance with its terms.
Section 2.3 No Conflict; Required Filings and Consents.
The execution and delivery of this Agreement by Sellers does not, and the consummation by Sellers of the Transactions will not, (a) conflict with or violate the certificate of incorporation or bylaws, each as amended to date, of each respective Seller, (b) conflict with or violate any Law or Order applicable to Seller or by which Seller or any of its properties is bound, (c) result in a breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give rise to any right of termination, acceleration or cancellation under, or result in the creation of an Encumbrance on any of the Purchased Assets pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license or other instrument or obligation to which Seller is a party or by which Seller or any of its properties is bound, or (d) require Seller to obtain any consent, approval, authorization or permit of, or to make any filing with or notification to, any Governmental Authority, except (i) as set forth in Section 2.3 of the Seller Disclosure Schedule, or (ii) for any filings required pursuant to the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”).
Section 2.4 Absence of Litigation.
Except as disclosed in Section 2.4 of the Seller Disclosure Schedule, as of the date hereof and with respect to each Seller separately, (a) there is no private or governmental action, suit, proceeding, litigation, arbitration or investigation (“Action”) pending or, to the knowledge of Seller, threatened against Seller before any Governmental Authority that, if adversely determined, would prohibit, prevent, enjoin, restrict or materially impair or delay any of the Transactions, and (b) there is no legally binding judgment, decree, order, injunction, decision or award of any Governmental Authority (“Order”) against Seller that would prohibit, prevent, enjoin, restrict or materially impair or delay any of the Transactions.
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Section 2.5 Purchased Assets.
Seller owns (beneficially and of record) all right, title and interest in and to all Purchased Assets, free and clear of all Encumbrances. Purchased Assets have been duly filed in the jurisdiction named in each such patents , have each been prosecuted to issuance as a patent and have not been abandoned or allowed to lapse. There is no Action that is pending or, to the knowledge of Seller, threatened that challenges the rights of Seller in respect of any Purchased Assets or the validity, enforceability or effectiveness thereof. Seller has not received any written communication alleging that it has infringed the Intellectual Property rights of any third party and there are no Actions that are pending or, to the knowledge of Seller, threatened against Seller with respect thereto. To the knowledge of Seller, there is no unauthorized use, infringement or misappropriation of the Purchased Assets by any third party and there is no Action that is pending or threatened by Seller with respect thereto. Notwithstanding anything to the contrary, this representation shall not limit or restrict the transfer to Buyer pursuant to this Agreement of all right, title and interest in and to the Purchased Assets owned by Seller throughout the world; provided, however, that Seller does not represent, warrant or covenant that any rights in or to the Purchased Assets exist anywhere outside of the United States of America.
Section 2.6 Seller’s Knowledge.
The term "Seller's Knowledge" as used herein means the actual knowledge (and not the implied or constructive knowledge) without any duty of investigation or inquiry of the following person: James De Luca, Seller.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represent and warrants to Seller that, except as set forth in the disclosure schedule delivered by Buyer to Seller and attached hereto and made a part hereof (the “Buyer Disclosure Schedule”). Such warranties and representation shall be true as of the date of execution and the date of Closing:
Section 3.1 Organization.
Buyer is duly incorporated, validly existing and in good standing under the Laws of each of their respective jurisdictions of organization and each has the requisite corporate power and authority to own, operate or lease the properties that it purports to own, operate or lease and to carry on its business as it is now being conducted.
Section 3.2 Authority Relative to this Agreement and Related Matters.
Buyer has all necessary corporate power and authority, as the case may be, to enter into this Agreement and to carry out each of their respective obligations hereunder. The execution and delivery by Buyer of this Agreement and the consummation by the Buyer of the Transactions have been duly authorized by all necessary corporate action on the part of the Buyer. This Agreement has been duly executed and delivered by the Buyer, and, assuming the due authorization, execution and delivery hereof by Seller, constitutes the legal, valid and binding obligation of the Buyer, enforceable against each the Buyer in accordance with its terms.
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Section 3.3 No Conflict; Required Filings and Consents.
The execution and delivery of this Agreement by Buyer does not, and the consummation of the Transactions will not, (a) conflict with or violate the organizational or governing documents of Buyer and/or Odyssey, (b) conflict with or violate any Law or Order applicable to Buyer or by which Buyer or or any of their respective properties is bound, (c) result in a breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give rise to any right of termination, acceleration or cancellation under, any note, bond, mortgage, indenture, contract, agreement, lease, license or other instrument or obligation to which Buyer is a party or by which Buyer or Odyssey or any of their respective properties is bound, or (d) require Buyer or Odyssey to obtain any consent, approval, authorization or permit of, or to make any filing with or notification to, any Governmental Authority, except (i) as set forth in Section 3.3 of the Buyer Disclosure Schedule, or (ii) for any filings required pursuant to the Exchange Act.
Section 3.4 Absence of Litigation.
Except as disclosed in Section 3.4 of the Buyer Disclosure Schedule, as of the date hereof, (a) there is no Action pending or, to the knowledge of Buyer, threatened against Buyer or Odyssey before any Governmental Authority that, if adversely determined, would prohibit, prevent, enjoin, restrict or materially impair or delay any of the Transactions, and (b) there is no Order against Buyer that would prohibit, prevent, enjoin, restrict or materially impair or delay any of the Transactions contemplate hereby.
ARTICLE IV
COVENANTS OF SELLER
Section 4.1 Conduct of Seller Pending the Closing.
Seller shall not, between the date of this Agreement and the Closing Date or the earlier termination of this Agreement, do or agree to do any of the following without the prior written consent of Buyer:
(a) take or fail to take, or agree to take or fail to take, any action which would make any representation or warranty made by Seller herein untrue or incorrect in any material respect as of the date of this Agreement or the date of the Closing;
(b) sell, lease, license, encumber, transfer or otherwise dispose of any Purchased Assets; and
(c) agree to do any of the foregoing.
Section 4.2 Notification of Certain Events.
Seller shall give prompt notice to Buyer if any of the following occurs after the date of this Agreement: (i) there has been a material failure of Seller to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it hereunder; (ii) receipt by Seller of any material notice or other communication from any Governmental Authority in connection with the Transactions; (iii) the occurrence of an event which would cause a condition in Section 7.2 not to be satisfied; or (iv) the commencement or threat, in writing, of any Action against Seller, or any of its properties, with respect to the Transactions and/or any of the Purchased Assets. No such notice to Buyer shall have any effect on the determination of whether or not any of the conditions to Closing or to the consummation of the Transactions have been satisfied or in determining whether or not any of the representations, warranties or covenants contained in this Agreement have been breached.
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ARTICLE V
COVENANTS OF BUYER
Section 5.1 Representations and Warranties.
Buyer covenants and agrees that, except as otherwise contemplated by this Agreement or unless Seller shall give its prior written consent, Buyer shall not, between the date of this Agreement and the Closing Date or the earlier termination of this Agreement, take or fail to take, or agree to take or fail to take, any action which would make any representation or warranty made by Buyer herein untrue or incorrect in any material respect.
Section 5.2 Notification of Certain Events.
Buyer shall give prompt notice to Seller if any of the following occurs after the date of this Agreement: (i) there has been a material failure of Buyer to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it hereunder; (ii) receipt by Buyer of any material notice or other communication from any Governmental Authority in connection with the Transactions; (iii) the occurrence of an event which would cause a condition in Section 7.3 not to be satisfied; or (iv) the commencement or threat, in writing, of any Action against Buyer, or any of its properties, with respect to the Transactions. No such notice to Seller shall have any effect on the determination of whether or not any of the conditions to Closing or to the consummation of the Transactions have been satisfied or in determining whether or not any of the representations, warranties or covenants contained in this Agreement have been breached.
Section 5.3 Condition of Purchased Assets.
BUYER ACKNOWLEDGES THAT IT IS A SOPHISTICATED INVESTOR IN ASSET PURCHASES OF THE TYPE CONTEMPLATED BY THIS AGREEMENT AND THAT ITS VALUATION OF AND DECISION TO PURCHASE THE PURCHASED ASSETS IS BASED UPON ITS OWN INDEPENDENT EXPERT EVALUATIONS OF SUCH FACTS AND MATERIALS DEEMED RELEVANT BY BUYER. BUYER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN SECTION 2 ABOVE, SELLER HAS NOT MADE, AND SELLER HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATION, WARRANTY, GUARANTY, PROMISE, COVENANT OR AGREEMENT, IN EACH CASE WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING, OR WITH RESPECT TO THE PURCHASED ASSETS. BUYER ACKNOWLEDGES AND AGREES THAT, HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PURCHASED ASSETS, BUYER IS RELYING SOLELY ON ITS OWN INVESTIGATION OF THE PURCHASED ASSETS, AND NOT ON ANY MATERIALS AND OTHER INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER EXCEPT FOR THE REPRESENTATIONS SET FORTH IN THIS AGREEMENT. BUYER FURTHER ACKNOWLEDGES THAT ANY INFORMATION PROVIDED AND TO BE PROVIDED WITH RESPECT TO THE PURCHASED ASSETS WAS OBTAINED FROM A VARIETY OF SOURCES AND SELLER (i) HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION; AND (ii) MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. EXCEPT AS OTHERWISE EXPRESSLY SPECIFIED HEREIN, BUYER AGREES TO ACCEPT THE PURCHASED ASSETS AND ACKNOWLEDGES THAT THE SALE OF THE PURCHASED ASSETS AS PROVIDED FOR HEREIN IS CONDITIONED ON THE FACT THAT THE PROPERTY IS "AS IS, WHERE IS AND WITH ALL FAULTS". WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER EXPRESSLY ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, SELLER MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE VALUE, NATURE, QUALITY OR CONDITION OF THE PURCHASED ASSETS (OR ANY PORTION THEREOF), (B) THE INCOME TO BE DERIVED FROM THE PURCHASED ASSETS (OR ANY PORTION THEREOF), (C) THE SUITABILITY OF THE PURCHASED ASSETS (OR ANY PORTION THEREOF) FOR ANY AND ALL ACTIVITIES AND USES WHICH BUYER MAY CONDUCT THEREWITH, (D) THE COMPLIANCE OF OR BY THE PURCHASED ASSETS (OR ANY PORTION THEREOF) OR ITS USE WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (E) THE MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PURCHASED ASSETS (OR ANY PORTION THEREOF), (F) THE MANNER OR QUALITY OF THE OPERATIONSENABLED BY THE PURCHASED ASSETS (OR ANY PORTION THEREOF), (G) THE MANNER, QUALITY, OR STATE OF THE PURCHASED ASSETS (OR ANY PORTION THEREOF), (H) THE PAST, PRESENT OR FUTURE USE OF THE PURCHASED ASSETS (OR ANY PORTION THEREOF), (I) THE RELIABILITY, ACCURACY OR COMPLETENESS OF ANY OF THE PURCHASED ASSETS FOR THE USES INTENDED BY BUYER; AND BUYER HEREBY WAIVES ANY RIGHT TO MAKE ANY CLAIM BASED ON ANY OF THE FOREGOING.
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Section 5.4 Maintenance of the Purchased Assets
Buyer represents and warrants that it will take all steps to pay any and all of the periodic maintenance fees due and owing to the United States Patent and Trademark Office to keep the Patents in force and effect. If Buyer fails to make such payment, when due the ownership of the Patents will automatically revert back to De Luca if De Luca makes the payments and is not reimbursed by Seller within 10 days of notice of the payment.
ARTICLE VI
ADDITIONAL AGREEMENTS OF THE PARTIES
Section 6.1 Commercially Reasonable Efforts.
(a) Upon the terms and subject to the conditions hereof, each of the Parties agrees to use its commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and make effective as promptly as practicable the Transactions and to vest in Buyer (and any transferee of Buyer) good and marketable title to the Purchased Assets, including obtaining all consents, waivers, authorizations and approvals from Governmental Authorities and other third parties required for the consummation of the Transactions.
(b) From time to time after the Closing, at the request of Buyer (or any transferee of Buyer) and at such requesting party’s expense, and without further consideration, Seller agrees on its own behalf, as well as on behalf of its subsidiaries, affiliates, successors, assigns and legal representatives, to execute and deliver to Buyer any further documents or instruments and perform any further acts that may reasonably be deemed necessary to vest, record, perfect, support and/or confirm the rights herein conveyed, or intended so to be, to Buyer (and any transferee of Buyer) with respect to the Purchased Assets, including without limitation such assignments, agreements and limited powers of attorney as may be needed for recording or effectuating the transfer of the Purchased Assets in the United States. Nothing herein shall be deemed a waiver by Buyer of its right to receive at the Closing an effective assignment of such rights by Seller as otherwise set forth in this Agreement. Without limiting the generality of the foregoing, Seller shall execute and deliver to Buyer or obtain for delivery to Buyer, at the request of Buyer and at Buyer’s expense, and without further consideration, any documents required to update record title to the owned Purchased Assets to reflect Buyer (and any transferee of Buyer) as the record owner in each jurisdiction in which such Purchased Assets exists. At the request of Buyer and at Buyer’s expense, and without further consideration, Seller shall reasonably cooperate with Buyer (and any transferee of Buyer) in connection with the registration of the Purchased Assets in jurisdictions outside of the United States, in the event such registration is available.
(c) From time to time after the Closing, at the request of Buyer and at Buyer’s expense, and without further consideration, Seller shall assist Buyer (and any transferee of Buyer) to the extent reasonably necessary for the defense or prosecution of any claim by or against any third party with respect to the ownership, validity, enforceability, infringement or other violation of or by the Purchased Assets, so long as Seller is not named as a party adverse to the Buyer in any such proceeding.
Section 6.2 Public Announcements.
Each of the Parties agrees that a press release or announcement concerning this Agreement or the Transactions shall be issued by it. Such release or announcement may also be required by applicable Law or the rules or regulations of any securities exchange.
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ARTICLE VII
CONDITIONS TO THE CLOSING
Section 7.1 Conditions to Obligations of Each Party.
The respective obligations of each Party to consummate the Transactions shall be subject to the condition that no Governmental Authority shall have enacted, issued, promulgated, enforced, initiated, or entered any Law or Order (whether temporary, preliminary or permanent) that is then in effect and has the effect of making the Transactions illegal or otherwise preventing or prohibiting consummation of the Transactions.
Section 7.2 Additional Conditions to Obligations of Buyer.
The obligation of Buyer to consummate the Transactions shall also be subject to the satisfaction or waiver (where permissible), on or prior to the Closing Date, of each of the following conditions:
(a) The representations and warranties of Seller set forth in Article II of this Agreement (i) that are qualified by the words “material” or “material adverse effect” shall be true and correct in all respects on and as of the Closing Date as if made on and as of such date and (ii) that are not so qualified shall be true and correct in all material respects on and as of the Closing Date as if made on and as of such date, except in any such case (x) for changes contemplated by this Agreement and by the Seller Disclosure Schedule, and (y) to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall remain true and correct (in all material respects, as the case may be) as of such date.
(b) Seller shall in all material respects have performed or complied with each obligation and covenant to be performed or complied with by Seller hereunder on or prior to the Closing Date, including the deliveries under Section 1.4(b).
(c) Buyer shall have received a certificate of Seller, dated the Closing Date, signed by an officer of Seller, to the effect that the conditions specified in Sections 7.2(a) and (b) have been satisfied.
Section 7.3 Additional Conditions to Obligations of Seller.
The obligation of Seller to consummate the Transactions shall also be subject to the satisfaction or waiver (where permissible), on or prior to the Closing Date, of each of the following conditions:
(a) The representations and warranties of Buyer set forth in Article III of this Agreement shall be true and correct in all material respects on and as of the Closing Date as if made on and as of such date, except in any such case (x) for changes contemplated by this Agreement and by the Buyer Disclosure Schedule, and (y) to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall remain true and correct (in all material respects, as the case may be) as of such date.
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(b) Buyer shall in all material respects have performed or complied with each obligation and covenant to be performed or complied with by it hereunder on or prior to the Closing Date, including the deliveries under Section 1.4(c).
(c) Seller shall have received a certificate of Buyer, dated the Closing Date, signed by an executive officer of Buyer, to the effect that the conditions specified in Sections 7.3(a) and (b) have been satisfied.
ARTICLE VIII
TERMINATION
Section 8.1 Termination.
After the Closing, this Agreement may be terminated at any time by Buyer by giving thirty (30) days written notice to Sellers.
This Agreement may not be terminated at any time prior to the Closing Date except:
(a) By mutual written consent of Buyer and Seller;
(b) by either Seller or Buyer, if the Closing shall not have occurred on or before June 30, 2019 (the “Outside Date”); provided, however, that the right to terminate this Agreement under this Section 8.1(b) shall not be available to any Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Transactions to be consummated on or before the Outside Date;
(c) by either Seller or Buyer if any Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Law or Order that is, in each case, then in effect and is final and non-appealable and has the effect of making the Transactions illegal or otherwise preventing or prohibiting consummation of the Transactions; provided, however, that the right to terminate this Agreement under this Section 8.1(c) shall not be available to any Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, any such Law or Order to have been enacted, issued, promulgated, enforced or entered;
(d) by Buyer (if Buyer is not in material breach of any of the terms or conditions of this Agreement), if there has been a material breach by Seller of any terms or conditions of this Agreement, or if any representation or warranty of Seller shall have become inaccurate, in either case that would result in a failure of a condition set forth in Section 7.2(a) or 7.2(b) (a “Terminating Seller Breach”); provided, that if such Terminating Seller Breach is reasonably curable by Seller, within 30 days after Seller has received written notice from Buyer of such Terminating Seller Breach, through the exercise of its commercially reasonable efforts and for as long as Seller continues to exercise such commercially reasonable efforts, Buyer may not terminate this Agreement under this Section 8.1(d) until the earlier of the expiration of such 30-day period and the Outside Date; and
(e) by Seller (if Seller is not in material breach of any of its representations, warranties, covenants or agreements under this Agreement), if there has been a material breach by Buyer of any of terms or conditions of this Agreement, or if any representation or warranty of Buyer shall have become inaccurate, in either case that would result in a failure of a condition set forth in Section 7.3(a) or 7.3(b) (a “Terminating Buyer Breach”); provided, that if such Terminating Buyer Breach is reasonably curable by Buyer, within 30 days after Buyer has received written notice from Seller of such Terminating Buyer Breach, through the exercise of its commercially reasonable efforts and for as long as Buyer continues to exercise such commercially reasonable efforts, Seller may not terminate this Agreement under this Section 8.1(e) until the earlier of the expiration of such 30-day period and the Outside Date.
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Section 8.2 Effect of Termination.
In the event of the termination of this Agreement pursuant to Section 8.1, this Agreement shall forthwith become void, and there shall be no liability on the part of any Party hereto or any of their respective Affiliates or the directors, officers, partners, members, managers, employees, agents or other representatives of any of them, and all rights and obligations of each Party hereto shall cease, except that nothing herein shall relieve any Party from liability for any breach of this Agreement committed before such termination. Without limiting the foregoing, Section 6.2, this Section 8.2 and Article X shall survive the termination of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, nothing shall limit or prevent any Party from exercising any rights or remedies it may have under Section 10.9 hereof in lieu of terminating this Agreement pursuant to Section 8.1. Upon termination by buyer, the Purchased Assets will revert back to Seller. All unvested stock options shall terminate. Additionally, all of the Agreements attached to this Agreement will also terminate. Notwithstanding anything to the contrary contained in this Agreement, nothing shall limit or prevent any Party from exercising any rights or remedies it may have under any of the agreements attached as Exhibits to this Agreement, whether or not this Agreement has been terminated.
ARTICLE IX
INDEMNIFICATION PROVISIONS
Section 9.1 Seller’s Indemnification Obligation.
Seller agrees that, from and after the Closing, it shall indemnify, defend and hold harmless Buyer and their respective officers, directors, Affiliates, partners, members, managers, employees, agents and other representatives (“Buyer Indemnified Parties”) from and against any damages, claims, losses, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) (each, a “Liability” and, collectively, “Liabilities”) incurred by any of the foregoing Persons arising out of (a) any misrepresentation in or breach of any representation or warranty of Seller contained in Article II of this Agreement and/or (b) any breach of any covenant or agreement of Seller contained in this Agreement, and/or (c) any action, suit, litigation, proceeding at law or in equity, arbitration or governmental investigation against, or threatened against, Buyer relating to any pre-Closing matter regarding the Purchased Assets, except in all cases to the extent any Liabilities arise out of any breach of the Buyer's representations, warranties, covenants or agreements set forth in this Agreement.
Section 9.2 Buyer’s Indemnification Obligation.
Buyer agrees that, from and after the Closing, it shall indemnify, defend and hold harmless Seller and its officers, directors, Affiliates, partners, members, managers, employees, agents and other representatives (“Seller Indemnified Parties”) from and against any Liabilities incurred by any of the foregoing Persons arising out of (a) any misrepresentation in or breach of any representation or warranty of Buyer contained in Article III of this Agreement, (b) any breach of any covenant or agreement of Buyer contained in this Agreement, (c) any action, suit, litigation, proceeding at law or in equity, arbitration or governmental investigation against, or threatened against, Seller relating to any post-Closing matter regarding the Purchased Assets, except in all cases to the extent any Liabilities arise out of any breach of the Seller's representations, warranties, covenants or agreements set forth in this Agreement or (d) any action, suit, litigation, proceeding at law or in equity, arbitration or governmental investigation against, or threatened against, Seller relating to any product liability claim made by any purchaser of any product sold by Buyer.
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Section 9.3 Procedures for Indemnification for Third Party Claims.
For purposes of this Article IX, any Party entitled to be indemnified under Article IX is referred to herein as an “Indemnified Party,” and any Party obligated to provide indemnification under Article IX is referred to herein as an “Indemnifying Party.” The obligations and liabilities of the Parties under this Article IX with respect to, relating to or arising out of claims of third parties (individually, a “Third Party Claim” and, collectively, the “Third Party Claims”) shall be subject to the following terms and conditions:
(a) The Indemnified Party shall give the Indemnifying Party prompt written notice of any Liability regarding which it seeks indemnification. In the event a Liability is the result of a Liability asserted against the Indemnified Party by a third-party to this Agreement (a “Third Party Claim”), the Indemnifying Party may undertake the defense of that claim by representatives chosen by it with the written consent of the Indemnified Party, which consent may not be unreasonably withheld, conditioned or delayed, provided, that, in such event, the Indemnified Party will have the right to participate in such defense through counsel of its own choice. Any such notice of a Liability shall identify with reasonable specificity the basis for the indemnification claimed, the facts giving rise to the Liability and the amount of the Liability (or, if such amount is not yet known, a reasonable estimate of the amount of the Liability). The Indemnified Party shall make available to the Indemnifying Party copies of all relevant documents and records in its possession at the expense of the Indemnifying Party. Failure of an Indemnified Party to give prompt notice shall not relieve the Indemnifying Party of its obligation to indemnify, except to the extent that the failure to so notify materially prejudices the Indemnifying Party’s ability to defend such claim against a third party.
(b) If the Indemnifying Party, within ten (10) days after notice from the Indemnified Party of any such Liability, notifies the Indemnified Party in writing of its election not to, or fails to, assume the defense thereof in accordance with Section 9.3(a) of this Agreement, the Indemnified Party shall have the right (but not the obligation) to undertake the defense of the Liability. Any failure on the part of the Indemnifying Party to notify the Indemnified Party within the time period provided above regarding its election shall be deemed an election by the Indemnifying Party not to assume and control the defense of the Liability.
(c) Anything in this Section 9.3 to the contrary notwithstanding, the Indemnifying Party shall not, and does not have any authority to, without the prior written consent of the Indemnified Party, settle or compromise any Liability or consent to the entry of judgment which does not include as an unconditional term thereof the unconditional release of the Indemnified Party, or consent to the entry of judgment with respect thereto, any Liability regarding which it has delivered notice of a claim for indemnification to the Indemnifying Party, without first obtaining the written consent of the Indemnifying Party (which shall not be unreasonably withheld or delayed). An Indemnifying Party shall be deemed to have consented to a settlement, compromise, payment or judgment by the Indemnified Party if it does not respond to written notice from the Indemnified Party seeking such consent within ten (10) days after delivery of such notice to the Indemnifying Party.
Section 9.4 Indemnification Limitations.
(a) Time Limits On Indemnification. Except for a claim made under 9.2(d) for which there is no time limit, no claim on account of a breach or inaccuracy of a representation or warranty shall be made after the expiration of the survival periods referred to in Section 10.1 of this Agreement. Notwithstanding the foregoing, if a written claim or written notice is given under Article IX with respect to any representation or warranty prior to the expiration of its survival period, the claim with respect to such representation or warranty shall continue until such claim is finally resolved.
(b) Limitations on Damages.
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(i) In no event shall Seller be liable for indemnification pursuant to Section 9.1(a) unless and until the aggregate of all Liabilities which are incurred or suffered by the Buyer Indemnified Parties exceeds $50,000 (the “Basket”), in which case the Buyer Indemnified Parties shall be entitled to indemnification for all such Liabilities including the Basket (subject to Section 9.4(b)(ii)). Except for a claim made under 9.2(d) for which there is no Basket, in no event shall Buyer be liable for indemnification pursuant to Section 9.2(a) unless and until the aggregate of all Liabilities which are incurred or suffered by the Seller Indemnified Parties exceeds the Basket, in which case the Seller Indemnified Parties shall be entitled to indemnification for all such Liabilities including the Basket (subject to Section 9.4(b)(ii)).
(ii) Notwithstanding anything to the contrary in this Agreement, the maximum aggregate liability of Seller pursuant to Section 9.1(a) shall not exceed (1) the amount of money actually paid to and received by the Seller from the Buyer or their Affiliates pursuant to the terms of this Agreement and any of the Agreements attached as Exhibits hereto as of the date the notice of requested indemnification is delivered to the Seller, less (2) any amounts of money currently due the Seller from the Buyer, Odyssey or their Affiliates pursuant to the terms of this Agreement and any of the Agreements attached as Exhibits hereto. For purposes of this provision, the right to purchase Odyssey stock at its par value or the shares, if purchased, shall be valued at the greater of its book value or its then current market price.
Except for a claim made under 9.2(d) for which there is no limit, the maximum aggregate liability of Buyer pursuant to Section 9.2(a) shall not exceed $7,500,000.
(iii) Notwithstanding anything to the contrary contained in this Agreement or otherwise, no Party to this Agreement shall be liable to any Indemnified Party for any special, incidental, punitive, consequential or similar damages except, in the event a Third Party Claim results in a judgment against an Indemnified Party by the third-party claimant, then such damages shall be included in the amount of indemnification due the Indemnified Party.
Section 9.5 Exclusive Remedy.
The remedies provided in this Article IX shall be the sole and exclusive remedies of the Parties with respect to the matters arising from or related to this Agreement or the Transactions, except that nothing herein shall prevent a Party from seeking specific performance pursuant to Section 10.9, subject to the provisions thereof, including with respect to the obligations in Section 6.1.
ARTICLE X
GENERAL PROVISIONS
Section 10.1 Survival of Representations and Warranties.
Except for a claim made under 9.2(d) for which there is no time limit, the representations and warranties made by Seller in Article II of this Agreement shall survive until the date that is fifteen (15) months after the Closing Date. The representations and warranties made by Buyer in Article III of this Agreement shall survive until the date that is fifteen (15) months after the Closing Date.
Section 10.2 Notices.
All notices and other communications under this Agreement shall be in writing and shall be deemed given (a) when delivered personally by hand (with written confirmation of receipt) or (b) one Business Day following the day sent by nationally-recognized overnight courier (with written confirmation of receipt), in each case at the following addresses (or to such other address as a Party may have specified by notice given to the other Party pursuant to this provision)
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| (a) | if to Buyer: | |
Odyssey Group International, Inc. 1327 Morse Ave Irvine, CA 90401 Attention: Michael Redmond | ||
| (b) | Seller | |
James De Luca. 15 Wendover Road, Forest Hills Gardens, NY 11375 | ||
| with a copy to: | ||
Murdock Capital Partners, Inc.15 West 53rd Street, 24th Floor, New York, NY 10019 Attention: | ||
Any notice or other communication that has been given or made as of a date that is not a Business Day shall be deemed to have been given or made on the next succeeding day that is a Business Day.
Section 10.3 Headings.
The headings contained in this Agreement and the disclosure schedules are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement or the disclosure schedules. Unless the context of this Agreement otherwise requires, words of any gender are deemed to include each other gender and words using the singular or plural number also include the plural or singular number, respectively.
Section 10.4 Entire Agreement.
This Agreement, together with the exhibits and schedules attached hereto, constitutes the entire agreement, and supersede all prior agreements and undertakings, both written and oral, between the Parties with respect to the subject matter hereof. There are no agreements, commitments, promises, or representations that are not contained herein.
Section 10.5 Assignment: Parties in Interest.
This Agreement and any rights or obligations hereunder can be assigned by any Party without the prior written consent of the other Party. This Agreement shall be binding upon and inure solely to the benefit of each Party hereto and its successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to confer upon any other Person any rights or remedies of any nature whatsoever under this Agreement, other than Article IX hereof (which is intended to be for the benefit of the Persons covered thereby and may be enforced by such Persons).
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Section 10.6 Governing Law; Consent to Jurisdiction.
This Agreement shall be governed by, and construed in accordance with, the Laws of the State of California applicable to contracts executed in and to be performed entirely in that State, without regard to conflicts of Laws principles thereof to the extent that the general application of the Laws of another jurisdiction would be required thereby.
Section 10.7 Counterparts.
This Agreement may be executed and delivered (including by facsimile transmission or .pdf) in one or more counterparts, and by the Parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
Section 10.8 Severability.
In case any provision in this Agreement shall be held invalid, illegal or unenforceable in a jurisdiction, such provision shall be modified or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other jurisdiction.
Section 10.9 Specific Performance.
The Parties hereto 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. Accordingly, the Parties further agree that each Party shall be entitled to seek an injunction or restraining order to prevent breaches of this Agreement and to seek to enforce specifically the terms and provisions hereof, this being in addition to any other right or remedy to which such Party may be entitled under this Agreement, at law or in equity.
Section 10.10 Fees and Expenses.
All fees, costs and expenses incurred in connection with this Agreement and the Transactions shall be paid by the Party incurring the same, regardless of the termination, if any, of this Agreement pursuant to Section 8.1. Notwithstanding the foregoing, in the event the Parties engage in litigation relating to or arising out of this Agreement or the performance thereof, the Parties agree that the Court shall be asked to determine which Party is the prevailing Party to the proceeding or proceedings, and the non-prevailing Party or Parties shall, jointly and severally, be liable to the prevailing Party in the amount of all reasonable attorney’s fees, court costs, and all other expenses, incurred by the prevailing Party to the proceeding in addition to any other relief to which the prevailing Party may be entitled.
Section 10.11 Amendment.
This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written agreement executed by Buyer, , and Seller.
Section 10.12 Waiver.
At any time prior to the Closing Date, any Party hereto may (a) extend the time for the performance of any of the obligations or other acts of the other Party hereto, (b) waive any inaccuracies in the representations and warranties contained herein or in any document delivered pursuant hereto and (c) waive compliance with any of the agreements or conditions contained herein. Any such extension or waiver shall be valid if set forth in an instrument in writing signed by the Parties hereto. The failure of any Party hereto to assert any of its rights hereunder shall not constitute a waiver of such rights.
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ARTICLE XI
CERTAIN DEFINITIONS
For purposes of this Agreement, the term:
“Action” shall have the meaning ascribed to it in Section 2.4.
“Affiliate” of a Person means a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified. “Agreement” shall have the meaning ascribed to it in the preamble.
“Business Day” means any calendar day which is not a Saturday, Sunday or federal holiday.
“Buyer” shall have the meaning ascribed to it in the Preamble.
“Buyer Disclosure Schedule” shall have the meaning ascribed to it in the preamble to Article III.
“Closing” shall have the meaning ascribed to it in Section 1.4(a).
“Closing Date” shall have the meaning ascribed to it in Section 1.4(a).
“Control” (including the terms “Controlled by” and “under common Control with”) means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, as trustee or executor, by contract or credit arrangement or otherwise.
“Encumbrance” means any charge, claim, community property interest, condition, easement, covenant, warrant, demand, encumbrance, equitable interest, lien, mortgage, option, purchase right, pledge, security interest, right of first refusal or other right of third parties or restriction of any kind, including any restriction on use, voting, transfer, receipt of income or exercise of any other attribute of ownership.
“Exchange Act” shall have the meaning ascribed to it in Section 2.3.
“Governmental Authority” means any United States federal, state or local government, governmental, regulatory or administrative authority, agency, self-regulatory body, instrumentality or commission, and any court, tribunal or judicial or arbitral body (including private bodies) and any political or other subdivision, department or branch of any of the foregoing.
“Indemnified Party” shall have the meaning ascribed to it in Section 9.3.
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“Indemnifying Party” shall have the meaning ascribed to it in Section 9.3.
“Intellectual Property” means all United States and foreign intellectual property and all other similar proprietary rights, including all (i) patents and patent applications, including divisionals, continuations, continuations-in-part, reissues, reexaminations and extensions thereof and counterparts claiming priority therefrom; utility models; invention disclosures; and statutory invention registrations and certificates; (ii) registered, pending and unregistered trademarks, service marks, trade dress, logos, trade names, corporate names and other source identifiers, domain names, Internet sites and web pages; and registrations and applications for registration for any of the foregoing, together with all of the goodwill associated therewith; (iii) registered copyrights, and registrations and applications for registration thereof; rights of publicity; and copyrightable works; (iv) all inventions and design rights (whether patentable or unpatentable) and all categories of trade secrets as defined in the Uniform Trade Secrets Act, including business, technical and financial information; and (v) confidential and proprietary information, including know-how.
“Seller’s Knowledge” shall have the meaning ascribed to it in Section 2.6.
“Laws” means any federal, state or local statute, law, rule, ordinance, code or regulation of any Governmental Authority.
“Liability” and, collectively, “Liabilities” shall have the meaning ascribed to it in Section 9.1.
“Order” shall have the meaning ascribed to it in Section 2.4.
“Outside Date” shall have the meaning ascribed to it in Section 8.1(b).
“Parties” shall have the meaning ascribed to it in the preamble.
“Patent(s) means: The USPTO Patent Number RE45, 535 E issued on June 2, 2015 and Patent Number 8,454,624 B2; issued June 4, 2013, both patents are related to a Choking Rescue Device.
“Patent Assignment” means the Patent Assignment Agreement whereby, as part of this Agreement, Seller assigns Patent Applications No. RE 45,535 E and Patent number 8,454,624 B2 issued June 4 2013.
“Person” means an individual, corporation, partnership, limited liability company, association, trust, unincorporated organization or other entity..
“Purchased Assets” shall have the meaning ascribed to it in Section 1.1.
“Seller” shall have the meaning ascribed to it in the Preamble.
“Seller Disclosure Schedule” shall have the meaning ascribed to it in the preamble to Article II.
“Subsidiary” means any Person with respect to which a specified Person directly or indirectly (A) owns a majority of the equity interests, (B) has the power to elect a majority of that Person’s board of directors or similar governing body, or (C) otherwise has the power, directly or indirectly, to direct the business and policies of that Person.
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“Tax” or “Taxes” means any and all taxes, fees, levies, duties, tariffs, imposts and other charges of any kind (together with any and all interest, penalties, additions to tax and additional amounts imposed with respect thereto) imposed by any Governmental Authority, including: taxes or other charges on or with respect to income, franchise, windfall or other profits, gross receipts, property, sales, use, equity interests, payroll, employment, social security, workers’ compensation, unemployment compensation or net worth; taxes or other charges in the nature of excise, withholding, ad valorem, stamp, transfer, value-added or gains taxes; license, registration and documentation fees; and customers’ duties, tariffs and similar charges.
“Terminating Buyer Breach” shall have the meaning ascribed to it in Section 8.1(e).
“Terminating Seller Breach” shall have the meaning ascribed to it in Section 8.1(d).
“Third Party Claim” and, collectively, “Third Party Claims” shall have the meaning ascribed to it in Section 9.3.
“Transactions” shall have the meaning ascribed to it in Section 2.2.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed as of the date first written above.
|
SELLER:
De LUCA. | |||
| By: |
/s/James De Luca | ||
| Name: | James De Luca | ||
| Title: | Individual | ||
|
Seller:
MCP | |||
| By: |
/s/ Luis Mejia | ||
| Name: | Luis Mejia | ||
| Title: | /s/ Managing Partner | ||
|
ODYSSEY:
ODYSSEY GROUP INTERNATIONAL, INC. | |||
| By: |
/s/ J. Michael Redmond | ||
| Name: | J. Michael Redmond | ||
| Title: | President/Chief Executive Officer | ||
SCHEDULE FOR EXHIBITS
| · | EXHIBIT “A” “Common Stock Purchase Agreement” |
| · | EXHIBIT “B” “Royalty Agreement” |
| · | EXHIBIT “C” “Consulting Agreement” |
| · | EXHIBIT “D” “Patent assignment Agreement” |
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EXHIBIT “A”
ODYSSEY GROUP INTERNATIONAL, INC.
STOCK OPTION AGREEMENT
FOR
DE LUCA
Agreement
1. Grant of Option. Odyssey Group International, Inc., a Nevada corporation (the “Company”), hereby grants, as of the effective date of this Agreement specified on Schedule I hereof beside the caption “Date of Grant” (“Date of Grant”), to James De Luca (the “Optionee”) an option (the “Option”) to purchase an aggregate number of shares set forth on Schedule I hereof beside the caption “Number of Optioned Shares” (such number being subject to adjustment as provided in Section 10(c) of the Plan) of the Company’s common stock, $.001 par value per share (the “Shares”), at an exercise price per share set forth on Schedule I hereof beside the caption “Exercise Price” (such exercise price being subject to adjustment as provided in Section 10(c) of the Plan)(the “Exercise Price”). The Option shall be subject to the terms and conditions set forth herein. The Option is being issued pursuant to the Odyssey Group International Inc. 2019 Incentive Compensation Plan (the “Plan”), which is incorporated herein for all purposes. This Option is designated on Schedule I as either an Incentive Stock Option or a Non-Qualified Stock Option. If designated on Schedule I hereof as an Incentive Stock Option, this Option is intended to qualify as an Incentive Stock Option as defined in Section 422 of the Code, and this Agreement shall be interpreted accordingly. Where there is a discrepancy between this Agreement and the Plan this Agreement shall take precedence
2. Definitions. Unless otherwise provided herein, terms used herein that are defined in the Plan and not defined herein shall have the meanings attributed thereto in the Plan.
3. Exercise Schedule. Except as otherwise provided in Sections 6 or 10 of this Agreement, or in the Plan, the Option is exercisable in installments as specified on Schedule I hereof beside the caption “Vesting”, which shall be cumulative. To the extent that the Option has become exercisable with respect to a percentage of Shares as provided on Schedule I hereof beside the caption “Vesting” on each date (the “Vesting Date”) upon which the Optionee shall be entitled to exercise the Option with respect to the percentage of Shares granted as indicated for each Vesting Date (), the Option may thereafter be exercised by the Optionee, in whole or in part, at any time or from time to time prior to the expiration of the Option as provided herein. Except as otherwise specifically provided herein, there shall be no proportionate or partial vesting in the periods prior to each Vesting Date, and all vesting shall occur only on the appropriate Vesting Date.
4. Method of Exercise. The vested portion of this Option shall be exercisable in whole or in part in accordance with the exercise schedule set forth in Section 3 hereof by written notice which shall state the election to exercise the Option, the number of Shares in respect of which the Option is being exercised, and such other representations and agreements as to the holder’s investment intent with respect to such Shares as may be required by the Company pursuant to the provisions of the Plan. Such written notice shall be signed by the Optionee and shall be delivered in person or by certified mail to the Secretary of the Company. The written notice shall be accompanied by payment of the Exercise Price. This Option shall be deemed to be exercised after both (a) receipt by the Company of such written notice accompanied by the Exercise Price and (b) arrangements that are satisfactory to the Committee in its sole discretion have been made for Optionee’s payment to the Company of the amount, if any, that is necessary to be withheld in accordance with applicable Federal or state withholding requirements. No Shares shall be issued pursuant to the Option unless and until such issuance and such exercise shall comply with all relevant provisions of applicable law, including the requirements of any stock exchange upon which the Shares then may be traded.
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5. Method of Payment. Payment of the Exercise Price shall be by any of the following, or a combination thereof, at the election of the Optionee: (a) cash; (b) check; (c) to the extent permitted by the Committee or as provided on Schedule I hereof beside the caption “Permission to Pay with Shares”, with Shares owned by the Optionee, or the withholding of Shares that otherwise would be delivered to the Optionee as a result of the exercise of the Option, or pursuant to a “cashless exercise” procedure, by delivery of a properly executed exercise notice together with such other documentation, and subject to such guidelines, as the Committee shall require to effect an exercise of the Option and delivery to the Company by a licensed broker acceptable to the Company of proceeds from the sale of Shares sufficient to pay the Exercise Price and any applicable income or employment taxes, or (d) such other consideration or in such other manner as may be determined by the Committee in its absolute discretion.
6. Termination of Option.
(a) General. Any unexercised portion of the Option shall automatically and without notice terminate and become null and void at the time of the earliest to occur of the following:
(i) the tenth anniversary of the date as of which the Option is granted (or, if a different date is shown on Schedule I hereof beside the caption “Termination Date”, such date).
(ii) Any Options not vested will terminate upon the termination of the Intellectual Property Purchase Agreement.
(b) Cancellation. To the extent not previously exercised, (i) the Option shall terminate immediately in the event of (A) the liquidation or dissolution of the Company, or The Committee shall give written notice of any proposed transaction referred to in this Section 6(b) a reasonable period of time prior to the closing date for such transaction (which notice may be given either before or after approval of such transaction), in order that the Optionee may have a reasonable period of time prior to the closing date of such transaction within which to exercise the Option if and to the extent that it then is exercisable (including any portion of the Option that may become exercisable upon the closing date of such transaction). The Optionee may condition his exercise of the Option upon the consummation of a transaction referred to in this Section 6(b).
7. Transferability. Unless (i) transfers are expressly permitted in the language appearing beside the caption “Expanded Rights to Transfer Option” on Schedule I hereof or (ii) otherwise determined by the Committee, the Option granted hereby is not transferable otherwise than by will or under the applicable laws of descent and distribution, and during the lifetime of the Optionee the Option shall be exercisable only by the Optionee, or the Optionee’s guardian or legal representative. In addition, the Option shall not be assigned, negotiated, pledged or hypothecated in any way (whether by operation of law or otherwise), and the Option shall not be subject to execution, attachment or similar process. Upon any attempt to transfer, assign, negotiate, pledge or hypothecate the Option, or in the event of any levy upon the Option by reason of any execution, attachment or similar process contrary to the provisions hereof, the Option shall immediately become null and void. The terms of this Option shall be binding upon the executors, administrators, heirs, successors and assigns of the Optionee.
8. No Rights of Stockholders. Neither the Optionee nor any personal representative (or beneficiary) shall be, or shall have any of the rights and privileges of, a stockholder of the Company with respect to any Shares purchasable or issuable upon the exercise of the Option, in whole or in part, prior to the date on which the Shares are issued.
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9. Acceleration of Exercisability of Option.
(a) Acceleration Upon Certain Terminations or Cancellations of Option. This Option shall become immediately fully exercisable in the event that, prior to the termination of the Option pursuant to Section 6 hereof, (i) the Option is terminated pursuant to Section 6(b)(i) hereof, or (ii) the Company exercises its discretion to provide a cancellation notice with respect to the Option pursuant to Section 6(b)(ii) hereof.
(b) Acceleration Upon Change in Control. This Option shall become immediately fully exercisable in the event that, prior to the termination of the Option pursuant to Section 6 hereof, and during the Optionee's Continuous Service, there is a “Change in Control”, as defined in Section 9(b) of the Plan.
10. No Right to Continuous Service. Neither the Option nor this Agreement shall confer upon the Optionee any right to Continuous Service with the Company or any Related Entity.
11. Information Confidential. As partial consideration for the granting of the Option, the Optionee agrees with the Company to keep confidential all information and knowledge that the Optionee has relating to the manner and amount of the Optionee’s participation in the Plan; provided, however, that such information may be disclosed as required by law and may be given in confidence to the Optionee’s spouse, the Optionee’s tax and financial advisors, or financial institutions to the extent that such information is necessary to secure a loan.
12. Interpretation / Provisions of Plan Control. This Agreement is subject to all the terms, conditions and provisions of the Plan, including, without limitation, the amendment provisions thereof, and to such rules, regulations and interpretations relating to the Plan adopted by the Committee as may be in effect from time to time. If and to the extent that this Agreement conflicts or is inconsistent with the terms, conditions and provisions of the Plan, the Plan shall control, and this Agreement shall be deemed to be modified accordingly. The Optionee accepts the Option subject to all of the terms and provisions of the Plan and this Agreement. The undersigned Optionee hereby accepts as binding, conclusive and final all decisions or interpretations of the Committee upon any questions arising under the Plan and this Agreement, unless shown to have been made in an arbitrary and capricious manner.
13. Notices. All notices, requests, demands, and other communications hereunder shall be in writing and shall be personally delivered, delivered by facsimile or courier service, or mailed, certified with first class postage prepaid to the address specified by the person who is to receive the same. Each such notice, request, demand, or other communication hereunder shall be deemed to have been given (whether actually received or not) on the date of actual delivery thereof, if personally delivered or delivered by facsimile transmission (if receipt is confirmed at the time of such transmission by telephone or facsimile-machine-generated confirmation), or on the third day following the date of mailing, if mailed in accordance with this Section, or on the day specified for delivery to the courier service (if such day is one on which the courier service will give normal assurances that such specified delivery will be made). Any notice, request, demand, or other communication given otherwise than in accordance with this Section shall be deemed to have been given on the date actually received. Each such notice, request, demand, or other communication hereunder shall be addressed, in the case of the Company, to the Company’s Secretary at Odyssey Group International Inc., 2372 Morse Ave Irvine, CA, or if the Company should move its principal office, to such principal office, and, in the case of the Optionee, to the Optionee’s last permanent address as shown on the Company’s records, subject to the right of either party to designate some other address at any time hereafter in a notice satisfying the requirements of this Section. Any person entitled to any notice, request, demand, or other communication hereunder may waive the notice, request, demand, or other communication.
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14. Section 409A.
(a) It is intended that the Option awarded pursuant to this Agreement be exempt from Section 409A of the Code (“Section 409A”) because it is believed that (i) the Exercise Price may never be less than the Fair Market Value of a Share on the Date of Grant and the number of shares subject to the Option is fixed on the original Date of Grant, (ii) the transfer or exercise of the Option is subject to taxation under Section 83 of the Code and Treas. Reg. 1.83-7, and (iii) the Option does not include any feature for the deferral of compensation other than the deferral of recognition of income until the exercise of the Option. The provisions of this Agreement shall be interpreted in a manner consistent with this intention, and the provisions of this Agreement may not be amended, adjusted, assumed or substituted for, converted or otherwise modified without the Optionee’s prior written consent if and to the extent that the Company believes or reasonably should believe that such amendment, adjustment, assumption or substitution, conversion or modification would cause the award to violate the requirements of Section 409A. In the event that either the Company or the Optionee believes, at any time, that any benefit or right under this Agreement is subject to Section 409A, then the Committee may (acting alone and without any required consent of the Optionee) amend this Agreement in such manner as the Committee deems necessary or appropriate to be exempt from or otherwise comply with the requirements of Section 409A (including without limitation, amending the Agreement to increase the Exercise Price to such amount as may be required in order for the Option to be exempt from Section 409A).
(b) Notwithstanding the foregoing, the Company does not make any representation to the Optionee that the Option awarded pursuant to this Agreement is exempt from, or satisfies, the requirements of Section 409A, and the Company shall have no liability or other obligation to indemnify or hold harmless the Optionee or any Beneficiary for any tax, additional tax, interest or penalties that the Optionee or any Beneficiary may incur in the event that any provision of this Agreement, or any amendment or modification thereof or any other action taken with respect thereto, that either is consented to by the Optionee or that the Company reasonably believes should not result in a violation of Section 409A, is deemed to violate any of the requirements of Section 409A.
15. Incentive Stock Option Treatment. If designated on Schedule I hereof as an Incentive Stock Option: (a) the terms of this Option shall be interpreted in a manner consistent with the intent of the Company and the Optionee that the Option qualify as an Incentive Stock Option under Section 422 of the Code; (b) if any provision of the Plan or this Agreement shall be impermissible in order for the Option to qualify as an Incentive Stock Option, then the Option shall be construed and enforced as if such provision had never been included in the Plan or the Option; and (c) if and to the extent that the number of Options granted pursuant to this Agreement exceeds the limitations contained in Section 422 of the Code on the value of Shares with respect to which this Option may qualify as an Incentive Stock Option, this Option shall be a Non-Qualified Stock Option.
16. Section Headings. The Section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
17. Governing Law and Venue. THIS AGREEMENT SHALL AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEVADA WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF NEVADA OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEVADA. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE PERSONAL JURISDICTION OF THE COURTS LOCATED IN THE STATE OF CALIFORNIA AND AGREES THAT ANY LITIGATION BETWEEN THE PARTIES WILL BE FILED IN COURTS LOCATED IN LOS ANGELES, CALIFORNIA.
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18. Arbitration. By execution hereof, the parties hereto expressly agree that upon the request of any party, whether made before or after the institution of any legal proceeding, any action, dispute, claim or controversy of any kind, whether in contract or in tort, statutory or common law, legal or equitable, arising between the parties in any way arising out of any of the provisions contained in this Agreement shall be resolved by binding arbitration administered by the American Arbitration Association (the “AAA”) and in Los Angeles, California. Such arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the AAA and, to the maximum extent applicable, the Federal Arbitration Act (Title 9 of the United States Code) except as otherwise specified herein. Judgment upon the award rendered by the arbitrator may be entered in any court having competent jurisdiction. The arbitrator shall resolve all disputes in accordance with the applicable substantive law. A single arbitrator shall be chosen and shall decide the dispute, unless the amount sought in the dispute exceeds $100,000, in which case a panel of three arbitrators shall decide the dispute. In all arbitration proceedings in which the amount of any award exceeds $100,000, in the aggregate, the arbitrator(s) shall make specific, written findings of fact and conclusions of law. In all arbitration proceedings in which the amount of any award exceeds $100,000, in the aggregate, the parties shall have, in addition to the limited statutory right to seek a vacation or modification of an award pursuant to applicable law, the right to vacation or modification of any award that is based, in whole or in part, on an incorrect or erroneous ruling of law by appeal to an appropriate court having jurisdiction; provided, however, that any such application for a vacation or modification of such an award based on an incorrect ruling of law must be filed in a court having jurisdiction over the dispute within 15 days from the date the award is rendered. The findings of fact of the arbitrator(s) shall be binding on all parties and shall not be subject to further review except as otherwise allowed by applicable law. No provision of this Agreement nor the exercise of any rights hereunder shall limit the right of any party, and any party shall have the right during any dispute, to seek, use, and employ ancillary or preliminary remedies, such as injunctive relief (including, without limitation, specific performance), from a court having jurisdiction before, during, or after the pendency of any arbitration. The institution and maintenance of any action for judicial relief or pursuit of provisional or ancillary remedies shall not constitute a waiver of the right of any party to submit any dispute to arbitration nor render inapplicable the compulsory arbitration provisions hereof.
19. Attorney’s Fees. If any action is brought to enforce or interpret the terms of this Agreement (including through arbitration), the prevailing party shall be entitled to reasonable attorneys’ fees, costs, and necessary disbursements in addition to any other relief to which such party may be entitled.
20. Counterparts. This Agreement may be executed in any number of counterparts and shall be effective when each party hereto has executed at least one counterpart, with the same effect as if all signing parties had signed the same document. All counterparts will be construed together and evidence only one agreement, which, notwithstanding the actual date of execution of any counterpart, shall be deemed to be dated the day and year first written above. In making proof of this Agreement, it shall not be necessary to account for a counterpart executed by any party other than the party against whom enforcement is sought or to account for more than one counterpart executed by the party against whom enforcement is sought.
21. Execution by Facsimile. The manual signature of any party hereto that is transmitted to any other party by facsimile or in portable document format (PDF) shall be deemed for all purposes to be an original signature.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the 26th day of June 2019.
| COMPANY: | ||
| Odyssey Group International, Inc. | ||
| By: | /s/ J. Michael Redmond | |
| Name: J. Michael Redmond Title: CEO | ||
The Optionee acknowledges receipt of a copy of the Plan and represents that he or she has reviewed the provisions of the Plan and this Agreement in their entirety, is familiar with and understands their terms and provisions, and hereby accepts this Option subject to all of the terms and provisions of the Plan and this Agreement. The Optionee further represents that he or she has had an opportunity to obtain the advice of counsel prior to executing this Agreement.
| OPTIONEE: | |
| Dated: 6-27-19 | /s/ James De Luca Name: James De Luca 15 Wendover Road, Forest Hills Gardens, NY 11375 |
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SCHEDULE I
| NAME OF OPTIONEE: | James De Luca |
| DATE OF GRANT: | June 26, 2019 |
| TYPE OF OPTION: | Incentive Stock Option No |
| Non-Qualified Stock Option Yes | |
| NUMBER OF OPTIONED SHARES: | 360,000 |
| EXERCISE PRICE: | $1.25 per Share |
| TERMINATION DATE: | None |
| VESTING: |
150,000 vest immediately 60,000 vest upon the first anniversary date of the Intellectual Property Purchase Agreement 150,000 vest on the second anniversary date of the Intellectual Property Purchase Agreement or upon FDA submission which ever occurs first. |
| PERMISSION TO PAY WITH SHARES: | __X_ Granted _____Denied |
| EXPANDED RIGHTS TO TRANSFER OPTION: | Options may be transferred to a family member |
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ODYSSEY GROUP INTERNATIONAL, INC.
STOCK OPTION AGREEMENT
FOR
Murdock Capital Partners
Agreement
22. Grant of Option. Odyssey Group International, Inc., a Nevada corporation (the “Company”), hereby grants, as of the effective date of this Agreement specified on Schedule I hereof beside the caption “Date of Grant” (“Date of Grant”), to Murdock Capital Partners (the “Optionee”) an option (the “Option”) to purchase an aggregate number of shares set forth on Schedule I hereof beside the caption “Number of Optioned Shares” (such number being subject to adjustment as provided in Section 10(c) of the Plan) of the Company’s common stock, $.001 par value per share (the “Shares”), at an exercise price per share set forth on Schedule I hereof beside the caption “Exercise Price” (such exercise price being subject to adjustment as provided in Section 10(c) of the Plan)(the “Exercise Price”). The Option shall be subject to the terms and conditions set forth herein. The Option is being issued pursuant to the Odyssey Group International Inc. 2019 Incentive Compensation Plan (the “Plan”), which is incorporated herein for all purposes. This Option is designated on Schedule I as either an Incentive Stock Option or a Non-Qualified Stock Option. If designated on Schedule I hereof as an Incentive Stock Option, this Option is intended to qualify as an Incentive Stock Option as defined in Section 422 of the Code, and this Agreement shall be interpreted accordingly. Where there is a discrepancy between this Agreement and the Plan this Agreement shall take precedence
23. Definitions. Unless otherwise provided herein, terms used herein that are defined in the Plan and not defined herein shall have the meanings attributed thereto in the Plan.
24. Exercise Schedule. Except as otherwise provided in Sections 6 or 10 of this Agreement, or in the Plan, the Option is exercisable in installments as specified on Schedule I hereof beside the caption “Vesting”, which shall be cumulative. To the extent that the Option has become exercisable with respect to a percentage of Shares as provided on Schedule I hereof beside the caption “Vesting” on each date (the “Vesting Date”) upon which the Optionee shall be entitled to exercise the Option with respect to the percentage of Shares granted as indicated for each Vesting Date (), the Option may thereafter be exercised by the Optionee, in whole or in part, at any time or from time to time prior to the expiration of the Option as provided herein. Except as otherwise specifically provided herein, there shall be no proportionate or partial vesting in the periods prior to each Vesting Date, and all vesting shall occur only on the appropriate Vesting Date.
25. Method of Exercise. The vested portion of this Option shall be exercisable in whole or in part in accordance with the exercise schedule set forth in Section 3 hereof by written notice which shall state the election to exercise the Option, the number of Shares in respect of which the Option is being exercised, and such other representations and agreements as to the holder’s investment intent with respect to such Shares as may be required by the Company pursuant to the provisions of the Plan. Such written notice shall be signed by the Optionee and shall be delivered in person or by certified mail to the Secretary of the Company. The written notice shall be accompanied by payment of the Exercise Price. This Option shall be deemed to be exercised after both (a) receipt by the Company of such written notice accompanied by the Exercise Price and (b) arrangements that are satisfactory to the Committee in its sole discretion have been made for Optionee’s payment to the Company of the amount, if any, that is necessary to be withheld in accordance with applicable Federal or state withholding requirements. No Shares shall be issued pursuant to the Option unless and until such issuance and such exercise shall comply with all relevant provisions of applicable law, including the requirements of any stock exchange upon which the Shares then may be traded.
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26. Method of Payment. Payment of the Exercise Price shall be by any of the following, or a combination thereof, at the election of the Optionee: (a) cash; (b) check; (c) to the extent permitted by the Committee or as provided on Schedule I hereof beside the caption “Permission to Pay with Shares”, with Shares owned by the Optionee, or the withholding of Shares that otherwise would be delivered to the Optionee as a result of the exercise of the Option, or pursuant to a “cashless exercise” procedure, by delivery of a properly executed exercise notice together with such other documentation, and subject to such guidelines, as the Committee shall require to effect an exercise of the Option and delivery to the Company by a licensed broker acceptable to the Company of proceeds from the sale of Shares sufficient to pay the Exercise Price and any applicable income or employment taxes, or (d) such other consideration or in such other manner as may be determined by the Committee in its absolute discretion.
27. Termination of Option.
(a) General. Any unexercised portion of the Option shall automatically and without notice terminate and become null and void at the time of the earliest to occur of the following:
(i) the tenth anniversary of the date as of which the Option is granted (or, if a different date is shown on Schedule I hereof beside the caption “Termination Date”, such date).
(ii) Any Options not vested will terminate upon the termination of the Intellectual Property Purchase Agreement.
(b) Cancellation. To the extent not previously exercised, (i) the Option shall terminate immediately in the event of (A) the liquidation or dissolution of the Company, or The Committee shall give written notice of any proposed transaction referred to in this Section 6(b) a reasonable period of time prior to the closing date for such transaction (which notice may be given either before or after approval of such transaction), in order that the Optionee may have a reasonable period of time prior to the closing date of such transaction within which to exercise the Option if and to the extent that it then is exercisable (including any portion of the Option that may become exercisable upon the closing date of such transaction). The Optionee may condition his exercise of the Option upon the consummation of a transaction referred to in this Section 6(b).
28. Transferability. Unless (i) transfers are expressly permitted in the language appearing beside the caption “Expanded Rights to Transfer Option” on Schedule I hereof or (ii) otherwise determined by the Committee, the Option granted hereby is not transferable otherwise than by will or under the applicable laws of descent and distribution, and during the lifetime of the Optionee the Option shall be exercisable only by the Optionee, or the Optionee’s guardian or legal representative. In addition, the Option shall not be assigned, negotiated, pledged or hypothecated in any way (whether by operation of law or otherwise), and the Option shall not be subject to execution, attachment or similar process. Upon any attempt to transfer, assign, negotiate, pledge or hypothecate the Option, or in the event of any levy upon the Option by reason of any execution, attachment or similar process contrary to the provisions hereof, the Option shall immediately become null and void. The terms of this Option shall be binding upon the executors, administrators, heirs, successors and assigns of the Optionee.
29. No Rights of Stockholders. Neither the Optionee nor any personal representative (or beneficiary) shall be, or shall have any of the rights and privileges of, a stockholder of the Company with respect to any Shares purchasable or issuable upon the exercise of the Option, in whole or in part, prior to the date on which the Shares are issued.
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30. Acceleration of Exercisability of Option.
(a) Acceleration Upon Certain Terminations or Cancellations of Option. This Option shall become immediately fully exercisable in the event that, prior to the termination of the Option pursuant to Section 6 hereof, (i) the Option is terminated pursuant to Section 6(b)(i) hereof, or (ii) the Company exercises its discretion to provide a cancellation notice with respect to the Option pursuant to Section 6(b)(ii) hereof.
(b) Acceleration Upon Change in Control. This Option shall become immediately fully exercisable in the event that, prior to the termination of the Option pursuant to Section 6 hereof, and during the Optionee's Continuous Service, there is a “Change in Control”, as defined in Section 9(b) of the Plan.
31. No Right to Continuous Service. Neither the Option nor this Agreement shall confer upon the Optionee any right to Continuous Service with the Company or any Related Entity.
32. Information Confidential. As partial consideration for the granting of the Option, the Optionee agrees with the Company to keep confidential all information and knowledge that the Optionee has relating to the manner and amount of the Optionee’s participation in the Plan; provided, however, that such information may be disclosed as required by law and may be given in confidence to the Optionee’s spouse, the Optionee’s tax and financial advisors, or financial institutions to the extent that such information is necessary to secure a loan.
33. Interpretation / Provisions of Plan Control. This Agreement is subject to all the terms, conditions and provisions of the Plan, including, without limitation, the amendment provisions thereof, and to such rules, regulations and interpretations relating to the Plan adopted by the Committee as may be in effect from time to time. If and to the extent that this Agreement conflicts or is inconsistent with the terms, conditions and provisions of the Plan, the Plan shall control, and this Agreement shall be deemed to be modified accordingly. The Optionee accepts the Option subject to all of the terms and provisions of the Plan and this Agreement. The undersigned Optionee hereby accepts as binding, conclusive and final all decisions or interpretations of the Committee upon any questions arising under the Plan and this Agreement, unless shown to have been made in an arbitrary and capricious manner.
34. Notices. All notices, requests, demands, and other communications hereunder shall be in writing and shall be personally delivered, delivered by facsimile or courier service, or mailed, certified with first class postage prepaid to the address specified by the person who is to receive the same. Each such notice, request, demand, or other communication hereunder shall be deemed to have been given (whether actually received or not) on the date of actual delivery thereof, if personally delivered or delivered by facsimile transmission (if receipt is confirmed at the time of such transmission by telephone or facsimile-machine-generated confirmation), or on the third day following the date of mailing, if mailed in accordance with this Section, or on the day specified for delivery to the courier service (if such day is one on which the courier service will give normal assurances that such specified delivery will be made). Any notice, request, demand, or other communication given otherwise than in accordance with this Section shall be deemed to have been given on the date actually received. Each such notice, request, demand, or other communication hereunder shall be addressed, in the case of the Company, to the Company’s Secretary at Odyssey Group International Inc., 2372 Morse Ave Irvine, CA, or if the Company should move its principal office, to such principal office, and, in the case of the Optionee, to the Optionee’s last permanent address as shown on the Company’s records, subject to the right of either party to designate some other address at any time hereafter in a notice satisfying the requirements of this Section. Any person entitled to any notice, request, demand, or other communication hereunder may waive the notice, request, demand, or other communication.
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35. Section 409A.
(a) It is intended that the Option awarded pursuant to this Agreement be exempt from Section 409A of the Code (“Section 409A”) because it is believed that (i) the Exercise Price may never be less than the Fair Market Value of a Share on the Date of Grant and the number of shares subject to the Option is fixed on the original Date of Grant, (ii) the transfer or exercise of the Option is subject to taxation under Section 83 of the Code and Treas. Reg. 1.83-7, and (iii) the Option does not include any feature for the deferral of compensation other than the deferral of recognition of income until the exercise of the Option. The provisions of this Agreement shall be interpreted in a manner consistent with this intention, and the provisions of this Agreement may not be amended, adjusted, assumed or substituted for, converted or otherwise modified without the Optionee’s prior written consent if and to the extent that the Company believes or reasonably should believe that such amendment, adjustment, assumption or substitution, conversion or modification would cause the award to violate the requirements of Section 409A. In the event that either the Company or the Optionee believes, at any time, that any benefit or right under this Agreement is subject to Section 409A, then the Committee may (acting alone and without any required consent of the Optionee) amend this Agreement in such manner as the Committee deems necessary or appropriate to be exempt from or otherwise comply with the requirements of Section 409A (including without limitation, amending the Agreement to increase the Exercise Price to such amount as may be required in order for the Option to be exempt from Section 409A).
(b) Notwithstanding the foregoing, the Company does not make any representation to the Optionee that the Option awarded pursuant to this Agreement is exempt from, or satisfies, the requirements of Section 409A, and the Company shall have no liability or other obligation to indemnify or hold harmless the Optionee or any Beneficiary for any tax, additional tax, interest or penalties that the Optionee or any Beneficiary may incur in the event that any provision of this Agreement, or any amendment or modification thereof or any other action taken with respect thereto, that either is consented to by the Optionee or that the Company reasonably believes should not result in a violation of Section 409A, is deemed to violate any of the requirements of Section 409A.
36. Incentive Stock Option Treatment. If designated on Schedule I hereof as an Incentive Stock Option: (a) the terms of this Option shall be interpreted in a manner consistent with the intent of the Company and the Optionee that the Option qualify as an Incentive Stock Option under Section 422 of the Code; (b) if any provision of the Plan or this Agreement shall be impermissible in order for the Option to qualify as an Incentive Stock Option, then the Option shall be construed and enforced as if such provision had never been included in the Plan or the Option; and (c) if and to the extent that the number of Options granted pursuant to this Agreement exceeds the limitations contained in Section 422 of the Code on the value of Shares with respect to which this Option may qualify as an Incentive Stock Option, this Option shall be a Non-Qualified Stock Option.
37. Section Headings. The Section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
38. Governing Law and Venue. THIS AGREEMENT SHALL AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEVADA WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF NEVADA OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEVADA. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE PERSONAL JURISDICTION OF THE COURTS LOCATED IN THE STATE OF CALIFORNIA AND AGREES THAT ANY LITIGATION BETWEEN THE PARTIES WILL BE FILED IN COURTS LOCATED IN LOS ANGELES, CALIFORNIA.
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39. Arbitration. By execution hereof, the parties hereto expressly agree that upon the request of any party, whether made before or after the institution of any legal proceeding, any action, dispute, claim or controversy of any kind, whether in contract or in tort, statutory or common law, legal or equitable, arising between the parties in any way arising out of any of the provisions contained in this Agreement shall be resolved by binding arbitration administered by the American Arbitration Association (the “AAA”) and in Los Angeles, California. Such arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the AAA and, to the maximum extent applicable, the Federal Arbitration Act (Title 9 of the United States Code) except as otherwise specified herein. Judgment upon the award rendered by the arbitrator may be entered in any court having competent jurisdiction. The arbitrator shall resolve all disputes in accordance with the applicable substantive law. A single arbitrator shall be chosen and shall decide the dispute, unless the amount sought in the dispute exceeds $100,000, in which case a panel of three arbitrators shall decide the dispute. In all arbitration proceedings in which the amount of any award exceeds $100,000, in the aggregate, the arbitrator(s) shall make specific, written findings of fact and conclusions of law. In all arbitration proceedings in which the amount of any award exceeds $100,000, in the aggregate, the parties shall have, in addition to the limited statutory right to seek a vacation or modification of an award pursuant to applicable law, the right to vacation or modification of any award that is based, in whole or in part, on an incorrect or erroneous ruling of law by appeal to an appropriate court having jurisdiction; provided, however, that any such application for a vacation or modification of such an award based on an incorrect ruling of law must be filed in a court having jurisdiction over the dispute within 15 days from the date the award is rendered. The findings of fact of the arbitrator(s) shall be binding on all parties and shall not be subject to further review except as otherwise allowed by applicable law. No provision of this Agreement nor the exercise of any rights hereunder shall limit the right of any party, and any party shall have the right during any dispute, to seek, use, and employ ancillary or preliminary remedies, such as injunctive relief (including, without limitation, specific performance), from a court having jurisdiction before, during, or after the pendency of any arbitration. The institution and maintenance of any action for judicial relief or pursuit of provisional or ancillary remedies shall not constitute a waiver of the right of any party to submit any dispute to arbitration nor render inapplicable the compulsory arbitration provisions hereof.
40. Attorney’s Fees. If any action is brought to enforce or interpret the terms of this Agreement (including through arbitration), the prevailing party shall be entitled to reasonable attorneys’ fees, costs, and necessary disbursements in addition to any other relief to which such party may be entitled.
41. Counterparts. This Agreement may be executed in any number of counterparts and shall be effective when each party hereto has executed at least one counterpart, with the same effect as if all signing parties had signed the same document. All counterparts will be construed together and evidence only one agreement, which, notwithstanding the actual date of execution of any counterpart, shall be deemed to be dated the day and year first written above. In making proof of this Agreement, it shall not be necessary to account for a counterpart executed by any party other than the party against whom enforcement is sought or to account for more than one counterpart executed by the party against whom enforcement is sought.
42. Execution by Facsimile. The manual signature of any party hereto that is transmitted to any other party by facsimile or in portable document format (PDF) shall be deemed for all purposes to be an original signature.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the 26th day of June 2019.
| COMPANY: | ||
| Odyssey Group International, Inc. | ||
| By: | /s/ J. Michael Redmond | |
| Name: J. Michael Redmond Title: CEO | ||
The Optionee acknowledges receipt of a copy of the Plan and represents that he or she has reviewed the provisions of the Plan and this Agreement in their entirety, is familiar with and understands their terms and provisions, and hereby accepts this Option subject to all of the terms and provisions of the Plan and this Agreement. The Optionee further represents that he or she has had an opportunity to obtain the advice of counsel prior to executing this Agreement.
| OPTIONEE: | |
| Dated: 07-11-19 | /s/ Luis J. Mejia Luis J. Mejia, Managing Partner Name: Murdock Capital Partners 15 W. 53rd St. New York, NY 10019 |
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SCHEDULE I
| NAME OF OPTIONEE: | Murdock Capital Partners |
| DATE OF GRANT: | June 26, 2019 |
| TYPE OF OPTION: | Incentive Stock Option No |
| Non-Qualified Stock Option Yes | |
| NUMBER OF OPTIONED SHARES: | 240,000 |
| EXERCISE PRICE: | $1.25 per Share |
| TERMINATION DATE: | None |
| VESTING: |
100,000 vest immediately 40,000 vest upon the first anniversary date of the Intellectual Property Purchase Agreement 100,000 vest on the second anniversary date of the Intellectual Property Purchase Agreement or upon FDA submission whichever occurs first. |
| PERMISSION TO PAY WITH SHARES: | __X_ Granted ____ Denied |
| EXPANDED RIGHTS TO TRANSFER OPTION: | Options may be transferred to a family member |
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EXHIBIT “B”
ROYALTY AGREEMENT
THIS AGREEMENT (this "Agreement") is entered into as of June 26, 2019 by and between Odyssey Group International Inc., Inc. a corporation organized under the laws of the State of Nevada (“Odyssey”), Murdock Capital Partners a New York corporation, (“MCP”) and James De Luca an individual (“De Luca”) are hereinafter collectively referred to as the Parties.
WHEREAS, the Parties have entered into an Intellectual Property Purchase Agreement and other related agreements pursuant to which Odyssey is purchasing certain intellectual property and related assets from De Luca as set forth therein (the "Acquisition Agreement");
WHEREAS, as part of the consideration of the Acquisition Agreement, De Luca shall assign, and Odyssey shall acquire, all right, title, and interest in and to patents that are owned by De Luca pursuant to that certain “Patent Assignment” (defined herein below) in exchange for payment of certain royalties to De Luca and MCP, among other consideration.
NOW, THEREFORE, for and in consideration of the Parties’ Acquisition Agreement, Patent Assignment and the mutual covenants contained herein, and for other good and valuable consideration receipt of which each party hereby acknowledges, the Parties, intending to be legally bound hereby, agree as follows:
1. DEFINITIONS
1.1 "AFFILIATE" shall mean any entity in which Odyssey or De Luca or MCP (as the case may be), directly or indirectly, or through one or more intermediaries, holds the beneficial ownership of more than fifty percent (50%) or the equity securities or interests, and only so long as such ownership continues.
1.2 "ASSIGNED PATENTS" shall mean the patent “USPTO Patents Number RE45, 535 E issued on June 2, 2015 and Patent Number 8,454,624 B2; issued June 4, 2013, both patents are related to a Choking Rescue Device a copy of which is attached as Exhibit “A” to this Agreement.
1.3 “PATENT ASSIGNMENT” shall mean the Patent Assignment Agreement attached as Exhibit “G” to the Acquisition Agreement.
2. GRANT OF RIGHTS.
2.1 De Luca shall assign all of De Luca's right, title and interest in the Assigned Patents, subject to the conditions set forth in Section 2.3 of this Agreement and pursuant to the terms of the Patent Assignment. In order to affect such ownership transfer, contemporaneously with the execution of this Agreement, De Luca has executed that certain separate assignment document, to be recorded with the United States Patent and Trademark Office in a form determined by Odyssey to be appropriate. De Luca shall reasonably cooperate with Odyssey, at Odyssey’s sole expense, in the filing and prosecution of the Assigned Patent.
2.2 De Luca promptly shall deliver to Odyssey (or provide access to) all documentation in its possession or control pertaining to the Assigned Patents, including, to the extent possessed, copies of all correspondence to or from examining authorities regarding such Assigned Patents, patents and prior art searches pertaining to such Assigned Patent, and all correspondence with any attorney involved in the preparation and/or prosecution of the Assigned Patents.
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3. ROYALTY
3.1 Odyssey shall pay De Luca and MCP an amount equal to a total of three percent (3%) of all net profits accounted by Odyssey from any sale, use, derivation, license, grant or transfer of any rights in, to or regarding the Assigned Patents,, the commercial exploitation of the Assigned Patents, (the “Royalty”). Odyssey will pay De Luca sixty (60) percent of the Royalty and Odyssey will pay forty (40) percent of the Royalty to MCP. Net Royalty shall be determined by GAAP
3.2 After FDA approval or the first commercial exploitation of the Assigned Patents whichever occurs first, during each calendar quarter this Agreement is in effect (January through March being the First Quarter, April through June being the Second Quarter, July through September being the Third Quarter and October through December being the Fourth Quarter) commencing with the end of the first calendar quarter after the date of first commercial sale of any product sold by Odyssey that contains the Assigned Patents. Odyssey shall deliver to De Luca and MCP, within thirty (30) days from the last day of the calendar quarter, an accurate and complete written statement setting forth Odyssey’s calculations of all Royalty payments due De Luca and MCP from net profits accounted during such calendar quarter, including all amounts of net profits accounted from whatever sources related to the Royalty during the quarter, certified as to accuracy by an appropriate representative of Odyssey. Time is of the essence of this provision. Odyssey hereby grants De Luca the right to audit and inspect Odyssey’s records and operations relating to the Royalty (including the right to access Odyssey’s proprietary or confidential business information to the extent reasonably necessary, provided that De Luca agrees to keep all such information confidential when identified as such by Odyssey), one time per year and upon reasonable notice, to insure the amount of the Royalty paid to De Luca under the terms of this Agreement is accurate and appropriate. The costs of the audit will be at De Luca’s expense. However, in the event that the audit reveals an underpayment of a royalty by Odyssey, Odyssey shall pay any undisputed difference within fifteen (15) calendar days following written notice of the underpayment. If the underpayment is in excess of three percent of the royalty due De Luca and MCP, then Odyssey shall reimburse De Luca and MCP for the reasonable, actual and documented cost of the audit.
3.3 All payments of Royalty amounts shall be paid within thirty (30) days of the last day of the calendar quarter during which revenues are accounted. De Luca and MCP shall be entitled to Royalty payment commencing on the date of this Agreement and ending at such time Odyssey is no longer able to generate revenues from the sale, use, derivation, license, grant or transfer of any rights in, to or regarding the Assigned Patent.
4. WARRANTIES AND LIMITATION OF LIABILITY
4.1 WARRANTIES.
4.1.1 MCP represents and warrants that: (a) it is a corporation duly organized, validly existing, and in good standing under the laws of the State of New York and has full power and authority to enter into this Agreement and perform its obligations hereunder; (b) immediately prior to the execution of this Agreement (and subject to such licenses as have been disclosed to Odyssey in writing), De Luca has full power and authority to enter into this Agreement and perform its obligations and owns all right, title and interest in and to the Assigned Patent; and (c) it has the legal right to grant all the rights it purports to grant and to convey all the rights it purports to convey pursuant to Section 2.1 above.
4.1.2 Odyssey represents and warrants that: (a) Odyssey Group International, Inc. it is a corporation duly organized, validly existing, and in good standing under the laws of the State of Nevada; (b) Odyssey has full power and authority to enter into this Agreement and perform its obligations hereunder.
4.1.3 EXCEPT AS PROVIDED IN THIS SECTION 4.1 AND UNDER THE TERMS OF THE ACQUISITION AGREEMENT AND ANY AGREEMENTS ATACHED THERETO AS EXHIBITS, EACH PARTY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY (IF ANY) IMPLIED WARRANTIES OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, AND OF LACK OF NEGLIGENCE OR LACK OF WORKMANLIKE CONDUCT OR EFFORT. ALL PATENTS ASSIGNED UNDER THIS AGREEMENT ARE PROVIDED AS IS WITH ALL FAULTS, AND NO WARRANTIES OR PROMISES ARE MADE THAT THE SAME WILL WORK OR WORK FOR ANY PARTICULAR PURPOSE. EXCEPT AS PROVIDED IN THIS SECTION 4.1, THERE IS NO WARRANTY OF TITLE, AUTHORITY OR NON-INFRINGEMENT IN ANY SUCH PATENT.
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4.2 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ANY PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE IMMEDIATELY PRECEDING SENTENCE SHALL HAVE NO APPLICABILITY TO ANY LEGAL CAUSE OF ACTION ARISING FROM ANY PARTY'S ACTIVITIES OUTSIDE THE SCOPE OF THIS AGREEMENT.
5. GENERAL
5.1 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof, and to the extent that this agreement is inconsistent with any other agreement(s) between the Parties, the terms of this agreement are to control.
5.2 AMENDMENT. This Agreement shall not be amended or otherwise modified except by a written agreement dated after the date of this Agreement and signed on behalf of Odyssey, MCP and De Luca by their respective duly authorized representatives.
5.3 GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of California.
5.4 ASSIGNMENT. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
5.5 NO WAIVER. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
5.6 SAVINGS CLAUSE. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.
5.7 FURTHER ASSURANCES. Each party agrees to take such further action and execute, deliver and/or file such documents or instruments as are reasonably necessary to carry out the terms and purposes of this Agreement.
5.8 SECTION HEADINGS. The section headings used in this Agreement are intended for convenience only and shall not be deemed to supersede or modify any provisions.
5.9 FEES AND EXPENSES. All fees, costs and expenses incurred in connection with this Agreement shall be paid by the Party incurring the same. Notwithstanding the foregoing, in the event the Parties engage in litigation relating to or arising out of this Agreement or the performance thereof, the Parties agree that the Court shall be asked to determine which Party is the prevailing Party to the proceeding or proceedings, and the non-prevailing Party or Parties shall, jointly and severally, be liable to the prevailing Party in the amount of all reasonable attorney’s fees, court costs, and all other expenses, incurred by the prevailing Party to the proceeding in addition to any other relief to which the prevailing Party may be entitled.
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IN WITNESS, WHEREOF, the parties have executed this Agreement as of the Effective Date.
ODYSSEY GROUP INTERNATIONAL, INC.
/s/ J. Michael Redmond June 27, 2019
J. Michael Redmond Date
President/CEO
DE LUCA, INC.
/s/ James De Luca June 27,2019
James De Luca Date
MURDOCK CAPITAL PARTNERS
/s/ Luis Mejia July 11, 2019
By: Date
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Exhibit A
Assigned Patents
“USPTO Patents Number RE45, 535 E issued on June 2, 2015 and Patent Number 8,454,624 B2; issued June 4, 2013, both patents are related to a Choking Rescue Device
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EXHIBIT “C”
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is entered into as of this 26th day of June 2019 (the "Effective Date"), by and between Odyssey Group International, Inc. a Nevada corporation with offices at 2372 Morse Ave., Irvine, CA 92614 (the "Company") and James De Luca at 15 Wendover Road, Forest Hills Gardens, NY 11375 ("Consultant") and Murdock Capital Partners (“Consultant”). James De Luca and Murdock Capital Partners may be collectively referred to as “Consultants”. Together, the Company and Consultants may be referred to as the "Parties".
WHEREAS, Consultants possesses certain skills and expertise;
WHEREAS, Company wishes to retain the services of Consultants on the terms and conditions set forth below, and
WHEREAS, Consultants are willing to provide services to the Company, on the terms and conditions set forth below,
NOW, THEREFORE, the Parties agree as follows:
| 1. | Services. Consultants will perform the services set forth on Exhibit B, or as amended by mutual written agreement. It is agreed and understood that the nature and manner of services provided hereunder shall be within Consultant’s area of professional expertise and/or historical experience. |
| (a) | Direction. Consultant shall be directed by and shall report to Company’s President or his successor as requested by the Company. |
| (b) | Start Date. Consultant's consulting obligations to Company shall begin when the Company has raised a minimum of six hundred thousand dollars ($600,000.00) for the development of the anti choking device. Term. This Agreement shall commence on the Start Date and, unless earlier terminated in accordance with Section 15, shall continue for one year thereafter (the "Term"). |
| 2. | Method of Performance. The Consultant shall determine the method, details, and means of performing and fulfilling the duties hereunder. |
| 3. | Other Employment. The Company acknowledges and agrees that Consultant may assume other commitments, and has ongoing or intends to obtain engagements outside of Consultant's work for Company during the Term ("Other Engagements"); provided that Consultant fully complies with the confidentiality and non-compete obligations contained in this Agreement. Consultant shall reasonably notify Company of any Other Engagements, which may pose a conflict of interest prior to undertaking such Engagements, it being understood that such notice shall allow Company sufficient basis to proceed in accordance with Section 15(b)(2), below if necessary. |
| 4. | Status as Independent Contractor; Nature of Relationship. It is agreed and understood that the Consultant is an independent contractor and will not act as an agent nor shall he or she be deemed an employee of Consultant for the purposes of any employee benefit programs, income tax withholding, FICA taxes, unemployment benefits, and worker’s compensation insurance, or otherwise. Consultant shall not enter into any agreement or incur any obligations on Company’s behalf, or commit Company in any manner without Company’s prior written consent. |
| 5. | Resources. Upon Consultant's reasonable request, the Company shall provide such incidental resources to Consultant as the Company in its discretion believes may be warranted. |
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| 6. | Compensation. It is agreed and understood, that subject to the Term and performance and under Section 1, the Consultant shall be paid as set forth in Exhibit A. Consultant shall be solely responsible for and agrees that he or she will in a timely fashion pay all federal, state and other taxes on the amounts set forth in this Section. |
| 7. | Expenses. Consultant will be reimbursed for the reasonable expenses, pre-approved by the Company that Consultant incurs directly in connection with services provided under this Agreement, following the submission of documentation evidencing and confirming such expenses. |
| 8. | Compliance with all Laws. Consultant agrees that in the course of providing his services to the Company, he or she will not knowingly engage in any practice or commit any acts in violation of any federal, state or local law or ordinance. |
| 9. | Non-Disclosure Obligations. |
| (a) | Definition of "Information." “Information” shall mean materials, data, or information in any form, whether written, oral, digital, or otherwise, provided by or obtained from Company, Company's agents, or Company's contractors in connection with the Consultant's engagement by Company. Technical or business information of a third person furnished or disclosed to the Consultant under this Agreement shall constitute Information of Company unless otherwise specifically indicated in writing. |
| (b) | Confidential Information. For purposes of this Agreement, the term "Confidential Information" shall mean Information regarding Company's business including, but not limited to, Information regarding medical device products, software, processing and manufacturing capabilities, copyrighted or patentable subject matter, research, development, innovations, inventions, designs, technology, improvements, trade secrets, business affairs and finances, customers, employees, operations, facilities, consumer markets, products, capacities, systems, procedures, security practices, data formats, and business methodologies. Confidential Information dies not include information which: (i) is in the public domain at the time of disclosure; (ii) was in the possession of Consultant free of any obligation of confidence prior to the time of disclosure by the Company; (iii) though originally Confidential Information, subsequently becomes part of the public knowledge through no fault of Consultant, as of the date of its becoming part of the public knowledge; (iv) though originally Confidential Information, subsequently is rightfully received by Consultant without obligations of confidence from a third party who is free to disclose the information, as of the date of such third-party disclosure; or (v) is independently developed by Consultant without the use of any Confidential Information, as of the date of such independent development. |
| (c) | Consultant's Obligations. All Confidential Information relating to or obtained from Company by the Consultant shall be maintained in confidence by the Consultant, and the Consultant shall use best efforts to protect and safeguard the Confidential Information. |
| (d) | Use of Confidential Information. Without Company's prior written approval, the Consultant: (a) shall not use Confidential Information directly or indirectly for any purpose except in connection with the services the Consultant performs on behalf of Company; and (b) shall not disclose, sell, assign, transfer, share or lease Confidential Information of Company, or make such Confidential Information available to, or make it available for the use or benefit of, any third party. |
| 10. | Former Engagement Information. The Consultant shall not, during the Consultant's engagement with the Company, improperly use or disclose any proprietary information or trade secrets of any former employer, hiring party, or other person or entity with which the Consultant has an agreement or duty to keep in confidence, if any, and shall not bring onto the premises of the Company any unpublished document or proprietary information belonging to any such employer, person or entity unless consented to in writing by such employer, person, hiring party, or entity. |
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| 11. | Court or Agency Order. In the event the Consultant receives a subpoena or order of a court or administrative body requesting disclosure of Company’s Confidential Information, the Consultant agrees (a) that, as promptly as possible after learning of such disclosure obligation and before making such disclosure, the Consultant shall notify Company of such obligation to make such disclosure, to allow Company an opportunity to object to such disclosure or to obtain a protective order or other appropriate relief; (b) that the Consultant shall provide such cooperation and assistance, at Company's expense, as Company may reasonably request in any effort by Company to obtain such relief; and (c) that the Consultant shall take all appropriate steps to limit the amount and scope of Confidential Information so disclosed and to protect its confidentiality. |
| 12. | Non-Solicitation and Non-Compete. The Consultant agrees not to solicit or encourage employees of Consultant to work for a Competitor during the Term, and for a period of one year after expiration of the Term. "Competitor" means any person or organization, including the Consultant him or herself, engaged in, or about to become engaged in, research on or the acquisition, development, production, distribution, marketing or providing of a Competing Product. "Competing Product" means any product, process, or service of any person or organization other than the Company, in existence or under development, which both (A) is identical to, substantially the same as, or an adequate substitute for any product, process, or service of the Company, in existence or under development, on which the Consultant works during the Term or about which the Consultant acquires Confidential Information, and (B) is (or could reasonably be anticipated to be) marketed or distributed in such a manner and in such a geographic area as to actually compete with such product, process or service of the Company. |
| 13. | Inventions. For purposes of this Agreement, the term "Inventions" shall mean any and all inventions, original works of authorship, developments, concepts, improvements, or trade secrets (whether or not patentable or registrable under copyright or similar laws) which relate to the business of the Company and which the Consultant either (i) solely or jointly conceives, develops, or reduces to practice during Company time, at the Company's direction, or using Company equipment or resources; or (ii) solely or jointly conceives, develops, or reduces to practice based on Company Confidential Information. The Consultant will promptly make full written disclosure of Inventions to the Company and will hold such Inventions in trust for the sole right and benefit of the Company. The Consultant hereby assigns to the Company all the Consultant's right, title and interest in and to Inventions. Without limiting the foregoing, the Consultant further acknowledges that all Inventions (x) which are original works of authorship; (y) which are made by the Consultant (solely or jointly with others) within the scope of the Consultant's engagement hereunder; and (z) which are protectable by copyright, shall be deemed, to the extent applicable, “works made for hire,” as that term is defined in the United States Copyright Act. |
| 14. | Patent and Copyright Registration. The Consultant agrees to assist the Company, or its designee, at the Company’s expense, in every reasonable way to secure the Company’s rights in the Inventions and any copyrights, patents, mask work rights or other intellectual property rights relating thereto in any and all countries, including the disclosure to the Company of all pertinent information and data with respect thereto and the execution of all applications, specifications, oaths, assignments and all other instruments which the Company shall deem necessary in order to apply for and obtain such rights and in order to assign and convey to the Company, its successors, assigns and nominees the sole and exclusive rights, title and interest in and to such Inventions, and any copyrights, patents, mask work rights or other intellectual property rights relating thereto. |
| 15. | Termination. This Agreement may be terminated without liability as follows: |
| (a) | For Cause. If either Party is in material breach, the non-breaching party may terminate this Agreement upon providing the breaching party (a) with written notice, specifying the breach, and (b) with a ten (10) day opportunity to cure, commencing upon the effective date of such notice. |
| (b) | For Convenience. Either Party may terminate this agreement upon fifteen (15) days notice except that if the Company terminates this Consulting agreement under this provision 15(b) Consultant shall be paid the amounts set forth in Exhibit B up to and including the end of the term of this agreement. |
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| 16. | Survival. The following provisions shall survive the expiration or termination of this Agreement: Sections 9, 11, 12, 14, and 17. |
| 17. | Return of Property. Consultant expressly agrees that upon completion of his or her consulting services under this Agreement, or at any time prior to that time upon request of the Company, Consultant will return to the Company all property of the Company obtained or received by Consultant during the Term of this Agreement including, but not limited to, any and all files, computers, computer equipment, software, diskettes or other storage media, documents, papers, records, notes, agenda, memoranda, plans, calendars and other books and records of any kind and nature whatsoever containing Confidential Information concerning the Company or its customers or operations. |
| 18. | No Oral Modification. This Agreement may not be changed orally, and no modification, amendment, or waiver of any provision contained in this Agreement, or any future representation, promise, or condition in connection with the subject matter of this Agreement shall be binding upon any party hereto, unless made in writing and signed by such party. |
| 19. | Entire Agreement. This Agreement contains the entire agreement between the Parties and supersedes any and all previous agreements of any kind whatsoever between them, whether written or oral, and all prior and contemporaneous discussions and negotiations have been and are merged and integrated into, and are superseded by, this Agreement. This is an integrated document. |
| 20. | Severability. In the event that any provision of this Agreement or the application thereof should be held to be void, voidable, unlawful or, for any reason, unenforceable, the remaining portion and application shall remain in full force and effect, and to that end the provisions of this Agreement are declared to be severable. |
| 21. | Governing Law. This Agreement is made and entered into, and shall be subject to, governed by, and interpreted in accordance with the laws of the California and shall be fully enforceable in the courts of that state, without regard to principles of conflict of laws. The Parties (i) agree that any suit, action or other legal proceeding arising out of this Agreement may be brought in the United States District Court for the District of California, or if such court does not have jurisdiction or will not accept jurisdiction, in any court of general jurisdiction in California; (ii) consent to the jurisdiction of any such court; and (iii) waive any objection which they may have to the laying of venue in any such court. The Parties also consent to the service of process, pleadings, notices or other papers by regular mail, addressed to the party to be served, postage prepaid, and registered or certified with return receipt requested. |
| 22. | Notices. All notices, requests, consents, approvals and other communications required or permitted under this Agreement ("Notices") shall be in writing and shall be delivered to the addresses listed above, by a overnight courier service, by hand, or by facsimile transmission, unless otherwise provided in this Agreement. Such Notices shall be effective (i) if sent by overnight courier service, three business days after mailing; (ii) if sent by hand, on the date of delivery; and (iii) if sent by facsimile, on the date indicated on the facsimile confirmation. Any party may change its address or facsimile number for notification purposes by giving all of the individuals and entities noted above notice, in accordance with the notice provisions set forth in this Section, of the new address or facsimile number and the date upon which it will become effective. |
| 23. | Assignment. Either Party may assign this Agreement. No party may assign either this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of the other parties and such approval shall not unreasonably be withheld. Subject to the preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. |
| 24. | Counterparts. This Agreement may be executed in counterparts, and each counterpart, when executed, shall have the effect of a signed original. |
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by the undersigned duly authorized persons as of the day and year above stated.
Odyssey Group International, Inc.
By:/s/ J. Michael Redmond
Name: J. Michael Redmond
Title: President and CEO
CONSULTANT
/s/ James De Luca
James De Luca
DATE: June 27, 2019
CONSULTANT
/s/ Luis J. Mejia
Luis J. Mejia
Murdock Capital Partners
DATE: July 11, 2019
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EXHIBIT “A”
CONSULTANT SERVICES
AND
PAYMENT SCHEDULE
PAYMENT SCHEDULE
| 1. | Monthly Cash Compensation will begin at a time when the Company has raised a minimum of six hundred thousand dollars ($600,000.00) for the development of the anti choking device and will continue for one year thereafter. The monthly cash compensation will be a total of $10,000.00 per month, six thousand dollars ($6,000.00) of which will be paid directly to De Luca and four thousand ($4,000.00) will be paid directly to MCP. |
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EXHIBIT B
SERVICES
Consultant shall assist in all technology transfer related to the Purchased Assets as defined in the Intellectual Property Purchase Agreement.
Consultant shall assist with the development and commercialization efforts of the Purchased Assets.
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EXHIBIT “D”
PATENT ASSIGNMENT AGREEMENT
Effective June 26, 2019 (the “Effective Date”) De Luca an individual whose address is 15 Wendover Road, Forest Hills Gardens, NY 11375 (“Assignor”), with its principal address at and Odyssey Group International, Inc., a Nevada corporation (“Assignee”) with its principle address at 2372 Morse Ave Irvine, CA 92614.
ARTICLE I
BACKGROUND
WHEREAS, Assignor has developed and deployed a certain technology and known as “anti choking” and a “choking rescue” device (the “Platform”); and
| a) | WHEREAS, Assignor is the owner of all intellectual property rights in or to the Platform and two US Patents, The USPTO Patent Number RE45, 535 E issued on June 2, 2015 and Patent Number 8,454,624 B2; issued June 4, 2013, both patents are related to a Choking Rescue Device. |
WHEREAS, Assignee is engaged in the development of medical products for commercial use and application, and desires to own the Platform and Assignor’s intellectual property rights in and to the same; and
WHEREAS, Assignor and Assignee, are parties to that certain Intellectual Property Purchase Agreement whereby Assignor agreed to assign The USPTO Patent Number RE45, 535 E issued on June 2, 2015 and Patent Number 8,454,624 B2; issued June 4, 2013, both patents are related to a Choking Rescue Device, and
In consideration of the Intellectual Property Purchase Agreement and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, Assignor does hereby transfer and assign to Assignee, its successors, assigns and legal representatives all its right, title and interest in and to the patents and the invention entitled:
“Device for Removing a Lodged Mass”
Invented by James De Luca and described in the:
The USPTO Patent Number RE45, 535 E issued on June 2, 2015 and Patent Number 8,454,624 B2; issued June 4, 2013, both patents are related to a Choking Rescue Device.
and all United States Letters Patent which may be granted therefor, and all divisions, reissues, continuations and extensions thereof, the said interest being the entire ownership of the said Patents when granted, to be held and enjoyed by the said Assignee, its successors, assigns or other legal representatives, to the full end of the term for which said Patent may be granted, as fully and entirely as the same would have been held and enjoyed by Assignor if this assignment and sale had not been made;
And I hereby authorize and request the Commissioner of Patents and Trademarks to transfer and assign said Patent to the said Assignee.
ASSIGNOR
By: /s/ James T. De Luca 6/27/19
James De Luca Date
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STATE OF NEW YORK:
: to wit:
CITY OF SUFFOLK:
I HEREBY CERTIFY that on this 27TH day of JUNE, 2019, before me, the undersigned Notary Public of the jurisdiction aforesaid personally appeared James DE LUCA, and acknowledged himself to be the individual owner of the Platform and that he, being authorized so to do, executed the foregoing instrument for the purposes therein contained.
IN WITNESS MY Hand and Notarial Seal.
| Gerald T. Bodner (SEAL) | |
| Notary Public | |
GERALD T. BODNER Notary Public, state of New York NO. 02BO4937733 Qualified in Nassau and Suffolk Counties My Commission expires: June 30, 2022 |
Registration # : ______________ |
| ACKNOWLEDGED AND ACCEPTED: | |
| Odyssey Group International, Inc. | |
By: /s/ J. Michael Redmond J. Michael Redmon President/CEO Odyssey Group international Inc. |
6-27-19 Date |
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Exhibit 10.10
NEITHER ThIS PURCHASE WARRANT NOR THE securities represented by this PURChASE warrant have been registered under the Securities Act of 1933, as amended, or applicable state law. Neither thIS PURCHASE WARRANT NOT THE UNDERLYING securities nor any interest therein may be offered for sale, sold or otherwise transferred except pursuant to an effective registration statement under the Securities Act, or pursuant to an exemption from registration under the Securities Act and applicable state law which, in the opinion of counsel to the Company, is available.
THE REGISTERED HOLDER OF THIS PURCHASE WARRANT BY ITS ACCEPTANCE HEREOF, AGREES THAT IT WILL NOT SELL, TRANSFER OR ASSIGN THIS PURCHASE WARRANT EXCEPT AS HEREIN PROVIDED AND THE REGISTERED HOLDER OF THIS PURCHASE WARRANT AGREES THAT IT WILL NOT SELL, TRANSFER, ASSIGN, PLEDGE OR HYPOTHECATE THIS PURCHASE WARRANT FOR A PERIOD OF ONE HUNDRED EIGHTY DAYS FOLLOWING THE EFFECTIVE DATE (DEFINED BELOW) TO ANYONE OTHER THAN (I) A.G.P. OR AN UNDERWRITER OR A SELECTED DEALER IN CONNECTION WITH THE OFFERING, OR (II) A BONA FIDE OFFICER OR PARTNER OF A.G.P. OR OF ANY SUCH UNDERWRITER OR SELECTED DEALER.
VOID AFTER 5:00 P.M., EASTERN TIME, AUGUST 6, 2024.
COMMON STOCK PURCHASE WARRANT
For the Purchase of 220,000 Shares of Common Stock
of
Odyssey Group International, Inc.
1. Purchase Warrant. THIS CERTIFIES THAT, in consideration of funds duly paid by or on behalf of A.G.P. (“Holder”), as registered owner of this Purchase Warrant, to Odyssey Group International, Inc., a Nevada corporation (the “Company”), Holder is entitled, at any time or from time to time from August 6, 2020 (the “Effective Date”), and at or before 5:00 p.m., Eastern time, August 6, 2024 (the “Expiration Date”), but not thereafter, to subscribe for, purchase and receive, in whole or in part, up to 220,000 shares (the “Shares”) of common stock of the Company, par value $0.001 per share (the “Common Stock”), subject to adjustment as provided in Section 6 hereof. The total Shares issuable pursuant to all Purchase Warrants is referred to herein as the “Warrant Shares.” If the Expiration Date is a day on which banking institutions are authorized by law to close, then this Purchase Warrant may be exercised on the next succeeding day which is not such a day in accordance with the terms herein. During the period ending on the Expiration Date, the Company agrees not to take any action that would terminate this Purchase Warrant. This Purchase Warrant is initially exercisable at $0.01 per Share; provided, however, that upon the occurrence of any of the events specified in Section 6 hereof, the rights granted by this Purchase Warrant, including the exercise price per Share and the number of Shares to be received upon such exercise, shall be adjusted as therein specified. The term “Exercise Price” shall mean the initial exercise price or the adjusted exercise price, depending on the context.
2. Exercise.
2.1 Exercise Form. In order to exercise this Purchase Warrant, the exercise form attached hereto must be duly executed and completed and delivered to the Company, together with this Purchase Warrant and payment of the Exercise Price for the Shares being purchased payable in cash by wire transfer of immediately available funds to an account designated by the Company or by certified check or official bank check. If the subscription rights represented hereby shall not be exercised at or before 5:00 p.m., Eastern time, on the Expiration Date, this Purchase Warrant shall become and be void without further force or effect, and all rights represented hereby shall cease and expire.
2.2 Cashless Exercise. If at any time after the Commencement Date there is no effective registration statement registering, or no current prospectus available for, the resale of the Shares by the Holder, then in lieu of exercising this Purchase Warrant by payment of cash or check payable to the order of the Company pursuant to Section 2.1 above, Holder may elect to receive the number of Shares equal to the value of this Purchase Warrant (or the portion thereof being exercised), by surrender of this Purchase Warrant to the Company, together with the exercise form attached hereto, in which event the issue to Holder, Shares in accordance with the following formula:
| 1 |
| X | = | Y(A-B) | ||||||
| A | ||||||||
| Where, | ||||||||
| X | = | The number of Shares to be issued to Holder; | ||||||
| Y | = | The number of Shares for which the Purchase Warrant is being exercised; | ||||||
| A | = | The fair market value of one Share; and | ||||||
| B | = | The Exercise Price. | ||||||
For purposes of this Section 2.2, the fair market value of a Share is defined as follows:
| (i) | if the Company’s common stock is traded on a securities exchange, the value shall be deemed to be the closing price on such exchange prior to the exercise form being submitted in connection with the exercise of the Purchase Warrant; or |
| (ii) | if the Company’s common stock is actively traded over-the-counter, the value shall be deemed to be the closing bid prior to the exercise form being submitted in connection with the exercise of the Purchase Warrant; if there is no active public market, the value shall be the fair market value thereof, as determined in good faith by the Company’s Board of Directors. |
2.3 Legend. Each certificate for the securities purchased under this Purchase Warrant shall bear a legend as follows unless such securities have been registered under the Securities Act of 1933, as amended (the “Act”):
“The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended (the “Act”), or applicable state law. Neither the securities nor any interest therein may be offered for sale, sold or otherwise transferred except pursuant to an effective registration statement under the Securities Act, or pursuant to an exemption from registration under the Securities Act and applicable state law which, in the opinion of counsel to the Company, is available.”
3. Transfer.
3.1 General Restrictions. The registered Holder of this Purchase Warrant agrees by his, her or its acceptance hereof, that such Holder will not: cause this Purchase Warrant or the securities issuable hereunder to be the subject of any hedging, short sale, derivative, put or call transaction that would result in the effective economic disposition of this Purchase Warrant or the securities hereunder, except as provided for in FINRA Rule 5110(g)(2). Transfers to others may be made subject to compliance with or exemptions from applicable securities laws. In order to make any permitted assignment, the Holder must deliver to the Company the assignment form attached hereto duly executed and completed, together with the Purchase Warrant and payment of all transfer taxes, if any, payable in connection therewith. The Company shall within five (5) Business Days transfer this Purchase Warrant on the books of the Company and shall execute and deliver a new Purchase Warrant or Purchase Warrants of like tenor to the appropriate assignee(s) expressly evidencing the right to purchase the aggregate number of Shares purchasable hereunder or such portion of such number as shall be contemplated by any such assignment.
3.2 Restrictions Imposed by the Securities Act. The securities evidenced by this Purchase Warrant shall not be transferred unless and until: (i) the Company has received the opinion of counsel for the Holder reasonably acceptable to the Company that the securities may be transferred pursuant to an exemption from registration under the Securities Act and applicable state securities laws, the availability of which is established to the reasonable satisfaction of the Company (the Company hereby agreeing that the opinion of the counsel for the Holder shall be deemed satisfactory evidence of the availability of an exemption), or (ii) a registration statement or a post-effective amendment to the Registration Statement relating to the offer and sale of such securities has been filed by the Company and declared effective by the U.S. Securities and Exchange Commission (the “Commission”) and compliance with applicable state securities law has been established.
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4. Registration Rights.
4.1 Demand Registration.
4.1.1 Grant of Right. The Company, upon written demand (a “Demand Notice”) of the Holder(s) of Purchase Warrants representing the right to purchase Warrant Shares equal to at least 51% of the Warrant Shares (“Majority Holders”), agrees to register, on one occasion, all or any portion of the Shares underlying the Purchase Warrants (collectively, the “Registrable Securities”). On such occasion, the Company will file a registration statement with the Commission covering the Registrable Securities within sixty (60) days after receipt of a Demand Notice and use its reasonable best efforts to have the registration statement declared effective promptly thereafter, subject to compliance with review by the Commission; provided, however, that the Company shall not be required to comply with a Demand Notice if the Company has filed a registration statement with respect to which the Holder is entitled to piggyback registration rights pursuant to Section 4.2 hereof and either: (i) the Holder has elected to participate in the offering covered by such registration statement or (ii) if such registration statement relates to an underwritten primary offering of securities of the Company, until the offering covered by such registration statement has been withdrawn or until thirty (30) days after such offering is consummated. The demand for registration may be made at any time during the period of four (4) years beginning on the Effective Date. The Company covenants and agrees to give written notice of its receipt of any Demand Notice by any Holder(s) to all other registered Holders of the Purchase Warrants and/or the Registrable Securities within ten (10) days after the date of the receipt of any such Demand Notice.
4.1.2 Terms. The Company shall bear all fees and expenses attendant to the registration of the Registrable Securities pursuant to Section 4.1.1, but the Holders shall pay any and all underwriting commissions and the expenses of any legal counsel selected by the Holders to represent them in connection with the sale of the Registrable Securities. The Company agrees to use its reasonable best efforts to cause the filing required herein to become effective promptly and to qualify or register the Registrable Securities in such States as are reasonably requested by the Holder(s); provided, however, that in no event shall the Company be required to register the Registrable Securities in a State in which such registration would cause: (i) the Company to be obligated to register or license to do business in such State or submit to general service of process in such State, or (ii) the principal stockholders of the Company to be obligated to escrow their shares of capital stock of the Company. The Company shall cause any registration statement filed pursuant to the demand right granted under Section 4.1.1 to remain effective for a period of at least twelve (12) consecutive months after the date that the Holders of the Registrable Securities covered by such registration statement are first given the opportunity to sell all of such securities, or such shorter period of time as when the Holders no longer hold Registrable Securities. The Holders shall only use the prospectuses provided by the Company to sell the shares covered by such registration statement, and will immediately cease to use any prospectus furnished by the Company if the Company advises the Holder that such prospectus may no longer be used due to a material misstatement or omission, or if the Company determines in good faith that such suspension of use is necessary to delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company. Notwithstanding the provisions of this Section 4.1.2, the Holder shall be entitled to a demand registration under this Section 4.1.2 on only one (1) occasion and such demand registration right shall terminate on the fifth anniversary of the effectiveness of the registration statement in accordance with FINRA Rule 5110(f)(2)(G)(iv).
4.2 “Piggy-Back” Registration.
4.2.1 Grant of Right. In addition to the demand right of registration described in Section 4.1 hereof, the Holder shall have the right, in accordance with FINRA Rule 5110(f)(2)(G)(v), to include the Registrable Securities as part of any other registration of securities filed by the Company (other than in connection with a transaction contemplated by Rule 145(a) promulgated under the Securities Act or pursuant to Form S-8 or any equivalent form or Form S-4 or any equivalent form); provided, however, that if, solely in connection with any primary underwritten public offering for the account of the Company, the managing underwriter(s) thereof shall, in its reasonable discretion, impose a limitation on the number of shares of Common Stock which may be included in the Registration Statement because, in such underwriter(s)’ judgment, marketing or other factors dictate such limitation is necessary to facilitate public distribution, then the Company shall be obligated to include in such Registration Statement only such limited portion of the Registrable Securities with respect to which the Holder requested inclusion hereunder as the underwriter shall reasonably permit. Any exclusion of Registrable Securities shall be made pro rata among the Holders seeking to include Registrable Securities in proportion to the number of Registrable Securities sought to be included by such Holders; provided, however, that the Company shall not exclude any Registrable Securities unless the Company has first excluded all outstanding securities, the holders of which are not entitled to inclusion of such securities in such Registration Statement or are not entitled to pro rata inclusion with the Registrable Securities.
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4.2.2 Terms. The Company shall bear all fees and expenses attendant to registering the Registrable Securities pursuant to Section 4.2.1 hereof, but the Holders shall pay any and all underwriting commissions and the expenses of any legal counsel selected by the Holders to represent them in connection with the sale of the Registrable Securities. In the event of such a proposed registration, the Company shall furnish the then Holders of outstanding Registrable Securities with not less than ten (10) days written notice prior to the proposed date of filing of such registration statement. Such notice to the Holders shall continue to be given for each registration statement filed by the Company until such time as all of the Registrable Securities have been sold by the Holder. The holders of the Registrable Securities shall exercise the “piggy-back” rights provided for herein by giving written notice within five (5) days of the receipt of the Company’s notice of its intention to file a registration statement. Except as otherwise provided in this Purchase Warrant, there shall be no limit on the number of times the Holder may request registration under this Section 4.2.2.
4.3 General Terms.
4.3.1 Indemnification. The Company shall indemnify the Holder(s) of the Registrable Securities to be sold pursuant to any registration statement hereunder and each person, if any, who controls such Holders within the meaning of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), against all documented loss, claim, damage, expense or liability (including all reasonable and documented attorneys’ fees and other expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Securities Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Holder in Paragraph G of the Letter Agreement between the Holder and the Company, dated as of August 6, 2020. The Holder(s) of the Registrable Securities to be sold pursuant to such registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, against all loss, claim, damage, expense or liability (including all reasonable attorneys’ fees and other expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Securities Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, in writing, for specific inclusion in such registration statement.
4.3.2 Exercise of Purchase Warrants. Nothing contained in this Purchase Warrant shall be construed as requiring the Holder(s) to exercise their Purchase Warrants prior to or after the initial filing of any registration statement or the effectiveness thereof.
4.3.3 Documents to be Delivered by Holder(s). Each of the Holder(s) participating in any of the foregoing offerings shall furnish to the Company a completed and executed questionnaire provided by the Company requesting information customarily sought of selling security holders.
4.3.4 Damages. Should the registration or the effectiveness thereof required by Sections 4.1 and 4.2 hereof be delayed by the Company or the Company otherwise fails to comply with such provisions, the Holder(s) shall, in addition to any other legal or other relief available to the Holder(s), be entitled to obtain specific performance or other equitable (including injunctive) relief against the threatened breach of such provisions or the continuation of any such breach, without the necessity of proving actual damages and without the necessity of posting bond or other security.
4.4 Termination of Registration Rights. Notwithstanding anything else in this Purchase Warrant, no Holder shall be entitled to exercise any right provided for in this Section 4 after such time at which such Holder can sell all shares held by it in compliance with Rule 144(b)(1)(i), and such securities shall at such time cease to be Registrable Securities.
5. New Purchase Warrants to be Issued.
5.1 Partial Exercise or Transfer. Subject to the restrictions in Section 3 hereof, this Purchase Warrant may be exercised or assigned in whole or in part. In the event of the exercise or assignment hereof in part only, upon surrender of this Purchase Warrant for cancellation, together with the duly executed exercise or assignment form and funds sufficient to pay any Exercise Price and/or transfer tax if exercised pursuant to Section 2.1 hereto, the Company shall cause to be delivered to the Holder without charge a new Purchase Warrant of like tenor to this Purchase Warrant in the name of the Holder evidencing the right of the Holder to purchase the number of Shares purchasable hereunder as to which this Purchase Warrant has not been exercised or assigned.
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5.2 Lost Certificate. Upon receipt by the Company of evidence satisfactory to it of the loss, theft, destruction or mutilation of this Purchase Warrant and of reasonably satisfactory indemnification or the posting of a bond, the Company shall execute and deliver a new Purchase Warrant of like tenor and date. Any such new Purchase Warrant executed and delivered as a result of such loss, theft, mutilation or destruction shall constitute a substitute contractual obligation on the part of the Company.
6. Adjustments.
6.1 Adjustments to Exercise Price and Number of Securities. The Exercise Price and the number of Shares underlying the Purchase Warrant shall be subject to adjustment from time to time as hereinafter set forth:
6.1.1 Share Dividends; Split Ups. If, after the date hereof, and subject to the provisions of Section 6.3 below, the number of outstanding shares of Common Stock is increased by a stock dividend payable in shares of Common Stock or by a split up of shares of Common Stock or other similar event, then, on the effective day thereof, the number of Shares purchasable hereunder shall be increased in proportion to such increase in outstanding shares of Common Stock, and the Exercise Price shall be proportionately decreased.
6.1.2 Aggregation of Shares. If, after the date hereof, and subject to the provisions of Section 6.3 below, the number of outstanding shares of Common Stock is decreased by a consolidation, combination or reclassification of shares of Common Stock or other similar event, then, on the effective date thereof, the number of Shares purchasable hereunder shall be decreased in proportion to such decrease in outstanding Shares, and the Exercise Price shall be proportionately increased.
6.1.3 Replacement of Securities upon Reorganization, etc. In case of any reclassification or reorganization of the outstanding shares of Common Stock other than a change covered by Section 6.1.1 or 6.1.2 hereof or that solely affects the par value of the Common Stock, or in the case of any share reconstruction or amalgamation or consolidation of the Company with or into another corporation (other than a consolidation or share reconstruction or amalgamation in which the Company is the continuing corporation and that does not result in any reclassification or reorganization of the outstanding shares of Common Stock), or in the case of any sale or conveyance to another corporation or entity of the property of the Company as an entirety or substantially as an entirety in connection with which the Company is dissolved, the Holder of this Purchase Warrant shall have the right thereafter (until the expiration of the right of exercise of this Purchase Warrant) to receive upon the exercise hereof, for the same aggregate Exercise Price payable hereunder immediately prior to such event, the kind and amount of shares of stock or other securities or property (including cash) receivable upon such reclassification, reorganization, share reconstruction or amalgamation, or consolidation, or upon a dissolution following any such sale or transfer, by a Holder of the number of shares of Common Stock of the Company obtainable upon exercise of this Purchase Warrant immediately prior to such event; and if any reclassification also results in a change in shares of Common Stock covered by Section 6.1.1 or 6.1.2, then such adjustment shall be made pursuant to Sections 6.1.1, 6.1.2 and this Section 6.1.3. The provisions of this Section 6.1.3 shall similarly apply to successive reclassifications, reorganizations, share reconstructions or amalgamations, or consolidations, sales or other transfers.
6.1.4 Changes in Form of Purchase Warrant. This form of Purchase Warrant need not be changed because of any change pursuant to this Section 6.1, and Purchase Warrants issued after such change may state the same Exercise Price and the same number of Shares as are stated in the Purchase Warrants initially issued pursuant to this Agreement. The acceptance by any Holder of the issuance of new Purchase Warrants reflecting a required or permissive change shall not be deemed to waive any rights to an adjustment occurring after the Effective Date or the computation thereof.
6.2 Substitute Purchase Warrant. In case of any consolidation of the Company with, or share reconstruction or amalgamation of the Company with or into, another corporation (other than a consolidation or share reconstruction or amalgamation which does not result in any reclassification or change of the outstanding shares of Common Stock), the corporation formed by such consolidation or share reconstruction or amalgamation shall execute and deliver to the Holder a supplemental Purchase Warrant providing that the holder of each Purchase Warrant then outstanding or to be outstanding shall have the right thereafter (until the stated expiration of such Purchase Warrant) to receive, upon exercise of such Purchase Warrant, the kind and amount of shares of stock and other securities and property receivable upon such consolidation or share reconstruction or amalgamation, by a holder of the number of shares of Common Stock of the Company for which such Purchase Warrant might have been exercised immediately prior to such consolidation, share reconstruction or amalgamation, sale or transfer. Such supplemental Purchase Warrant shall provide for adjustments which shall be identical to the adjustments provided for in this Section 6. The above provision of this Section shall similarly apply to successive consolidations or share reconstructions or amalgamations.
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6.3 Elimination of Fractional Interests. The Company shall not be required to issue certificates representing fractions of Shares upon the exercise of the Purchase Warrant, nor shall it be required to issue scrip or pay cash in lieu of any fractional interests, it being the intent of the parties that all fractional interests shall be eliminated by rounding any fraction up or down, as the case may be, to the nearest whole number of Shares or other securities, properties or rights.
7. Reservation and Listing. The Company shall at all times reserve and keep available out of its authorized Shares, solely for the purpose of issuance upon exercise of the Purchase Warrants, such number of Shares or other securities, properties or rights as shall be issuable upon the exercise thereof. The Company covenants and agrees that, upon exercise of the Purchase Warrants and payment of the Exercise Price therefor, in accordance with the terms hereby, all Shares and other securities issuable upon such exercise shall be duly and validly issued, fully paid and non-assessable and not subject to preemptive rights of any stockholder. The Company further covenants and agrees that upon exercise of the Purchase Warrants and payment of the exercise price therefor, all Shares and other securities issuable upon such exercise shall be duly and validly issued, fully paid and non-assessable and not subject to preemptive rights of any stockholder. As long as the Purchase Warrants shall be outstanding, the Company shall use its commercially reasonable efforts to cause all Shares issuable upon exercise of the Purchase Warrants to be listed (subject to official notice of issuance) on all national securities exchanges (or, if applicable, on the OTC Bulletin Board or any successor trading market) on which the Common Stock may then be listed and/or quoted.
8. Certain Notice Requirements.
8.1 Holder’s Right to Receive Notice. Nothing herein shall be construed as conferring upon the Holders the right to vote or consent or to receive notice as a stockholder for the election of directors or any other matter, or as having any rights whatsoever as a stockholder of the Company. If, however, at any time prior to the expiration of the Purchase Warrants and their exercise, any of the events described in Section 8.2 shall occur, then, in one or more of said events, the Company shall give written notice of such event at least fifteen (15) days prior to the date fixed as a record date or the date of closing the transfer books for the determination of the stockholders entitled to such dividend, distribution, conversion or exchange of securities or subscription rights, or entitled to vote on such proposed dissolution, liquidation, winding up or sale. Such notice shall specify such record date or the date of the closing of the transfer books, as the case may be. Notwithstanding the foregoing, the Company shall deliver to each Holder a copy of each notice given to the other stockholders of the Company at the same time and in the same manner that such notice is given to the stockholders.
8.2 Events Requiring Notice. The Company shall be required to give the notice described in this Section 8 upon one or more of the following events: (i) if the Company shall take a record of the holders of its Shares for the purpose of entitling them to receive a dividend or distribution payable otherwise than in cash, or a cash dividend or distribution payable otherwise than out of retained earnings, as indicated by the accounting treatment of such dividend or distribution on the books of the Company, (ii) the Company shall offer to all the holders of its shares of Common Stock any additional shares of capital stock of the Company or securities convertible into or exchangeable for shares of capital stock of the Company, or any option, right or warrant to subscribe therefor, or (iii) a dissolution, liquidation or winding up of the Company (other than in connection with a consolidation or share reconstruction or amalgamation) or a sale of all or substantially all of its property, assets and business shall be proposed.
8.3 Notice of Change in Exercise Price. The Company shall, promptly after an event requiring a change in the Exercise Price pursuant to Section 6 hereof, send notice to the Holders of such event and change (“Price Notice”). The Price Notice shall describe the event causing the change and the method of calculating same and shall be certified as being true and accurate by the Company’s Chief Financial Officer.
8.4 Transmittal of Notices. All notices, requests, consents and other communications under this Purchase Warrant shall be in writing and shall be deemed to have been duly made when hand delivered, or mailed by express mail or private courier service: (i) if to the registered Holder of the Purchase Warrant, to the address of such Holder as shown on the books of the Company, or (ii) if to the Company, to following address or to such other address as the Company may designate by notice to the Holders:
If to the Holder:
A.G.P./Alliance Global Partners
590 Madison Avenue. 26th Floor
New York, New York 10022
Attn: Thomas Higgins, Managing Director
Fax No.: (212) 813-1047
with a copy (which shall not constitute notice) to:
[_________]
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If to the Company:
Odyssey Group International, Inc.
2372 Morse Avenue
Irvine, CA 92614
Attention: Joseph Michael Redmond, CEO
Fax No:______________
with a copy (which shall not constitute notice) to:
Troutman Pepper Hamilton Sanders LLP
400 Berwyn Park
899 Cassatt Road
Berwyn, Pennsylvania 19312
Attention: Scott Jones, Esq.
Fax No.: 610.640.7835
9. Miscellaneous.
9.1 Amendments. The Company and A.G.P. may from time to time supplement or amend this Purchase Warrant without the approval of any of the Holders in order to cure any ambiguity, to correct or supplement any provision contained herein that may be defective or inconsistent with any other provisions herein, or to make any other provisions in regard to matters or questions arising hereunder that the Company and A.G.P. may deem necessary or desirable and that the Company and A.G.P. deem shall not adversely affect the interest of the Holders. All other modifications or amendments shall require the written consent of and be signed by the party against whom enforcement of the modification or amendment is sought.
9.2 Headings. The headings contained herein are for the sole purpose of convenience of reference, and shall not in any way limit or affect the meaning or interpretation of any of the terms or provisions of this Purchase Warrant.
9.3. Entire Agreement. This Purchase Warrant (together with the other agreements and documents being delivered pursuant to or in connection with this Purchase Warrant) constitutes the entire agreement of the parties hereto with respect to the subject matter hereof, and supersedes all prior agreements and understandings of the parties, oral and written, with respect to the subject matter hereof.
9.4 Binding Effect. This Purchase Warrant shall inure solely to the benefit of and shall be binding upon, the Holder and the Company and their permitted assignees, respective successors, legal representative and assigns, and no other person shall have or be construed to have any legal or equitable right, remedy or claim under or in respect of or by virtue of this Purchase Warrant or any provisions herein contained.
9.5 Governing Law; Submission to Jurisdiction; Trial by Jury. This Purchase Warrant shall be governed by and construed and enforced in accordance with the laws of the State of Nevada, without giving effect to conflict of laws principles thereof. Each of the Holder and the Company hereby agrees that any action, proceeding or claim against it arising out of, or relating in any way to this Purchase Warrant shall be brought and enforced in the state courts located in the Commonwealth of Massachusetts or in the federal courts located in the Commonwealth of Massachusetts, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. Each of the Holder and the Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. Any process or summons to be served upon the Holder or the Company, as applicable, may be served by transmitting a copy thereof by registered or certified mail, return receipt requested, postage prepaid, addressed to it at the address set forth in Section 8 hereof. Such mailing shall be deemed personal service and shall be legal and binding upon the Holder or the Company, as applicable, in any action, proceeding or claim. The Company and the Holder agree that the prevailing party(ies) in any such action shall be entitled to recover from the other party(ies) all of its reasonable attorneys’ fees and expenses relating to such action or proceeding and/or incurred in connection with the preparation therefor. The Company (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates) and the Holder hereby irrevocably waive, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
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9.6 Waiver, etc. The failure of the Company or the Holder to at any time enforce any of the provisions of this Purchase Warrant shall not be deemed or construed to be a waiver of any such provision, nor to in any way affect the validity of this Purchase Warrant or any provision hereof or the right of the Company or any Holder to thereafter enforce each and every provision of this Purchase Warrant. No waiver of any breach, non-compliance or non-fulfillment of any of the provisions of this Purchase Warrant shall be effective unless set forth in a written instrument executed by the party or parties against whom or which enforcement of such waiver is sought; and no waiver of any such breach, non-compliance or non-fulfillment shall be construed or deemed to be a waiver of any other or subsequent breach, non-compliance or non-fulfillment.
9.7 Execution in Counterparts. This Purchase Warrant may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement, and shall become effective when one or more counterparts has been signed by each of the parties hereto and delivered to each of the other parties hereto. Such counterparts may be delivered by facsimile transmission or other electronic transmission.
9.8 Exchange Agreement. As a condition of the Holder’s receipt and acceptance of this Purchase Warrant, Holder agrees that, at any time prior to the complete exercise of this Purchase Warrant by Holder, if the Company and A.G.P. enter into an agreement (“Exchange Agreement”) pursuant to which they agree that all outstanding Purchase Warrants will be exchanged for securities or cash or a combination of both, then Holder shall agree to such exchange and become a party to the Exchange Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Company has caused this Purchase Warrant to be signed by its duly authorized officer as of the 17th day of November, 2020.
ODYSSEY GROUP INTERNATIONAL, INC.
By:_________________________________
Name:
Title:
Accepted and agreed to as of the date first above written
A.G.P./Alliance Global Partners
By: __________________________________
Name:
Title:
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[Form to be used to exercise Purchase Warrant]
Date: __________, 20___
The undersigned hereby elects irrevocably to exercise the Purchase Warrant for ______ shares of common stock, par value $0.001 per share (the “Shares”), of Odyssey Group International, Inc., a Nevada corporation (the “Company”), and hereby makes payment of $____ (at the rate of $____ per Share) in payment of the Exercise Price pursuant thereto. Please issue the Shares as to which this Purchase Warrant is exercised in accordance with the instructions given below and, if applicable, a new Purchase Warrant representing the number of Shares for which this Purchase Warrant has not been exercised.
or
The undersigned hereby elects irrevocably to convert its right to purchase ___ Shares of the Company under the Purchase Warrant for ______ Shares, as determined in accordance with the following formula:
| X | = | Y(A-B) | ||||
| A | ||||||
| Where, | ||||||
| X | = | The number of Shares to be issued to Holder; | ||||
| Y | = | The number of Shares for which the Purchase Warrant is being exercised; | ||||
| A | = | The fair market value of one Share which is equal to $_____; and | ||||
| B | = | The Exercise Price which is equal to $______ per share | ||||
The undersigned agrees and acknowledges that the calculation set forth above is subject to confirmation by the Company and any disagreement with respect to the calculation shall be resolved by the Company in its sole discretion.
Please issue the Shares as to which this Purchase Warrant is exercised in accordance with the instructions given below and, if applicable, a new Purchase Warrant representing the number of Shares for which this Purchase Warrant has not been converted.
Signature _____________________________
Signature Guaranteed ____________________
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INSTRUCTIONS FOR REGISTRATION OF SECURITIES
Name: _______________________________________________
(Print in Block Letters)
Address: ___________________________________________
___________________________________________
___________________________________________
NOTICE: The signature to this form must correspond with the name as written upon the face of the Purchase Warrant without alteration or enlargement or any change whatsoever, and must be guaranteed by a bank, other than a savings bank, or by a trust company or by a firm having membership on a registered national securities exchange.
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[Form to be used to assign Purchase Warrant]
ASSIGNMENT
(To be executed by the registered Holder to effect a transfer of the within Purchase Warrant):
FOR VALUE RECEIVED, __________________ does hereby sell, assign and transfer unto the right to purchase shares of common stock, par value $0.001 per share, of Odyssey Group International, Inc., a Nevada corporation (the “Company”), evidenced by the Purchase Warrant and does hereby authorize the Company to transfer such right on the books of the Company.
Dated: __________, 20__
Signature _________________________________
Signature Guaranteed ________________________
NOTICE: The signature to this form must correspond with the name as written upon the face of the within Purchase Warrant without alteration or enlargement or any change whatsoever, and must be guaranteed by a bank, other than a savings bank, or by a trust company or by a firm having membership on a registered national securities exchange.
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NEITHER ThIS PURCHASE WARRANT NOR THE securities represented by this PURChASE warrant have been registered under the Securities Act of 1933, as amended, or applicable state law. Neither thIS PURCHASE WARRANT NOR THE UNDERLYING securities nor any interest therein may be offered for sale, sold or otherwise transferred except pursuant to an effective registration statement under the Securities Act, or pursuant to an exemption from registration under the Securities Act and applicable state law which, in the opinion of counsel to the Company, is available.
THE REGISTERED HOLDER OF THIS PURCHASE WARRANT BY ITS ACCEPTANCE HEREOF, AGREES THAT IT WILL NOT SELL, TRANSFER OR ASSIGN THIS PURCHASE WARRANT EXCEPT AS HEREIN PROVIDED AND THE REGISTERED HOLDER OF THIS PURCHASE WARRANT AGREES THAT IT WILL NOT SELL, TRANSFER, ASSIGN, PLEDGE OR HYPOTHECATE THIS PURCHASE WARRANT FOR A PERIOD OF ONE HUNDRED EIGHTY DAYS FOLLOWING THE EFFECTIVE DATE (DEFINED BELOW) TO ANYONE OTHER THAN (I) A.G.P. OR AN UNDERWRITER OR A SELECTED DEALER IN CONNECTION WITH THE OFFERING, OR (II) A BONA FIDE OFFICER OR PARTNER OF A.G.P. OR OF ANY SUCH UNDERWRITER OR SELECTED DEALER.
VOID AFTER 5:00 P.M., EASTERN TIME, AUGUST 6, 2024.
COMMON STOCK PURCHASE WARRANT
For the Purchase of 220,000 Shares of Common Stock
of
Odyssey Group International, Inc.
1. Purchase Warrant. THIS CERTIFIES THAT, in consideration of funds duly paid by or on behalf of Alejandro Barrientos (“Holder”), as registered owner of this Purchase Warrant, to Odyssey Group International, Inc., a Nevada corporation (the “Company”), Holder is entitled, at any time or from time to time from August 6, 2020 (the “Effective Date”), and at or before 5:00 p.m., Eastern time, August 6, 2024 (the “Expiration Date”), but not thereafter, to subscribe for, purchase and receive, in whole or in part, up to 220,000 shares (the “Shares”) of common stock of the Company, par value $0.001 per share (the “Common Stock”), subject to adjustment as provided in Section 6 hereof. The total Shares issuable pursuant to all Purchase Warrants is referred to herein as the “Warrant Shares.” If the Expiration Date is a day on which banking institutions are authorized by law to close, then this Purchase Warrant may be exercised on the next succeeding day which is not such a day in accordance with the terms herein. During the period ending on the Expiration Date, the Company agrees not to take any action that would terminate this Purchase Warrant. This Purchase Warrant is initially exercisable at $0.01 per Share; provided, however, that upon the occurrence of any of the events specified in Section 6 hereof, the rights granted by this Purchase Warrant, including the exercise price per Share and the number of Shares to be received upon such exercise, shall be adjusted as therein specified. The term “Exercise Price” shall mean the initial exercise price or the adjusted exercise price, depending on the context.
2. Exercise.
2.1 Exercise Form. In order to exercise this Purchase Warrant, the exercise form attached hereto must be duly executed and completed and delivered to the Company, together with this Purchase Warrant and payment of the Exercise Price for the Shares being purchased payable in cash by wire transfer of immediately available funds to an account designated by the Company or by certified check or official bank check. If the subscription rights represented hereby shall not be exercised at or before 5:00 p.m., Eastern time, on the Expiration Date, this Purchase Warrant shall become and be void without further force or effect, and all rights represented hereby shall cease and expire.
2.2 Cashless Exercise. If at any time after the Commencement Date there is no effective registration statement registering, or no current prospectus available for, the resale of the Shares by the Holder, then in lieu of exercising this Purchase Warrant by payment of cash or check payable to the order of the Company pursuant to Section 2.1 above, Holder may elect to receive the number of Shares equal to the value of this Purchase Warrant (or the portion thereof being exercised), by surrender of this Purchase Warrant to the Company, together with the exercise form attached hereto, in which event the issue to Holder, Shares in accordance with the following formula:
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| X | = | Y(A-B) | ||||||
| A | ||||||||
| Where, | ||||||||
| X | = | The number of Shares to be issued to Holder; | ||||||
| Y | = | The number of Shares for which the Purchase Warrant is being exercised; | ||||||
| A | = | The fair market value of one Share; and | ||||||
| B | = | The Exercise Price. | ||||||
For purposes of this Section 2.2, the fair market value of a Share is defined as follows:
(i) if the Company’s common stock is traded on a securities exchange, the value shall be deemed to be the closing price on such exchange prior to the exercise form being submitted in connection with the exercise of the Purchase Warrant; or
| (ii) | if the Company’s common stock is actively traded over-the-counter, the value shall be deemed to be the closing bid prior to the exercise form being submitted in connection with the exercise of the Purchase Warrant; if there is no active public market, the value shall be the fair market value thereof, as determined in good faith by the Company’s Board of Directors. |
2.3 Legend. Each certificate for the securities purchased under this Purchase Warrant shall bear a legend as follows unless such securities have been registered under the Securities Act of 1933, as amended (the “Act”):
“The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended (the “Act”), or applicable state law. Neither the securities nor any interest therein may be offered for sale, sold or otherwise transferred except pursuant to an effective registration statement under the Securities Act, or pursuant to an exemption from registration under the Securities Act and applicable state law which, in the opinion of counsel to the Company, is available.”
3. Transfer.
3.1 General Restrictions. The registered Holder of this Purchase Warrant agrees by his, her or its acceptance hereof, that such Holder will not: cause this Purchase Warrant or the securities issuable hereunder to be the subject of any hedging, short sale, derivative, put or call transaction that would result in the effective economic disposition of this Purchase Warrant or the securities hereunder, except as provided for in FINRA Rule 5110(g)(2). Transfers to others may be made subject to compliance with or exemptions from applicable securities laws. In order to make any permitted assignment, the Holder must deliver to the Company the assignment form attached hereto duly executed and completed, together with the Purchase Warrant and payment of all transfer taxes, if any, payable in connection therewith. The Company shall within five (5) Business Days transfer this Purchase Warrant on the books of the Company and shall execute and deliver a new Purchase Warrant or Purchase Warrants of like tenor to the appropriate assignee(s) expressly evidencing the right to purchase the aggregate number of Shares purchasable hereunder or such portion of such number as shall be contemplated by any such assignment.
3.2 Restrictions Imposed by the Securities Act. The securities evidenced by this Purchase Warrant shall not be transferred unless and until: (i) the Company has received the opinion of counsel for the Holder reasonably acceptable to the Company that the securities may be transferred pursuant to an exemption from registration under the Securities Act and applicable state securities laws, the availability of which is established to the reasonable satisfaction of the Company (the Company hereby agreeing that the opinion of the counsel for the Holder shall be deemed satisfactory evidence of the availability of an exemption), or (ii) a registration statement or a post-effective amendment to the Registration Statement relating to the offer and sale of such securities has been filed by the Company and declared effective by the U.S. Securities and Exchange Commission (the “Commission”) and compliance with applicable state securities law has been established.
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4. Registration Rights.
4.1 Demand Registration.
4.1.1 Grant of Right. The Company, upon written demand (a “Demand Notice”) of the Holder(s) of Purchase Warrants representing the right to purchase Warrant Shares equal to at least 51% of the Warrant Shares (“Majority Holders”), agrees to register, on one occasion, all or any portion of the Shares underlying the Purchase Warrants (collectively, the “Registrable Securities”). On such occasion, the Company will file a registration statement with the Commission covering the Registrable Securities within sixty (60) days after receipt of a Demand Notice and use its reasonable best efforts to have the registration statement declared effective promptly thereafter, subject to compliance with review by the Commission; provided, however, that the Company shall not be required to comply with a Demand Notice if the Company has filed a registration statement with respect to which the Holder is entitled to piggyback registration rights pursuant to Section 4.2 hereof and either: (i) the Holder has elected to participate in the offering covered by such registration statement or (ii) if such registration statement relates to an underwritten primary offering of securities of the Company, until the offering covered by such registration statement has been withdrawn or until thirty (30) days after such offering is consummated. The demand for registration may be made at any time during the period of four (4) years beginning on the Effective Date. The Company covenants and agrees to give written notice of its receipt of any Demand Notice by any Holder(s) to all other registered Holders of the Purchase Warrants and/or the Registrable Securities within ten (10) days after the date of the receipt of any such Demand Notice.
4.1.2 Terms. The Company shall bear all fees and expenses attendant to the registration of the Registrable Securities pursuant to Section 4.1.1, but the Holders shall pay any and all underwriting commissions and the expenses of any legal counsel selected by the Holders to represent them in connection with the sale of the Registrable Securities. The Company agrees to use its reasonable best efforts to cause the filing required herein to become effective promptly and to qualify or register the Registrable Securities in such States as are reasonably requested by the Holder(s); provided, however, that in no event shall the Company be required to register the Registrable Securities in a State in which such registration would cause: (i) the Company to be obligated to register or license to do business in such State or submit to general service of process in such State, or (ii) the principal stockholders of the Company to be obligated to escrow their shares of capital stock of the Company. The Company shall cause any registration statement filed pursuant to the demand right granted under Section 4.1.1 to remain effective for a period of at least twelve (12) consecutive months after the date that the Holders of the Registrable Securities covered by such registration statement are first given the opportunity to sell all of such securities, or such shorter period of time as when the Holders no longer hold Registrable Securities. The Holders shall only use the prospectuses provided by the Company to sell the shares covered by such registration statement, and will immediately cease to use any prospectus furnished by the Company if the Company advises the Holder that such prospectus may no longer be used due to a material misstatement or omission, or if the Company determines in good faith that such suspension of use is necessary to delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company. Notwithstanding the provisions of this Section 4.1.2, the Holder shall be entitled to a demand registration under this Section 4.1.2 on only one (1) occasion and such demand registration right shall terminate on the fifth anniversary of the effectiveness of the registration statement in accordance with FINRA Rule 5110(f)(2)(G)(iv).
4.2 “Piggy-Back” Registration.
4.2.1 Grant of Right. In addition to the demand right of registration described in Section 4.1 hereof, the Holder shall have the right, in accordance with FINRA Rule 5110(f)(2)(G)(v), to include the Registrable Securities as part of any other registration of securities filed by the Company (other than in connection with a transaction contemplated by Rule 145(a) promulgated under the Securities Act or pursuant to Form S-8 or any equivalent form or Form S-4 or any equivalent form); provided, however, that if, solely in connection with any primary underwritten public offering for the account of the Company, the managing underwriter(s) thereof shall, in its reasonable discretion, impose a limitation on the number of shares of Common Stock which may be included in the Registration Statement because, in such underwriter(s)’ judgment, marketing or other factors dictate such limitation is necessary to facilitate public distribution, then the Company shall be obligated to include in such Registration Statement only such limited portion of the Registrable Securities with respect to which the Holder requested inclusion hereunder as the underwriter shall reasonably permit. Any exclusion of Registrable Securities shall be made pro rata among the Holders seeking to include Registrable Securities in proportion to the number of Registrable Securities sought to be included by such Holders; provided, however, that the Company shall not exclude any Registrable Securities unless the Company has first excluded all outstanding securities, the holders of which are not entitled to inclusion of such securities in such Registration Statement or are not entitled to pro rata inclusion with the Registrable Securities.
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4.2.2 Terms. The Company shall bear all fees and expenses attendant to registering the Registrable Securities pursuant to Section 4.2.1 hereof, but the Holders shall pay any and all underwriting commissions and the expenses of any legal counsel selected by the Holders to represent them in connection with the sale of the Registrable Securities. In the event of such a proposed registration, the Company shall furnish the then Holders of outstanding Registrable Securities with not less than ten (10) days written notice prior to the proposed date of filing of such registration statement. Such notice to the Holders shall continue to be given for each registration statement filed by the Company until such time as all of the Registrable Securities have been sold by the Holder. The holders of the Registrable Securities shall exercise the “piggy-back” rights provided for herein by giving written notice within five (5) days of the receipt of the Company’s notice of its intention to file a registration statement. Except as otherwise provided in this Purchase Warrant, there shall be no limit on the number of times the Holder may request registration under this Section 4.2.2.
4.3 General Terms.
4.3.1 Indemnification. The Company shall indemnify the Holder(s) of the Registrable Securities to be sold pursuant to any registration statement hereunder and each person, if any, who controls such Holders within the meaning of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), against all documented loss, claim, damage, expense or liability (including all reasonable and documented attorneys’ fees and other expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Securities Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Holder in Paragraph G of the Letter Agreement between the Holder and the Company, dated as of August 6, 2020. The Holder(s) of the Registrable Securities to be sold pursuant to such registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, against all loss, claim, damage, expense or liability (including all reasonable attorneys’ fees and other expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Securities Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, in writing, for specific inclusion in such registration statement.
4.3.2 Exercise of Purchase Warrants. Nothing contained in this Purchase Warrant shall be construed as requiring the Holder(s) to exercise their Purchase Warrants prior to or after the initial filing of any registration statement or the effectiveness thereof.
4.3.3 Documents to be Delivered by Holder(s). Each of the Holder(s) participating in any of the foregoing offerings shall furnish to the Company a completed and executed questionnaire provided by the Company requesting information customarily sought of selling security holders.
4.3.4 Damages. Should the registration or the effectiveness thereof required by Sections 4.1 and 4.2 hereof be delayed by the Company or the Company otherwise fails to comply with such provisions, the Holder(s) shall, in addition to any other legal or other relief available to the Holder(s), be entitled to obtain specific performance or other equitable (including injunctive) relief against the threatened breach of such provisions or the continuation of any such breach, without the necessity of proving actual damages and without the necessity of posting bond or other security.
4.4 Termination of Registration Rights. Notwithstanding anything else in this Purchase Warrant, no Holder shall be entitled to exercise any right provided for in this Section 4 after such time at which such Holder can sell all shares held by it in compliance with Rule 144(b)(1)(i), and such securities shall at such time cease to be Registrable Securities.
5. New Purchase Warrants to be Issued.
5.1 Partial Exercise or Transfer. Subject to the restrictions in Section 3 hereof, this Purchase Warrant may be exercised or assigned in whole or in part. In the event of the exercise or assignment hereof in part only, upon surrender of this Purchase Warrant for cancellation, together with the duly executed exercise or assignment form and funds sufficient to pay any Exercise Price and/or transfer tax if exercised pursuant to Section 2.1 hereto, the Company shall cause to be delivered to the Holder without charge a new Purchase Warrant of like tenor to this Purchase Warrant in the name of the Holder evidencing the right of the Holder to purchase the number of Shares purchasable hereunder as to which this Purchase Warrant has not been exercised or assigned.
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5.2 Lost Certificate. Upon receipt by the Company of evidence satisfactory to it of the loss, theft, destruction or mutilation of this Purchase Warrant and of reasonably satisfactory indemnification or the posting of a bond, the Company shall execute and deliver a new Purchase Warrant of like tenor and date. Any such new Purchase Warrant executed and delivered as a result of such loss, theft, mutilation or destruction shall constitute a substitute contractual obligation on the part of the Company.
6. Adjustments.
6.1 Adjustments to Exercise Price and Number of Securities. The Exercise Price and the number of Shares underlying the Purchase Warrant shall be subject to adjustment from time to time as hereinafter set forth:
6.1.1 Share Dividends; Split Ups. If, after the date hereof, and subject to the provisions of Section 6.3 below, the number of outstanding shares of Common Stock is increased by a stock dividend payable in shares of Common Stock or by a split up of shares of Common Stock or other similar event, then, on the effective day thereof, the number of Shares purchasable hereunder shall be increased in proportion to such increase in outstanding shares of Common Stock, and the Exercise Price shall be proportionately decreased.
6.1.2 Aggregation of Shares. If, after the date hereof, and subject to the provisions of Section 6.3 below, the number of outstanding shares of Common Stock is decreased by a consolidation, combination or reclassification of shares of Common Stock or other similar event, then, on the effective date thereof, the number of Shares purchasable hereunder shall be decreased in proportion to such decrease in outstanding Shares, and the Exercise Price shall be proportionately increased.
6.1.3 Replacement of Securities upon Reorganization, etc. In case of any reclassification or reorganization of the outstanding shares of Common Stock other than a change covered by Section 6.1.1 or 6.1.2 hereof or that solely affects the par value of the Common Stock, or in the case of any share reconstruction or amalgamation or consolidation of the Company with or into another corporation (other than a consolidation or share reconstruction or amalgamation in which the Company is the continuing corporation and that does not result in any reclassification or reorganization of the outstanding shares of Common Stock), or in the case of any sale or conveyance to another corporation or entity of the property of the Company as an entirety or substantially as an entirety in connection with which the Company is dissolved, the Holder of this Purchase Warrant shall have the right thereafter (until the expiration of the right of exercise of this Purchase Warrant) to receive upon the exercise hereof, for the same aggregate Exercise Price payable hereunder immediately prior to such event, the kind and amount of shares of stock or other securities or property (including cash) receivable upon such reclassification, reorganization, share reconstruction or amalgamation, or consolidation, or upon a dissolution following any such sale or transfer, by a Holder of the number of shares of Common Stock of the Company obtainable upon exercise of this Purchase Warrant immediately prior to such event; and if any reclassification also results in a change in shares of Common Stock covered by Section 6.1.1 or 6.1.2, then such adjustment shall be made pursuant to Sections 6.1.1, 6.1.2 and this Section 6.1.3. The provisions of this Section 6.1.3 shall similarly apply to successive reclassifications, reorganizations, share reconstructions or amalgamations, or consolidations, sales or other transfers.
6.1.4 Changes in Form of Purchase Warrant. This form of Purchase Warrant need not be changed because of any change pursuant to this Section 6.1, and Purchase Warrants issued after such change may state the same Exercise Price and the same number of Shares as are stated in the Purchase Warrants initially issued pursuant to this Agreement. The acceptance by any Holder of the issuance of new Purchase Warrants reflecting a required or permissive change shall not be deemed to waive any rights to an adjustment occurring after the Effective Date or the computation thereof.
6.2 Substitute Purchase Warrant. In case of any consolidation of the Company with, or share reconstruction or amalgamation of the Company with or into, another corporation (other than a consolidation or share reconstruction or amalgamation which does not result in any reclassification or change of the outstanding shares of Common Stock), the corporation formed by such consolidation or share reconstruction or amalgamation shall execute and deliver to the Holder a supplemental Purchase Warrant providing that the holder of each Purchase Warrant then outstanding or to be outstanding shall have the right thereafter (until the stated expiration of such Purchase Warrant) to receive, upon exercise of such Purchase Warrant, the kind and amount of shares of stock and other securities and property receivable upon such consolidation or share reconstruction or amalgamation, by a holder of the number of shares of Common Stock of the Company for which such Purchase Warrant might have been exercised immediately prior to such consolidation, share reconstruction or amalgamation, sale or transfer. Such supplemental Purchase Warrant shall provide for adjustments which shall be identical to the adjustments provided for in this Section 6. The above provision of this Section shall similarly apply to successive consolidations or share reconstructions or amalgamations.
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6.3 Elimination of Fractional Interests. The Company shall not be required to issue certificates representing fractions of Shares upon the exercise of the Purchase Warrant, nor shall it be required to issue scrip or pay cash in lieu of any fractional interests, it being the intent of the parties that all fractional interests shall be eliminated by rounding any fraction up or down, as the case may be, to the nearest whole number of Shares or other securities, properties or rights.
7. Reservation and Listing. The Company shall at all times reserve and keep available out of its authorized Shares, solely for the purpose of issuance upon exercise of the Purchase Warrants, such number of Shares or other securities, properties or rights as shall be issuable upon the exercise thereof. The Company covenants and agrees that, upon exercise of the Purchase Warrants and payment of the Exercise Price therefor, in accordance with the terms hereby, all Shares and other securities issuable upon such exercise shall be duly and validly issued, fully paid and non-assessable and not subject to preemptive rights of any stockholder. The Company further covenants and agrees that upon exercise of the Purchase Warrants and payment of the exercise price therefor, all Shares and other securities issuable upon such exercise shall be duly and validly issued, fully paid and non-assessable and not subject to preemptive rights of any stockholder. As long as the Purchase Warrants shall be outstanding, the Company shall use its commercially reasonable efforts to cause all Shares issuable upon exercise of the Purchase Warrants to be listed (subject to official notice of issuance) on all national securities exchanges (or, if applicable, on the OTC Bulletin Board or any successor trading market) on which the Common Stock may then be listed and/or quoted.
8. Certain Notice Requirements.
8.1 Holder’s Right to Receive Notice. Nothing herein shall be construed as conferring upon the Holders the right to vote or consent or to receive notice as a stockholder for the election of directors or any other matter, or as having any rights whatsoever as a stockholder of the Company. If, however, at any time prior to the expiration of the Purchase Warrants and their exercise, any of the events described in Section 8.2 shall occur, then, in one or more of said events, the Company shall give written notice of such event at least fifteen (15) days prior to the date fixed as a record date or the date of closing the transfer books for the determination of the stockholders entitled to such dividend, distribution, conversion or exchange of securities or subscription rights, or entitled to vote on such proposed dissolution, liquidation, winding up or sale. Such notice shall specify such record date or the date of the closing of the transfer books, as the case may be. Notwithstanding the foregoing, the Company shall deliver to each Holder a copy of each notice given to the other stockholders of the Company at the same time and in the same manner that such notice is given to the stockholders.
8.2 Events Requiring Notice. The Company shall be required to give the notice described in this Section 8 upon one or more of the following events: (i) if the Company shall take a record of the holders of its Shares for the purpose of entitling them to receive a dividend or distribution payable otherwise than in cash, or a cash dividend or distribution payable otherwise than out of retained earnings, as indicated by the accounting treatment of such dividend or distribution on the books of the Company, (ii) the Company shall offer to all the holders of its shares of Common Stock any additional shares of capital stock of the Company or securities convertible into or exchangeable for shares of capital stock of the Company, or any option, right or warrant to subscribe therefor, or (iii) a dissolution, liquidation or winding up of the Company (other than in connection with a consolidation or share reconstruction or amalgamation) or a sale of all or substantially all of its property, assets and business shall be proposed.
8.3 Notice of Change in Exercise Price. The Company shall, promptly after an event requiring a change in the Exercise Price pursuant to Section 6 hereof, send notice to the Holders of such event and change (“Price Notice”). The Price Notice shall describe the event causing the change and the method of calculating same and shall be certified as being true and accurate by the Company’s Chief Financial Officer.
8.4 Transmittal of Notices. All notices, requests, consents and other communications under this Purchase Warrant shall be in writing and shall be deemed to have been duly made when hand delivered, or mailed by express mail or private courier service: (i) if to the registered Holder of the Purchase Warrant, to the address of such Holder as shown on the books of the Company, or (ii) if to the Company, to following address or to such other address as the Company may designate by notice to the Holders:
If to the Holder:
Alejandro Barrientos
c/o A.G.P./Alliance Global Partners
590 Madison Avenue. 26th Floor
New York, New York 10022
Attn: Alejandro Barrientos
Fax No.: (212) 813-1047
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with a copy (which shall not constitute notice) to:
[_________]
If to the Company:
Odyssey Group International, Inc.
2372 Morse Avenue
Irvine, CA 92614
Attention: Joseph Michael Redmond, CEO
Fax No: __________
with a copy (which shall not constitute notice) to:
Troutman Pepper Hamilton Sanders LLP
400 Berwyn Park
899 Cassatt Road
Berwyn, Pennsylvania 19312
Attention: Scott Jones, Esq.
Fax No.: 610.640.7835
9. Miscellaneous.
9.1 Amendments. The Company and A.G.P. may from time to time supplement or amend this Purchase Warrant without the approval of any of the Holders in order to cure any ambiguity, to correct or supplement any provision contained herein that may be defective or inconsistent with any other provisions herein, or to make any other provisions in regard to matters or questions arising hereunder that the Company and A.G.P. may deem necessary or desirable and that the Company and A.G.P. deem shall not adversely affect the interest of the Holders. All other modifications or amendments shall require the written consent of and be signed by the party against whom enforcement of the modification or amendment is sought.
9.2 Headings. The headings contained herein are for the sole purpose of convenience of reference, and shall not in any way limit or affect the meaning or interpretation of any of the terms or provisions of this Purchase Warrant.
9.3. Entire Agreement. This Purchase Warrant (together with the other agreements and documents being delivered pursuant to or in connection with this Purchase Warrant) constitutes the entire agreement of the parties hereto with respect to the subject matter hereof, and supersedes all prior agreements and understandings of the parties, oral and written, with respect to the subject matter hereof.
9.4 Binding Effect. This Purchase Warrant shall inure solely to the benefit of and shall be binding upon, the Holder and the Company and their permitted assignees, respective successors, legal representative and assigns, and no other person shall have or be construed to have any legal or equitable right, remedy or claim under or in respect of or by virtue of this Purchase Warrant or any provisions herein contained.
9.5 Governing Law; Submission to Jurisdiction; Trial by Jury. This Purchase Warrant shall be governed by and construed and enforced in accordance with the laws of the State of Nevada, without giving effect to conflict of laws principles thereof. Each of the Holder and the Company hereby agrees that any action, proceeding or claim against it arising out of, or relating in any way to this Purchase Warrant shall be brought and enforced in the state courts located in the Commonwealth of Massachusetts or in the federal courts located in the Commonwealth of Massachusetts, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. Each of the Holder and the Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. Any process or summons to be served upon the Holder or the Company, as applicable, may be served by transmitting a copy thereof by registered or certified mail, return receipt requested, postage prepaid, addressed to it at the address set forth in Section 8 hereof. Such mailing shall be deemed personal service and shall be legal and binding upon the Holder or the Company, as applicable, in any action, proceeding or claim. The Company and the Holder agree that the prevailing party(ies) in any such action shall be entitled to recover from the other party(ies) all of its reasonable attorneys’ fees and expenses relating to such action or proceeding and/or incurred in connection with the preparation therefor. The Company (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates) and the Holder hereby irrevocably waive, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
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9.6 Waiver, etc. The failure of the Company or the Holder to at any time enforce any of the provisions of this Purchase Warrant shall not be deemed or construed to be a waiver of any such provision, nor to in any way affect the validity of this Purchase Warrant or any provision hereof or the right of the Company or any Holder to thereafter enforce each and every provision of this Purchase Warrant. No waiver of any breach, non-compliance or non-fulfillment of any of the provisions of this Purchase Warrant shall be effective unless set forth in a written instrument executed by the party or parties against whom or which enforcement of such waiver is sought; and no waiver of any such breach, non-compliance or non-fulfillment shall be construed or deemed to be a waiver of any other or subsequent breach, non-compliance or non-fulfillment.
9.7 Execution in Counterparts. This Purchase Warrant may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement, and shall become effective when one or more counterparts has been signed by each of the parties hereto and delivered to each of the other parties hereto. Such counterparts may be delivered by facsimile transmission or other electronic transmission.
9.8 Exchange Agreement. As a condition of the Holder’s receipt and acceptance of this Purchase Warrant, Holder agrees that, at any time prior to the complete exercise of this Purchase Warrant by Holder, if the Company and A.G.P. enter into an agreement (“Exchange Agreement”) pursuant to which they agree that all outstanding Purchase Warrants will be exchanged for securities or cash or a combination of both, then Holder shall agree to such exchange and become a party to the Exchange Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Company has caused this Purchase Warrant to be signed by its duly authorized officer as of the 17th day of November, 2020.
ODYSSEY GROUP INTERNATIONAL, INC.
By:_________________________________
Name:
Title:
Accepted and agreed to as of the date first above written
By: ______________________________________
Name: Alejandro Barrientos
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[Form to be used to exercise Purchase Warrant]
Date: __________, 20___
The undersigned hereby elects irrevocably to exercise the Purchase Warrant for ______ shares of common stock, par value $0.001 per share (the “Shares”), of Odyssey Group International, Inc., a Nevada corporation (the “Company”), and hereby makes payment of $____ (at the rate of $____ per Share) in payment of the Exercise Price pursuant thereto. Please issue the Shares as to which this Purchase Warrant is exercised in accordance with the instructions given below and, if applicable, a new Purchase Warrant representing the number of Shares for which this Purchase Warrant has not been exercised.
or
The undersigned hereby elects irrevocably to convert its right to purchase ___ Shares of the Company under the Purchase Warrant for ______ Shares, as determined in accordance with the following formula:
| X | = | Y(A-B) | ||||
| A | ||||||
| Where, | ||||||
| X | = | The number of Shares to be issued to Holder; | ||||
| Y | = | The number of Shares for which the Purchase Warrant is being exercised; | ||||
| A | = | The fair market value of one Share which is equal to $_____; and | ||||
| B | = | The Exercise Price which is equal to $______ per share | ||||
The undersigned agrees and acknowledges that the calculation set forth above is subject to confirmation by the Company and any disagreement with respect to the calculation shall be resolved by the Company in its sole discretion.
Please issue the Shares as to which this Purchase Warrant is exercised in accordance with the instructions given below and, if applicable, a new Purchase Warrant representing the number of Shares for which this Purchase Warrant has not been converted.
Signature ______________________________
Signature Guaranteed ____________________
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INSTRUCTIONS FOR REGISTRATION OF SECURITIES
Name: _________________________________________
(Print in Block Letters)
Address: _______________________
_______________________
_______________________
NOTICE: The signature to this form must correspond with the name as written upon the face of the Purchase Warrant without alteration or enlargement or any change whatsoever, and must be guaranteed by a bank, other than a savings bank, or by a trust company or by a firm having membership on a registered national securities exchange.
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[Form to be used to assign Purchase Warrant]
ASSIGNMENT
(To be executed by the registered Holder to effect a transfer of the within Purchase Warrant):
FOR VALUE RECEIVED, __________________ does hereby sell, assign and transfer unto the right to purchase shares of common stock, par value $0.001 per share, of Odyssey Group International, Inc., a Nevada corporation (the “Company”), evidenced by the Purchase Warrant and does hereby authorize the Company to transfer such right on the books of the Company.
Dated: __________, 20__
Signature_________________________________________
Signature Guaranteed________________________________
NOTICE: The signature to this form must correspond with the name as written upon the face of the within Purchase Warrant without alteration or enlargement or any change whatsoever, and must be guaranteed by a bank, other than a savings bank, or by a trust company or by a firm having membership on a registered national securities exchange.
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NEITHER ThIS PURCHASE WARRANT NOR THE securities represented by this PURChASE warrant have been registered under the Securities Act of 1933, as amended, or applicable state law. Neither thIS PURCHASE WARRANT NOR THE UNDERLYING securities nor any interest therein may be offered for sale, sold or otherwise transferred except pursuant to an effective registration statement under the Securities Act, or pursuant to an exemption from registration under the Securities Act and applicable state law which, in the opinion of counsel to the Company, is available.
THE REGISTERED HOLDER OF THIS PURCHASE WARRANT BY ITS ACCEPTANCE HEREOF, AGREES THAT IT WILL NOT SELL, TRANSFER OR ASSIGN THIS PURCHASE WARRANT EXCEPT AS HEREIN PROVIDED AND THE REGISTERED HOLDER OF THIS PURCHASE WARRANT AGREES THAT IT WILL NOT SELL, TRANSFER, ASSIGN, PLEDGE OR HYPOTHECATE THIS PURCHASE WARRANT FOR A PERIOD OF ONE HUNDRED EIGHTY DAYS FOLLOWING THE EFFECTIVE DATE (DEFINED BELOW) TO ANYONE OTHER THAN (I) A.G.P. OR AN UNDERWRITER OR A SELECTED DEALER IN CONNECTION WITH THE OFFERING, OR (II) A BONA FIDE OFFICER OR PARTNER OF A.G.P. OR OF ANY SUCH UNDERWRITER OR SELECTED DEALER.
VOID AFTER 5:00 P.M., EASTERN TIME, AUGUST 6, 2024.
COMMON STOCK PURCHASE WARRANT
For the Purchase of 110,000 Shares of Common Stock
of
Odyssey Group International, Inc.
1. Purchase Warrant. THIS CERTIFIES THAT, in consideration of funds duly paid by or on behalf of David Bocchi (“Holder”), as registered owner of this Purchase Warrant, to Odyssey Group International, Inc., a Nevada corporation (the “Company”), Holder is entitled, at any time or from time to time from August 6, 2020 (the “Effective Date”), and at or before 5:00 p.m., Eastern time, August 6, 2024 (the “Expiration Date”), but not thereafter, to subscribe for, purchase and receive, in whole or in part, up to 110,000 shares (the “Shares”) of common stock of the Company, par value $0.001 per share (the “Common Stock”), subject to adjustment as provided in Section 6 hereof. The total Shares issuable pursuant to all Purchase Warrants is referred to herein as the “Warrant Shares.” If the Expiration Date is a day on which banking institutions are authorized by law to close, then this Purchase Warrant may be exercised on the next succeeding day which is not such a day in accordance with the terms herein. During the period ending on the Expiration Date, the Company agrees not to take any action that would terminate this Purchase Warrant. This Purchase Warrant is initially exercisable at $0.01 per Share; provided, however, that upon the occurrence of any of the events specified in Section 6 hereof, the rights granted by this Purchase Warrant, including the exercise price per Share and the number of Shares to be received upon such exercise, shall be adjusted as therein specified. The term “Exercise Price” shall mean the initial exercise price or the adjusted exercise price, depending on the context.
2. Exercise.
2.1 Exercise Form. In order to exercise this Purchase Warrant, the exercise form attached hereto must be duly executed and completed and delivered to the Company, together with this Purchase Warrant and payment of the Exercise Price for the Shares being purchased payable in cash by wire transfer of immediately available funds to an account designated by the Company or by certified check or official bank check. If the subscription rights represented hereby shall not be exercised at or before 5:00 p.m., Eastern time, on the Expiration Date, this Purchase Warrant shall become and be void without further force or effect, and all rights represented hereby shall cease and expire.
2.2 Cashless Exercise. If at any time after the Commencement Date there is no effective registration statement registering, or no current prospectus available for, the resale of the Shares by the Holder, then in lieu of exercising this Purchase Warrant by payment of cash or check payable to the order of the Company pursuant to Section 2.1 above, Holder may elect to receive the number of Shares equal to the value of this Purchase Warrant (or the portion thereof being exercised), by surrender of this Purchase Warrant to the Company, together with the exercise form attached hereto, in which event the issue to Holder, Shares in accordance with the following formula:
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| X | = | Y(A-B) | ||||||
| A | ||||||||
| Where, | ||||||||
| X | = | The number of Shares to be issued to Holder; | ||||||
| Y | = | The number of Shares for which the Purchase Warrant is being exercised; | ||||||
| A | = | The fair market value of one Share; and | ||||||
| B | = | The Exercise Price. | ||||||
For purposes of this Section 2.2, the fair market value of a Share is defined as follows:
(i) if the Company’s common stock is traded on a securities exchange, the value shall be deemed to be the closing price on such exchange prior to the exercise form being submitted in connection with the exercise of the Purchase Warrant; or
| (ii) | if the Company’s common stock is actively traded over-the-counter, the value shall be deemed to be the closing bid prior to the exercise form being submitted in connection with the exercise of the Purchase Warrant; if there is no active public market, the value shall be the fair market value thereof, as determined in good faith by the Company’s Board of Directors. |
2.3 Legend. Each certificate for the securities purchased under this Purchase Warrant shall bear a legend as follows unless such securities have been registered under the Securities Act of 1933, as amended (the “Act”):
“The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended (the “Act”), or applicable state law. Neither the securities nor any interest therein may be offered for sale, sold or otherwise transferred except pursuant to an effective registration statement under the Securities Act, or pursuant to an exemption from registration under the Securities Act and applicable state law which, in the opinion of counsel to the Company, is available.”
3. Transfer.
3.1 General Restrictions. The registered Holder of this Purchase Warrant agrees by his, her or its acceptance hereof, that such Holder will not: cause this Purchase Warrant or the securities issuable hereunder to be the subject of any hedging, short sale, derivative, put or call transaction that would result in the effective economic disposition of this Purchase Warrant or the securities hereunder, except as provided for in FINRA Rule 5110(g)(2). Transfers to others may be made subject to compliance with or exemptions from applicable securities laws. In order to make any permitted assignment, the Holder must deliver to the Company the assignment form attached hereto duly executed and completed, together with the Purchase Warrant and payment of all transfer taxes, if any, payable in connection therewith. The Company shall within five (5) Business Days transfer this Purchase Warrant on the books of the Company and shall execute and deliver a new Purchase Warrant or Purchase Warrants of like tenor to the appropriate assignee(s) expressly evidencing the right to purchase the aggregate number of Shares purchasable hereunder or such portion of such number as shall be contemplated by any such assignment.
3.2 Restrictions Imposed by the Securities Act. The securities evidenced by this Purchase Warrant shall not be transferred unless and until: (i) the Company has received the opinion of counsel for the Holder reasonably acceptable to the Company that the securities may be transferred pursuant to an exemption from registration under the Securities Act and applicable state securities laws, the availability of which is established to the reasonable satisfaction of the Company (the Company hereby agreeing that the opinion of the counsel for the Holder shall be deemed satisfactory evidence of the availability of an exemption), or (ii) a registration statement or a post-effective amendment to the Registration Statement relating to the offer and sale of such securities has been filed by the Company and declared effective by the U.S. Securities and Exchange Commission (the “Commission”) and compliance with applicable state securities law has been established.
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4. Registration Rights.
4.1 Demand Registration.
4.1.1 Grant of Right. The Company, upon written demand (a “Demand Notice”) of the Holder(s) of Purchase Warrants representing the right to purchase Warrant Shares equal to at least 51% of the Warrant Shares (“Majority Holders”), agrees to register, on one occasion, all or any portion of the Shares underlying the Purchase Warrants (collectively, the “Registrable Securities”). On such occasion, the Company will file a registration statement with the Commission covering the Registrable Securities within sixty (60) days after receipt of a Demand Notice and use its reasonable best efforts to have the registration statement declared effective promptly thereafter, subject to compliance with review by the Commission; provided, however, that the Company shall not be required to comply with a Demand Notice if the Company has filed a registration statement with respect to which the Holder is entitled to piggyback registration rights pursuant to Section 4.2 hereof and either: (i) the Holder has elected to participate in the offering covered by such registration statement or (ii) if such registration statement relates to an underwritten primary offering of securities of the Company, until the offering covered by such registration statement has been withdrawn or until thirty (30) days after such offering is consummated. The demand for registration may be made at any time during the period of four (4) years beginning on the Effective Date. The Company covenants and agrees to give written notice of its receipt of any Demand Notice by any Holder(s) to all other registered Holders of the Purchase Warrants and/or the Registrable Securities within ten (10) days after the date of the receipt of any such Demand Notice.
4.1.2 Terms. The Company shall bear all fees and expenses attendant to the registration of the Registrable Securities pursuant to Section 4.1.1, but the Holders shall pay any and all underwriting commissions and the expenses of any legal counsel selected by the Holders to represent them in connection with the sale of the Registrable Securities. The Company agrees to use its reasonable best efforts to cause the filing required herein to become effective promptly and to qualify or register the Registrable Securities in such States as are reasonably requested by the Holder(s); provided, however, that in no event shall the Company be required to register the Registrable Securities in a State in which such registration would cause: (i) the Company to be obligated to register or license to do business in such State or submit to general service of process in such State, or (ii) the principal stockholders of the Company to be obligated to escrow their shares of capital stock of the Company. The Company shall cause any registration statement filed pursuant to the demand right granted under Section 4.1.1 to remain effective for a period of at least twelve (12) consecutive months after the date that the Holders of the Registrable Securities covered by such registration statement are first given the opportunity to sell all of such securities, or such shorter period of time as when the Holders no longer hold Registrable Securities. The Holders shall only use the prospectuses provided by the Company to sell the shares covered by such registration statement, and will immediately cease to use any prospectus furnished by the Company if the Company advises the Holder that such prospectus may no longer be used due to a material misstatement or omission, or if the Company determines in good faith that such suspension of use is necessary to delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company. Notwithstanding the provisions of this Section 4.1.2, the Holder shall be entitled to a demand registration under this Section 4.1.2 on only one (1) occasion and such demand registration right shall terminate on the fifth anniversary of the effectiveness of the registration statement in accordance with FINRA Rule 5110(f)(2)(G)(iv).
4.2 “Piggy-Back” Registration.
4.2.1 Grant of Right. In addition to the demand right of registration described in Section 4.1 hereof, the Holder shall have the right, in accordance with FINRA Rule 5110(f)(2)(G)(v), to include the Registrable Securities as part of any other registration of securities filed by the Company (other than in connection with a transaction contemplated by Rule 145(a) promulgated under the Securities Act or pursuant to Form S-8 or any equivalent form or Form S-4 or any equivalent form); provided, however, that if, solely in connection with any primary underwritten public offering for the account of the Company, the managing underwriter(s) thereof shall, in its reasonable discretion, impose a limitation on the number of shares of Common Stock which may be included in the Registration Statement because, in such underwriter(s)’ judgment, marketing or other factors dictate such limitation is necessary to facilitate public distribution, then the Company shall be obligated to include in such Registration Statement only such limited portion of the Registrable Securities with respect to which the Holder requested inclusion hereunder as the underwriter shall reasonably permit. Any exclusion of Registrable Securities shall be made pro rata among the Holders seeking to include Registrable Securities in proportion to the number of Registrable Securities sought to be included by such Holders; provided, however, that the Company shall not exclude any Registrable Securities unless the Company has first excluded all outstanding securities, the holders of which are not entitled to inclusion of such securities in such Registration Statement or are not entitled to pro rata inclusion with the Registrable Securities.
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4.2.2 Terms. The Company shall bear all fees and expenses attendant to registering the Registrable Securities pursuant to Section 4.2.1 hereof, but the Holders shall pay any and all underwriting commissions and the expenses of any legal counsel selected by the Holders to represent them in connection with the sale of the Registrable Securities. In the event of such a proposed registration, the Company shall furnish the then Holders of outstanding Registrable Securities with not less than ten (10) days written notice prior to the proposed date of filing of such registration statement. Such notice to the Holders shall continue to be given for each registration statement filed by the Company until such time as all of the Registrable Securities have been sold by the Holder. The holders of the Registrable Securities shall exercise the “piggy-back” rights provided for herein by giving written notice within five (5) days of the receipt of the Company’s notice of its intention to file a registration statement. Except as otherwise provided in this Purchase Warrant, there shall be no limit on the number of times the Holder may request registration under this Section 4.2.2.
4.3 General Terms.
4.3.1 Indemnification. The Company shall indemnify the Holder(s) of the Registrable Securities to be sold pursuant to any registration statement hereunder and each person, if any, who controls such Holders within the meaning of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), against all documented loss, claim, damage, expense or liability (including all reasonable and documented attorneys’ fees and other expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Securities Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Holder in Paragraph G of the Letter Agreement between the Holder and the Company, dated as of August 6, 2020. The Holder(s) of the Registrable Securities to be sold pursuant to such registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, against all loss, claim, damage, expense or liability (including all reasonable attorneys’ fees and other expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Securities Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, in writing, for specific inclusion in such registration statement.
4.3.2 Exercise of Purchase Warrants. Nothing contained in this Purchase Warrant shall be construed as requiring the Holder(s) to exercise their Purchase Warrants prior to or after the initial filing of any registration statement or the effectiveness thereof.
4.3.3 Documents to be Delivered by Holder(s). Each of the Holder(s) participating in any of the foregoing offerings shall furnish to the Company a completed and executed questionnaire provided by the Company requesting information customarily sought of selling security holders.
4.3.4 Damages. Should the registration or the effectiveness thereof required by Sections 4.1 and 4.2 hereof be delayed by the Company or the Company otherwise fails to comply with such provisions, the Holder(s) shall, in addition to any other legal or other relief available to the Holder(s), be entitled to obtain specific performance or other equitable (including injunctive) relief against the threatened breach of such provisions or the continuation of any such breach, without the necessity of proving actual damages and without the necessity of posting bond or other security.
4.4 Termination of Registration Rights. Notwithstanding anything else in this Purchase Warrant, no Holder shall be entitled to exercise any right provided for in this Section 4 after such time at which such Holder can sell all shares held by it in compliance with Rule 144(b)(1)(i), and such securities shall at such time cease to be Registrable Securities.
5. New Purchase Warrants to be Issued.
5.1 Partial Exercise or Transfer. Subject to the restrictions in Section 3 hereof, this Purchase Warrant may be exercised or assigned in whole or in part. In the event of the exercise or assignment hereof in part only, upon surrender of this Purchase Warrant for cancellation, together with the duly executed exercise or assignment form and funds sufficient to pay any Exercise Price and/or transfer tax if exercised pursuant to Section 2.1 hereto, the Company shall cause to be delivered to the Holder without charge a new Purchase Warrant of like tenor to this Purchase Warrant in the name of the Holder evidencing the right of the Holder to purchase the number of Shares purchasable hereunder as to which this Purchase Warrant has not been exercised or assigned.
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5.2 Lost Certificate. Upon receipt by the Company of evidence satisfactory to it of the loss, theft, destruction or mutilation of this Purchase Warrant and of reasonably satisfactory indemnification or the posting of a bond, the Company shall execute and deliver a new Purchase Warrant of like tenor and date. Any such new Purchase Warrant executed and delivered as a result of such loss, theft, mutilation or destruction shall constitute a substitute contractual obligation on the part of the Company.
6. Adjustments.
6.1 Adjustments to Exercise Price and Number of Securities. The Exercise Price and the number of Shares underlying the Purchase Warrant shall be subject to adjustment from time to time as hereinafter set forth:
6.1.1 Share Dividends; Split Ups. If, after the date hereof, and subject to the provisions of Section 6.3 below, the number of outstanding shares of Common Stock is increased by a stock dividend payable in shares of Common Stock or by a split up of shares of Common Stock or other similar event, then, on the effective day thereof, the number of Shares purchasable hereunder shall be increased in proportion to such increase in outstanding shares of Common Stock, and the Exercise Price shall be proportionately decreased.
6.1.2 Aggregation of Shares. If, after the date hereof, and subject to the provisions of Section 6.3 below, the number of outstanding shares of Common Stock is decreased by a consolidation, combination or reclassification of shares of Common Stock or other similar event, then, on the effective date thereof, the number of Shares purchasable hereunder shall be decreased in proportion to such decrease in outstanding Shares, and the Exercise Price shall be proportionately increased.
6.1.3 Replacement of Securities upon Reorganization, etc. In case of any reclassification or reorganization of the outstanding shares of Common Stock other than a change covered by Section 6.1.1 or 6.1.2 hereof or that solely affects the par value of the Common Stock, or in the case of any share reconstruction or amalgamation or consolidation of the Company with or into another corporation (other than a consolidation or share reconstruction or amalgamation in which the Company is the continuing corporation and that does not result in any reclassification or reorganization of the outstanding shares of Common Stock), or in the case of any sale or conveyance to another corporation or entity of the property of the Company as an entirety or substantially as an entirety in connection with which the Company is dissolved, the Holder of this Purchase Warrant shall have the right thereafter (until the expiration of the right of exercise of this Purchase Warrant) to receive upon the exercise hereof, for the same aggregate Exercise Price payable hereunder immediately prior to such event, the kind and amount of shares of stock or other securities or property (including cash) receivable upon such reclassification, reorganization, share reconstruction or amalgamation, or consolidation, or upon a dissolution following any such sale or transfer, by a Holder of the number of shares of Common Stock of the Company obtainable upon exercise of this Purchase Warrant immediately prior to such event; and if any reclassification also results in a change in shares of Common Stock covered by Section 6.1.1 or 6.1.2, then such adjustment shall be made pursuant to Sections 6.1.1, 6.1.2 and this Section 6.1.3. The provisions of this Section 6.1.3 shall similarly apply to successive reclassifications, reorganizations, share reconstructions or amalgamations, or consolidations, sales or other transfers.
6.1.4 Changes in Form of Purchase Warrant. This form of Purchase Warrant need not be changed because of any change pursuant to this Section 6.1, and Purchase Warrants issued after such change may state the same Exercise Price and the same number of Shares as are stated in the Purchase Warrants initially issued pursuant to this Agreement. The acceptance by any Holder of the issuance of new Purchase Warrants reflecting a required or permissive change shall not be deemed to waive any rights to an adjustment occurring after the Effective Date or the computation thereof.
6.2 Substitute Purchase Warrant. In case of any consolidation of the Company with, or share reconstruction or amalgamation of the Company with or into, another corporation (other than a consolidation or share reconstruction or amalgamation which does not result in any reclassification or change of the outstanding shares of Common Stock), the corporation formed by such consolidation or share reconstruction or amalgamation shall execute and deliver to the Holder a supplemental Purchase Warrant providing that the holder of each Purchase Warrant then outstanding or to be outstanding shall have the right thereafter (until the stated expiration of such Purchase Warrant) to receive, upon exercise of such Purchase Warrant, the kind and amount of shares of stock and other securities and property receivable upon such consolidation or share reconstruction or amalgamation, by a holder of the number of shares of Common Stock of the Company for which such Purchase Warrant might have been exercised immediately prior to such consolidation, share reconstruction or amalgamation, sale or transfer. Such supplemental Purchase Warrant shall provide for adjustments which shall be identical to the adjustments provided for in this Section 6. The above provision of this Section shall similarly apply to successive consolidations or share reconstructions or amalgamations.
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6.3 Elimination of Fractional Interests. The Company shall not be required to issue certificates representing fractions of Shares upon the exercise of the Purchase Warrant, nor shall it be required to issue scrip or pay cash in lieu of any fractional interests, it being the intent of the parties that all fractional interests shall be eliminated by rounding any fraction up or down, as the case may be, to the nearest whole number of Shares or other securities, properties or rights.
7. Reservation and Listing. The Company shall at all times reserve and keep available out of its authorized Shares, solely for the purpose of issuance upon exercise of the Purchase Warrants, such number of Shares or other securities, properties or rights as shall be issuable upon the exercise thereof. The Company covenants and agrees that, upon exercise of the Purchase Warrants and payment of the Exercise Price therefor, in accordance with the terms hereby, all Shares and other securities issuable upon such exercise shall be duly and validly issued, fully paid and non-assessable and not subject to preemptive rights of any stockholder. The Company further covenants and agrees that upon exercise of the Purchase Warrants and payment of the exercise price therefor, all Shares and other securities issuable upon such exercise shall be duly and validly issued, fully paid and non-assessable and not subject to preemptive rights of any stockholder. As long as the Purchase Warrants shall be outstanding, the Company shall use its commercially reasonable efforts to cause all Shares issuable upon exercise of the Purchase Warrants to be listed (subject to official notice of issuance) on all national securities exchanges (or, if applicable, on the OTC Bulletin Board or any successor trading market) on which the Common Stock may then be listed and/or quoted.
8. Certain Notice Requirements.
8.1 Holder’s Right to Receive Notice. Nothing herein shall be construed as conferring upon the Holders the right to vote or consent or to receive notice as a stockholder for the election of directors or any other matter, or as having any rights whatsoever as a stockholder of the Company. If, however, at any time prior to the expiration of the Purchase Warrants and their exercise, any of the events described in Section 8.2 shall occur, then, in one or more of said events, the Company shall give written notice of such event at least fifteen (15) days prior to the date fixed as a record date or the date of closing the transfer books for the determination of the stockholders entitled to such dividend, distribution, conversion or exchange of securities or subscription rights, or entitled to vote on such proposed dissolution, liquidation, winding up or sale. Such notice shall specify such record date or the date of the closing of the transfer books, as the case may be. Notwithstanding the foregoing, the Company shall deliver to each Holder a copy of each notice given to the other stockholders of the Company at the same time and in the same manner that such notice is given to the stockholders.
8.2 Events Requiring Notice. The Company shall be required to give the notice described in this Section 8 upon one or more of the following events: (i) if the Company shall take a record of the holders of its Shares for the purpose of entitling them to receive a dividend or distribution payable otherwise than in cash, or a cash dividend or distribution payable otherwise than out of retained earnings, as indicated by the accounting treatment of such dividend or distribution on the books of the Company, (ii) the Company shall offer to all the holders of its shares of Common Stock any additional shares of capital stock of the Company or securities convertible into or exchangeable for shares of capital stock of the Company, or any option, right or warrant to subscribe therefor, or (iii) a dissolution, liquidation or winding up of the Company (other than in connection with a consolidation or share reconstruction or amalgamation) or a sale of all or substantially all of its property, assets and business shall be proposed.
8.3 Notice of Change in Exercise Price. The Company shall, promptly after an event requiring a change in the Exercise Price pursuant to Section 6 hereof, send notice to the Holders of such event and change (“Price Notice”). The Price Notice shall describe the event causing the change and the method of calculating same and shall be certified as being true and accurate by the Company’s Chief Financial Officer.
8.4 Transmittal of Notices. All notices, requests, consents and other communications under this Purchase Warrant shall be in writing and shall be deemed to have been duly made when hand delivered, or mailed by express mail or private courier service: (i) if to the registered Holder of the Purchase Warrant, to the address of such Holder as shown on the books of the Company, or (ii) if to the Company, to following address or to such other address as the Company may designate by notice to the Holders:
If to the Holder:
David Bocchi
c/o A.G.P./Alliance Global Partners
590 Madison Avenue. 26th Floor
New York, New York 10022
Attn: David Bocchi
Fax No.: (212) 813-1047
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with a copy (which shall not constitute notice) to:
[_________]
If to the Company:
Odyssey Group International, Inc.
2372 Morse Avenue
Irvine, CA 92614
Attention: Joseph Michael Redmond, CEO
Fax No: _______
with a copy (which shall not constitute notice) to:
Troutman Pepper Hamilton Sanders LLP
400 Berwyn Park
899 Cassatt Road
Berwyn, Pennsylvania 19312
Attention: Scott Jones, Esq.
Fax No.: 610.640.7835
9. Miscellaneous.
9.1 Amendments. The Company and A.G.P. may from time to time supplement or amend this Purchase Warrant without the approval of any of the Holders in order to cure any ambiguity, to correct or supplement any provision contained herein that may be defective or inconsistent with any other provisions herein, or to make any other provisions in regard to matters or questions arising hereunder that the Company and A.G.P. may deem necessary or desirable and that the Company and A.G.P. deem shall not adversely affect the interest of the Holders. All other modifications or amendments shall require the written consent of and be signed by the party against whom enforcement of the modification or amendment is sought.
9.2 Headings. The headings contained herein are for the sole purpose of convenience of reference, and shall not in any way limit or affect the meaning or interpretation of any of the terms or provisions of this Purchase Warrant.
9.3. Entire Agreement. This Purchase Warrant (together with the other agreements and documents being delivered pursuant to or in connection with this Purchase Warrant) constitutes the entire agreement of the parties hereto with respect to the subject matter hereof, and supersedes all prior agreements and understandings of the parties, oral and written, with respect to the subject matter hereof.
9.4 Binding Effect. This Purchase Warrant shall inure solely to the benefit of and shall be binding upon, the Holder and the Company and their permitted assignees, respective successors, legal representative and assigns, and no other person shall have or be construed to have any legal or equitable right, remedy or claim under or in respect of or by virtue of this Purchase Warrant or any provisions herein contained.
9.5 Governing Law; Submission to Jurisdiction; Trial by Jury. This Purchase Warrant shall be governed by and construed and enforced in accordance with the laws of the State of Nevada, without giving effect to conflict of laws principles thereof. Each of the Holder and the Company hereby agrees that any action, proceeding or claim against it arising out of, or relating in any way to this Purchase Warrant shall be brought and enforced in the state courts located in the Commonwealth of Massachusetts or in the federal courts located in the Commonwealth of Massachusetts, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. Each of the Holder and the Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. Any process or summons to be served upon the Holder or the Company, as applicable, may be served by transmitting a copy thereof by registered or certified mail, return receipt requested, postage prepaid, addressed to it at the address set forth in Section 8 hereof. Such mailing shall be deemed personal service and shall be legal and binding upon the Holder or the Company, as applicable, in any action, proceeding or claim. The Company and the Holder agree that the prevailing party(ies) in any such action shall be entitled to recover from the other party(ies) all of its reasonable attorneys’ fees and expenses relating to such action or proceeding and/or incurred in connection with the preparation therefor. The Company (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates) and the Holder hereby irrevocably waive, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
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9.6 Waiver, etc. The failure of the Company or the Holder to at any time enforce any of the provisions of this Purchase Warrant shall not be deemed or construed to be a waiver of any such provision, nor to in any way affect the validity of this Purchase Warrant or any provision hereof or the right of the Company or any Holder to thereafter enforce each and every provision of this Purchase Warrant. No waiver of any breach, non-compliance or non-fulfillment of any of the provisions of this Purchase Warrant shall be effective unless set forth in a written instrument executed by the party or parties against whom or which enforcement of such waiver is sought; and no waiver of any such breach, non-compliance or non-fulfillment shall be construed or deemed to be a waiver of any other or subsequent breach, non-compliance or non-fulfillment.
9.7 Execution in Counterparts. This Purchase Warrant may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement, and shall become effective when one or more counterparts has been signed by each of the parties hereto and delivered to each of the other parties hereto. Such counterparts may be delivered by facsimile transmission or other electronic transmission.
9.8 Exchange Agreement. As a condition of the Holder’s receipt and acceptance of this Purchase Warrant, Holder agrees that, at any time prior to the complete exercise of this Purchase Warrant by Holder, if the Company and A.G.P. enter into an agreement (“Exchange Agreement”) pursuant to which they agree that all outstanding Purchase Warrants will be exchanged for securities or cash or a combination of both, then Holder shall agree to such exchange and become a party to the Exchange Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Company has caused this Purchase Warrant to be signed by its duly authorized officer as of the 17th day of November, 2020.
ODYSSEY GROUP INTERNATIONAL, INC.
By:_________________________________
Name:
Title:
Accepted and agreed to as of the date first above written
By: ______________________________
Name: David Bocchi
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[Form to be used to exercise Purchase Warrant]
Date: __________, 20___
The undersigned hereby elects irrevocably to exercise the Purchase Warrant for ______ shares of common stock, par value $0.001 per share (the “Shares”), of Odyssey Group International, Inc., a Nevada corporation (the “Company”), and hereby makes payment of $____ (at the rate of $____ per Share) in payment of the Exercise Price pursuant thereto. Please issue the Shares as to which this Purchase Warrant is exercised in accordance with the instructions given below and, if applicable, a new Purchase Warrant representing the number of Shares for which this Purchase Warrant has not been exercised.
or
The undersigned hereby elects irrevocably to convert its right to purchase ___ Shares of the Company under the Purchase Warrant for ______ Shares, as determined in accordance with the following formula:
| X | = | Y(A-B) | ||||
| A | ||||||
| Where, | ||||||
| X | = | The number of Shares to be issued to Holder; | ||||
| Y | = | The number of Shares for which the Purchase Warrant is being exercised; | ||||
| A | = | The fair market value of one Share which is equal to $_____; and | ||||
| B | = | The Exercise Price which is equal to $______ per share | ||||
The undersigned agrees and acknowledges that the calculation set forth above is subject to confirmation by the Company and any disagreement with respect to the calculation shall be resolved by the Company in its sole discretion.
Please issue the Shares as to which this Purchase Warrant is exercised in accordance with the instructions given below and, if applicable, a new Purchase Warrant representing the number of Shares for which this Purchase Warrant has not been converted.
Signature __________________________________
Signature Guaranteed _________________________
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INSTRUCTIONS FOR REGISTRATION OF SECURITIES
Name: ______________________________________________
(Print in Block Letters)
Address: _______________________________________
_______________________________________
_______________________________________
NOTICE: The signature to this form must correspond with the name as written upon the face of the Purchase Warrant without alteration or enlargement or any change whatsoever, and must be guaranteed by a bank, other than a savings bank, or by a trust company or by a firm having membership on a registered national securities exchange.
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[Form to be used to assign Purchase Warrant]
ASSIGNMENT
(To be executed by the registered Holder to effect a transfer of the within Purchase Warrant):
FOR VALUE RECEIVED, __________________ does hereby sell, assign and transfer unto the right to purchase shares of common stock, par value $0.001 per share, of Odyssey Group International, Inc., a Nevada corporation (the “Company”), evidenced by the Purchase Warrant and does hereby authorize the Company to transfer such right on the books of the Company.
Dated: __________, 20__
Signature ___________________________________
Signature Guaranteed __________________________
NOTICE: The signature to this form must correspond with the name as written upon the face of the within Purchase Warrant without alteration or enlargement or any change whatsoever, and must be guaranteed by a bank, other than a savings bank, or by a trust company or by a firm having membership on a registered national securities exchange.
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Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
Odyssey Group International, Inc.
Irvine, California
We hereby consent to the incorporation by reference in the Registration Statement on Form S-1 (No. 333-200785) of Odyssey Group International, Inc. of our report dated November 13, 2020 relating to the financial statements of Odyssey Group International, Inc. included in this Annual Report (Form 10-K) for the fiscal year ended July 31, 2020.
/s/ Turner, Stone & Company, L.L.P.
Dallas, Texas
November 23, 2020
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
Odyssey Group International, Inc.
Las Vegas, Nevada
We hereby consent to the incorporation by reference in the Prospectus constituting a part of this Registration Statement of our report dated October 23, 2019, except for the effects of the restatement discussed in Note 4 to the financial statements, as to which the date is November 13, 2020, relating to the financial statements of Odyssey Group International, Inc. appearing in the Company’s Annual Report on Form 10-K for the year ended July 31, 2020. Our report contains an explanatory paragraph regarding the Company’s ability to continue as a going concern.
We also consent to the reference to us under the caption “Experts” in the Prospectus.
/s/ Piercy Bowler Taylor & Kern
Certified Public Accountants
Las Vegas, Nevada
November 23, 2020