Blueprint





 







EXHIBIT 10.1

 



SECURITIES PURCHASE AGREEMENT

 


This
SECURITIES PURCHASE AGREEMENT (the “Agreement”) is dated as of the
28th day of June 2018 by and between MOBIVITY HOLDINGS CORP., a Nevada
corporation (the “Company”), and each individual or entity named on the
Schedule of Buyers attached hereto (each such individual or
entity, individually, a “Buyer” and all of such individuals
or entities, collectively, the “Buyers”).

 



RECITALS

 


WHEREAS, subject to
the terms and conditions set forth in this Agreement and pursuant
to Section 4(a)(2) of the Securities Act of 1933, as amended (the
“Securities
Act”), and Rule 506(b) promulgated thereunder, the
Company desires to issue and sell to each Buyer, and each Buyer,
severally and not jointly, desires to purchase from the Company,
securities of the Company as more fully described in this
Agreement.

 



AGREEMENT

 


NOW,
THEREFORE, in consideration of the premises and the mutual
covenants of the parties hereinafter expressed and other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto, each intending to be
legally bound, agree as follows:

 


ARTICLE
I



RECITALS, EXHIBITS, SCHEDULES

 


The
foregoing recitals are true and correct and, together with the
Schedules and Exhibits referred to hereafter, are hereby
incorporated into this Agreement by this reference.

 


ARTICLE
II



DEFINITIONS

 


For
purposes of this Agreement, except as otherwise expressly provided
or otherwise defined elsewhere in this Agreement, or unless the
context otherwise requires, the capitalized terms in this Agreement
shall have the meanings assigned to them in this Article as
follows:

 

2.1 “Affiliate” means any Person that,
directly or indirectly through one or more intermediaries, controls
or is controlled by or is under common control with a Person as
such terms are used in and construed under Rule 405 under the
Securities Act.

 

2.2 “Assets” means all of the
properties and assets of the Company or of its wholly owned
subsidiary, Mobivity, Inc. (“Operating Sub”), whether real,
personal or mixed, tangible or intangible, wherever located,
whether now owned or hereafter acquired.

 

2.3 “Claims” means any Proceedings,
Judgments, Obligations, threats, losses, damages, deficiencies,
settlements, assessments, charges, costs and expenses of any nature
or kind.

 

2.4 “Common Stock” means the
Company’s common stock, $0.001 par value per
share.

 

2.5 “Consent” means any consent,
approval, order or authorization of, or any declaration, filing or
registration with, or any application or report to, or any waiver
by, or any other action (whether similar or dissimilar to any of
the foregoing) of, by or with, any Person, which is necessary in
order to take a specified action or actions, in a specified manner
and/or to achieve a specific result.

 

 




 

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2.6 “Contract”
means any written or oral contract, agreement, order or commitment
of any nature whatsoever, including, any sales order, purchase
order, lease, sublease, license agreement, services agreement, loan
agreement, mortgage, security agreement, guarantee, management
contract, employment agreement, consulting agreement, partnership
agreement, shareholders agreement, buy-sell agreement, option,
warrant, debenture, subscription, call or put.

 

2.7 “Encumbrance” means any lien,
security interest, pledge, mortgage, easement, leasehold,
assessment, tax, covenant, restriction, reservation, conditional
sale, prior assignment, or any other encumbrance, claim, burden or
charge of any nature whatsoever.

 

2.8 “Environmental Requirements” means
all Laws and requirements relating to human, health, safety or
protection of the environment or to emissions, discharges, releases
or threatened releases of pollutants, contaminants, or Hazardous
Materials in the environment (including, without limitation,
ambient air, surface water, ground water, land surface or
subsurface strata), or otherwise relating to the treatment,
storage, disposal, transport or handling of any Hazardous
Materials.

 

2.9 “Exchange Act” shall mean the
Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.

 

2.10 “GAAP”
means generally accepted accounting principles, methods and
practices set forth in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of Certified
Public Accountants, and statements and pronouncements of the
Financial Accounting Standards Board, the SEC or of such other
Person as may be approved by a significant segment of the U.S.
accounting profession, in each case as of the date or period at
issue, and as applied in the U.S. to U.S. companies.

 

2.11 “Governmental
Authority” means any foreign, federal, state or local
government, or any political subdivision thereof, or any court,
agency or other body, organization, group, stock market or exchange
exercising any executive, legislative, judicial, quasi-judicial,
regulatory or administrative function of government.

 

2.12 “Hazardous
Materials” means: (i) any petroleum or petroleum
products, radioactive materials, asbestos in any form that is or
could become friable, urea formaldehyde foam insulation and
transformers or other equipment that contain dielectric fluid
containing levels of polychlorinated biphenyls (PCB’s); (ii)
any chemicals, materials, substances or wastes which are now or
hereafter become defined as or included in the definition of
“hazardous substances,” “hazardous wastes,”
“hazardous materials,” “extremely hazardous
wastes,” “restricted hazardous wastes,”
“toxic substances,” “toxic pollutants” or
words of similar import, under any Law; and (iii) any other
chemical, material, substance, or waste, exposure to which is now
or hereafter prohibited, limited or regulated by any Governmental
Authority.

 

2.13 “Judgment”
means any order, writ, injunction, fine, citation, award, decree,
or any other judgment of any nature whatsoever of any Governmental
Authority.

 

2.14 “Law”
means any provision of any law, statute, ordinance, code,
constitution, charter, treaty, rule or regulation of any
Governmental Authority.

 

2.15 “Leases”
means all leases for real or personal property.

 

2.16 “Material
Adverse Effect” means with respect to the event, item
or question at issue, that such event, item or question would not
have or reasonably be expected to result in: (i) a material adverse
effect on the legality, validity or enforceability of this
Agreement or any of the Transaction Documents; (ii) a material
adverse effect on the results of operations, Assets, business or
condition (financial or otherwise) or prospects of the Company or
any of its subsidiaries, either individually or taken as a whole;
(iii) a material adverse effect on the Company’s or its
subsidiaries’ ability to perform, on a timely basis, its or
their respective Obligations under this Agreement or any
Transaction Documents; or (iv) a material adverse effect on the
Buyer’s ability to sell or dispose of any of the Securities,
whether on the Principal Trading Market, or otherwise, in
accordance with applicable securities Laws.

 

 




 

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2.17 “Material
Contract” shall mean any Contract to which the Company
or Operating Sub is a party or by which the Company or Operating
Sub, or any of their Assets, are bound and which: (i) involves
aggregate payments of One Hundred Thousand Dollars ($100,000) or
more to or from the Company or Operating Sub, as the applicable,
following the date of this Agreement; (ii) involves delivery,
purchase, licensing or provision, by or to the Company or Operating
Sub, as applicable, following the date of this Agreement, of any
goods, services, assets or other items having a value (or potential
value) over the term of such Contract of One Hundred Thousand
Dollars ($100,000) or more or is otherwise material to the conduct
of the Company’s or Operating Sub’s business as now
conducted and as contemplated to be conducted in the future; (iii)
involves a Lease; (iv) imposes any guaranty, surety or
indemnification Obligations on the Company or Operating Sub; or (v)
prohibits the Company or Operating Sub from engaging in any
business or competing anywhere in the world.

 

2.18 “Notice
of Conversion” shall mean a Promissory Note
holder’s agreement to convert some or all of the outstanding
principal and accrued interest under a Promissory Note in the form
of Exhibit A
attached hereto.

 

2.19 “Obligation”
means any debt, liability or obligation of any nature whatsoever,
whether secured, unsecured, recourse, nonrecourse, liquidated,
unliquidated, accrued, absolute, fixed, contingent, ascertained,
unascertained, known, unknown or obligations under executory
Contracts.

 

2.20 “Ordinary
Course of Business” means the ordinary course of
business consistent with past custom and practice (including with
respect to quantity, quality and frequency).

 

2.21 “Permit”
means any license, permit, approval, waiver, order, authorization,
right or privilege of any nature whatsoever, granted, issued,
approved or allowed by any Governmental Authority.

 

2.22 “Person”
means any individual, sole proprietorship, joint venture,
partnership, company, corporation, association, cooperation, trust,
estate, Governmental Authority, or any other entity of any nature
whatsoever.

 

2.23 “Principal
Trading Market” shall mean the Nasdaq Global Select
Market, the Nasdaq Global Market, the Nasdaq Capital Market, the
OTC Markets, including the Bulletin Board and Pink Sheets, the NYSE
Euronext or the New York Stock Exchange, whichever is at the time
the principal trading exchange or market for the Common
Stock.

 

2.24 “Promissory
Notes” shall mean that series of unsecured promissory
notes issued by the Company in February 2018 in the aggregate
principal amount of $580,000, each note bearing interest on the
unpaid principal amount at the rate of fifteen percent (15%) per
annum.

 

2.25 “Proceeding”
means any demand, claim, suit, action, litigation, investigation,
audit, study, arbitration, administrative hearing, or any other
proceeding of any nature whatsoever.

 

2.26 “Real
Property” means any real estate, land, building,
structure, improvement, fixture or other real property of any
nature whatsoever, including, but not limited to, fee and leasehold
interests.

 

2.27 “SEC”
means the United States Securities and Exchange
Commission.

 

2.28 “Securities
Act” means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.

 

2.29 “Shares”
means up to Seven Million (7,000,000) shares of Common Stock issued
or issuable to the Buyers pursuant to this Agreement.

 

 




 

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2.30 “Tax”
means (i) any foreign, federal, state or local income, profits,
gross receipts, franchise, sales, use, occupancy, general property,
real property, personal property, intangible property, transfer,
fuel, excise, accumulated earnings, personal holding company,
unemployment compensation, social security, withholding taxes,
payroll taxes, or any other tax of any nature whatsoever, (ii) any
foreign, federal, state or local organization fee, qualification
fee, annual report fee, filing fee, occupation fee, assessment,
rent, or any other fee or charge of any nature whatsoever, or (iii)
any deficiency, interest or penalty imposed with respect to any of
the foregoing.

 

2.31 “Tax
Return” means any tax return, filing, declaration,
information statement or other form or document required to be
filed in connection with or with respect to any Tax.

 

2.32 “Transaction
Documents” means this Agreement and the Notice of
Conversion executed in connection with the transactions
contemplated hereunder.

 


ARTICLE
III



INTERPRETATION


 


In this
Agreement, unless the express context otherwise requires: (i) the
words “herein,” “hereof” and
“hereunder” and words of similar import refer to this
Agreement as a whole and not to any particular provision of this
Agreement; (ii) references to the words “Article” or
“Section” refer to the respective Articles and Sections
of this Agreement, and references to “Exhibit” or
“Schedule” refer to the respective Exhibits and
Schedules annexed hereto; (iii) references to a “party”
mean a party to this Agreement and include references to such
party’s permitted successors and permitted assigns; (iv)
references to a “third party” mean a Person not a party
to this Agreement; (v) the terms “dollars” and
“$” means U.S. dollars; (vi) wherever the word
“include,” “includes” or
“including” is used in this Agreement, it will be
deemed to be followed by the words “without
limitation.”

 


ARTICLE
IV



PURCHASE AND SALE


 

4.1 Sale and Issuance of Shares.
Subject to the terms and conditions of this Agreement, each Buyer
agrees, severally and not jointly, to purchase, and the Company
agrees to sell and issue to each Buyer, the number of Shares set
forth in the column designated “Number of Shares”
opposite such Investor’s name on the Schedule of Buyers,
which in the aggregate shall equal up to Seven Million Dollars
($7,000,000) of Shares, at a cash purchase price of $1.00 per Share
(the “Purchase
Price”). The Company’s agreement with each Buyer
is a separate agreement, and the sale and issuance of the Shares to
each Buyer is a separate sale and issuance.

 

4.2 Closing.

 

(a) The purchase, sale
and issuance of the Shares shall take place at one or more closings
(each of which is referred to in this Agreement as a
“Closing” and
the date of each is referred to in this Agreement as a
“Closing Date”).
The initial Closing (the “Initial Closing”) shall take place
at the offices of Greenberg Traurig, LLP, 3161 Michelson Drive,
Suite 1000, Irvine, California 92612, or such other location as the
parties shall mutually agree, no later than the second business day
following the satisfaction or waiver of the conditions provided in
Articles VIII and IX of this Agreement (“Initial Closing
Date”).

 

(b) If less than all of
the Shares are sold and issued at the Initial Closing, then,
subject to the terms and conditions of this Agreement, the Company
may sell and issue at one or more subsequent closings (each, a
“Subsequent
Closing”), within 90 days after the Initial Closing,
up to the balance of the unissued Shares to such persons or
entities as may be approved by the Company in its sole discretion.
Any such sale and issuance in a Subsequent Closing shall be on the
same terms and conditions as those contained herein, and such
persons or entities shall, upon execution and delivery of the
relevant signature pages, become parties to, and be bound by, this
Agreement and the other Transaction Documents, without the need for
an amendment to any of the Transaction Documents except to add such
person’s or entity’s name to the appropriate exhibit to
such Transaction Documents, and shall have the rights and
obligations hereunder and thereunder, in each case as of the date
of the applicable Subsequent Closing. Each Subsequent Closing shall
take place at such date, time and place as shall be approved by the
Company in its sole discretion.

 


 




 

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4.3 Form of Payment; Delivery. At
each Closing, Buyer shall deliver to the Company the
“Purchase Price” opposite such Buyer’s name on
the Schedule of Buyers in the form of:

 

(a) wire transfers of
immediately available U.S. funds; or

 

(b) a Notice of
Conversion, in the form of Exhibit A attached hereto,
properly completed and executed by Buyer and otherwise in a form
acceptable to the Company.

 


ARTICLE
V



BUYERS’ REPRESENTATIONS AND WARRANTIES

 


Each
Buyer represents and warrants to the Company, that:

 

5.1 Investment Purpose. Each Buyer
is acquiring the Shares for its own account for investment only and
not with a view towards, or for resale in connection with, the
public sale or distribution thereof, except pursuant to sales
registered or exempted under the Securities Act; provided, however,
that by making the representations herein, each Buyer reserves the
right to dispose of the Shares at any time in accordance with or
pursuant to an effective registration statement covering such
Shares or an available exemption under the Securities Act. The
Buyer acknowledges that a legend will be placed on the certificates
representing the Shares in the following form:

 


THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND ARE
“RESTRICTED SECURITIES” AS THAT TERM IS DEFINED IN RULE
144 UNDER THE SECURITIES ACT. SUCH SECURITIES MAY NOT BE OFFERED
FOR SALE, SOLD, OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND THE
APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION THEREUNDER, THE AVAILABILITY OF WHICH IS TO BE
ESTABLISHED TO THE REASONABLE SATISFACTION OF COUNSEL TO THE
ISSUER.

 

5.2 Accredited Investor Status.
Each Buyer is an “accredited investor” as that term is
defined in Rule 501(a) of Regulation D, as promulgated under the
Securities Act.

 

5.3 Reliance on Exemptions. Each
Buyer understands that the Shares are being offered and sold to it
in reliance on specific exemptions from the registration
requirements of United States federal and state securities Laws and
that the Company is relying in part upon the truth and accuracy of,
and each Buyer’s compliance with, the representations,
warranties, agreements, acknowledgments and understandings of each
Buyer set forth herein in order to determine the availability of
such exemptions and the eligibility of each Buyer to acquire the
Shares.

 

5.4 Information. Each Buyer and its
advisors, if any, have been furnished with all materials relating
to the business, finances and operations of the Company and other
information each Buyer deemed material to making an informed
investment decision regarding its purchase of the Shares, which
have been requested by each Buyer. Buyer acknowledges that it has
received and reviewed a copy of the Company’s SEC Reports (as
defined below). Each Buyer and its advisors, if any, have been
afforded the opportunity to ask questions of the Company and its
management. Neither such inquiries, nor any other due diligence
investigations conducted by any Buyer or its advisors, if any, or
its representatives, shall modify, amend or affect each
Buyer’s right to rely on the Company’s and Operating
Sub’s representations and warranties contained in Article VI
below. Each Buyer understands that its investment in the Shares
involves a high degree of risk. Each Buyer is in a position
regarding the Company, which, based upon employment, family
relationship or economic bargaining power, enabled and enables such
Buyer to obtain information from the Company in order to evaluate
the merits and risks of this investment. Each Buyer has sought such
accounting, legal and tax advice as it has considered necessary to
make an informed investment decision with respect to its
acquisition of the Shares.

 

 




 

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5.5 No Governmental Review. Each
Buyer understands that no United States federal or state
Governmental Authority has passed on or made any recommendation or
endorsement of the Shares, or the fairness or suitability of the
investment in the Shares, nor have such Governmental Authorities
passed upon or endorsed the merits of the offering of the
Shares.

 

5.6 Authorization, Enforcement.
This Agreement has been duly and validly authorized, executed and
delivered on behalf of each Buyer and is a valid and binding
agreement of each Buyer, enforceable in accordance with its terms,
except as such enforceability may be limited by general principles
of equity or applicable bankruptcy, insolvency, reorganization,
moratorium, liquidation and other similar laws relating to, or
affecting generally, the enforcement of applicable creditors’
rights and remedies.

 

5.7 General Solicitation. The Buyer
is not purchasing the Shares as a result of any advertisement,
article, notice or other communication regarding the Shares
published in any newspaper, magazine or similar media or broadcast
over television or radio or presented at any seminar or any other
general solicitation or general advertisement. The Buyer represents
that it has a relationship preceding its decision to purchase the
Shares with the Company.

 


ARTICLE
VI



REPRESENTATIONS AND WARRANTIES OF THE COMPANY


 


Except
as set forth and disclosed in the Company’s disclosure
schedules (“Disclosure
Schedules”) attached to this Agreement and made a part
hereof, the Company and Operating Sub each hereby makes the
following representations and warranties to the Buyer:

 

6.1 Subsidiaries. Except for a one
hundred percent (100%) ownership in Operating Sub, the Company has
no subsidiaries and the Company does not own, directly or
indirectly, any outstanding voting securities of or other interests
in, or have any control over, any other Person. With respect to
Operating Sub, all representations and warranties in this Article
VI and elsewhere in this Agreement shall be deemed repeated and
re-made from and by Operating Sub, as if such representations and
warranties were independently made by Operating Sub, in this
Agreement (but modified as necessary in order to give effect to the
intent of the parties that such representation and warranty is
being made by the Operating Sub, rather than the Company, as
applicable). In addition, each representation and warranty
contained in this Article VI or otherwise set forth in this
Agreement shall be deemed to mean and be construed to include the
Company and each of its subsidiaries, as applicable, regardless of
whether each of such representations and warranties in Article VI
specifically refers to the Company’s subsidiaries or
not.

 

6.2 Organization. The Company and
its subsidiaries are corporations, duly organized, validly existing
and in good standing under the Laws of the jurisdiction in which
they are incorporated. The Company has the full corporate power and
authority and all necessary certificates, licenses, approvals and
Permits to: (i) enter into and execute this Agreement and the
Transaction Documents and to perform all of its Obligations
hereunder and thereunder; and (ii) own and operate its Assets and
properties and to conduct and carry on its business as and to the
extent now conducted. The Company is duly qualified to transact
business and is in good standing as a foreign corporation in each
jurisdiction where the character of its business or the ownership
or use and operation of its Assets or properties requires such
qualification, except to the extent that failure to so qualify will
not result in a Material Adverse Effect.

 

 




 

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6.3 Authority and Approval of Agreement;
Binding Effect. The execution and delivery by Company of
this Agreement and the Transaction Documents, and the performance
by Company of all of its Obligations hereunder and thereunder,
including the issuance of the Shares, have been duly and validly
authorized and approved by Company and its board of directors
pursuant to all applicable Laws and no other corporate action or
Consent on the part of Company, its board of directors,
stockholders or any other Person is necessary or required by the
Company to execute this Agreement and the Transaction Documents,
consummate the transactions contemplated herein and therein,
perform all of Company’s Obligations hereunder and
thereunder, or to issue the Shares. This Agreement and each of the
Transaction Documents have been duly and validly executed by
Company (and the officer executing this Agreement and all such
other Transaction Documents is duly authorized to act and execute
same on behalf of Company) and constitute the valid and legally
binding agreements of Company, enforceable against Company in
accordance with their respective terms, except as such
enforceability may be limited by general principles of equity or
applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation and other similar laws relating to, or affecting
generally, the enforcement of applicable creditors’ rights
and remedies.

 

6.4 Capitalization. Immediately
prior to the Initial Closing, the authorized capital stock of the
Company will consist of 100,000,000 shares of Common Stock, of
which 39,057,573 shares of Common Stock are issued and
outstanding.  All of such outstanding shares have been validly
issued and are fully paid and nonassessable. The Common Stock is
currently quoted on the OTCQB Market under the trading symbol
“MFON”. The Company has
received no notice, either oral or written, with respect to the
continued eligibility of the Common Stock for quotation on the
Principal Trading Market, and the Company has maintained all
requirements on its part for the continuation of such
quotation.  Except as set forth on Schedule 6.4, no shares of
Common Stock are subject to preemptive rights or any other similar
rights or any Encumbrances suffered or permitted by the
Company.  Except as set forth on Schedule 6.4, as of the date
hereof: (i) there are no outstanding options, warrants, scrip,
rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities or rights convertible into,
any shares of capital stock of the Company or any of its
subsidiaries, or Contracts, commitments, understandings or
arrangements by which the Company or any of its subsidiaries is or
may become bound to issue additional shares of capital stock of the
Company or any of its subsidiaries, or options, warrants, scrip,
rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities or rights convertible into,
any shares of capital stock of the Company or any of its
subsidiaries; (collectively, “Derivative Securities”); (ii)
there are no outstanding debt securities, notes, credit agreements,
credit facilities or other Contracts or instruments evidencing
indebtedness of the Company or any of its subsidiaries, or by which
the Company or any of its subsidiaries is or may become bound;
(iii) there are no outstanding registration statements with
respect to the Company or any of its securities; (iv) there
are no agreements or arrangements under which the Company or any of
its subsidiaries is obligated to register the sale of any of their
securities under the Securities Act (except pursuant to this
Agreement); (v) there are no financing statements securing
obligations filed in connection with the Company or any of its
Assets; (vi) there are no securities or instruments containing
anti-dilution or similar provisions that will be triggered by this
Agreement or any related agreement or the consummation of the
transactions described herein or therein; and (vii) there are no
outstanding securities or instruments of the Company which contain
any redemption or similar provisions, and there are no Contracts by
which the Company is or may become bound to redeem a security of
the Company. Except as set forth on Schedule 6.4, there are no
stockholders agreements, voting agreements or other similar
agreements with respect to the Company’s capital stock to
which the Company is a party or, to the knowledge of the Company,
between or among any of the Company’s stockholders.
Schedule 6.4 sets
forth a detailed calculation of the total number of shares of
Common Stock outstanding as of the date hereof assuming
(i) the issuance of Shares pursuant to this Agreement;
(ii) the exercise in full of all outstanding Derivative
Securities taking into account all applicable anti-dilution or
similar adjustments or rights, including without limitation those
resulting from the issuance of Shares pursuant to this Agreement;
and (iii) the exercise of all Derivative Securities authorized
for issuance, but not yet issued, under any plan of the
Company.

 

 




 

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6.5 No Conflicts; Consents and
Approvals. The execution, delivery and performance of this
Agreement and the Transaction Documents, and the consummation of
the transactions contemplated hereby and thereby, including the
issuance of any of the Shares, will not: (i) constitute a
violation of or conflict with any provision of the Company’s
or any Subsidiary’s certificate or articles of incorporation,
bylaws or other organizational or charter documents;
(ii) constitute a violation of, or a default or breach under
(either immediately, upon notice, upon lapse of time, or both), or
conflicts with, or gives to any other Person any rights of
termination, amendment, acceleration or cancellation of, any
provision of any Contract to which Company is a party or by which
any of its Assets or properties may be bound; (iii) constitute a
violation of, or a default or breach under (either immediately,
upon notice, upon lapse of time, or both), or conflicts with, any
Judgment; (iv) constitute a violation of, or conflict with, any Law
(including United States federal and state securities Laws and the
rules and regulations of any market or exchange on which the Common
Stock is quoted); or (v) result in the loss or adverse modification
of, or the imposition of any fine, penalty or other Encumbrance
with respect to, any Permit granted or issued to, or otherwise held
by or for the use of, Company or any of Company’s Assets. The
Company is not in violation of its articles of incorporation,
bylaws or other organizational or governing documents and the
Company is not in default or breach (and no event has occurred
which with notice or lapse of time or both could put the Company in
default or breach) under, and the Company has not taken any action
or failed to take any action that would give to any other Person
any rights of termination, amendment, acceleration or cancellation
of, any Contract to which the Company is a party or by which any
property or Assets of the Company are bound or affected. Except as
specifically contemplated by this Agreement, the Company is not
required to obtain any Consent of, from, or with any Governmental
Authority, or any other Person, in order for it to execute, deliver
or perform any of its Obligations under this Agreement or the
Transaction Documents in accordance with the terms hereof or
thereof, or to issue and sell the Shares in accordance with the
terms hereof. All Consents which the Company is required to obtain
pursuant to the immediately preceding sentence have been obtained
or effected on or prior to the date hereof. The Company is not
aware of any facts or circumstances which might give rise to any of
the foregoing.

 

6.6 Issuance of Shares. The Shares
are duly authorized and, upon issuance in accordance with the terms
hereof, shall be duly issued, fully paid and non-assessable, and
free from all Encumbrances with respect to the issue thereof, and
will be issued in compliance with all applicable United States
federal and state securities Laws. Assuming the accuracy of the representations and
warranties of the Buyers set forth in Article V above, the offer
and sale by the Company of the Shares is exempt from: (i) the
registration and prospectus delivery requirements of the Securities
Act; and (ii) the registration and/or qualification provisions of
all applicable state and provincial securities and “blue
sky” laws.

 

6.7 SEC Documents; Financial
Statements. The Common Stock is registered pursuant to
Section 12 of the Exchange Act and the Company has filed all
reports, schedules, forms, statements and other documents required
to be filed by it with the SEC under the Exchange Act (all of the
foregoing filed within the two (2) years preceding the date hereof
or amended after the date hereof and all exhibits included therein
and financial statements and schedules thereto and documents
incorporated by reference therein, being hereinafter referred to as
the “SEC
Documents”). The Company is current with its filing
obligations under the Exchange Act. The Company represents and
warrants that true and complete copies of the SEC Documents are
available on the SEC’s website (www.sec.gov) at
no charge to Buyers, and Buyers acknowledge that each of them may
retrieve all SEC Documents from such website and each Buyer’s
access to such SEC Documents through such website shall constitute
delivery of the SEC Documents to Buyers; provided, however, that if
any Buyer is unable to obtain any of such SEC Documents from such
website at no charge, as result of such website not being available
or any other reason beyond any Buyer’s control, then upon
request from such Buyer, the Company shall deliver to such Buyer
true and complete copies of such SEC Documents. As of their
respective dates, the SEC Documents complied in all material
respects with the requirements of the Exchange Act, and none of the
SEC Documents, at the time they were filed with the SEC, contained
any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under
which they were made, not misleading. None of the statements made
in any such SEC Documents is, or has been, required to be amended
or updated under applicable Law (except as such statements have
been amended or updated in subsequent filings prior the date
hereof, which amendments or updates are also part of the SEC
Documents). As of their respective dates, the financial statements
of the Company included in the SEC Documents (“Financial Statements”) complied in
all material respects with applicable accounting requirements and
the published rules and regulations of the SEC with respect
thereto. All of the Financial Statements have been prepared in
accordance with GAAP, consistently applied, during the periods
involved (except: (i) as may be otherwise indicated in such
Financial Statements or the notes thereto; or (ii) in the case of
unaudited interim statements, to the extent they may exclude
footnotes or may be condensed or summary statements), and fairly
present in all material respects the consolidated financial
position of the Company as of the dates thereof and the
consolidated results of its operations and cash flows for the
periods then ended (subject, in the case of unaudited statements,
to normal year-end audit adjustments). To the knowledge of the
Company and its officers, no other information provided by or on
behalf of the Company to the Buyers which is not included in the
SEC Documents contains any untrue statement of a material fact or
omits to state any material fact necessary in order to make the
statements therein, in the light of the circumstance under which
they are or were made, not misleading.

 

 




 

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0.8 Absence of Certain Changes.
Since the date the last of the SEC Documents was filed with the
SEC, none of the following have occurred:

 

(a) There has been no
event or circumstance of any nature whatsoever that has resulted
in, or could reasonably be expected to result in, a Material
Adverse Effect; or

 

(b) Any transaction,
event, action, development, payment, or any other matter of any
nature whatsoever entered into by the Company other than in the
Ordinary Course of Business.

 

6.9 Absence of Litigation or Adverse
Matters. That: (i) there is no Proceeding before or by any
Governmental Authority or any other Person, pending, or the best of
Company’s knowledge, threatened or contemplated by, against
or affecting the Company, its business or Assets; (ii) there is no
outstanding Judgments against or affecting the Company, its
business or Assets; (iii) the Company is not in breach or violation
of any Contract; and (iv) the Company has not received any material
complaint from any customer, supplier, vendor or
employee.

 

6.10 Liabilities
and Indebtedness of the Company. The Company does not have
any Obligations of any nature whatsoever, except: (i) as disclosed
in the Financial Statements; or (ii) Obligations incurred in the
Ordinary Course of Business since the date of the last Financial
Statements filed by the Company with the SEC which do not or would
not, individually or in the aggregate, exceed One Hundred Thousand
Dollars ($100,000) or otherwise have a Material Adverse
Effect.

 

6.11 Title
to Assets. The Company has good and marketable title to, or
a valid leasehold interest in, all of its Assets which are material
to the business and operations of the Company as presently
conducted, free and clear of all Encumbrances or restrictions on
the transfer or use of same. Except as would not have a Material
Adverse Effect, the Company’s Assets are in good operating
condition and repair, ordinary wear and tear excepted, and are free
of any latent or patent defects which might impair their
usefulness, and are suitable for the purposes for which they are
currently used and for the purposes for which they are proposed to
be used.

 

6.12 Real
Estate.

 

(a) Real Property Ownership. The
Company does not own any Real Property.

 

(b) Real Property Leases. Except
for the Leases described in the SEC Documents (the
“Company
Leases”), the Company does not lease any other Real
Property. With respect to each of the Company Leases: (i) the
Company has been in peaceful possession of the property leased
thereunder and neither the Company nor the landlord is in default
thereunder; (ii) no waiver, indulgence or postponement of any of
the Obligations thereunder has been granted by the Company or
landlord thereunder; and (iii) there exists no event, occurrence,
condition or act known to the Company which, upon notice or lapse
of time or both, would be or could become a default thereunder or
which could result in the termination of the Company Leases, or any
of them, or have a Material Adverse Effect on the business of the
Company, its Assets or its operations or financial results. The
Company has not violated nor breached any provision of any such
Company Leases, and all Obligations required to be performed by the
Company under any of such Company Leases have been fully, timely
and properly performed. If requested by any of the Buyers, the
Company has delivered to such Buyers true, correct and complete
copies of all Company Leases, including all modifications and
amendments thereto, whether in writing or otherwise. The Company
has not received any written or oral notice to the effect that any
of the Company Leases will not be renewed at the termination of the
term of such Company Leases, or that any of such Company Leases
will be renewed only at higher rents.

 


 




 

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6.13 Material
Contracts. A list of the Material Contracts is attached as
Schedule 6.13. An
accurate, current and complete copy of each of the Material
Contracts has been furnished to Buyers and/or is readily available
as part of the SEC Documents, and each of the Material Contracts
constitutes the entire agreement of the respective parties thereto
relating to the subject matter thereof. There are no outstanding
offers, bids, proposals or quotations made by Company which, if
accepted, would create a Material Contract with Company. Each of
the Material Contracts is in full force and effect and is a valid
and binding Obligation of the parties thereto in accordance with
the terms and conditions thereof. To the knowledge of the Company
and its officers, all Obligations required to be performed under
the terms of each of the Material Contracts by any party thereto
have been fully performed by all parties thereto, and no party to
any Material Contracts is in default with respect to any term or
condition thereof, nor has any event occurred which, through the
passage of time or the giving of notice, or both, would constitute
a default thereunder or would cause the acceleration or
modification of any Obligation of any party thereto or the creation
of any Encumbrance upon any of the Assets of the Company. Further,
the Company has received no notice, nor does the Company have any
knowledge, of any pending or contemplated termination of any of the
Material Contracts and, no such termination is proposed or has been
threatened, whether in writing or orally.

 

6.14 Compliance
with Laws. The Company is and at all times has been in
material compliance with all Laws. The Company has not received any
notice that it is in violation of, has violated, or is under
investigation with respect to, or has been threatened to be charged
with, any violation of any Law.

 

6.15 Intellectual
Property. The Company owns or possesses adequate and legally
enforceable rights or licenses to use all trademarks, trade names,
service marks, service mark registrations, service names, patents,
patent rights, copyrights, inventions, licenses, approvals,
governmental authorizations, trade secrets and all other
intellectual property rights necessary to conduct its business as
now conducted. The Company does not have any knowledge of any
infringement by the Company of trademark, trade name rights,
patents, patent rights, copyrights, inventions, licenses, service
names, service marks, service mark registrations, trade secret or
other intellectual property rights of others, and, to the knowledge
of the Company, there is no Claim being made or brought against, or
to the Company’s knowledge, being threatened against, the
Company regarding trademark, trade name, patents, patent rights,
invention, copyright, license, service names, service marks,
service mark registrations, trade secret or other intellectual
property infringement; and the Company is unaware of any facts or
circumstances which might give rise to any of the
foregoing.

 

6.16 Labor
and Employment Matters. The Company is not involved in any
labor dispute or, to the knowledge of the Company, is any such
dispute threatened. To the knowledge of the Company and its
officers, none of the Company’s employees is a member of a
union and the Company believes that its relations with its
employees are good. To the knowledge of the Company and its
officers, the Company has complied in all material respects with
all Laws relating to employment matters, civil rights and equal
employment opportunities.

 

6.17 Employee
Benefit Plans. Except as set forth in Schedule 6.17, the Company does
not have and has not ever maintained, and has no Obligations with
respect to any employee benefit plans or arrangements, including
employee pension benefit plans, as defined in Section 3(2) of
the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”),
multiemployer plans, as defined in Section 3(37) of ERISA, employee
welfare benefit plans, as defined in Section 3(1) of ERISA,
deferred compensation plans, stock option plans, bonus plans, stock
purchase plans, hospitalization, disability and other insurance
plans, severance or termination pay plans and policies, whether or
not described in Section 3(3) of ERISA, in which employees, their
spouses or dependents of the Company participate (collectively, the
“Employee Benefit
Plans”). To the Company’s knowledge, all
Employee Benefit Plans meet the minimum funding standards of
Section 302 of ERISA, where applicable, and each such Employee
Benefit Plan that is intended to be qualified within the meaning of
Section 401 of the Internal Revenue Code of 1986 is qualified. No
withdrawal liability has been incurred under any such Employee
Benefit Plans and no “Reportable Event” or
“Prohibited Transaction” (as such terms are defined in
ERISA), has occurred with respect to any such Employee Benefit
Plans, unless approved by the appropriate Governmental Authority.
To the Company’s knowledge, the Company has promptly paid and
discharged all Obligations arising under ERISA of a character which
if unpaid or unperformed might result in the imposition of an
Encumbrance against any of its Assets or otherwise have a Material
Adverse Effect.

 




 

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6.18 Tax
Matters. The Company has made and timely filed all Tax
Returns required by any jurisdiction to which it is subject, and
each such Tax Return has been prepared in compliance with all
applicable Laws, and all such Tax Returns are true and accurate in
all respects. Except and only to the extent that the Company has
set aside on its books provisions reasonably adequate for the
payment of all unpaid and unreported Taxes, the Company has timely
paid all Taxes shown or determined to be due on such Tax Returns,
except those being contested in good faith, and the Company has set
aside on its books provision reasonably adequate for the payment of
all Taxes for periods subsequent to the periods to which such Tax
Returns apply. There are no unpaid Taxes in any material amount
claimed to be due by the taxing authority of any jurisdiction, and
the officers of the Company know of no basis for any such claim.
The Company has withheld and paid all Taxes to the appropriate
Governmental Authority required to have been withheld and paid in
connection with amounts paid or owing to any Person. There is no
Proceeding or Claim for refund now in progress, pending or
threatened against or with respect to the Company regarding
Taxes.

 

6.19 Insurance.
The Company is covered by valid, outstanding and enforceable
policies of insurance which were issued to it by reputable insurers
of recognized financial responsibility, covering its properties,
Assets and businesses against losses and risks normally insured
against by other corporations or entities in the same or similar
lines of businesses as the Company is engaged and in coverage
amounts which are prudent and typically and reasonably carried by
such other corporations or entities (the “Insurance Policies”). Such
Insurance Policies are in full force and effect, and all premiums
due thereon have been paid. None of the Insurance Policies will
lapse or terminate as a result of the transactions contemplated by
this Agreement. The Company has complied with the provisions of
such Insurance Policies. The Company has not been refused any
insurance coverage sought or applied for and the Company does not
have any reason to believe that it will not be able to renew its
existing Insurance Policies as and when such Insurance Policies
expire or to obtain similar coverage from similar insurers as may
be necessary to continue its business at a cost that would not
materially and adversely affect the condition, financial or
otherwise, or the earnings, business or operations of the
Company.

 

6.20 Permits.
The Company possesses all Permits necessary to conduct its
business, and the Company has not received any notice of, or is
otherwise involved in any Proceedings relating to, the revocation
or modification of any such Permits. All such Permits are valid and
in full force and effect and the Company is in material compliance
with the respective requirements of all such Permits.

 

6.21 Business
Location. The Company has no office or place of business
other than as identified on Schedule 6.21 and the
Company’s principal places of business and chief executive
offices are indicated on Schedule 6.21. All books and
records of the Company and other material Assets of the Company are
held or located at the principal offices of the Company indicated
on Schedule
6.21.

 

6.22 Environmental
Laws. The Company is and has at all times been in compliance
with any and all applicable Environmental Requirements, and there
are no pending Claims against the Company relating to any
Environmental Requirements, nor to the best knowledge of the
Company, is there any basis for any such Claims.

 

6.23 Illegal
Payments. Neither the Company, nor any director, officer,
agent, employee or other Person acting on behalf of the Company
has, in the course of his actions for, or on behalf of, the
Company: (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expenses
relating to political activity; (ii) made any direct or indirect
unlawful payment to any foreign or domestic government official or
employee from corporate funds; (iii) violated or is in violation of
any provision of the U.S. Foreign Corrupt Practices Act of 1977, as
amended; or (iv) made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment to any foreign or domestic
government official or employee.

 




 

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6.24 Related
Party Transactions. Except for arm’s length
transactions pursuant to which the Company makes payments in the
Ordinary Course of Business upon terms no less favorable than the
Company could obtain from third parties, none of the officers,
directors or employees of the Company, nor any stockholders who
own, legally or beneficially, five percent (5%) or more of the
issued and outstanding shares of any class of the Company’s
capital stock (each a “Material Shareholder”), is
presently a party to any transaction with the Company (other than
for services as employees, officers and directors), including any
Contract providing for the furnishing of services to or by,
providing for rental of real or personal property to or from, or
otherwise requiring payments to or from, any officer, director or
such employee or Material Shareholder or, to the best knowledge of
the Company, any other Person in which any officer, director, or
any such employee or Material Shareholder has a substantial or
material interest in or of which any officer, director or employee
of the Company or Material Shareholder is an officer, director,
trustee or partner. There are no Claims or disputes of any nature
or kind between the Company and any officer, director or employee
of the Company or any Material Shareholder, or between any of them,
relating to the Company and its business.

 

6.25 Internal
Accounting Controls. Except as set forth in the SEC
Documents, the Company and each of its subsidiaries maintain a
system of internal accounting controls sufficient to provide
reasonable assurance that: (i) transactions are executed in
accordance with management’s general or specific
authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP
and to maintain asset accountability; (iii) access to Assets
is permitted only in accordance with management’s general or
specific authorization; and (iv) the recorded accountability
for Assets is compared with the existing Assets at reasonable
intervals and appropriate action is taken with respect to any
differences.

 

6.26 Acknowledgment
Regarding Buyers’ Purchase of the Shares. The Company
acknowledges and agrees that each Buyer is acting solely in the
capacity of an arm’s length purchaser with respect to this
Agreement and the transactions contemplated hereby. The Company
further acknowledges that no Buyer is acting as a financial advisor
or fiduciary of the Company (or in any similar capacity) with
respect to this Agreement and the transactions contemplated hereby
and any advice given by any Buyer or any of its representatives or
agents in connection with this Agreement and the transactions
contemplated hereby is merely incidental to such Buyer’s
purchase of the Shares. The Company further represents to each
Buyer that the Company’s decision to enter into this
Agreement has been based solely on the independent evaluation by
the Company and its representatives.

 

6.27 Listing
and Maintenance Requirements. The Company’s Common
Stock is registered pursuant to Section 12(g) of the Exchange Act,
and the Company has taken no action designed to, or which to the
best of its knowledge is likely to have the effect of, terminating
the registration of the Common Stock under the Exchange Act, nor
has the Company received any notification that the SEC is
contemplating terminating such registration.

 

6.28 Brokerage
Fees. There is no Person acting on behalf of the Company who
is entitled to or has any claim for any financial advisory,
brokerage or finder’s fee or commission in connection with
the execution of this Agreement or the consummation of the
transactions contemplated hereby.

 

6.29 Full
Disclosure. All the representations and warranties made by
Company herein or in the Disclosure Schedules hereto, and all of
the statements, documents or other information pertaining to the
transaction contemplated herein made or given by Company, its
agents or representatives, are complete and accurate, and do not
omit any information required to make the statements and
information provided, in light of the transaction contemplated
herein and in light of the circumstances under which they were
made, not misleading, accurate and meaningful.

 


 




 

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ARTICLE
VII



COVENANTS

 

7.1 Best Efforts. Each party shall
use its best efforts to timely satisfy each of the conditions to be
satisfied by it as provided in Articles VIII and IX of this
Agreement.

 

7.2 Form D. If required by
applicable Law, the Company agrees to file a Form D with respect to
the Shares as required under Regulation D of the Securities Act and
to provide a copy thereof to each Buyer promptly after such filing.
The Company shall, on or before the Closing Date, take such action
as the Company shall reasonably determine is necessary to qualify
the Shares, or obtain an exemption for the Shares for sale to each
of the Buyers at Closing pursuant to this Agreement under
applicable securities or “Blue Sky” Laws of the states
of the United States, and shall provide evidence of any such action
so taken to the Buyers on or prior to the Closing
Date.

 

7.3 Affirmative
Covenants.

 

(a) Reporting Status; Listing. So
long as any Buyer owns, legally or beneficially any of the Shares,
the Company shall: (i) file in a timely manner all reports required
to be filed under the Securities Act,
the Exchange Act or any securities Laws and regulations thereof
applicable to the Company of any state of the United States, or by
the rules and regulations of the Principal Trading Market, and, to
provide a copy thereof to the Buyer promptly after such filing upon
the Buyer’s request; (ii) not terminate its
status as an issuer required to file reports under the Exchange Act
even if the Exchange Act or the rules and regulations thereunder
would otherwise permit such termination; (iii) if required by the
rules and regulations of the Principal Trading Market, promptly
secure the listing of any of the Shares upon the Principal Trading
Market (subject to official notice of issuance) and, take all reasonable action under its control to
maintain the continued listing, quotation and trading of its Common
Stock on the Principal Trading Market, and the Company shall
comply in all respects with the Company’s reporting, filing
and other Obligations under the bylaws or rules of the Principal
Trading Market, the Financial Industry Regulatory Authority, Inc.
and such other Governmental Authorities, as applicable. The Company
shall promptly provide to Buyers copies of any notices it receives
from the SEC or any Principal Trading Market, to the extent that
any such notices could in anyway have or be reasonably expected to
have a Material Adverse Effect.

 

(b) Rule 144. With a view to making
available to each Buyer the benefits of Rule 144 under the
Securities Act (“Rule
144”), or any similar rule or regulation of the SEC
that may at any time permit Buyers to sell any of the Shares to the
public without registration, the Company represents and warrants
that: (i) the Company is, and has been for a period of at least
ninety (90) days immediately preceding the date hereof, subject to
the reporting requirements of Section 13 or 15(d) of the Exchange
Act; (ii) the Company has filed all required reports under Section
13 or 15(d) of the Exchange Act, as applicable, during the twelve
(12) months preceding the Closing Date (or for such shorter period
that the Company was required to file such reports); (iii) the
Company is not an issuer defined as a “Shell Company”
(as hereinafter defined); and (iv) if the Company has, at any time,
been an issuer defined as a Shell Company, the Company has: (A) not
been an issuer defined as a Shell Company for at least six (6)
months prior to the Closing Date; and (B) has satisfied the
requirements of Rule 144(i) (including, without limitation, the
proper filing of “Form 10 information” at least six (6)
months prior to the Closing Date). For the purposes hereof, the
term “Shell
Company” shall mean an issuer that meets the
description set forth under Rule 144(i)(1)(i). In addition, so long
as any Buyer owns, legally or beneficially, any of the Shares, the
Company shall, at its sole expense:

 

(i) Make, keep and
ensure that adequate current public information with respect to the Company, as required in
accordance with Rule 144, is publicly
available;

 

(ii) furnish
to each Buyer, promptly upon reasonable request: (A) a written
statement by the Company that it has complied with the reporting
requirements of Rule 144, the Securities Act and the Exchange Act;
and (b) such other information as may be reasonably requested by
each Buyer to permit each Buyer to sell any of the Shares pursuant
to Rule 144 without limitation or restriction; and

 

 




 

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(iii) promptly
at the request of each Buyer, give the Company’s transfer
agent instructions to the effect that, upon the transfer
agent’s receipt from any Buyer of a certificate (a “Rule 144
Certificate”) certifying
that such Buyer’s holding period (as determined in accordance
with the provisions of Rule 144) for any portion of the Shares
which such Buyer proposes to sell (the “Securities Being
Sold”) is not less than
six (6) months, and receipt by the transfer agent of the
“Rule 144 Opinion” (as hereinafter defined) from the
Company or its counsel (or from such Buyer and its counsel as
permitted below), the transfer agent is to effect the transfer of
the Securities Being Sold and issue to such Buyer or transferee(s)
thereof one or more stock certificates representing the transferred
Securities Being Sold without any restrictive legend and without
recording any restrictions on the transferability of such
Securities Being Sold on the transfer agent’s books and
records. In this regard, upon each Buyer’s request, the
Company shall have an affirmative obligation to cause its counsel
to promptly issue to the transfer agent a legal opinion providing
that, based on the Rule 144 Certificate, the Securities Being Sold
were or may be sold, as applicable, pursuant to the provisions of
Rule 144, even in the absence of an effective registration
statement (the “Rule 144
Opinion”). If the
transfer agent requires any additional documentation in connection
with any proposed transfer by any Buyer of any Securities Being
Sold, the Company shall promptly deliver or cause to be delivered
to the transfer agent or to any other Person, all such additional
documentation as may be necessary to effectuate the transfer of the
Securities Being Sold and the issuance of an unlegended certificate
to any transferee thereof, all at the Company’s
expense.

 

(c) Matters With Respect to Shares and
Transfer Agent.

 

(i) Removal of Restrictive Legends.
In the event that any Buyer has any shares of the Company’s
Common Stock bearing any restrictive legends, and such Buyer,
through its counsel or other representatives, submits to the
Company’s transfer agent (“Transfer Agent”) any such shares
for the removal of the restrictive legends thereon, whether in
connection with a sale of such shares pursuant to any
exemption to the registration requirements under the Securities
Act, or otherwise, and the Company and or its counsel refuses or
fails for any reason (except to the extent that such refusal or
failure is based solely on applicable Law that would prevent the
removal of such restrictive legends) to render an opinion of
counsel or any other documents or certificates required for the
removal of the restrictive legends, then the Company hereby agrees
and acknowledges that such Buyer is hereby irrevocably and
expressly authorized to have counsel to such Buyer render any and
all opinions and other certificates or instruments which may be
required for purposes of removing such restrictive legends, and the
Company hereby irrevocably authorizes and directs the Transfer
Agent to, without any further confirmation or instructions from the
Company, issue any such shares without restrictive legends as
instructed by such Buyer, and surrender to a common carrier for
overnight delivery to the address as specified by such Buyer,
certificates, registered in the name of such Buyer or its
designees, representing the shares of Common Stock to which such
Buyer is entitled, without any restrictive legends and otherwise
freely transferable on the books and records of the
Company.

 

(ii) Authorized
Agent of the Company. The Company hereby irrevocably
appoints each Buyer and each Buyer’s counsel and its
representatives, each as the Company’s duly authorized agent
and attorney-in-fact for the Company for the purposes of
authorizing and instructing the Transfer Agent to process
issuances, transfers and legend removals upon instructions from
each Buyer, or any counsel or representatives of each Buyer,
consistent with this Section 7.3(c). The
authorization and power of attorney granted hereby is coupled with
an interest and is irrevocable so long as any Buyer owns or has the
right to receive, any shares of the Company’s Common Stock
hereunder. In this regard, the Company hereby confirms to the
Transfer Agent and each Buyer that it can NOT and will NOT give instructions,
including stop orders or otherwise, inconsistent with the terms of
this Section 7.3(c)
with regard to the matters contemplated herein, and that each Buyer
shall have the absolute right to provide a copy of this Agreement
to the Transfer Agent as evidence of the Company’s
irrevocable authority for each Buyer and Transfer Agent to process
issuances, transfers and legend removals upon instructions from
each Buyer, or any counsel or representatives of each Buyer, in
each case as specifically contemplated in this Section 7.3(c), without any
further instructions, orders or confirmations from the Company. In
addition, if requested by any Buyer, the Company agrees to use its
best good faith efforts to get an agreement executed by the
Transfer Agent, reasonably acceptable to each Buyer, pursuant to
which the Transfer Agent agrees and confirms that it will act in
accordance with the terms of this Section 7.3(c).

 

 




 

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(iii) Injunction
and Specific Performance. The Company specifically
acknowledges and agrees that in the event of a breach or threatened
breach by the Company of any provision of this Section 7.3(c), each Buyer will
be irreparably damaged and that damages at law would be an
inadequate remedy if this Agreement were not specifically
enforced.  Therefore, in the event of a breach or threatened
breach of any provision of this Section 7.3(c) by the Company,
each Buyer shall be entitled to obtain, in addition to all other
rights or remedies such Buyer may have, at law or in equity, an
injunction restraining such breach, without being required to show
any actual damage or to post any bond or other security, and/or to
a decree for specific performance of the provisions of this
Section
7.3(c).

 

7.4 Use of Proceeds. The Company
shall use the net proceeds from the sale of the Shares for general
corporate purposes, including general and administrative expenses,
and for the repayment of any outstanding Indebtedness of the
Company or any of its Subsidiaries.

 

7.5 Fees and Expenses. The Company
agrees to pay to each Buyer (or any designee or agent of the
Buyers), upon demand, or to otherwise be responsible for the
payment of, any and all costs, fees, charges and expenses,
including the reasonable fees, costs, expenses and disbursements of
counsel for any Buyer, and of any experts and agents, which any
Buyer may incur or which may otherwise be due and payable in
connection with: (i) any documentary stamp taxes, intangibles
taxes, recording fees, filing fees, or other similar taxes, fees or
charges imposed by or due to any Governmental Authority in
connection with this Agreement or any other Transaction Documents;
(ii) the exercise or enforcement of any of the rights of any
Buyer under this Agreement or the Transaction Documents; or
(iii) the failure by the Company to perform or observe any of
the provisions of this Agreement or any of the Transaction
Documents. The provisions of this Subsection shall survive the
termination of this Agreement.

 

7.6 Public Disclosure of Buyers.
The Company shall not publicly disclose the name of any Buyer, or
include the name of any Buyer in any filing with the SEC or any
regulatory agency or Principal Trading Market, without the prior
written consent of such Buyer except to the extent such disclosure
is required by Law or Principal Trading Market regulations, in
which case the Company shall provide Buyers with prior written
notice of such disclosure permitted under this Section 7.6.

 


ARTICLE
VIII



CONDITIONS PRECEDENT TO THE COMPANY’S OBLIGATIONS TO
SELL

 


The
obligation of the Company hereunder to issue and sell the Shares to
the Buyers at the Closing is subject to the satisfaction, at or
before the Closing Date, of each of the following conditions,
provided that these conditions are for the Company’s sole
benefit and may be waived by the Company at any time in its sole
discretion:

 

8.1 Buyers shall have
executed the Transaction Documents that require Buyers’
execution, and delivered them to the Company.

 

8.2 Each of the Buyers
shall have paid the portion of the Purchase Price applicable to
such Buyer to the Company.

 

8.3 The representations
and warranties of the Buyers shall be true and correct in all
material respects as of the date when made and as of the applicable
Closing Date as though made at that time (except for
representations and warranties that speak as of a specific date),
and the Buyers shall have performed, satisfied and complied in all
material respects with the covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied
with by the Buyers at or prior to the applicable Closing
Date.

 

8.4 The Company shall
have obtained all governmental, regulatory or third party consents
and approvals necessary for the sale of the Shares.

 

 




 

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8.5 No statute, rule,
regulation, executive order, decree, ruling or injunction shall
have been enacted, entered, promulgated or endorsed by any court or
governmental authority of competent jurisdiction that prohibits the
consummation of any of the transactions contemplated by the
Transaction Documents.

 

8.6 Since the date of
execution of this Agreement, no event or series of events shall
have occurred that resulted, or could reasonably be expected to
result, in a Material Adverse Effect.

 

8.7 Trading in the
Common Stock shall not have been suspended by the U.S. Securities
and Commission or any Principal Trading Market (except for any
suspensions of trading of not more than one trading day solely to
permit dissemination of material information regarding the Company)
at any time since the date of execution of this
Agreement.

 


ARTICLE
IX



CONDITIONS PRECEDENT TO THE BUYERS’ OBLIGATIONS TO
PURCHASE

 


The
obligation of the Buyers hereunder to purchase the Shares at the
Closing is subject to the satisfaction, at or before the Closing
Date, of each of the following conditions (in addition to any other
conditions precedent elsewhere in this Agreement), provided that
these conditions are for the Buyers’ sole benefit and may be
waived by the Buyers at any time in their sole
discretion:

 

9.1 The Company shall
have executed and delivered the Transaction Documents and delivered
the same to the Buyers.

 

9.2 The Company shall
have delivered to each Buyer a certificate registered in such
Buyer’s name representing the number of Shares that such
Buyer is purchasing.

 

9.3 The representations
and warranties of the Company and of Operating Sub shall be true
and correct in all material respects (except to the extent that any
of such representations and warranties are already qualified as to
materiality in Article VI above, in which case, such
representations and warranties shall be true and correct in all
respects without further qualification) as of the date when made
and as of the Closing Date as though made at that time (except for
representations and warranties that speak as of a specific date)
and the Company and Operating Sub shall have performed, satisfied
and complied in all material respects with the covenants,
agreements and conditions required by this Agreement to be
performed, satisfied or complied with by the Company and Operating
Sub at or prior to the Closing Date.

 

9.4 The Buyers shall
have received an opinion of counsel to the Company, as of the
Initial Closing Date, in a form satisfactory to the Buyers and
their counsel.

 

9.5 The Company and
Operating Sub shall have each executed and delivered to Buyers a
closing certificate in substance and form required by Buyers, which
closing certificate shall include and attach as exhibits: (i) a
true copy of a certificate of good standing evidencing the
formation and good standing of the Company and Operating Sub, as
applicable, from the secretary of state (or comparable office) from
the jurisdiction in which they are each incorporated, as of a date
within ten (10) days of the Initial Closing Date; (ii) the
Company’s and Operating Sub’s Articles of
Incorporation; (iii) the Company’s and Operating Sub’s
Bylaws; and (iv) copies of the resolutions of the board of
directors of the Company and Operating Sub, consistent with
Section 6.3, as
adopted by the Company’s and Operating Sub’s board of
directors in a form reasonably acceptable to Buyers.

 

9.6 No event shall have
occurred which could reasonably be expected to have a Material
Adverse Effect.

 


 




 

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ARTICLE
X



INDEMNIFICATION

 

10.1 Company’s
Obligation to Indemnify. In consideration of the
Buyers’ execution and delivery of this Agreement and
acquiring the Shares hereunder, and in addition to all of the
Company’s and Operating Sub’s other obligations under
this Agreement, the Company and Operating Sub, jointly and
severally, hereby agree to defend and indemnify each Buyer and each
Buyer’s Affiliates and subsidiaries, and their respective
directors, officers, employees, agents and representatives, and the
successors and assigns of each of them (collectively, the
“Buyer Indemnified
Parties”) and the Company and Operating Sub do hereby
agree to hold the Buyer Indemnified Parties harmless, from and
against any and all Claims made, brought or asserted against the
Buyer Indemnified Parties, or any one of them, and the Company and
Operating Sub hereby agree to pay or reimburse the Buyer
Indemnified Parties for any and all Claims payable by any of the
Buyer Indemnified Parties to any Person, including reasonable
attorneys’ and paralegals’ fees and expenses, court
costs, settlement amounts, costs of investigation and interest
thereon from the time such amounts are due at the highest
non-usurious rate of interest permitted by applicable Law, through
all negotiations, mediations, arbitrations, trial and appellate
levels, as a result of, or arising out of, or relating to: (i) any
misrepresentation or breach of any representation or warranty made
by the Company or Operating Sub in this Agreement, the Transaction
Documents or any other certificate, instrument or document
contemplated hereby or thereby; (ii) any breach of any covenant,
agreement or Obligation of the Company or Operating Sub contained
in this Agreement, the Transaction Documents or any other
certificate, instrument or document contemplated hereby or thereby;
or (iii) any Claims brought or made against the Buyer Indemnified
Parties, or any one of them, by any Person and arising out of or
resulting from the execution, delivery, performance or enforcement
of this Agreement, the Transaction Documents or any other
instrument, document or agreement executed pursuant hereto or
thereto, any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of the issuance of
the Shares, or the status of the Buyers of any of the Shares, as a
buyer and holder of such Shares in the Company. To the extent that
the foregoing undertaking by the Company and Operating Sub may be
unenforceable for any reason, the Company and Operating Sub shall
make the maximum contribution to the payment and satisfaction of
each of the Claims covered hereby, which is permissible under
applicable Law. The Company will not be liable to any Buyer under
this indemnity: (i) for any settlement by a Buyer in connection
with any Claim effected without the Company’s prior written
consent, which consent shall not be unreasonably withheld,
conditioned or delayed; or (ii) to the extent, but only to the
extent, that a Claim is attributable to any Buyer’s breach of
any of the representations, warranties, covenants or agreements
made by such Buyer in this Agreement or in the other Transaction
Documents.

 


ARTICLE
XI



MATTERS RELATING TO THE BUYERS

 

11.1 Independent
Nature of Buyers’ Obligations and Rights. The
obligations of each Buyer under this Agreement and the Transaction
Documents are several and not joint with the obligations of any
other Buyer, and no Buyer shall be responsible in any way for the
performance of the obligations of any other Buyer under any one or
more of the Transaction Documents. The decision of each Buyer to
purchase the Shares pursuant to the Transaction Documents has been
made by each such Buyer independently of any other Buyer and
independently of any information, materials, statements or opinions
as to the business, affairs, operations, assets, properties,
liabilities, results of operations, condition (financial or
otherwise) or prospects of the Company or of its subsidiaries, if
any, which may have been made or given by any other Buyer or any of
their respective officers, directors, principals, employees,
agents, counsel or representatives (collectively, including the
Buyer in question, the “Buyer
Representatives”). No Buyer Representative shall have
any liability to any other Buyer or the Company relating to or
arising from any such information, materials, statements or
opinions, if any. Each Buyer acknowledges that no other Buyer has
acted as agent for such Buyer in connection with making its
investment hereunder and that no Buyer will be acting as agent of
such other Buyer in connection with monitoring its investment in
the Shares or enforcing its rights under the Transaction Documents.
Each Buyer shall be entitled to independently protect and enforce
its rights, including, without limitation, the rights arising out
of this Agreement or out of the other Transaction Documents, and it
shall not be necessary for any other Buyer to be joined as an
additional party in any Proceeding for such purpose. The Company
and each of the Buyers acknowledge that, for reasons of
administrative convenience the Company has elected to provide each
of the Buyers with the same Transaction Documents for the purpose
of closing a transaction with multiple Buyers and not because it
was required or requested to do so by any Buyer. In furtherance of
the foregoing, and not in limitation thereof, the Company and the
Buyers acknowledge that nothing contained in this Agreement or in
any Transaction Document, and no action taken by any Buyer pursuant
thereto, shall be deemed to constitute any two or more Buyers as a
partnership, an association, a joint venture or any other kind of
entity, or create a presumption that the Buyers are in any way
acting in concert or as a group with respect to such obligations or
the transactions contemplated by the Transaction
Documents.

 

 




 

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11.2 Equal
Treatment of Buyers. No consideration shall be offered or
paid to any Buyer to amend or consent to a waiver or modification
of any provision of any of the Transaction Documents, unless the
same consideration is also offered to all of the other Buyers
parties to the Transaction Documents.

 


ARTICLE
XII



MISCELLANEOUS

 

12.1 Notices.
All notices of request, demand and other communications hereunder
shall be addressed to the parties as follows:

 

If to the
Company:                 
Mobivity Holdings Corp.


55 N.
Arizona Place, Suite 310


Chandler AZ
85225


Facsimile: (858)
712-4597


 

With
a copy
to:                      
Greenberg Traurig, LLP


3161
Michelson Drive, Suite 1000


Irvine,
CA 92612


Attention:
Daniel K. Donahue


Facsimile:
(949) 732-6501


 

If
to the
Buyers:                     
To each Buyer based on the information set forth in the Schedule of
Buyers attached hereto


 


unless
the address is changed by the party by like notice given to the
other parties. Notice shall be in writing and shall be deemed
delivered: (i) if mailed by certified mail, return receipt
requested, postage prepaid and properly addressed to the address
below, then three (3) business days after deposit of same in a
regularly maintained U.S. Mail receptacle; or (ii) if mailed by
Federal Express, UPS or other nationally recognized overnight
courier service, next business morning delivery, then one (1)
business day after deposit of same in a regularly maintained
receptacle of such overnight courier; or (iii) if hand delivered,
then upon hand delivery thereof to the address indicated on or
prior to 5:00 p.m., New York time, on a business day. Any notice
hand delivered after 5:00 p.m., New York time, shall be deemed
delivered on the following business day. Notwithstanding the
foregoing, notice, consents, waivers or other communications
referred to in this Agreement may be sent by facsimile, e-mail, or
other method of delivery, but shall be deemed to have been
delivered only when the sending party has confirmed (by reply
e-mail or some other form of written confirmation from the
receiving party) that the notice has been received by the other
party.

 

12.2 Entire
Agreement. This Agreement, including the Exhibits and
Schedules attached hereto and the documents delivered pursuant
hereto, including the Transaction Documents, set forth all the
promises, covenants, agreements, conditions and understandings
between the parties hereto with respect to the subject matter
hereof and thereof, and supersede all prior and contemporaneous
agreements, understandings, inducements or conditions, expressed or
implied, oral or written, except as contained herein and in the
Transaction Documents.

 

12.3 Successors
and Assigns. This Agreement, and any and all rights, duties
and obligations hereunder, shall not be assigned, transferred,
delegated or sublicensed by the Company without the prior written
consent of each Buyer. Subject to the foregoing and except as
otherwise provided herein, the provisions of this Agreement shall
inure to the benefit of, and be binding upon, the successors,
assigns, heirs, executors and administrators of the parties
hereto.

 

12.4 Binding
Effect. This Agreement shall be binding upon the parties
hereto, their respective successors and permitted
assigns.

 




 

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12.5 Amendment.
The parties hereby irrevocably agree that no attempted amendment,
modification, or change of this Agreement shall be valid and
effective, unless the parties shall unanimously agree in writing to
such amendment, modification or change.

 

12.6 No
Waiver. No waiver of any provision of this Agreement shall
be effective, unless it is in writing and signed by the party
against whom it is asserted, and any such written waiver shall only
be applicable to the specific instance to which it relates and
shall not be deemed to be a continuing or future
waiver.

 

12.7 Gender
and Use of Singular and Plural. All pronouns shall be deemed
to refer to the masculine, feminine, neuter, singular or plural, as
the identity of the party or parties or their personal
representatives, successors and assigns may require.

 

12.8 Execution.
This Agreement may be executed in one or more counterparts, all of
which taken together shall be deemed and considered one and the
same Agreement, and same shall become effective when counterparts
have been signed by each party and each party has delivered its
signed counterpart to the other party. In the event that any
signature is delivered by facsimile transmission or by e-mail
delivery of a “.pdf” format file or other similar
format file, such signature shall be deemed an original for all
purposes and shall create a valid and binding obligation of the
party executing same with the same force and effect as if such
facsimile or “.pdf” signature page was an original
thereof.

 

12.9 Headings.
The article and section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the
meaning or interpretation of the Agreement.

 

12.10 Governing
Law. All questions concerning the construction, validity,
enforcement and interpretation of the Transaction Documents shall
be governed by and construed and enforced in accordance with the
internal laws of the State of New York, without regard to the
principles of conflicts of law thereof. Each party agrees that all
legal proceedings concerning the interpretations, enforcement and
defense of the transactions contemplated by this Agreement and any
other Transaction Documents (whether brought against a party hereto
or its respective affiliates, directors, officers, shareholders,
employees or agents) shall be commenced exclusively in the state
and federal courts sitting in the State of New York. Each party
hereby irrevocably submits to the exclusive jurisdiction of the
state and federal courts sitting in the State of New York, for the
adjudication of any dispute hereunder or in connection herewith or
with any transaction contemplated hereby or discussed herein, and
hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject
to the jurisdiction of any such court, that such suit, action or
proceeding is brought in an inconvenient forum or that the venue of
such suit, action or proceeding is improper. Nothing contained
herein shall be deemed to limit in any way any right to serve
process in any manner permitted by law. Each party hereby
irrevocably waives any right it may have, and agrees not to
request, a jury trial for the adjudication of any dispute hereunder
or in connection with or arising out of this Agreement or any
transaction contemplated hereby. If either party shall commence an
action or proceeding to enforce any provisions of the Transaction
Documents, then the prevailing party in such action or proceeding
shall be reimbursed by the other party for its reasonable
attorneys’ fees and other costs and expenses incurred with
the investigation, preparation and prosecution of such action or
proceeding.

 

12.11 Further
Assurances. The parties hereto will execute and deliver such
further instruments and do such further acts and things as may be
reasonably required to carry out the intent and purposes of this
Agreement.

 

12.12 Survival.
The representations and warranties contained herein shall survive
the Closing and the delivery of the Shares. Each Buyer shall be
responsible only for its own representations, warranties and
covenants hereunder.

 

12.13 Time
is of the Essence. The parties hereby agree that time is of
the essence with respect to performance of each of the
parties’ Obligations under this Agreement. The parties agree
that in the event that any date on which performance is to occur
falls on a Saturday, Sunday or state or national holiday, then the
time for such performance shall be extended until the next business
day thereafter occurring.

 

 




 

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12.14 Joint
Preparation. The preparation of this Agreement has been a
joint effort of the parties and the resulting documents shall not,
solely as a matter of judicial construction, be construed more
severely against one of the parties than the other.

 

12.15 Severability.
If any one of the provisions contained in this Agreement, for any
reason, shall be held invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not
affect any other provision of this Agreement, and this Agreement
shall remain in full force and effect and be construed as if the
invalid, illegal or unenforceable provision had never been
contained herein.

 

12.16 No
Third Party Beneficiaries. This Agreement is intended for
the benefit of the parties hereto and their respective permitted
successors and assigns, and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person.

 

12.17 WAIVER
OF JURY TRIAL. THE BUYERS AND THE COMPANY, AFTER CONSULTING
OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, EACH
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES, IRREVOCABLY, THE
RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING BASED
HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT OR ANY OTHER AGREEMENT
EXECUTED OR CONTEMPLATED TO BE EXECUTED IN CONJUNCTION WITH THIS
AGREEMENT, OR ANY COURSE OF CONDUCT OR COURSE OF DEALING IN WHICH
THE BUYERS AND THE COMPANY ARE ADVERSE PARTIES. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE BUYERS TO PURCHASE THE NEW
NOTES.

 

12.18 Compliance
with Federal Law. The Company shall: (i) ensure that no
Person who owns a controlling interest in or otherwise controls the
Company is or shall at any time be listed on the Specially
Designated Nationals and Blocked Person List or other similar lists
maintained by the Office of Foreign Assets Control
(“OFAC”), the
Department of the Treasury, included in any Executive Orders or in
any other similar lists of any Governmental Authority; (ii) not use
or permit the use of the proceeds of the purchase of the Shares to
violate any of the foreign asset control regulations of OFAC or any
enabling statute, Executive Order relating thereto or any other
requirements or restrictions imposed by any Governmental Authority;
and (iii) comply with all applicable Lender Secrecy Act
(“BSA”) laws and
regulations, as amended.

 


[SIGNATURES
ON THE FOLLOWING PAGE]

 


 




 

-20-








 






 


IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date and year set forth above.


 


COMPANY:


 


MOBIVITY
HOLDINGS CORP.,


a
Nevada corporation


 


 



By:                                                     








Name:
Dennis Becker


Title:
Chief Executive Officer


 


 


OPERATING
SUB:


 


MOBIVITY,
INC.,


a
Nevada corporation


 


 



By:                                                     








Name:
Dennis Becker


Title:
Chief Executive Officer


 


 


BUYERS:


 

See Signature pages
for each Buyer attached


 




 

-21-








 










 



SIGNATURE PAGE FOR SECURITIES PURCHASE AGREEMENT


 



WITH MOBIVITY HOLDINGS CORP.


 


By its
execution below, the undersigned Buyer hereby acknowledges and
agrees to the terms set forth in the Securities Purchase Agreement
to which this signature page is attached.


 


	

FOR
ENTITY INVESTORS:


 

 


[Name
of Entity]


 

 


By:           


Name:   
     
                 
              
                




Title:           


 

	

FOR
INDIVIDUAL INVESTORS:


 

 


Signature:                                                                 


Name: 


Signature:                                                                 


Name: 


 

 


 


	
 

	
 


	

WORK
ADDRESS:


 

 


 

 


Attention:                                                                 


Phone: 


Fax:                                                                 


E-mail:                                                                 


Taxpayer
ID#: 


 

	

HOME
ADDRESS:


 

 


 

 


Phone: 


SSN:                                                                 


 







 

 


Number
of Shares to be Purchased: _________________

 




 

-22-








 










 



EXHIBIT “A”

 



MOBIVITY HOLDINGS CORP.

 



NOTICE OF CONVERSION

 


Reference is made
to the Promissory Note dated February __, 2018 in the original
principal amount of $______ (the “Promissory Note”) issued to the undersigned
by Mobivity Holdings Corp. (the “Company”). Pursuant to Sections
4.1 and 4.4 of that certain Securities Purchase Agreement
(“Agreement”)
dated June 28, 2018 between the Company and the Buyers (such term
and all other capitalized terms used herein not otherwise defined
to have the same meaning given in the Agreement) named therein, the
undersigned hereby elects to convert $______ of the outstanding
principal amount and $________ of accrued interest under the
Promissory Note into Shares at the rate of the $___ per Share, as
of the date specified below.

 


	

Date of
Conversion:

	

June
__, 2018


	

Aggregate
Conversion Amount to be converted:

	

$_____________


	

Conversion
Price:

	

$____


	

Number
of shares of Common Stock to be issued:

	

_______________







 


The
undersigned covenants and agrees to take all further actions and
execute all further acknowledgements and agreements as the Company
may reasonably request for purposes of evidencing the
undersigned’s election to convert the Promissory Note into
the Shares hereby.


 


IN
WITNESS WHEREOF, the undersigned has caused this Notice of
Conversion to be executed as of the date and year set forth
below.


 


_________________________________


(Signature)


 


_________________________________


(Print
Name)


 


_________________________________


(Date)


 


Agreed
and Accepted:


 


MOBIVITY
HOLDINGS CORP., a Nevada corporation


 


 



By:                                                      






Name:
Dennis Becker,


Title:
Chief Executive Officer


 



-23-