Exhibit 10.1


 


EXCHANGE AGREEMENT


 


THIS EXCHANGE AGREEMENT
(“Agreement”) is entered into as of July 31, 2017, by and between CloudCommerce, Inc., a Nevada corporation (the “Company”),
and Bountiful Capital, LLC, a Nevada limited liability company, (the “Investor”), with respect to the following facts:


 


R E C I T A L S


 


A.       The
Company entered into loan transactions with the Investor in the aggregate principal amount of $1,442,500, as described below,
which were evidenced by certain promissory Notes (the “Notes”), copies of which are attached hereto as Exhibit A.


 





	Effective Date	 	Annual Interest	 	 	Outstanding Principal Balance	 
	January 12, 2016	 	 	0	%	 	$	100,000	 
	April 18, 2016	 	 	5	%	 	$	500,000	 
	October 3, 2016	 	 	5	%	 	$	500,000	 
	May 16, 2017	 	 	5	%	 	$	38,000	 
	May 30, 2017	 	 	5	%	 	$	46,000	 
	June 14, 2017	 	 	5	%	 	$	26,000	 
	June 29, 2017	 	 	5	%	 	$	23,500	 
	July 10, 2017	 	 	5	%	 	$	105,000	 
	July 14, 2017	 	 	5	%	 	$	50,500	 
	July 30, 2017	 	 	5	%	 	$	53,500	 
	 	 	 	 	 	 	$	1,442,500	 





 


B.       The
Investor desires to waive the unpaid interest and tender the Notes to the Company for cancellation, including all outstanding principal,
in exchange for the issuance by the Company to Investor of 14,425 shares of the Company’s Series C Preferred Stock
(the “Shares”).


 


C.       The
Company desires to issue the Shares to the Investor in exchange for the cancellation of the Notes.


 


D.       The
closing of the transactions contemplated by this Agreement (the “Closing”) will be deemed to have occurred upon the
completion of the deliveries by each Party to this Agreement described in Section 2 of this Agreement.


 


NOW, THEREFORE,
for good and valuable consideration the receipt and sufficiency of which are hereby acknowledged by the parties to this Agreement,
and in light of the recitals stated above, the parties to this Agreement hereby agree as follows:


 






    


     


    

 


Section 1.EXCHANGE OF NOTES FOR
SHARES


 


The Investor agrees
to tender the Notes to the Company for cancellation in exchange for which the Company agrees to issue 14,425 Shares of the
Company’s Series C Preferred Stock to the Investor. The Investor agrees that upon delivery of the Shares to the Investor,
the Notes shall be deemed fully paid and satisfied, null and void and no interest, fees or principal shall be due thereon. In the
event the Notes are lost or destroyed, the Investor hereby warrants that the Notes are lost or destroyed and agrees to immediately
surrender to the Company said Notes should it later be found and the Investor shall provide the Company with an affidavit of loss
of said Notes. The Investor hereby agrees to indemnify and hold harmless the Company and its affiliates against all liability,
costs, damages, claims or expenses which may be incurred by any of them as a result of any claim to ownership of the lost Notes
asserted by the Investor or by anyone other than Investor.


 


Section 2.DELIVERIES


 


2.1       The
Company. The Company will or will cause its transfer agent to a deliver certificate evidencing the Shares issuable to the Investor
within five (5) business days after delivery of the Notes or an affidavit that said Notes are lost by the Investor to the Company.


 


2.2       The
Investor. The Investor will deliver the Notes or an affidavit that said Notes are lost upon the execution of this Agreement.
The Investor also agrees to deliver any other document reasonably requested by the Company that it deems necessary for the consummation
of the transactions contemplated by this Agreement.


 


Section 3.EQUITABLE
Relief.


 


3.1       Damages
Inadequate. Each party acknowledges that it would be impossible to measure in money the damages to the other party if there
is a failure to comply with any covenants or provisions of this Agreement, and agrees that in the event of any breach of any covenant
or provision, the other party to this Agreement will not have an adequate remedy at law.


 


3.2        Equitable
Relief. It is therefore agreed that the other party to this Agreement who is entitled to the benefit of the covenants or provisions
of this Agreement which have been breached, in addition to any other rights or remedies which they may have, shall be entitled
to immediate equitable relief to enforce such covenants and provisions, and that in the event that any such action or proceeding
is brought in equity to enforce them, the defaulting or breaching party will not urge a defense that there is an adequate remedy
at law.


 


Section 4.Investor Representation
and Warranty


 


4.1       Investor’s
Representations and Warranties. As a material inducement to the Company to enter into this Agreement and consummate the exchange,
Investor represents warrants and covenants with and to the Company as follows:


 


		i.	Authorization and Binding Obligation. The Investor has the requisite legal capacity, power
and authority to enter into, and perform under, this Agreement, including with respect to canceling the note and receiving the
Shares. The execution, delivery and performance of this Agreement and performance by such Investor and the consummation by such
Investor of the transactions contemplated hereby and thereby have been duly authorized by all requisite corporate, partnership
or similar action on the part of such Investor and no further consent or authorization is required. This Agreement has been duly
authorized, executed and delivered by the Investor. This Agreement has been duly executed and delivered by the Investor, and constitute
the legal, valid and binding obligations of the Investor, enforceable against the Investor 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 or similar laws relating to, or affecting generally, the enforcement of applicable creditors' rights and
remedies and except as rights to indemnification and to contribution may be limited by federal or state securities laws.



 






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		ii.	Beneficial Owner. With respect to the Note (i) the Investor owns, beneficially and of record,
good and marketable title to the Note, free and clear of any taxes or encumbrances; (ii) the Note is not subject to any transfer
restriction, other than the restriction that the Note not been registered under the Securities Act of 1933, as amended (the “1933
Act”) and, therefore, cannot be resold unless registered under the 1933 Act or in a transaction exempt from or not subject
to the registration requirements of the 1933 Act; (iii) the Note has not entered into any agreement or understanding with any person
or entity to dispose of the Note; and (iv) at the Closing, the Investor will convey to the Company good and marketable title to
the Note, free and clear of any security interests, liens, adverse claims, encumbrances, taxes or encumbrances.



 


		iii.	Accredited Investor. Such Investor is an accredited investor as defined in Rule 501(a) of
Regulation D, as amended, under the 1933 Act.



 


		iv.	Purchase Entirely for Own Account. The Shares to be received by the Investor hereunder will
be acquired for such Investor’s own account, not as nominee or agent, and not with a view to the resale or distribution of
any part thereof in violation of the 1933 Act, and such Investor has no present intention of selling, granting any participation
in, or otherwise distributing the same in violation of the 1933 Act without prejudice, however, to such Investor’s right
at all times to sell or otherwise dispose of all or any part of such Shares in compliance with applicable federal and state securities
laws. Nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any
period of time. The Investor is not a broker-dealer registered with the SEC under the Securities Exchange Act of 1934, as amended
(the “1934 Act”) or an entity engaged in a business that would require it to be so registered.



 


		v.	Disclosure of Information. Such Investor has had an opportunity to receive all information
related to the Company requested by it and to ask questions of and receive answers from the Company regarding the Company, its
business and the terms and conditions of the offering of the Shares. Such Investor acknowledges receipt of copies of the Company’s
most recent Annual Report on Form 10-K for its last fiscal year and all other reports filed by the Company pursuant to the 1934
Act since the filing of the 10-K and prior to the date hereof.



 


		vi.	Proceedings. No proceedings relating to the Note is pending or, to the knowledge of the
Investor, threatened before any court, arbitrator or administrative or governmental body that would adversely affect the Investor’s
right and ability to surrender and exchange the Note.



 


		vii.	Tax Consequences. The Investor acknowledges that the contents this Agreement do not contain
tax advice and Investor acknowledges that it has not relied and will not rely upon the Company with respect to any tax consequences
related to the exchange of the Note and receipt of the Shares. The Investor assumes full responsibility for all such consequences
and for the preparation and filing of any tax returns and elections which may or must be filed in connection with such Note and/or
the exchange of the Note for the Shares.



 






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		viii.	Reliance on Exemptions. The Investor understands that the Shares are being offered and exchanged
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 the Investor’s compliance with, the representations, warranties,
agreements, acknowledgments and understandings of the Investor set forth herein and in order to determine the availability of such
exemptions and the eligibility of the Investor to acquire the Securities.



 


		ix.	Neither the Investor
nor its agent or representative has engaged any broker or finder or incurred any liability for any brokerage fees, commissions
or finders’ fees in connection with the Transactions contemplated herein.



 


Section 5.MISCELLANEOUS


 


5.1       Further
Assurances. The parties to this Agreement hereby agree to execute any other documents and take any further actions, which are
reasonably necessary or appropriate in order to implement the transactions contemplated by this Agreement.


 


5.2       Counterparts.
This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken
together, shall constitute one agreement.


 


5.3       Governing
Law. This Agreement shall be construed in accordance with, and governed in all respects by, the laws of the State of Nevada.
The federal and state courts located in Clark County, Nevada shall have sole and exclusive subject matter jurisdiction over this
Agreement and the parties expressly consent to personal jurisdiction in Nevada for the purpose of resolving any dispute related
to the making or interpretation of this Agreement.


 


5.4       Successors
and Assigns. This Agreement shall be binding upon the parties hereto and their respective heirs, successors and assigns, if
any, and shall inure to the benefit of the parties hereto and their respective heirs, successors and assigns, if any.


 






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5.5       Legends.
The Investor understands that the Shares are characterized as “restricted securities” under the 1933 Act. The Investor
further acknowledges that if the Shares are issued to the Investor in accordance with the provisions of this Agreement, such Shares
may not be resold without registration under the Securities Act or the existence of an exemption therefrom. The Investor represents
that it is familiar with Rule 144 promulgated under the 1933 Act, as presently in effect, and understands the resale limitations
imposed thereby and by the 1933 Act. Investor acknowledges that the certificate(s) representing the Debentures shall each conspicuously
set forth on the face or back thereof a legend in substantially the following form:


 


THIS SECURITY HAS
NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE
STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL
BE REASONABLY ACCEPTABLE TO THE COMPANY. THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED
BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a)
UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES.


 


and any legend required by the “blue
sky” laws of any state to the extent such laws are applicable to the securities represented by the certificates with such
legend.


 


5.6       Severability.
The provisions of this Agreement are severable and in the event that one or more of its provisions are deemed to be unenforceable
or invalid for any reason, such finding will not affect the enforceability or validity of any other provision of this Agreement,
which shall remain in full force and effect.


 


5.7       Public
Disclosure. The Company and the Investor agree not to issue any public statement with respect to the Investor’s investment
or proposed investment in the Company or the terms of any agreement or covenant without the other party’s prior written consent,
except such disclosures as may be required under applicable law or under any applicable order, rule or regulation.


 


5.8       Waiver.
No failure or delay on the part of either party hereto in the exercise of any power, right or privilege hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude any other or further
exercise thereof or of any other power, right or privilege.


 


5.09        Entire
Agreement. This Agreement sets forth the entire understanding of the parties hereto and supersedes all prior agreements and
understandings between the parties relating to the subject matter hereof.


 


5.10        Parties
in Interest. None of the provisions of this Agreement or of any other document relating hereto is intended to provide any rights
or remedies to any person (including, without limitation, any employees or creditors of the Company) other than the parties hereto
and their respective heirs, successors and assigns, if any.


 


5.11       Authorized
Signatures. Each party to this Agreement hereby represents that the persons signing below are duly authorized to execute this
Agreement on behalf of their respective party.


 


 




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IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be executed as of the date first above written.


 


 


	COMPANY:	CLOUDCOMMERCE, INC.
	 	 	 
	 	By:	/s/ Andrew VanNoy
	 	 	Andrew Van Noy, Chief Executive Officer
	 	 	 
	INVESTOR:	BOUNTIFUL CAPITAL, LLC
	 	 	 
	 	By:	/s/ Greg Boden
	 	 	Greg Boden, President
	 	 	 



 




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EXHIBIT A


 


NOTES