MERRIMAN HOLDINGS, INC.


 


 


 


 


COMMON STOCK PURCHASE AGREEMENT


 


________, 2014


 


 


 


 


 


 


 


 








    	 



    	 



    

MERRIMAN HOLDINGS, INC.


 


COMMON STOCK PURCHASE AGREEMENT


 


This Common Stock Purchase
Agreement (this “Agreement”) is made as of _______, 2014


 


, by and among Merriman
Holdings, Inc., a Delaware corporation (the “Company”), and the persons and entities (each, an “Investor”
and collectively, the “Investors”) shown on the signature pages hereto.


 


SECTION 1



Authorization, Sale and Issuance of Common Stock. 


 


1.1           
Authorization.  The Company has, prior to the Closing (as defined below), authorized (a) the sale and issuance
of up to $1,000,000 in shares of the Company’s Common Stock, par value $0.0001 per share (the “Shares”);
(b) the issuance of the Warrants (as defined below); and (c) the reservation of shares of Common Stock for issuance upon exercise
of the Warrants, (as defined below) (the “Warrant Shares”).


 


1.2           
Sale and Issuance of Shares.  Subject to the terms and conditions of this Agreement, each Investor agrees, severally
and not jointly, to purchase, and the Company agrees to sell and issue to each Investor, the number of Shares set forth in the
column designated “Number of Shares” opposite such Investor’s name on the Schedule of Investors, at a
cash purchase price per share equal to $0.06 per share (the “Purchase Price”). For each share of Common Stock
purchased, the Company shall issue a warrant to purchase 25% of one additional share of Common Stock at a purchase price equal
to 133% of the Purchase Price, in the form attached hereto as Exhibit A (the “Warrants”). The Company’s
agreement with each Investor is a separate agreement, and the sale and issuance of the Shares to each Investor is a separate sale
and issuance.


 


SECTION 2



Closing Dates and Delivery. 


 


2.1           
Closing.  The purchase and sale of the Shares shall take place at one or more closings (each, a “Closing”).
No agreement binding upon the Company or any Investor shall be created until the Closing. The Closing shall be deemed to take place
at the offices of Merriman Holdings, Inc. 250 Montgomery Street, 16th Floor, San Francisco, CA 94104, at 1:30 p.m. local
time on the date hereof.


 






    	 



    	 



    

 


2.2           
Delivery.  At the Closing, each Investor shall tender payment of the purchase price for the number of Shares
that such Investor is purchasing in the Closing as set forth in the column designated “Purchase Price” opposite
such Investor’s name on the Schedule of Investors by means of either: (i) a wire transfer to the Company, or (ii) a check
satisfactory to the Company, or (iii) any combination of the foregoing.


 


2.3           
 Issuance. Promptly following the Closing, the Company shall (i) cause the Company’s transfer agent to issue
a certificate in each Investor’s name representing the number of Shares that such Investor is purchasing in the Closing;
and (ii) issue a Warrant in each Investor’s name for the purchase of shares of Common Stock in accordance with the provisions
of this agreement.


 


SECTION 3



Representations and Warranties of the Company. 


 


The Company hereby
represents and warrants to each of the Investors as follows:


 


3.1           
Organization, Good Standing and Qualification.  The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. The Company has the corporate or other power and any required certificates,
authorizations or permits issued by any regulatory body to own, manage, lease and hold its properties and to carry on its business
as described in the SEC Documents as and where such properties are presently located and such business is presently conducted.


 


3.2           
Authority, Approval and Enforceability. This Agreement has been duly executed and delivered by the Company, and the
Company has all requisite corporate power and legal capacity to execute and deliver this Agreement, and the Warrants, to issue
and sell the Shares, the Warrants and the Warrant Shares and to perform its obligations pursuant to this Agreement and the Certificate
of Designation. The Certificate of Designation has been filed with the State of Delaware. The execution and delivery of this Agreement
and the performance of the transactions contemplated hereby has been duly and validly authorized and approved by all corporate
action necessary on the part of the Company, any subsidiary and their respective officers and directors on behalf of the Company
or subsidiary and all stockholders on behalf of each Subsidiary. This Agreement constitutes the legal, valid and binding obligation
of the Company, enforceable in accordance with its terms, except as such enforcement may be limited by general equitable principles
or by applicable bankruptcy, insolvency, moratorium, or similar laws and judicial decisions from time to time in effect which affect
creditors’ rights generally.


 






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3.3           
Issuance of Securities. The Company has full power and authority to issue the Shares, the Warrants and Warrant Shares
(collectively, the “Securities”). The issuance of the Securities has been duly authorized, and upon receipt
and acceptance of consideration from the Investor, the Shares and the Warrants when issued will be legally and validly issued,
fully paid and non-assessable, free and clear of all liens, charges and encumbrances. The Warrant Shares have been duly reserved
for issuance and sale pursuant to their terms and, when paid for, issued and delivered by the Company pursuant to due exercise
of the Warrants will be validly issued, fully paid and nonassessable; provided, however, that the Securities may be subject to
restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at
the time a transfer is proposed. The Company has taken all action required by its Articles of Incorporation and Bylaws to approve
the offer and sale of the Securities.


 


3.4           
Use of Proceeds. The Company intends to use approximately $150,000 of the proceeds for payments pursuant to a litigation
settlement, and approximately $600,000 for repayment of indebtedness. The balance of proceeds will be used for working capital
and general corporate purposes for itself and Merriman Capital. The Company does not intend to pay commissions or fees to in connection
with this offering.


 


SECTION 4



Representations and Warranties of the Investors. 


 


Each Investor hereby,
severally and not jointly, represents and warrants to the Company as follows:


 


4.1           
 Public Information on Company. The Investor has had access at the EDGAR Website of the SEC to the Company’s
Form 10-K/A, filed on April 30, 2013, and Form 10-K filed on April 1, 2013, for the year ended December 31, 2012 and the Company’s
Form 10-K/A, filed on April 30, 2012, for the year ended December 31, 2011, as filed with the SEC, together with all subsequently
filed Forms 10-Q, 8-K, and other filings made with the SEC available on the SEC’s EDGAR website (any such document, an “SEC
Document”). The Investor has reviewed the risk factors and other information contained in the SEC Documents. The Investor
has considered the risk factors and other all factors the Investor deems material in the SEC Documents in deciding on the advisability
of investing in the Securities.


 


4.2           
Other Information.  Such Investor has had an opportunity to ask questions of, and receive answers from, the
officers of the Company concerning this Agreement, the exhibits and schedules attached hereto and thereto and the transactions
contemplated by this Agreement, as well as the Company’s business, management and financial affairs, which questions were
answered to its satisfaction. Such Investor believes that it has received all the information such Investor considers necessary
or appropriate for deciding whether to purchase the Shares and the Warrants. Each Investor acknowledges that any business plan
or projection provided to such Investor was prepared by the management of the Company in a good faith effort to describe the Company’s
presently proposed business and products and the markets therefor. Each Investor also acknowledges that it is relying solely on
its own counsel and not on any statements or representations of the Company or its agents for legal advice with respect to this
investment or the transactions contemplated by this Agreement. The foregoing, however, does not limit or modify the representations
and warranties of the Company in Section 3 of this Agreement, or the right of Investor to rely on such representations or warranties.


 






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4.3           
No Registration.  Such Investor understands that the Shares and the shares issuable on exercise of the Warrants,
have not been, and will not be, registered under the Securities Act by reason of a specific exemption from the registration provisions
of the Securities Act, the availability of which depends upon, among other things, the bona fide nature of the investment intent
and the accuracy of such Investor’s representations as expressed herein or otherwise made pursuant hereto.


 


4.4           
Investment Intent.  Such Investor is acquiring the Shares and the Warrants for investment for its own account,
not as a nominee or agent, and not with the view to, or for resale in connection with, any distribution thereof, and that such
Investor has no present intention of selling, granting any participation in, or otherwise distributing the same. Such Investor
further represents that it does not have any contract, undertaking, agreement or arrangement with any person or entity to sell,
transfer or grant participation to such person or entity or to any third person or entity with respect to any of the Shares or
the Warrants.


 


4.5           
Investment Experience.  Such Investor has substantial experience in evaluating and investing in private placement
transactions of securities in companies similar to the Company and acknowledges that such Investor can protect its own interests.
Such Investor has such knowledge and experience in financial and business matters so that such Investor is capable of evaluating
the merits and risks of its investment in the Company.


 


4.6           
Speculative Nature of Investment.  Such Investor understands and acknowledges that the Company has a limited
financial and operating history and that an investment in the Company is highly speculative and involves substantial risks. Such
Investor can bear the economic risk of such Investor’s investment and is able, without impairing such Investor’s financial
condition, to hold the Shares and the Warrants for an indefinite period of time and to suffer a complete loss of such Investor’s
investment.


 






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4.7           
Accredited Investor.  The Investor is an “accredited investor” within the meaning of Regulation D,
Rule 501(a), promulgated by the Securities and Exchange Commission under the Securities Act and shall submit to the Company
such further assurances of such status as may be reasonably requested by the Company.


 


4.8           
Residency.  The residency of the Investor (or, in the case of a partnership or corporation, such entity’s
principal place of business) is correctly set forth on the Schedule of Investors.


 


4.9           
Rule 144.  Such Investor acknowledges that the Shares, the Warrants and the Warrant Shares, must be held
indefinitely unless subsequently registered under the Securities Act or an exemption from such registration is available. Such
Investor is aware of the provisions of Rule 144 promulgated under the Securities Act which permit limited resale of shares
purchased in a private placement subject to the satisfaction of certain conditions, including among other things, the existence
of a public market for the shares, the availability of certain current public information about the Company, the resale occurring
not less than six months after a party has purchased and paid for the security to be sold, the sale being effected through a “broker’s
transaction” or in transactions directly with a “market maker” and the number of shares being sold during any
three-month period not exceeding specified limitations. Such Investor acknowledges and understands that the Company may not be
satisfying the current public information requirement of Rule 144 at the time the Investor wishes to sell the Shares or the
Warrant Shares, and that, in such event, the Investor may be precluded from selling such securities under Rule 144, even if
the other requirements of Rule 144 have been satisfied. Such Investor acknowledges that, in the event all of the requirements
of Rule 144 are not met, registration under the Securities Act or an exemption from registration will be required for any
disposition of the Shares or the underlying Common Stock. Such Investor understands that, although Rule 144 is not exclusive,
the Securities and Exchange Commission has expressed its opinion that persons proposing to sell restricted securities received
in a private offering other than in a registered offering or pursuant to Rule 144 will have a substantial burden of proof
in establishing that an exemption from registration is available for such offers or sales and that such persons and the brokers
who participate in the transactions do so at their own risk.


 


4.10           
Authorization. 


 


(a)   
Such Investor has all requisite power and authority to execute and deliver the This Agreement, to purchase the Shares hereunder
and to carry out and perform its obligations under the terms of this Agreement. All action on the part of the Investor necessary
for the authorization, execution, delivery and performance of this Agreement, has been taken or will be taken prior to the Closing.


 


(b)  
This Agreement, when executed and delivered by the Investor, will constitute a valid and legally binding obligation of the
Investor, enforceable in accordance with its terms except:, (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of creditors’ rights generally, and (ii) as limited
by laws relating to the availability of specific performance, injunctive relief or other equitable remedies or by general principles
of equity.


 






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(c)   
No consent, approval, authorization, order, filing, registration or qualification of or with any court, governmental authority
or third person is required to be obtained by the Investor in connection with the execution and delivery of this Agreement by the
Investor or the performance of the Investor’s obligations hereunder.


 


4.11           
Legends.  Investor understands and agrees that the certificates evidencing the Shares, the Warrants and the
Warrant Shares, or any other securities issued in respect of the Shares or the Warrants upon any stock split, stock dividend, recapitalization,
merger, consolidation or similar event, shall bear the following legend (in addition to any legend required under applicable state
securities laws):


 


“THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”),
OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR
HYPOTHECATED EXCEPT AS PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS PURSUANT TO REGISTRATION OR AN EXEMPTION THEREFROM.
THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT SUCH OFFER, SALE OR TRANSFER,
PLEDGE OR HYPOTHECATION OTHERWISE COMPLIES WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.”


 


SECTION 5



Miscellaneous 


 


5.1           
Use of Proceeds. The Company intends to use approximately $150,000 of the proceeds for purchase of certain software
assets for use in the Financial Entrepreneur Platform business of the Company’s subsidiary, Merriman Capital, Inc., approximately
$200,000 for settlement of litigation against the Company and Merriman Capital, and approximately $300,000 for repayment of indebtedness.
The balance of proceeds will be used for working capital and general corporate purposes for the Company and Merriman Capital.


 






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5.2           
Amendment.  Neither this Agreement nor any term hereof may be amended, waived, discharged or terminated other
than by a written instrument referencing this Agreement and signed by the Company and the Investors holding at least a majority
of the Shares. Any such amendment, waiver, discharge or termination affected in accordance with this paragraph shall be binding
upon each holder of any securities purchased under this Agreement at the time outstanding (including securities into which such
securities have been converted or exchanged or for which such securities have been exercised) and each future holder of all such
securities. Each Investor acknowledges that by the operation of this paragraph, the holders of at least a majority of the Shares
will have the right and power to diminish or eliminate all rights of such Investor under this Agreement.


 


5.3           
Notices.  All notices and other communications required or permitted hereunder shall be in writing and shall
be mailed by registered or certified mail, postage prepaid, sent by facsimile or electronic mail or otherwise delivered by hand
or by messenger addressed:


 


(a)   
if to an Investor, at the Investor’s address, facsimile number or electronic mail address as shown in the Company’s
records, as may be updated in accordance with the provisions hereof;


 


(b)  
if to the Company, one copy should be sent to 250 Montgomery Street, 16th Floor, San Francisco, CA 94104, Attn:
Chief Executive Officer, or at such other address as the Company shall have furnished to the Investors, with a copy to 250 Montgomery
Street, 16th Floor, San Francisco, CA 94104, Attn: General Counsel.


 


With respect to any
notice given by the Company under any provision of the Delaware General Corporation Law, the Certificate of Designation or the
Company’s Bylaws, each Investor agrees that such notice may be given by facsimile or by electronic mail (with confirmed delivery).


 


Each such notice or
other communication shall for all purposes of this Agreement be treated as effective or having been given when delivered if delivered
personally, or, if sent by mail, at the earlier of its receipt or 3 business days after the same has been deposited in a regularly
maintained receptacle for the deposit of the United States mail, addressed and mailed as aforesaid or, if sent by facsimile, the
business day following confirmation of facsimile transfer or, if sent by electronic mail, the business day following confirmation
of delivery when directed to the electronic mail address provided pursuant hereto, or, if sent by nationally recognized overnight
delivery service, on the date when delivered.


 


5.4           
Governing Law.  This Agreement shall be governed in all respects by the internal laws of the State of California,
without regard to principles of conflicts of law.


 


5.5           
Expenses.  The Company and the Investors shall each pay their own expenses in connection with the transactions
contemplated by this Agreement.


 






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5.6           
Successors and Assigns.  Except as otherwise provided herein, the terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective successors and assigns of the parties (including permitted transferees
of any Shares sold hereunder or any Warrants). Nothing in this Agreement, express or implied, is intended to confer upon any party
other than the parties hereto or their respective successors and assigns any rights, remedies, obligations or liabilities under
or by reason of this Agreement, except as expressly provided in this Agreement. This provision shall not limit an Investor right
to transfer any securities pursuant to the terms of this Agreement.


 


5.7           
Entire Agreement.  This Agreement, including the exhibits attached hereto and thereto, constitutes the full
and entire understanding and agreement among the parties with regard to the subjects hereof and thereof. No party shall be liable
or bound to any other party in any manner with regard to the subjects hereof or thereof by any warranties, representations or covenants
except as specifically set forth herein or therein.


 


5.8           
Delays or Omissions.  Except as expressly provided herein, no delay or omission to exercise any right, power
or remedy accruing to any party to this Agreement upon any breach or default of any other party under this Agreement shall impair
any such right, power or remedy of such non-defaulting party, nor shall it be construed to be a waiver of any such breach or default,
or an acquiescence therein, or of or in any similar breach or default thereafter occurring, nor shall any waiver of any single
breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent
or approval of any kind or character on the part of any party of any breach or default under this Agreement, or any waiver on the
part of any party of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to any party
to this Agreement, shall be cumulative and not alternative.


 


5.9           
California Corporate Securities Law.  THE SALE OF THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS
NOT BEEN QUALIFIED WITH THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH SECURITIES OR THE
PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO SUCH QUALIFICATION IS UNLAWFUL UNLESS THE SALE OF SECURITIES
IS EXEMPT FROM QUALIFICATION BY SECTION 25100, 25102, OR 25105 OF THE CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO
THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO EXEMPT.


 






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5.10           
Severability.  If any provision of this Agreement becomes or is declared by a court of competent jurisdiction
to be illegal, unenforceable or void, portions of such provision, or such provision in its entirety, to the extent necessary, shall
be severed from this Agreement, and such court will replace such illegal, void or unenforceable provision of this Agreement with
a valid and enforceable provision that will achieve, to the extent possible, the same economic, business and other purposes of
the illegal, void or unenforceable provision. The balance of this Agreement shall be enforceable in accordance with its terms.


 


5.11           
Counterparts.  This Agreement may be executed in any number of counterparts, each of which shall be enforceable
against the parties actually executing such counterparts, and all of which together shall constitute one instrument.


 


5.12           
Telecopy Execution and Delivery.  A facsimile, telecopy or other reproduction of this Agreement may be executed
by one or more parties hereto and delivered by such party by facsimile or any similar electronic transmission device pursuant to
which the signature of or on behalf of such party can be seen. Such execution and delivery shall be considered valid, binding and
effective for all purposes. At the request of any party hereto, all parties hereto agree to execute and deliver an original of
this Agreement as well as any facsimile, telecopy or other reproduction hereof.


 


5.13           
Jurisdiction; Venue.  With respect to any disputes arising out of or related to this Agreement, the parties
consent to the exclusive jurisdiction of, and venue in, the federal and state courts in the city and county of San Francisco, CA.
EACH OF THE PARTIES KNOWINGLY, INTENTIONALLY AND VOLUNTAIRILY WITH AND UPON THE ADVICE OF COMPETENT COUNSEL IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PORCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
THEREBY.


 


5.14           
Further Assurances.  Each party hereto agrees to execute and deliver, by the proper exercise of its corporate,
limited liability company, partnership or other powers, all such other and additional instruments and documents and do all such
other acts and things as may be necessary to more fully effectuate this Agreement.


 


5.15           
Survival of Warranties. The warranties, representations and covenants of the Company and each Investor contained
in or made pursuant to this Agreement shall survive the execution and delivery of this Agreement and the Closing for a period of
one year.


 


[Signatures set forth
on the following page]







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IN WITNESS WHEREOF,
this Agreement is executed as of the date first written above.


 


	 	“COMPANY”
	 	 
	 	MERRIMAN HOLDINGS, INC.
	 	a Delaware corporation
	 	 
	 	  	 
	 	D. Jonathan Merriman,
	 	Chief Executive Officer


 


 


 


 


 


 


 


 


 


 


 


Signature Page
to Merriman Holdings, Inc. Common Stock Purchase Agreement




    	 



    	 



    

IN WITNESS WHEREOF,
this Agreement is executed as of the date first written above.


 


	 	INVESTOR:	 
	 	 	 
	 	 	 
	 	  	 
	 	(signature)	 
	 	 	 
	 	Name:	            	 
	 	 	 
	 	Title:	         	 
	 	 	 
	 	 	 
	 	Address for Notice:	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	Amount to be Invested: $_______________
	 	 	 


 


 


 


 





Signature Page to Common Stock Purchase
Agreement





















    	 



    	 



    

EXHIBIT A


 


FORM OF WARRANT