COMPANY SHALL PAY THE
INVESTOR A NON-REFUNDABLE DUE DILIGENCE FEE OF FIVE THOUSAND DOLLARS ($5,000)
WHICH WAS PAID UPON SUBMISSION OF THE DUE DILIGENCE DOCUMENTS TO THE INVESTOR.
(C)
COMMITMENT FEES.
(i)
On each Advance Date the Company shall
pay to the Investor, directly from the gross proceeds held in escrow, an amount
equal to five percent (5%) of the amount of each Advance.
The Company hereby
agrees that if such payment, as is described above, is not made by the Company
on the Advance Date, such payment will be made at the direction of the Investor
as outlined and mandated by Section 2.3 of this Agreement.
(ii)
Upon the execution of this Agreement the
Company shall issue to the Investor shares of the Company's Common Stock in an
amount equal to One Hundred Ninety Thousand Dollars ($190,000) divided by by Two
Dollars ($2) per share (the agreed upon market value of the Common Stock on the
date hereof) (the "Investor's Shares").
(iii)
Fully Earned.
The Investor's Shares shall
be deemed fully earned as of the date hereof.
(iv)
Registration Rights.
The Investor's Shares
will have "piggy-back" registration rights.
SECTION 12.5.
BROKERAGE.
EACH OF THE PARTIES HERETO
REPRESENTS THAT IT HAS HAD NO DEALINGS IN CONNECTION WITH THIS TRANSACTION WITH
ANY FINDER OR BROKER WHO WILL DEMAND PAYMENT OF ANY FEE OR COMMISSION FROM THE
OTHER PARTY.
THE COMPANY ON THE ONE HAND, AND THE INVESTOR, ON THE OTHER HAND,
AGREE TO INDEMNIFY THE OTHER AGAINST AND HOLD THE OTHER HARMLESS FROM ANY AND
ALL LIABILITIES TO ANY PERSON CLAIMING BROKERAGE COMMISSIONS OR FINDER'S FEES ON
ACCOUNT OF SERVICES PURPORTED TO HAVE BEEN RENDERED ON BEHALF OF THE
INDEMNIFYING PARTY IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 12.6.
CONFIDENTIALITY.
IF FOR ANY REASON
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT ARE NOT CONSUMMATED, EACH OF THE
PARTIES HERETO SHALL KEEP CONFIDENTIAL ANY INFORMATION OBTAINED FROM ANY OTHER
PARTY (EXCEPT INFORMATION PUBLICLY AVAILABLE OR IN SUCH PARTY'S DOMAIN PRIOR TO
THE DATE HEREOF, AND EXCEPT AS REQUIRED BY COURT ORDER) AND SHALL PROMPTLY
RETURN TO THE OTHER PARTIES ALL SCHEDULES, DOCUMENTS, INSTRUMENTS, WORK PAPERS
OR OTHER WRITTEN INFORMATION WITHOUT RETAINING COPIES THEREOF, PREVIOUSLY
FURNISHED BY IT AS A RESULT OF THIS AGREEMENT OR IN CONNECTION HEREIN.
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22
IN WITNESS WHEREOF, the parties hereto have caused this Standby Equity
Distribution Agreement to be executed by the undersigned, thereunto duly
authorized, as of the date first set forth above.
COMPANY:
SPHERIX INCORPORATED
By:
Name:
Richard C. Levin
Title:
President
INVESTOR:
CORNELL CAPITAL PARTNERS, LP
By:
Yorkville Advisors, LLC
Its:
General Partner
By:
Name:
Mark Angelo
Title:
Portfolio Manager
23
EXHIBIT A
ADVANCE NOTICE/COMPLIANCE CERTIFICATE
SPHERIX INCORPORATED
The undersigned,
hereby certifies, with
respect to the sale of shares of Common Stock of SPHERIX INCORPORATED (the
"Company"), issuable in connection with this Advance Notice and Compliance
Certificate dated
(the "Notice"), delivered pursuant to
the Standby Equity Distribution Agreement (the "Agreement"), as follows:
1.
The