Jammin Java Corp. 10-Q
Exhibit 10.49
Note: November14,2016
NEITHER THESE SECURITIESNOR THESECURITIESINTO WHICHTHESE SECURITIESARECONVERTIBLEHAVE BEENREGISTEREDWITH THEUNTIEDSTATES SECURITIESANDEXCHANGE COMMISSIONINRELIANCE UPON AN EXEMPTION FROMREGISTRATIONUNDER THESECURITIESACTOF1933, AS AMENDED(THE “SECURITIESACT”), AND, ACCORDINGLY,MAYNOT BEOFFEREDORSOLD EXCEPT PURSUANTTO ANEFFECTIVE REGISTRATION STATEMENTUNDER THESECURITIESACTORPURSUANTTO ANAVAILABLEEXEMPTION FROM,OR INATRANSACTIONNOTSUBJECTTO,THEREGISTRATION REQUIREMENTSOF THESECURITIESACT.
THIS NOTE DOES NOTREQUIRE PHYSICALSURRENDER OFTHENOTEINTHE EVENTOFAPARTIALREDEMPTIONORCONVERSION.AS ARESULT, FOLLOWINGANYREDEMPTIONORCONVERSIONOF ANYPORTIONOFTHISNOTE,THEOUTSTANDINGPRINCIPALSUMREPRESENTEDBY THISNOTEMAYBELESS THAN THEPRINCIPALSUM ANDACCRUED INTEREST SETFORTHBELOW.
10%CONVERTIBLE PROMISSORY NOTE
OF
JAMMINJAVA CORP.
Issuance Date: November 14, 2016
Total Face Value of Note: $110,000
Initial Consideration: $24,000
Initial Original Issue Discount: $2,400
Initial Principal Sum Due: $26,400
THISNOTEisa dulyauthorized Convertible Promissory Noteof Jammin JavaCorp. acorporationdulyorganized and existing under the laws of the State of Nevada(the “Company”), designated as the Company's 10% Convertible Promissory Note in the principal amount of$110,000(the “Note”). This Note will become effectiveonlyupon executionbyboth partiesanddelivery of the first payment of considerationbytheHolder (the “Effective Date”).
FOR VALUE RECEIVED,theCompanyherebypromises to payto the orderofIconic Holdings, LLCor itsregisteredassigns or successors-in-interest (the“Holder”) the PrincipalSum of $110,000(the“PrincipalSum”) and topay“guaranteed” interestonthe principalbalance hereofat an amount equivalent to 10% of the Principal Sum, to the extent such Principal Sumand “guaranteed” interest andanyother interest, fees, liquidated damages and/or items due to Holder herein have beenrepaidorconverted intothe Company's Common Stock (the“Common Stock”), in accordance with the terms hereof. Upon the execution of this Note the sum of $24,000 shall be remitted and delivered totheCompany,and $2,400 shall be retainedbythe Purchaser through an original issue discount (the “OID”) for due diligence and legal bills related to this transaction. The OID is set at10%of anyconsideration paid. The Holdermaypayadditional Consideration to the Company in such amounts and at such dates (“Additional Consideration” andeach, an“Additional Consideration Date”) as Holdermaychoose in its
sole discretion. The Principal Sum due to Holder shall be prorated based on theConsiderationactually paidbyHolder(plusthe “guaranteed” interest and 10% OID, both which are prorated based on the Consideration actually paidbythe Holder, as well asanyother interest or fees) such that the Company isonlyrequired torepaythe amount funded and the Companyis not required torepayanyunfunded portion of this Note, noranyinterest or OID onanyunfunded portion of this Note. The Maturity Date is oneyearfrom the Effective Dateofthe InitialConsiderationpayment and each additional payment of Additional Consideration, if any, as applicable(the“Maturity Date”)and is the date upon which the Principal Sum of thisNote,as well asanyunpaid interest and other fees, shall bedueand payable.
Inaddition to the “guaranteed” interest referenced above, andinthe Event of Default pursuant to Section 2.00(a), additional interestwillaccrue from the date of the Event ofDefaultat the rate equal to the lower of 20%per annum or the highest rate permittedby law(the “Default Rate”).
This Note will become effectiveonlyupon the executionbyboth parties, including the execution of Exhibits B,C, DandEand the Irrevocable TransferAgentInstructions (the“Dateof Execution”) and delivery of the initial payment ofconsiderationbythe Holder (the “Effective Date”).
This Note maybeprepaidbythe Company, in whole or in part, accordingtothe following schedule:
| Days Since EffectiveDate | PrepaymentAmount |
| Under30 | 100% of Principal Amount |
| 31-60 | 110% of Principal Amount |
| 61-90 | 120% of Principal Amount |
| 91-120 | 130% of Principal Amount |
| 121-150 | 140% of Principal Amount |
| 151-180 | 150% of Principal Amount |
After 180 days from the Effective Date this Notemaynot be prepaid without written consent from Holder, which consentmaybe withheld, delayed or denied in Holder’s sole and absolute discretion. Wheneveranyamount expressed to be duebythe terms of this Note is due onanydaywhich is notaBusinessDay(as defined below), the same shall instead be due on the nextsucceedingdaywhich isaBusinessDay.IftheNote is in default, per Section 2.00(a) below, the Companymaynot prepay the Note without written consent oftheHolder.
For purposes hereof the following terms shallhavethe meanings ascribedtothem below:
“Business Day” shall meananydayother thanaSaturday, Sunday or a dayon which commercial banks in the CityofNew York are authorized or requiredbylawor executive order to remain closed.
“ConversionPrice”shall be equal to lowerof:(a) 65% of the lowest trading price of theCompany’scommon stock during the 25 consecutive Trading Days prior to the date on whichHolder elects to convert all or part of the Noteor (b) 65% of the lowest trading price of theCompany’scommon stock during the 25 consecutive Trading Days prior to the EffectiveDate.For the purpose of calculating the Conversion Price only,anytime after 4:00 pm Eastern Time (the closing time ofthePrincipal Market) shall be considered to bethebeginning of thenextBusiness Day.If the Company is placed on “chilled” status with the Depository Trust Company(“DTC”), the discount shall be increasedby10%,i.e., from 35% to 45%, until such chill isremedied.If the Company is not Deposits andWithdrawalat Custodian (“DWAC”)eligiblethroughtheir TransferAgentand DTC’s Fast Automated Securities Transfer (“FAST”) system, the discount will be increasedby5%,i.e., from 35%to 40%.Inthe case of both, the discount shall beacumulative increaseof15%,i.e., from 35%to 50%.Anydefault of this Note not remedied within the applicable cure period will result in apermanent additional 10% increase,i.e., from 35% to 45%, in addition toanyother discount, as provided above, to the Conversion Price discount.
“Principal Amount” shallreferto the sum of (i)theoriginal principal amount of this Note (including theoriginal issue discount, prorated if the Note has notbeenfunded in full), (ii) anyadditional payments madebythe Holder towards the PrincipalSum,(iii) all guaranteed and other accrued but unpaid interest hereunder,(iv) anyfees due hereunder, (v)liquidated damages, and (vi)anydefault payments owing under the Note, in each casepreviouslypaid or added to the Principal Amount.
“PrincipalMarket”shall refer to the primary exchange on which the Company’s common stock is traded or quoted.
“TradingDay” shall mean a dayon which thereistradingorquoting for any securityon the PrincipalMarket.
“Underlying Shares”meansthe sharesofcommon stock into which the Note is convertible (including interest, fees, liquidated damages and/or principal payments in common stock as set forth herein) in accordance with the termshereof.
The following terms and conditions shall apply to this Note:
Section 1.00Conversion.
(a) Conversion Right. Subject to the terms hereof and restrictions and limitations contained herein,beginning180 days fromthe Effective Date, the Holder shallhave theright,at theHolder's sole option, at any time andfromtime to time toconvert in whole or inpart the outstanding and unpaid Principal Amount under this Note into shares of Common Stock as per the Conversion Formula. The dateof anyconversion notice (“Conversion Notice”) hereunder shall be referred to herein asthe“Conversion Date”.
(b) Stock Certificates or DWAC.The Company will deliver to the Holder,orHolder’s authorized designee, no later than2Trading Days after the Conversion Date, acertificate or certificates (which certificate(s) shall befreeof restrictive legends and trading restrictions if the shares of Common Stock underlying the portion of the Note being converted are eligible undera resaleexemption pursuant to Rule144(b)(1)(ii)and Rule 144(d)(1)(ii) of the Securities Act of 1933, as amended) representing the number of shares of CommonStockbeing acquired upon the conversion of this Note.Inlieu of delivering physical certificates representing
the shares of Common Stock issuable upon conversion of this Note, provided theCompany'stransfer agentis participating in DTC’sFAST program, the Company shall instead use commercially reasonable efforts to cause its transferagentto electronically transmit such shares issuable upon conversion to the Holder (or its designee),bycrediting the account of the Holder’s (or such designee’s) brokerwith DTC through its DWAC program (provided that the same time periods herein as for stock certificates shall apply).
(c) Charges and Expenses. Issuance of Common Stock to Holder, or anyof itsassignees,upon the conversion of this Note shall be made without chargetothe Holderfor anyissuance fee, transfertax,legal opinion and related charges, postage/mailing chargeor anyother expense withrespecttotheissuance of such Common Stock. Company shallpayall Transfer Agent fees incurred from the issuance of the Common Stock to Holder, as well asanyand all other fees and charges requiredby theTransfer Agent asacondition to effectuate such issuance. Any suchfees or charges, as noted in this Section that are paidbythe Holder (whether from theCompany’sdelays,outrightrefusal to pay, or otherwise), will be automatically added to the Principal Sum of the Note and tackbackto the Effective Date for purposes of Rule 144.
(d) Delivery Timeline.Ifthe Company fails to deliver to the Holder such certificate or certificates (or shares through the DWAC program) pursuant to this Section(freeof anyrestrictions on transfer or legends, if eligible) prior to3Trading Days after the Conversion Date, the Company shall pay to the Holder as liquidated damages an amount equal to $2,000 perday,until such certificate orcertificates are delivered. The Company acknowledges that it wouldbe extremely difficult or impracticable to determine the Holder’s actual damages and costs resulting fromafailuretodeliver the CommonStockand the inclusion herein ofanysuch additional amounts aretheagreedupon liquidated damages representingareasonable estimate of those damages and costs. Such liquidated damages will be automatically added to the Principal Sum of the Note and tack back to the EffectiveDatefor purposesofRule 144.
(e) Reservationof Underlying Securities. The Company covenants that it will at all times reserve andkeepavailable for Holder, out of its authorized and unissued Common Stock solely for the purpose of issuance upon conversion of this Note, free from preemptiverightsoranyother actualcontingentpurchase rights of persons other thantheHolder,five times the number of shares of Common Stock as shall be issuable (taking into account the adjustments under this Section 1.00, but without regard toanyownership limitations contained herein) upon the conversion of this Note (consisting ofthePrincipal Amount) to Common Stock (the “Required Reserve”).TheCompany covenantsthatall shares of Common Stock that shall be issuable will, upon issue, bedulyauthorized, validly issued, fully-paid, non-assessable and freely-tradable (if eligible).Ifthe amount of shares on reserve in Holder’s name at the Company’s transfer agent for this Note shall drop below the Required Reserve, the Company will, within2TradingDaysof notification from Holder, instruct the transfer agent to increase the number of shares so that the Required Reserve is met, and it is understood and acknowledged that if theCompany’stransfer agent takes 2additional Trading Days to reflect the Required Reserve that this will not result in abreachbythe Company.Inthe event thatthe Company does not instruct the transferagentto increase the number of shares so that the Required Reserve is met, the Holder will be allowed, if applicable, to provide this instruction as per the terms oftheIrrevocable Transfer AgentInstructionsattachedtothis Note. The Company agreesthatthe maintenanceofthe Required Reserve isamaterial term of this Note andanybreachofthis Section 1.00(e) will result inadefault of the Note.
(f) ConversionLimitation.The Holder will not submitaconversion to the Company that would result in the Holder beneficially owning morethan9.99% of the then total outstanding shares of the Company(“RestrictedOwnershipPercentage”).
(g) Conversion Delays.If theCompany fails to deliver shares in accordance with the timeframe stated in Section 1.00(b), the Holder, atanytime priortoselling all of those shares,mayrescindanyportion, in whole or in part, of that particular conversion attributable to the unsold shares. The rescinded conversion amount will be returned to the Principal Sum with the rescinded conversion shares returned to the Company, under the expectation thatanyreturned conversion amounts will tack back to the EffectiveDate.
(h) Shorting and Hedging. Holdermaynot engagein any“shorting” or “hedging” transaction(s) in the Common Stock prior to conversion or atanytime while holding shares of the Company’s Common Stock.
(i) ConversionRightUnconditional.Ifthe Holder shall provideaConversion Notice as provided herein, theCompany'sobligations to deliver Common Stock shall be absolute and unconditional, irrespective ofanyclaim of setoff, counterclaim, recoupment, orallegedbreachby theHolderof anyobligation to theCompany.
Section 2.00Defaults andRemedies.
(a) Events of Default. An “Event of Default” is: (i) a default in payment of any amount due hereunder which default continues for more than 5 Trading Days after the due date; (ii) a default in the timely issuance of underlying shares upon and in accordance with terms of Section 1.00, which default continues for 2 Trading Days after the Company has failed to issue shares or deliver stock certificates within the 3rd Trading Day following the Conversion Date; (iii) if the Company does not issue the press release or file the Quarterly Report on Form 10-Q, in each case in accordance with the provisions and the deadlines referenced Section 4.00(g); (iv) failure by the Company for 3 days after notice has been received by the Company to comply with any material provision of this Note; (v) failure of the Company to remain compliant with DTC, thus incurring a “chilled” status with DTC; (vi) if the Company is subject to any Bankruptcy Event; (vii) any failure of the Company to satisfy its periodic “filing” obligationsunder the Securities ExchangeAct of 1934, as amended (the “1934 Act”) and the rules and guidelines issued by OTC Markets News Service, OTCMarkets.com and their affiliates, provided that the Company’s failure to timely file (A) the Company’s quarterly report on Form 10-Q for the period ended July 31, 2016; and (B) the Company’s quarterly report on Form 10-Q for the period ended October 31, 2016, shall not be deemed an Event of Default hereunder; (viii) failure of the Company to remain in good standing with the State of Nevada; (ix) any failure of the Company to provide the Holder with information related to its corporate structure including, but not limited to, the number of authorized and outstanding shares, public float, etc. within 1 Trading Day of request by Holder; (x) failure by the Company to maintain the Required Reserve in accordance with the terms of Section 1.00(e); (xi) failure of Company’s Common Stock to maintain a closing bid price in its Principal Market for more than 3 consecutive Trading Days; (xii) any delisting from a Principal Market for any reason; (xiii) failure by Company to pay any of its Transfer Agent fees in excess of $2,000 or to maintain a Transfer Agent of record; (xiv) failure by Company to notify Holder of a change in Transfer Agent within 24 hours of such change; (xv) any trading suspension imposed by the United States Securities and Exchange Commission (the “SEC”) under Sections 12(j) or 12(k) of the 1934 Act; (xvi) failure by the Company to meet all requirements necessary to satisfy the availability of Rule 144 to the Holder or its assigns, including but not limited to the timely fulfillment of its filing requirements as a fully-reporting issuer registered with the SEC, requirements for XBRL filings, and requirements for disclosure of financial statements on its website; or (xvii) failure of the Company to abide by the terms of the right of first refusal contained in Section 4.00(h).
(b) Remedies.Ifan Event ofDefaultoccurs, the outstanding Principal Amount of this Note owing in respect thereof through the date of acceleration, shall become, at theHolder'selection, immediatelydueandpayablein cash at the “Mandatory Default Amount”. The Mandatory Default Amount means 150% of the outstanding Principal Amount of this Note, which will tack back to the Effective Date for purposes of Rule 144.Commencing 5daysaftertheoccurrence ofanyEvent of Default that results in the eventual acceleration of this Note, this Note shall accrue additional interest, in addition to the Note’s “guaranteed” interest, at the Default Rate. Finally, commencing 5days after the occurrenceof anyEvent of Default that results in the eventual acceleration of this Note, an additional permanent10%increase to the Conversion Price discount willgointo effect.Inconnection with such acceleration described herein, the Holder neednotprovide, and the Issuer hereby waives,anypresentment, demand, protest or other noticeofanykind, and the Holder mayimmediately and without expiration of anygrace period enforce anyand all of its rightsandremedies hereunder and all other remedies available to it under applicable law. Such accelerationmaybe rescinded andannulledby theHolder atanytime priortopayment hereunder and the Holder shall have allrightsasaholder of the note until such time, if any, as the Holder receives full payment pursuant to this Section 2.00(b). No such rescission or annulment shall affectanysubsequent event of default or impair anyrightconsequent thereon. Nothing herein shall limit theHolder'sright to pursueanyother remedies available to it at law or in equity including, without limitation,adecree of specific performance and/or injunctive relief with respecttotheIssuer'sfailure to timely deliver certificates representing shares of Common Stock upon conversion of the Note as required pursuant to the terms hereof.
Section 3.00Representations and Warranties of Holder.
Holderherebyrepresents and warrants to the Company that:
(a) Holder is an “accredited investor,” as suchtermis defined inRegulation Dof the Securities Actof1933, as amended (the“1933Act”), and will acquire this Note and the Underlying Shares (collectively, the“Securities”) for its own account and not withaview toasale or distribution thereof as that term is used in Section 2(a)(11) of the 1933 Act, inamanner which would require registration under the 1933Actoranystate securities laws. Holderhassuch knowledge and experience in financial and business matters that such Holder is capableofevaluating the merits and risks of the Securities. Holder canbear theeconomic risk of the Securities, has knowledge and experience in financial business matters and is capable of bearing and managing the risk of investment in the Securities. Holder recognizes that the Securitieshavenot been registered under the 1933 Act, nor under the securities laws ofanystate and, therefore, cannot be resold unless the resale of the Securities isregisteredunder the 1933 Act or unless an exemption from registration is available. Holderhascarefully considered and has, to the extent Holder believessuchdiscussion necessary, discussed with its professional, legal, tax and financial advisors, the suitabilityofan investment in the Securities for its particular tax and financial situation and its advisers, if such advisors were deemed necessary, and has determined that the Securitiesare asuitable investment for it. Holder has not been offered the Securitiesby anyform of general solicitation or advertising, including, but not limited to, advertisements, articles, notices or other communications published inanynewspaper,magazine,or other similar
media or television orradiobroadcast oranyseminar or meeting where, to Holders’ knowledge, those individuals that have attendedhavebeen invitedby any suchor similar means of general solicitation or advertising. Holder has had an opportunity to ask questionsofand receive satisfactory answers from theCompany,oranyperson or persons actingonbehalfof theCompany,concerningtheterms and conditions of the Securities and the Company, and all such questions have been answered to the full satisfaction of Holder. TheCompany hasnot supplied Holderanyinformation regarding the Securities or an investment in the Securities other than as contained in this Agreement, and Holder is relying on its owninvestigationand evaluation of the Company and the Securities and not onanyother information.
(b) The Holder isalimited liability company dulyorganized, validly existing and in good standing under the laws ofthestate of its incorporation and has all requisite corporate power and authority tocarryon its business as now conducted.TheHolder isdulyqualified totransactbusiness and is ingoodstanding in each jurisdiction in which the failure to so qualify wouldhave amaterial adverse effectonits business or properties.
(c) All corporate action has been taken onthepart of the Holder, its officers, directors and stockholders necessary fortheauthorization, execution and deliveryofthis Note. The Holderhastaken all corporate action required to make all of the obligations of the Holder reflected in the provisions of this Note, valid and enforceable obligations.
(d) Each certificate or instrument representing Securities will be endorsed with the following legend (or asubstantially similar legend), unless or untilregisteredunder the 1933Act:
THESECURITIES EVIDENCED BY THISCERTIFICATE HAVE NOT BEENREGISTERED UNDER THESECURITIESACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,TRANSFERRED, ASSIGNED ORHYPOTHECATEDUNLESSTHERE ISANEFFECTIVEREGISTRATIONSTATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES, THETRANSFERIS MADE INCOMPLIANCE WITH RULE 144PROMULGATEDUNDER SUCH ACT OR THECOMPANY RECEIVES ANOPINIONOF COUNSELFOR THE HOLDER OF THESESECURITIESWHICH ISREASONABLY SATISFACTORY TO THE COMPANY, STATING THAT SUCH SALE,TRANSFER, ASSIGNMENT ORHYPOTHECATION ISEXEMPT FROM THEREGISTRATION ANDPROSPECTUSDELIVERY REQUIREMENTS OF SUCH ACT.
Section 4.00General.
(a) Paymentof Expenses.TheCompanyagreesto pay all reasonable charges and expenses, including attorneys' fees and expenses, whichmaybe incurredbytheHolder in successfully enforcing thisNote and/or collectinganyamount due underthisNote.
(b) Assignment, Etc. The Holder may assign or transfer this Note to any transferee at its sole discretion. This Note shall be binding upon the Company and its successors and shall inure to the benefit of the Holder and its successors and permitted assigns.(c)Terms of Future Financings. So long as this Note is outstanding, upon any issuance by the Company or any of its subsidiaries of any convertible debt security (whether such debt begins with a convertible feature or such feature is added at a later date) with any term more favorable to the holder of such security or with a term in favor of the holder of such security that was not similarly provided to the Holder in this Note, then the Company shall notify the Holder of such additional or more favorable term and such term, at the Holder's option, shall become a part of this Note and its supporting documentation.. The types of terms contained in the other security that may be more favorable to the holder of such security include, but are not limited to, terms addressing conversion discounts, conversion look back periods, interest rates, original issue discount percentages and warrant coverage.
(d) GoverningLaw;Jurisdiction.
(i) Governing Law.ThisNotewill be governedbyandconstrued in accordance with the laws of the state of California without regard toanyconflicts of laws or provisions thereof that would otherwise requiretheapplication of the lawof anyother jurisdiction.
(ii) JurisdictionandVenue.Anydispute or claim arising to or inany wayrelated to this Note or the rights and obligations of eachofthe parties shall be broughtonlyin the state courts of California or in the federal courts located in SanDiegoCounty,California.
(iii) NoJury Trial.TheCompany hereto knowinglyandvoluntarily waivesanyand allrightsitmayhavetoatrialbyjury with respecttoanylitigation basedon,or arising outof,under,or inconnectionwith,thisNote.
(iv) Delivery of Process bytheHolder to the Company.Inthe event of an action or proceedingbythe Holder against the Company, andonlyby theHolder against theCompany,service of copies of summons and/or complaint and/oranyother process thatmay beserved inany suchaction or proceedingmaybemadebythe Holder viaU.S.Mail,overnightdelivery service such as FedEx or UPS, email,fax,or process server, orbymailing or otherwise deliveringa copyofsuch process to the Company at its last known attorney as set forth in its most recentSECfiling.
(v) Notices.Anynotice required or permitted hereunder (including Conversion Notices) mustbe in writing and either personally served, sentbyfacsimile oremailtransmission, or sentbyovernightcourier. Notices will be deemed effectively delivered at the time of transmission if by facsimile or email, and ifbyovernight courier the businessdayafter such notice is deposited with the courier service fordelivery.
(e) NoBadActor. No officer or director of theCompanywould be disqualified under Rule 506(d) of the SecuritiesActof 1933, as amended, on the basis of being a“bad actor” asthatterm is established in the September 13, 2013 Small Entity Compliance Guide publishedby the SEC.
(f) Usury. Ifit shall be found thatanyinterest or other amount deemed interest due hereunder violatesanyapplicable law governing usury, the applicable rateofinterestdue hereunder shall automatically be lowered to equal the maximum rate of interest permitted under applicable law. TheCompany covenants (to the extent that itmaylawfully do so)thatit will not seek to claim or take advantage ofanylaw that would prohibit orforgive theCompany from paying all oraportion of the principal, fees, liquidated damages or interest on this Note.
| (g) | SecuritiesLawsDisclosure; Publicity. TheCompanyshall (a)by9:30 |
a.m. Eastern Time on the 4th TradingDayimmediately following the Date of Execution, issueapress release disclosing the material termsofthe transactions contemplated hereby, and (b) file a
Quarterly Report on Form 10-Q for period endingJuly31, 2016, includinga copyof this Note as an exhibit thereto, with the SEC within the time requiredbythe 1934 Act. From and after the filing of such press release, the Company represents to the Holder that it shall have publicly disclosed all material, non-public information delivered to the Holderby theCompany,or anyof its officers, directors, employees, or agents in connection with the transactions contemplatedbythis Note. The Company and the Holder shall consult with each other in issuinganyotherpressreleases with respect to the transactionscontemplatedhereby, and neithertheCompany northe Holder shall issueany suchpress releasenorotherwise makeany suchpublic statement without the prior consent oftheCompany,with respect to anypress release of the Holder, or without the prior consent of the Holder, with respect toanypress release of the Company, noneofwhich consents shall be unreasonably withheld, delayed, denied, or conditioned except if such disclosure is requiredbylaw, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement or communication. Notwithstanding theforegoing,the Company shall not publicly disclose the name oftheHolder, or include the name of the Holder inanyfiling with the SEC oranyregulatory agencyorPrincipal Market, without the prior written consent of the Holder, except to the extent such disclosure is requiredbylaworPrincipal Market regulations, in which case the Company shall provide the Holder with prior notice of such disclosure permitted hereunder.
The Companyagreesthat this isamaterial term of this Note andanybreach of this Section4.00(g)will result inadefaultoftheNote.
(h) RightofFirstRefusal.From and afterthe dateofthis Note andat all times hereafter while the Noteis outstanding,thePartiesagreethat, in theeventthat the Companyreceivesany writtenororal proposal(the“Proposal”)containingone ormore offers to provide additional capital orequity or debt financing (the “Financing Amount”),the Companyagreesthatit shall provide a copyofall documents received relatingto the Proposaltogether with a completeandaccurate descriptionof the Proposaltothe Holder andall amendments,revisions, and supplements thereto(the“ProposalDocuments”)no later than 3businessdaysfrom the receiptof the ProposalDocuments. Followingreceiptof the ProposalDocuments from the Company,theHoldershall have theright (the“Rightof First Refusal”),but not theobligation, for a periodof 5 business days thereafter(the “Exercise Period”),to invest,atsimilar orbettertermstotheCompany,an amountequal toorgreater than the Financing Amount,uponwritten noticetotheCompanythat the Holder is exercising theRight of First Refusal provided hereby. In furtheranceof the Right of First Refusal,the Companyagreesthatit will cooperate andassistthe Holderinconducting adue diligence investigationoftheCompany and its corporate and financial affairs and promptly provide the Holder with information and documentsthat the Holdermayreasonably requestsoastoallowtheHoldertomakean informed investment decision. However, theCompanyandthe HolderagreethattheHoldershall haveno more than 5business days from and aftertheexpiration of the Exercise Periodto exercise its RightofFirst Refusal hereunder. This RightofFirst Refusal shall extend to all purchasesof debt heldby, or assigned toorfrom, current stockholders, vendors,or creditors, all transactions under Sections 3(a)9 and/or 3(a)10or the Securities Actof1933, as amended, andall equity line-of-credit transactions.
[Signature Page toFollow.]
INWITNESS WHEREOF,theCompanyhascaused thisConvertible PromissoryNoteto be dulyexecutedon the day and in theyearfirst abovewritten.
JAMMIN JAVA CORP.
By: /s/ Anh Tran
Name: Anh Tran
Title: President
Email: Anh@marleycoffee.com
Address:4730 takin st Denver co 80211
ThisConvertiblePromissoryNoteofNovember14,2016isacceptedthis14dayofNovember, 2016by
ICONICHOLDINGS,LLC
| | By: | /s/ Michael Sobeck | |
| Name: | Michael Sobeck | |
| | Title: | Manager | |
11/18/2016
EXHIBIT A
FORMOFCONVERSION NOTICE
(To beexecutedby theHolderinordertoconvertall orpartofthatcertain$110,000ConvertiblePromissory Noteidentifiedasthe Note)
DATE:
FROM:______________________
Ionic Holdings, LLC(the“Holder”)
| Re: | $110,000ConvertiblePromissory Note (this“Note”)originally issuedbyJamminJavaCorp., aNevadacorporation,toIconic Holdings,LLConNovember 14, 2016. |
TheundersignedonbehalfofIconicHoldings,LLC,herebyelectstoconvert$_______________of theaggregateoutstanding Principal Amount(asdefinedinthe
Note) indicated belowofthis Note into sharesofCommon Stock, $0.001parvaluepershare, ofJamminJavaCorp.(the“Company”),accordingto theconditionshereof,as of thedatewrittenbelow.Ifsharesare tobe issuedin thenameofaperson other thanundersigned,theundersignedwillpay alltransfer taxespayablewith respect theretoand isdeliveringherewith suchcertificatesandopinionsasreasonably requested bytheCompanyinaccordance therewith.No feewill be chargedto theHolderforanyconversion, except for such transfer taxes,ifany.Theundersignedrepresentsas ofthe date hereof that, after giving effectto theconversionofthis Note pursuant to this Conversion Notice,theundersigned willnot exceed the“Restricted Ownership Percentage” containedinthisNote.
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