Equity Convertible Notes Purchase Agreement No 538181792H2
Equity Convertible Notes Sale and Purchase Agreement No 538181792H2
On 2019-05-26, the “Effective Date”, between the following parties:
Marketing Instruments S.L., registered in Spain under registration number B76753771,
with registered seat at Calle Villaba Hervas 12, 1 planta, 38002, Tenerife, Spain,
hereinafter called the “Seller”, and Leonardo Gabriel Sosa, resident of Argentina Carlos
Spegazzini, Avenida Quito 655, hereinafter called the “Purchaser”,
The Seller and the Purchaser together hereinafter collectively and each individually
referred to as the Parties and/ or the Party,
Whereas:
1. The Parties on 2019-05-26 have entered into the Pre-Sale Agreement dated
2019-05-26, hereinafter – the Pre-Sale Agreement, according to which the Purchaser has
paid to the Seller an advance payment for the Equity Convertible Notes, hereinafter – the
Notes, in the amount of 126;
2. the Purchaser agrees to purchase the Notes on the terms and conditions set forth at
the Seller’s notes issuance program, which the Seller expressly states that the Seller has
received knowledge of.
Now therefore the Parties enter into this Equity Convertible Notes Sale and Purchase
Agreement, hereinafter called the “Agreement”, and agree on the following:
1. Subject of the Agreement
1.1. Subject to and upon the terms and conditions set forth in this Agreement, the Seller
agrees to sell to the Purchaser, and the Purchaser agrees to purchase from the Seller 140
Notes, registered with ISIN XS1653832378.
2. General information
2.1. The Notes are issued under the Seller’s defined program, which is legally published
and available and are not issued for trading on a regulated marked. The parties
acknowledge that Notes are not issued in any public offering and current issue is fully
private as well as it is acknowledged that the Purchaser has been fully acquainted with
before the signing of the Agreement.
2.2. Noteholder registry of Notes is kept with Makrygiannis & Associates Trustee Services
LLC, hereinafter – the Depository.
3. Transfer of the Title
3.1. The title to the Notes shall pass over to the Purchaser as prescribed in relevant
regulations of the Depositary.
3.2. The Seller undertakes to transfer to the Purchaser the amount of the Notes that has
been paid by the Purchaser.
4. Purchase price and Settlement Terms
4.1. For the total amount of the Notes the Purchaser shall pay to the Seller a purchase
price in the amount of 4691,16 EUR, hereinafter – the Purchase price.
4.2. The Purchaser undertakes to pay to the Seller the Purchase price as follows:
4.2.1. part of the Purchase price in the amount of 450,00 EUR has been paid to the Seller
according to the Pre-Sale Agreement;
4.2.2. the remaining part of the Purchase price in the amount of 4241,16 EUR,
hereinafter – the Remaining amount, shall be paid to the Seller on 2020-05-26.
4.3. In case the Purchaser does not pay the Remaining amount within the term referred
to in the Clause 4.2.2 of this Agreement, the Seller may unilaterally withdraw from this
Agreement by serving the Purchaser a respective termination notice with immediate
effect.
4.4. In case the Seller withdraws from this Agreement in accordance with the Clause 4.3
of this Agreement, the Seller forfeits any paid amounts to the Seller; the Purchaser also
waives any rights to claim any damages from the Seller, which due to the nature of this
agreement such waiver is deemed reasonable and necessary.
4.5. In case the Seller withdraws from this Agreement in accordance with the Clause 4.3
of this Agreement, the Notes that have been paid by the Purchaser shall stay in
possession of the Purchaser as prescribed in relevant Clause 3.2.
5. Assurances and Acknowledgments
5.1. By undersigning this Agreement the Purchaser assures and acknowledges that:
5.1.1. the Purchaser has the full legal right and capacity to enter into this Agreement and
perform his obligations hereunder and that he does not thereby violate any law,
regulation or any court or arbitration decision rendered by any court to which he may be
subject or any agreement to which he is a party;
5.1.2. the Purchaser may acquire the Notes and from the Purchaser’s side there are no
legal obstacles for the registration of the Purchaser’s title to the Notes according to this
Agreement;
5.1.3. the Purchaser has gathered all relevant information on Notes by himself and none
of mentioned information has been delivered to the Purchaser within any of public
offerings. The Purchaser acknowledges that Notes are not sold to the Purchaser within
any public offer;
5.1.4. the Purchaser assures that he has received the Seller’s program and is familiar
with the information stated therein and has no objections or complains in this regard;
538181792H2
5.1.5. in adopting this purchase decision, the Purchaser has made its own independent
assessment of the merits and risks of a purchase of the Notes based on its examination
and evaluation of the Issuer, its business operations, financial and legal condition, future
prospects. The Purchaser has sought such accounting, legal and tax advice as it has
considered necessary to make an informed purchase decision with respect to its
acquisition of the Notes. Purchaser acknowledges the risks related to this transaction and
further represents it (i) is able to bear the loss of the Purchaser’s entire investments
under this Agreement (ii) has fully evaluated alone or together with its advisors having
relevant knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of the investment to be made by the Purchaser pursuant
to this Agreement (iii) shall save the Seller harmless from any claim, liability, loss or
expense (including any legal costs) which the Purchaser may suffer or incur by reason of
entering into this Agreement;
5.1.6. The Purchaser agrees to the Purchase price of the Notes and undertakes not to
raise any objections against the Seller for excessive loss;
5.1.7. The Purchaser is obliged to submit to the Seller (and the Seller’s authorized
representatives, including, indicatively, the Depositary) the documents and information
requested by the Seller to the Purchaser, at Seller’s discretion, in order to comply with
the applicable regulations and implement this Agreement. In case the Seller refuses or
unable to provide such the Seller is entitled to terminate this Agreement and forfeit any
paid amounts.
5.2. By signing this Agreement the Parties undertake to carry out all necessary actions
which are related to the performance of this Agreement, among other things the Parties
undertake at the request of the other Party to provide all necessary consents and sign
were necessary in order to ensure performance of this Agreement. The Parties undertake
to provide necessary consents and sign where necessary not later than within 60 (sixty)
days following a respective request of the other Party.
6. Confidentiality
6.1. All information related to the Seller and its operation, except for the information
published in the occasions prescribed in the laws and regulations shall be considered as
confidential information.
6.2. In addition to the aforementioned, the Parties agree that confidential information is
also the information related to the content of this Agreement and its execution.
6.3. The Parties shall ensure that confidential information is not disclosed to third parties
without a mutual written agreement between the Parties, except when the information is
provided to the legal successors of the Parties, in the occasions prescribed in the laws
and regulations, to auditors, bank, court institutions or other competent authorities. An
obligation not to disclose confidential information shall remain valid for the Parties also
after the present Agreement’s expiry date.
7. Force Majeure
7.1. The Parties shall be exempt from the responsibility for full or partial non-fulfilment of
the contractual obligations arising out of this Agreement, in case such a non-fulfilment
has been caused by an extraordinary force majeure event which could be neither
foreseen nor prevented by the Parties. For the purpose of this Agreement, force majeure
shall include: warfare, natural disasters, strike, flood, fire, decisions or decrees of state
and municipal authorities or unannounced audits.
7.2. The affected Party shall promptly, however not later than within 5 (five) business
days, notify the other Party in writing on the occurrence of a force majeure event.
7.3. Either Party may unilaterally withdraw from this Agreement in the event such force
majeure conditions shall last longer that 60 (sixty) days. In such a case none of the
Parties shall be held liable for any losses incurred to the other Party in the period of time
following the occurrence of the force majeure event.
8. Miscellaneous
8.1. Should any provision of this Agreement lose effect or shall turn out to be invalid as
of the date of this Agreement, it shall not affect the validity of the remaining provisions
and the Parties shall be under the obligation to replace such invalid contractual provision
with a new one, to the extent possible close to the purpose of the invalid provision.
8.2. The Parties shall effectuate mutual communication also in electronic form and any
notices or correspondence exchanged via the e-mail addresses of the Parties notified to
each other and shall serve as proper evidence as to the agreement reached between the
Parties.
8.3. Both Parties agree that the Seller shall have unilateral right to assign all of its rights
and obligations under this Agreement to any third party.
8.4. Both Parties agree that the Purchaser may not assign its right and obligations under
this Agreement without prior written consent of the Seller, and any attempted
assignment without such consent will be void.
8.5. This Agreement, and any non-contractual obligations arising in relation hereto, shall
be governed by and construed in accordance with the substantive laws of Spain, without
regard to its conflict of law rules and principles. Any dispute, controversy or claim arising
out of this contract that are associated with it, or the breach, termination or invalidity
thereof, will be subject to settlement in general jurisdiction of the Courts of Tenerife.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
by their duly authorized representatives effective as of the Effective Date.
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