UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
THE SECURITIES EXCHANGE ACT OF 1934
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into a Material Definitive Agreement
On January 26, 2024 (the “Effective Date”), Sigma Additive Solutions, Inc. (the “Company”) and NextTrip Holdings, Inc., a wholly owned subsidiary of the Company (“NextTrip”), entered into a Perpetual License Agreement (the “License Agreement”) with Promethean TV, Inc. (“Promethean”), pursuant to which Promethean (i) sold NextTrip the code for the Licensed Software (as defined in the License Agreement) and (ii) granted NextTrip an irrevocable, worldwide, perpetual right and non-exclusive license to forever retain and use the code and each executable copy of the Licensed Software for the commercial exploitation by NextTrip in the travel solutions industry, subject to certain limitations set forth in the License Agreement (the “Perpetual License”). The term of the License Agreement commenced on the Effective Date and shall continue in perpetuity unless and until terminated by either party pursuant to the terms of the License Agreement.
As consideration for the Perpetual License and the other rights granted pursuant to the License Agreement, the Company issued Promethean 100,000 restricted shares of its Series G Convertible Preferred Stock (“Series G Preferred”), and NextTrip waived all past debts to NextTrip previously incurred by Promethean. For a period of six months from the Effective Date, the Company has the right to repurchase up to fifty percent of the Series G Preferred issued to Promethean, or the shares of Company common stock underlying the Series G Preferred if converted during such period, for $1.00 as consideration for any breaches of representations and warranties or indemnities of Promethean pursuant to certain provisions of the License Agreement.
Additionally, pursuant to the License Agreement, Promethean covenants to vote all of its shares of Series G Preferred with respect to any resolution presented to the stockholders of the Company for the purpose of obtaining stockholder approval of an amendment or amendments to the Company’s amended and restated articles of incorporation, as amended (the “Charter”), to effect (i) an increase in the number of common stock authorized for issuance there under to 100,000,000 or more, (ii) a change in the Company’s name to “NextTrip, Inc.” and (iii) approving an adjournment of any meeting of the Company’s stockholders called to vote on the foregoing matters.
Pursuant to the License Agreement, for a period of one year from the Effective Date, NextTrip shall have a right and option of first refusal to purchase Promethean on such terms as are mutually acceptable to the parties.
The License Agreement contains customary representations, warranties and covenants, as well as certain indemnification rights and obligations, by the Company and Promethean.
The foregoing description of the terms of the License Agreement is not complete and is qualified, in its entirety, by reference to the full text of the License Agreement, a copy of which is attached to this Current Report on Form 8-K (this “Report”) as Exhibit 10.1, and incorporated herein by reference.
Item 3.02 Unregistered Sales of Equity Securities.
The information in Item 1.01 regarding the issuance of the Series G Preferred is hereby incorporated herein by reference.
On January 26, 2024, the Company also issued an aggregate of 150,000 shares of Series H Convertible Preferred Stock (the “Series H Preferred”) to two parties in exchange for resolution of certain services, payables and/or other liabilities of the Company.
The shares of Series G Preferred and Series H Preferred issued by the Company (together, the “Preferred Shares”) have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and were issued to the respective recipients in transactions exempt from registration under the Securities Act in reliance upon the exemption from registration provided by Section 4(a)(2) under the Securities Act and/or Regulation D promulgated thereunder. Accordingly, the Preferred Shares constitute, and the shares of Company common stock underlying the Preferred Shares, when issued upon conversion of the Preferred Shares, will constitute, “restricted securities” within the meaning of Rule 144 under the Act.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
Series G Certificate of Designation
On January 26, 2024, the Company filed a Certificate of Designation of Series G Convertible Preferred Stock (the “Series G Certificate of Designation”) with the Secretary of State of the State of Nevada, designating 100,000 shares of the Company’s preferred stock as Series G Convertible Preferred Stock, par value $0.001 per share.
The terms and conditions set forth in the Series G Certificate of Designation are summarized below:
Ranking. The Series G Preferred rank pari passu to the Company’s common stock.
Dividends. Holders of Series G Preferred will be entitled to dividends, on an as-converted basis, equal to dividends actually paid, if any, on shares of Company common stock.
Voting. Except as provided by the Company’s Charter or as otherwise required by the Nevada Revised Statutes, holders of Series G Preferred are entitled to vote with the holders of outstanding shares of Company common stock, voting together as a single class, with respect to all matters presented to the Company’s stockholders for their action or consideration. In any such vote, each holder is entitled to a number of votes equal to the number of shares of common stock into which the Series G Preferred held by such holder is convertible. The Company may not, without the consent of holders of a majority of the outstanding shares of Series G Preferred, (i) alter or change adversely the powers, preferences or rights given to the Series G Preferred or alter or amend the Series G Certificate of Designation, (ii) amend its Charter or other charter documents in any manner that adversely effects any rights of the holders of the Series G Preferred, or (c) enter into any agreement with respect to the foregoing.
Conversion. On such date that the Company amends its Charter to increase the number of shares of common stock authorized for issuance thereunder, to at least the extent required to convert all of the outstanding shares of Series G Preferred, each outstanding share of Series G Preferred shall automatically be converted into one share of Company common stock (subject to adjustment under certain limited circumstances) (the “Series G Conversion Ratio”).
Liquidation. In the event of any liquidation, dissolution or winding up of the Company, either voluntary or involuntary, holders of Series G Preferred will be entitled to participate, on an as-converted-to-common stock basis calculate based on the Series G Conversion Ratio, with holders of Company common stock in any distribution of assets of the Company to holders of the Company’s common stock.
Redemption Right. The Company shall have the right to redeem up to fifty percent of the Series G Preferred Stock for an aggregate price of $1.00 in accordance with the terms of the License Agreement.
Series H Certificate of Designation
On January 26, 2024, the Company filed a Certificate of Designation of Series H Convertible Preferred Stock (the “Series H Certificate of Designation”) with the Secretary of State of the State of Nevada, designating 150,000 shares of the Company’s preferred stock as Series H Preferred Stock, par value $0.001 per share.
The terms and conditions set forth in the Series H Certificate of Designation are summarized below:
Ranking. The Series H Preferred rank pari passu to the Company’s common stock.
Dividends. Holders of Series H Preferred will be entitled to dividends, on an as-converted basis, equal to dividends actually paid, if any, on shares of Company common stock.
Voting. Except as provided by the Company’s Charter or as otherwise required by the Nevada Revised Statutes, holders of Series H Preferred are entitled to vote with the holders of outstanding shares of Company common stock, voting together as a single class, with respect to all matters presented to the Company’s stockholders for their action or consideration. In any such vote, each holder is entitled to a number of votes equal to the number of shares of common stock into which the Series H Preferred held by such holder is convertible. The Company may not, without the consent of holders of a majority of the outstanding shares of Series H Preferred, (i) alter or change adversely the powers, preferences or rights given to the Series H Preferred or alter or amend the Series H Certificate of Designation, (ii) amend its Charter or other charter documents in any manner that adversely effects any rights of the holders of the Series H Preferred, or (c) enter into any agreement with respect to the foregoing.
Conversion. On such date that the Company amends its Charter to increase the number of shares of common stock authorized for issuance thereunder, to at least the extent required to convert all of the outstanding Series H Preferred, each outstanding share of Series H Preferred shall automatically be converted into one share of Company common stock (subject to adjustment under certain limited circumstances) (the “Series H Conversion Ratio”).
Liquidation. In the event of any liquidation, dissolution or winding up of the Company, either voluntary or involuntary, holders of Series H Preferred will be entitled to participate, on an as-converted-to-common stock basis calculate based on the Series H Conversion Ratio, with holders of Company common stock in any distribution of assets of the Company to holders of the Company’s common stock.
The foregoing descriptions of the Series G Preferred and Series H Preferred are qualified, in their entirety, by reference to the full text of the Series G Certificate of Designation and Series H Certificate of Designation, copies of which are attached to this Report as Exhibits 3.1 and 3.2, respectively, and are incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
| Exhibit Number | Description | |
| 3.1 | Certificate of Designation of Series G Convertible Preferred Stock. | |
| 3.2 | Certificate of Designation of Series H Convertible Preferred Stock. | |
| 10.1 | Perpetual License Agreement, by and among the Company, NextTrip Holdings, Inc. and Promethean TV, Inc., dated as of January 26, 2024. | |
| 104 | Cover Page Interactive Data File (embedded within the inline XBRL Document) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Date: January 30, 2024 | SIGMA ADDITIVE SOLUTIONS, INC. | |
| By: | /s/ William Kerby | |
| William Kerby | ||
| Chief Executive Officer | ||
Exhibit 3.1
CERTIFICATE OF DESIGNATION
OF
SIGMA ADDITIVE SOLUTIONS, INC.
Pursuant to Section 78.1955 of the
Nevada Revised Statutes
SERIES G CONVERTIBLE PREFERRED STOCK
The undersigned, William Kerby, Chief Executive Officer, does hereby certify that:
1. He is the President and Chief Executive Officer of Sigma Additive Solutions, Inc., a Nevada corporation (the “Corporation”).
2. The Corporation is authorized to issue 10,000,000 shares of preferred stock, of which (a) 1,621,500 shares have been designated as Series A Convertible Preferred Stock, none of which are presently issued and outstanding; (b) 1,000 shares have been designated as Series B Convertible Preferred Stock, none of which are presently issued and outstanding; (c) 1,500 shares have been designated as Series C Convertible Preferred Stock, none of which are presently issued and outstanding; (d) 7,796 shares have been designated as Series D Convertible Preferred Stock, none of which are presently issued and outstanding; (e) 500 shares have been designated as Series E Convertible Preferred Stock, 316 of which are presently issued and outstanding; and (f) 5,843,997 shares have been designated as Series F Convertible Preferred Stock, none of which are presently issued and outstanding.
3. The following resolutions were duly adopted by the board of directors of the Corporation (the “Board of Directors”):
WHEREAS, the amended and restated articles of incorporation of the Corporation, as amended (the “Articles of Incorporation”), provide for a class of its authorized stock known as preferred stock, consisting of 10,000,000 shares, $0.001 par value per share, issuable from time to time in one or more series;
WHEREAS, the Board of Directors is authorized to fix the dividend rights, dividend rate, voting rights, conversion rights, rights and terms of redemption and liquidation preferences of any wholly unissued series of preferred stock and the number of shares constituting any series and the designation thereof, of any of them; and
WHEREAS, it is the desire of the Board of Directors, pursuant to its authority as aforesaid, to fix the rights, preferences, restrictions and other matters relating to a series of the preferred stock, which shall consist up to one hundred thousand (100,000) shares of Series G Convertible Preferred Stock, as follows:
NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors does hereby provide for the issuance of a series of preferred stock for cash or exchange of other securities, rights or property and does hereby fix and determine the rights, preferences, restrictions and other matters relating to such series of preferred stock as follows:
1. Definitions.
“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 405 of the Securities Act.
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“Business Day” means any day other than a Saturday, Sunday or a legal holiday on which commercial banking institutions in New York, New York are authorized to close for business; provided that banks shall not be deemed to be authorized or obligated to be closed due to a “shelter in place” or similar closure of physical branch locations at the direction of any governmental authority if such banks’ electronic funds transfer systems (including for wire transfers) are open for use by customers on such day.
“Common Stock” means the Corporation’s common stock, par value $0.001 per share.
“Conversion Date” shall have the meaning set forth in Section 7(a).
“Conversion Ratio” shall have the meaning set forth in Section 7(a).
“Conversion Shares” means, collectively, the shares of Common Stock issuable upon conversion of the shares of Preferred Stock in accordance with the terms hereof.
“Converted Stock” shall have the meaning set forth in Section 7(a)
“Holder” means, as of a given point in time, a Person who holds Preferred Stock.
“Liquidation Event” shall have the meaning set forth in Section 6(a).
“Perpetual License Agreement” means the Perpetual License Agreement, dated as of January 26, 2024, among the Corporation, NextTrip Holdings, Inc., and Promethean TV, Inc., as amended, modified or supplemented from time to time in accordance with its terms.
“Person” means an individual, corporation, exempted company, partnership (including a general partnership, limited partnership, exempted limited partnership or limited liability partnership), limited liability company, association, trust or other entity or organization, including a government, domestic or foreign, or political subdivision thereof, or an agency or instrumentality thereof.
“Preferred Stock” shall have the meaning set forth in Section 2.
“Requisite Holders” means holders of record of a majority of the outstanding shares of Preferred Stock (excluding, for the avoidance of doubt, any shares of Preferred Stock that are held by the Corporation or its controlled Affiliates (including in treasury), whether repurchased, redeemed or otherwise acquired, which shall not be entitled to a vote).
“SEC” means the United States Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Share Delivery Date” shall have the meaning set forth in Section 7(c).
“Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange, OTCQB or OTCQX (or any successors to any of the foregoing).
2. Designation, Amount and Par Value. This series of preferred stock shall be designated and known as “Series G Convertible Preferred Stock” (the “Preferred Stock”). The number of shares constituting the Preferred Stock shall be one hundred thousand (100,000) shares. Each share of Preferred Stock shall have a par value of $0.001 per share.
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3. Ranking. Except as otherwise provided herein, the Preferred Stock shall, with respect to rights on liquidation, winding up and dissolution, rank pari passu to the common stock, par value $0.001 per share (the “Common Stock”), of the Corporation.
4. Dividends. Holders of Preferred Stock (each a “Holder” and collectively, the “Holders”) shall be entitled to receive, and the Corporation shall pay, dividends on shares of Preferred Stock equal (on an as-if-converted-to-Common-Stock basis calculated based on the Conversion Ratio, disregarding for such purpose any conversion limitations or liquidation preferences hereunder) to and in the same form as dividends actually paid on shares of the Common Stock when, as and if such dividends are paid on shares of the Common Stock. Other than as set forth in the previous sentence, no other dividends shall be paid on shares of Preferred Stock, and the Corporation shall pay no dividends (other than dividends in the form of Common Stock) on shares of the Common Stock unless it simultaneously complies with the previous sentence.
5. Voting. Except as otherwise expressly provided herein or in the Articles of Incorporation, or as provided by the Nevada Revised Statutes, the holders of shares of Preferred Stock, the holders of shares of Common Stock and the holders of any other class or series of shares entitled to vote with the Common Stock shall vote together as one class on all matters submitted to a vote of stockholders of the Corporation. In any such vote, each share of Preferred Stock shall entitle the holder thereof to cast the number of votes equal to the number of votes which could be cast in such vote by a holder of the number of shares of Common Stock into which such share of Preferred Stock would then be convertible (disregarding for such purpose any conversion limitations or liquidation preferences hereunder). However, as long as any shares of Preferred Stock are outstanding, the Corporation shall not, without the affirmative vote of the Holders of a majority of the then outstanding shares of the Preferred Stock, (a) alter or change adversely the powers, preferences or rights given to the Preferred Stock or alter or amend this Certificate of Designation, (b) amend its articles of incorporation or other charter documents in any manner that adversely affects any rights of the Holders, or (c) enter into any agreement with respect to any of the foregoing.
6. Liquidation Rights.
(a) Liquidation. In the event of any liquidation, dissolution or winding up of the Corporation, either voluntary or involuntary (each a “Liquidation Event”), the Holders of Preferred Stock shall be entitled to participate, on an as-converted-to-Common Stock basis calculated based on the Conversion Ratio (disregarding for such purpose any conversion limitations or liquidation preferences hereunder), with holders of the Common Stock in any distribution of assets of the Corporation to the holders of the Common Stock.
(b) Valuation of Non-Cash Consideration. If any assets of the Corporation distributed to stockholders in connection with any liquidation, dissolution, or winding up of the Corporation are other than cash, then the value of such assets shall be their fair market value as determined in good faith by the Board of Directors. In the event of a merger or other acquisition of the Corporation by another entity, the distribution date shall be deemed to be the date such transaction closes.
7. Conversion.
(a) Automatic Conversion. On the date (the “Conversion Date”) upon which the Corporation has effected an increase in the number of shares of Common Stock authorized for issuance under the Articles of Incorporation, to at least the extent required to convert all of the issued and outstanding shares of Preferred Stock, each outstanding share of Preferred Stock shall be automatically converted into one (1) share of Common Stock (subject to adjustment as set forth herein) (the “Conversion Ratio”). The shares of Preferred Stock that are converted pursuant to this Section 7 are referred to as the “Converted Stock.”
(b) Delivery of Conversion Shares Upon Conversion. Not later than five (5) Business Days after the Conversion Date, the Corporation shall deliver, or cause to be delivered, to the Holders such number of Conversion Shares being acquired upon the conversion of the Preferred Stock. The Conversion Shares shall be issued as follows:
i. Converted Stock that is registered in book entry form shall be automatically cancelled upon the Conversion Date and converted into the corresponding Conversion Shares, which shares shall be issued in book entry form and without any action on the part of the Holders and shall be delivered to the Holders within two (2) Business Days of the effectiveness of the conversion.
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ii. Converted Stock that is issued in certificated form shall be deemed converted into the corresponding Conversion Shares on the Conversion Date and the Holder’s rights as a holder of such shares of Converted Stock shall cease and terminate on such date, excepting only the right to receive the Conversion Shares upon the Holder tendering to the Corporation (or its designated agent) the stock certificate(s) (duly endorsed) representing such certificated Converted Stock and any remedies provided herein or otherwise available at law or in equity to such Holder because of a failure by the Corporation to comply with the terms of this Certificate of Designation.
(c) Delivery of Certificate or Book Entry Form. Upon conversion, not later than two (2) Business Days after the Conversion Date, or if the Holder requests the issuance of physical certificate(s), two (2) Business Days after receipt by the Corporation of the original certificate(s) representing such shares of Preferred Stock being converted, duly endorsed by the Holder (the “Share Delivery Date”), the Corporation shall either: (a) in the event that the Holder has so elected in a written notice to the Corporation, deliver, or cause to be delivered, to the converting Holder a physical certificate or certificates representing the number of Conversion Shares being acquired upon the conversion of shares of Preferred Stock or (b) otherwise shall issue and deliver to such Holder or such Holder’s nominees, documentation of the book entry for the number of Conversion Shares being acquired.
(d) Reservation of Shares Issuable Upon Conversion. Upon the Corporation effecting an increase in the number of shares of Common Stock, the Corporation shall reserve and keep available out of its authorized and unissued shares of Common Stock for the sole purpose of issuance upon conversion of the Preferred Stock as herein provided, free from preemptive rights or any other actual contingent purchase rights of Persons other than the Holders, not less than such aggregate number of shares of the Common Stock as shall be issuable upon the conversion of the then outstanding shares of Preferred Stock. All shares of Common Stock that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and nonassessable.
(e) Fractional Shares. No fractional shares or scrip representing fractional shares shall be issued upon the conversion of the Preferred Stock. As to any fraction of a share which a Holder would otherwise be entitled to receive upon such conversion, the Corporation shall round down to the next whole share of Common Stock.
(f) Transfer Taxes and Expenses. The issuance of Conversion Shares shall be made without charge to any Holder for any documentary stamp or similar taxes that may be payable in respect of the issue or delivery of such Conversion Shares, provided that the Corporation shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery of any such Conversion Shares upon conversion in a name other than that of the Holders of such shares of Preferred Stock and the Corporation shall not be required to issue or deliver such Conversion Shares unless or until the Person or Persons requesting the issuance thereof shall have paid to the Corporation the amount of such tax or shall have established to the satisfaction of the Corporation that such tax has been paid. The Corporation shall pay all transfer agent fees required for same-day processing of any Conversion and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Conversion Shares.
(g) Certain Adjustments.
i. Stock Splits. If the Corporation, at any time while the Preferred Stock is outstanding: (A) subdivides outstanding shares of Common Stock into a larger number of shares; or (B) combines (including by way of a reverse stock split) outstanding shares of Common Stock into a smaller number of shares, then the Conversion Ratio shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding any treasury shares of the Corporation) outstanding immediately after such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately before such event (excluding any treasury shares of the Corporation). Any adjustment made pursuant to this Section 7(g) shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination. Upon the occurrence of each adjustment to the Conversion Ratio, the Corporation, at its expense, shall, as promptly as reasonably possible but in any event not later than five (5) Business Days thereafter, compute such adjustment in accordance with the terms hereof and furnish to each Holder a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based. The Corporation shall, as promptly as reasonably practicable after the written request at any time of any Holder (but in any event not later than five (5) Business Days thereafter), furnish or cause to be furnished to such Holder a certificate setting forth (i) the Conversion Ratio then in effect and (ii) the number of shares of Common Stock which then would be received by such Holder upon conversion.
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ii. Calculations. All calculations under this Section 7 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this Section 7, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock (excluding any treasury shares of the Corporation) issued and outstanding
8. Redemption Right. The Corporation shall have the right to redeem up to 50% of the Preferred Stock for an aggregate price of $1.00 in accordance with the terms of the Perpetual License Agreement.
9. Miscellaneous.
(a) Notices. Except as otherwise provided herein, all notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent (a) to the Corporation, at its principal executive offices and (b) to any stockholder, at such holder’s address at it appears in the stock records of the Corporation (or at such other address for a stockholder as shall be specified in a notice given in accordance with this Section 9).
(b) Failure or Indulgence Not Waiver. No failure or delay on the part of a Holder 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 other or further exercise thereof or of any other right, power or privilege. No waiver shall be effective unless it is in writing and signed by an authorized representative of the waiving party.
(c) Transfer of Preferred Stock. A Holder may transfer some or all of its shares of Preferred Stock without the consent of the Corporation so long as such transfer complies with all applicable securities laws.
(d) Amendment. This Certificate of Designation or any provision hereof may be amended by obtaining the affirmative vote at a meeting duly called for such purpose, or written consent without a meeting in accordance with the Nevada Revised Statutes, by a majority of the Holders, voting separate as a single class, and with such other stockholder approval, if any, as may then be required pursuant to the Nevada Revised Statutes or the Articles of Incorporation.
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IN WITNESS WHEREOF the undersigned has signed this Designation this 26th day of January 2024.
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SIGMA ADDITIVE SOLUTIONS, INC. |
||
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By: |
/s/ William Kerby |
|
| Name: | William Kerby, Chief Executive Officer | |
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Exhibit 3.2
CERTIFICATE OF DESIGNATION
OF
SIGMA ADDITIVE SOLUTIONS, INC.
Pursuant to Section 78.1955 of the
Nevada Revised Statutes
SERIES H CONVERTIBLE PREFERRED STOCK
The undersigned, William Kerby, Chief Executive Officer, does hereby certify that:
1. He is the President and Chief Executive Officer of Sigma Additive Solutions, Inc., a Nevada corporation (the “Corporation”).
2. The Corporation is authorized to issue 10,000,000 shares of preferred stock, of which (a) 1,621,500 shares have been designated as Series A Convertible Preferred Stock, none of which are presently issued and outstanding; (b) 1,000 shares have been designated as Series B Convertible Preferred Stock, none of which are presently issued and outstanding; (c) 1,500 shares have been designated as Series C Convertible Preferred Stock, none of which are presently issued and outstanding; (d) 7,796 shares have been designated as Series D Convertible Preferred Stock, none of which are presently issued and outstanding; (e) 500 shares have been designated as Series E Convertible Preferred Stock, 316 of which are presently issued and outstanding; (f) 5,843,997 shares have been designated as Series F Convertible Preferred Stock, none of which are presently issued and outstanding; and (g) 100,000 shares have been designated as Series G Convertible Preferred Stock, none of which are presently issued and outstanding.
3. The following resolutions were duly adopted by the board of directors of the Corporation (the “Board of Directors”):
WHEREAS, the amended and restated articles of incorporation of the Corporation, as amended (the “Articles of Incorporation”), provide for a class of its authorized stock known as preferred stock, consisting of 10,000,000 shares, $0.001 par value per share, issuable from time to time in one or more series;
WHEREAS, the Board of Directors is authorized to fix the dividend rights, dividend rate, voting rights, conversion rights, rights and terms of redemption and liquidation preferences of any wholly unissued series of preferred stock and the number of shares constituting any series and the designation thereof, of any of them; and
WHEREAS, it is the desire of the Board of Directors, pursuant to its authority as aforesaid, to fix the rights, preferences, restrictions and other matters relating to a series of the preferred stock, which shall consist up to one hundred and fifty thousand (150,000) shares of Series H Convertible Preferred Stock, as follows:
NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors does hereby provide for the issuance of a series of preferred stock for cash or exchange of other securities, rights or property and does hereby fix and determine the rights, preferences, restrictions and other matters relating to such series of preferred stock as follows:
1. Definitions.
“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 405 of the Securities Act.
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“Business Day” means any day other than a Saturday, Sunday or a legal holiday on which commercial banking institutions in New York, New York are authorized to close for business; provided that banks shall not be deemed to be authorized or obligated to be closed due to a “shelter in place” or similar closure of physical branch locations at the direction of any governmental authority if such banks’ electronic funds transfer systems (including for wire transfers) are open for use by customers on such day.
“Common Stock” means the Corporation’s common stock, par value $0.001 per share.
“Conversion Date” shall have the meaning set forth in Section 7(a).
“Conversion Ratio” shall have the meaning set forth in Section 7(a).
“Conversion Shares” means, collectively, the shares of Common Stock issuable upon conversion of the shares of Preferred Stock in accordance with the terms hereof.
“Converted Stock” shall have the meaning set forth in Section 7(a)
“Holder” means, as of a given point in time, a Person who holds Preferred Stock.
“Liquidation Event” shall have the meaning set forth in Section 6(a).
“Person” means an individual, corporation, exempted company, partnership (including a general partnership, limited partnership, exempted limited partnership or limited liability partnership), limited liability company, association, trust or other entity or organization, including a government, domestic or foreign, or political subdivision thereof, or an agency or instrumentality thereof.
“Preferred Stock” shall have the meaning set forth in Section 2.
“Requisite Holders” means holders of record of a majority of the outstanding shares of Preferred Stock (excluding, for the avoidance of doubt, any shares of Preferred Stock that are held by the Corporation or its controlled Affiliates (including in treasury), whether repurchased, redeemed or otherwise acquired, which shall not be entitled to a vote).
“SEC” means the United States Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Share Delivery Date” shall have the meaning set forth in Section 7(c).
“Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange, OTCQB or OTCQX (or any successors to any of the foregoing).
2. Designation, Amount and Par Value. This series of preferred stock shall be designated and known as “Series H Convertible Preferred Stock” (the “Preferred Stock”). The number of shares constituting the Preferred Stock shall be one hundred and fifty thousand (150,000) shares. Each share of Preferred Stock shall have a par value of $0.001 per share.
3. Ranking. Except as otherwise provided herein, the Preferred Stock shall, with respect to rights on liquidation, winding up and dissolution, rank pari passu to the common stock, par value $0.001 per share (the “Common Stock”), of the Corporation.
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4. Dividends. Holders of Preferred Stock (each a “Holder” and collectively, the “Holders”) shall be entitled to receive, and the Corporation shall pay, dividends on shares of Preferred Stock equal (on an as-if-converted-to-Common-Stock basis calculated based on the Conversion Ratio, disregarding for such purpose any conversion limitations or liquidation preferences hereunder) to and in the same form as dividends actually paid on shares of the Common Stock when, as and if such dividends are paid on shares of the Common Stock. Other than as set forth in the previous sentence, no other dividends shall be paid on shares of Preferred Stock, and the Corporation shall pay no dividends (other than dividends in the form of Common Stock) on shares of the Common Stock unless it simultaneously complies with the previous sentence.
5. Voting. Except as otherwise expressly provided herein or in the Articles of Incorporation, or as provided by the Nevada Revised Statutes, the holders of shares of Preferred Stock, the holders of shares of Common Stock and the holders of any other class or series of shares entitled to vote with the Common Stock shall vote together as one class on all matters submitted to a vote of stockholders of the Corporation. In any such vote, each share of Preferred Stock shall entitle the holder thereof to cast the number of votes equal to the number of votes which could be cast in such vote by a holder of the number of shares of Common Stock into which such share of Preferred Stock would then be convertible (disregarding for such purpose any conversion limitations or liquidation preferences hereunder). However, as long as any shares of Preferred Stock are outstanding, the Corporation shall not, without the affirmative vote of the Holders of a majority of the then outstanding shares of the Preferred Stock, (a) alter or change adversely the powers, preferences or rights given to the Preferred Stock or alter or amend this Certificate of Designation, (b) amend its articles of incorporation or other charter documents in any manner that adversely affects any rights of the Holders, or (c) enter into any agreement with respect to any of the foregoing.
6. Liquidation Rights.
(a) Liquidation. In the event of any liquidation, dissolution or winding up of the Corporation, either voluntary or involuntary (each a “Liquidation Event”), the Holders of Preferred Stock shall be entitled to participate, on an as-converted-to-Common Stock basis calculated based on the Conversion Ratio (disregarding for such purpose any conversion limitations or liquidation preferences hereunder), with holders of the Common Stock in any distribution of assets of the Corporation to the holders of the Common Stock.
(b) Valuation of Non-Cash Consideration. If any assets of the Corporation distributed to stockholders in connection with any liquidation, dissolution, or winding up of the Corporation are other than cash, then the value of such assets shall be their fair market value as determined in good faith by the Board of Directors. In the event of a merger or other acquisition of the Corporation by another entity, the distribution date shall be deemed to be the date such transaction closes.
7. Conversion.
(a) Automatic Conversion. On the date (the “Conversion Date”) upon which the Corporation has effected an increase in the number of shares of Common Stock authorized for issuance under the Articles of Incorporation, to at least the extent required to convert all of the issued and outstanding shares of Preferred Stock, each outstanding share of Preferred Stock shall be automatically converted into one (1) share of Common Stock (subject to adjustment as set forth herein) (the “Conversion Ratio”). The shares of Preferred Stock that are converted pursuant to this Section 7 are referred to as the “Converted Stock.”
(b) Delivery of Conversion Shares Upon Conversion. Not later than five (5) Business Days after the Conversion Date, the Corporation shall deliver, or cause to be delivered, to the Holders such number of Conversion Shares being acquired upon the conversion of the Preferred Stock. The Conversion Shares shall be issued as follows:
i. Converted Stock that is registered in book entry form shall be automatically cancelled upon the Conversion Date and converted into the corresponding Conversion Shares, which shares shall be issued in book entry form and without any action on the part of the Holders and shall be delivered to the Holders within two (2) Business Days of the effectiveness of the conversion.
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ii. Converted Stock that is issued in certificated form shall be deemed converted into the corresponding Conversion Shares on the Conversion Date and the Holder’s rights as a holder of such shares of Converted Stock shall cease and terminate on such date, excepting only the right to receive the Conversion Shares upon the Holder tendering to the Corporation (or its designated agent) the stock certificate(s) (duly endorsed) representing such certificated Converted Stock and any remedies provided herein or otherwise available at law or in equity to such Holder because of a failure by the Corporation to comply with the terms of this Certificate of Designation.
(c) Delivery of Certificate or Book Entry Form. Upon conversion, not later than two (2) Business Days after the Conversion Date, or if the Holder requests the issuance of physical certificate(s), two (2) Business Days after receipt by the Corporation of the original certificate(s) representing such shares of Preferred Stock being converted, duly endorsed by the Holder (the “Share Delivery Date”), the Corporation shall either: (a) in the event that the Holder has so elected in a written notice to the Corporation, deliver, or cause to be delivered, to the converting Holder a physical certificate or certificates representing the number of Conversion Shares being acquired upon the conversion of shares of Preferred Stock or (b) otherwise shall issue and deliver to such Holder or such Holder’s nominees, documentation of the book entry for the number of Conversion Shares being acquired.
(d) Reservation of Shares Issuable Upon Conversion. Upon the Corporation effecting an increase in the number of shares of Common Stock, the Corporation shall reserve and keep available out of its authorized and unissued shares of Common Stock for the sole purpose of issuance upon conversion of the Preferred Stock as herein provided, free from preemptive rights or any other actual contingent purchase rights of Persons other than the Holders, not less than such aggregate number of shares of the Common Stock as shall be issuable upon the conversion of the then outstanding shares of Preferred Stock. All shares of Common Stock that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and nonassessable.
(e) Fractional Shares. No fractional shares or scrip representing fractional shares shall be issued upon the conversion of the Preferred Stock. As to any fraction of a share which a Holder would otherwise be entitled to receive upon such conversion, the Corporation shall round down to the next whole share of Common Stock.
(f) Transfer Taxes and Expenses. The issuance of Conversion Shares shall be made without charge to any Holder for any documentary stamp or similar taxes that may be payable in respect of the issue or delivery of such Conversion Shares, provided that the Corporation shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery of any such Conversion Shares upon conversion in a name other than that of the Holders of such shares of Preferred Stock and the Corporation shall not be required to issue or deliver such Conversion Shares unless or until the Person or Persons requesting the issuance thereof shall have paid to the Corporation the amount of such tax or shall have established to the satisfaction of the Corporation that such tax has been paid. The Corporation shall pay all transfer agent fees required for same-day processing of any Conversion and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Conversion Shares.
(g) Certain Adjustments.
i. Stock Splits. If the Corporation, at any time while the Preferred Stock is outstanding: (A) subdivides outstanding shares of Common Stock into a larger number of shares; or (B) combines (including by way of a reverse stock split) outstanding shares of Common Stock into a smaller number of shares, then the Conversion Ratio shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding any treasury shares of the Corporation) outstanding immediately after such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately before such event (excluding any treasury shares of the Corporation). Any adjustment made pursuant to this Section 7(g) shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination. Upon the occurrence of each adjustment to the Conversion Ratio, the Corporation, at its expense, shall, as promptly as reasonably possible but in any event not later than five (5) Business Days thereafter, compute such adjustment in accordance with the terms hereof and furnish to each Holder a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based. The Corporation shall, as promptly as reasonably practicable after the written request at any time of any Holder (but in any event not later than five (5) Business Days thereafter), furnish or cause to be furnished to such Holder a certificate setting forth (i) the Conversion Ratio then in effect and (ii) the number of shares of Common Stock which then would be received by such Holder upon conversion.
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ii. Calculations. All calculations under this Section 7 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this Section 7, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock (excluding any treasury shares of the Corporation) issued and outstanding
8. Redemption Right. The Preferred Stock shall not have any redemption rights.
9. Miscellaneous.
(a) Notices. Except as otherwise provided herein, all notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent (a) to the Corporation, at its principal executive offices and (b) to any stockholder, at such holder’s address at it appears in the stock records of the Corporation (or at such other address for a stockholder as shall be specified in a notice given in accordance with this Section 9).
(b) Failure or Indulgence Not Waiver. No failure or delay on the part of a Holder 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 other or further exercise thereof or of any other right, power or privilege. No waiver shall be effective unless it is in writing and signed by an authorized representative of the waiving party.
(c) Transfer of Preferred Stock. A Holder may transfer some or all of its shares of Preferred Stock without the consent of the Corporation so long as such transfer complies with all applicable securities laws.
(d) Amendment. This Certificate of Designation or any provision hereof may be amended by obtaining the affirmative vote at a meeting duly called for such purpose, or written consent without a meeting in accordance with the Nevada Revised Statutes, by a majority of the Holders, voting separate as a single class, and with such other stockholder approval, if any, as may then be required pursuant to the Nevada Revised Statutes or the Articles of Incorporation.
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IN WITNESS WHEREOF the undersigned has signed this Designation this 26th day of January 2024.
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SIGMA ADDITIVE SOLUTIONS, INC. |
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By: |
/s/ William Kerby |
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| Name: | William Kerby, Chief Executive Officer | |
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Exhibit 10.1
PROMETHEAN TV, INC.
PERPETUAL LICENSE AGREEMENT
THIS PERPETUAL LICENSE AGREEMENT (this “Agreement”) is made and entered into this 26th day of January, 2024 (the “Effective Date”) by and between Promethean TV, Inc., a Delaware corporation (“Promethean”), NextTrip Holdings, Inc., a Florida corporation (“NextTrip”) and Sigma Additive Solutions, Inc., the parent corporation of NextTrip (“NextTrip Parent”).
WHEREAS, Promethean is the owner and developer of the Ignite TV interactive video platform used for driving engagement and commerce (the “Software” as further defined in Section 1.6 below);
WHEREAS, NextTrip desires to purchase a copy of the Code for the Software and obtain a perpetual right and license to use the Code and Software for commercial exploitation in the travel industry, and to obtain certain other rights as set forth herein, and Promethean is willing to grant to NextTrip the foregoing rights, in accordance with the terms and provisions of this Agreement and in consideration of past debt.
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS.
In this Agreement, the following capitalized terms shall have the following meanings:
1.1 “Platform” means all source code for the Licensed Software or any Modification including but not limited to all functional specifications, and program specifications comprising or contained in the Licensed Software or any Modification whether in eye readable or machine-readable form.
1.2 “End User” means any of NextTrip’s third party business users of the Licensed Software.
1.3 “Industry” means the travel software solutions industry (howsoever such solutions are provided whether perpetual, SaaS, desktop or via mobile device), and any other solution or product that competes or is competitive to a software solution or product that NextTrip now provides or hereafter may provide.
1.4 “Modification(s)” means any modifications, changes, revisions, enhancements, corrections of defects, fixes, workarounds, improvements, or changes in functionality to the Licensed Software or the Code, whether or not issued in a formal update, upgrade, or release, or any other work of authorship based upon the Licensed Software, the Code, or a Modification provided they relate to time and attendance solutions, scheduling solutions or any software solution NextTrip now provides or hereafter may provide.
1.5 “Licensed Services” means (a) configuration, integration, and installation services in connection with the licensing and implementation of the Licensed Software to End Users; (b) on-going support services to End Users in connection with the use of the Licensed Software; (c) hosting services to host the Licensed Software to End Users; and (d) professional services or any other services which NextTrip now provides or hereafter may provide to End Users.
1.6 “Licensed Software” or “Software” means the software products of Promethean in machine executable object code format, and any documentation therefore, as set forth on Exhibit A attached hereto, including any Modifications made thereto.
1.7 “Term” has the meaning set forth in Section 9.1.
SECTION 2. PERPETUAL LICENSE
2.1 Purchase of Perpetual License Rights. Subject to the terms of this Agreement, Promethean hereby (a) sells to NextTrip a copy of the Code for the Licensed Software; and (b) grants to NextTrip, an irrevocable, worldwide, perpetual right and non-exclusive license to forever retain and use the Code and each executable copy of the Licensed Software for commercial exploitation by NextTrip without restriction in the Industry (such rights to forever retain, use and commercially exploit the Code and Licensed Software shall be referred to as the “Perpetual License”). The Perpetual License grants NextTrip the right to commercially exploit the Code and Licensed Software in any manner in the Industry so long as it is an integrated NextTrip product or to an existing NextTrip customer or solution including but not limited to the right (a) to use, market, license, distribute, copy, and deliver the Licensed Software for commercial exploitation; (b) to host the Licensed Software and Code; (c) to provide the Licensed Services; (d) to use the Code to assist NextTrip in connection with licensing and exploitation of the Licensed Software, and providing the Licensed Services; and (e) to make Modifications to the Code as set forth in Section 2.4. In consideration of the Perpetual License and the other rights granted to NextTrip (via NextTrip Parent) shall pay Promethean the “Purchase Price” set forth in Section 3.
2.2 Sub-Licensee Rights. NextTrip shall have the right to grant non-exclusive and non-transferable sublicenses to resellers and third parties (the “Sub-Licensee(s)”) on at least the same terms as are granted to under this Agreement.
2.3 Delivery of Materials. Upon execution of this Agreement, Promethean shall provide NextTrip with at least one executable copy of each of the Licensed Software and one copy of the Code in a format agreeable to both parties. NextTrip shall be permitted to make such number of copies of the Licensed Software and the Code as are reasonably necessary in connection with the exercise of the rights granted to it hereunder.
2.4 Modifications by NextTrip. From the Effective Date hereof and forever in perpetuity, NextTrip shall have the right to make Modifications to the Code (and any corresponding Licensed Software) at NextTrip’s sole cost and expense without the prior written consent of Promethean. All such Modifications made by NextTrip shall be owned entirely by NextTrip (and are hereby assigned by Promethean to NextTrip) and without additional compensation to Promethean. NextTrip shall have no obligation to provide Promethean with any source code, executable copy or documentation comprising any such Modification.
SECTION 3. PURCHASE PRICE
3.1 Purchase Price. For the rights granted hereunder, NextTrip shall direct NextTrip Parent to issue Promethean 100,000 restricted shares of a newly designated series of convertible preferred stock in NextTrip Parent (the “Shares”) on the Effective Date, which Shares shall be automatically converted into shares of NextTrip Parent common stock, on a one-for-one basis, on that date that an Increase in Authorized (as defined in Section 10.2 hereof) is effected. For the avoidance of doubt, the parties each hereby acknowledge and agree that that Perpetual License is granted on the date the Shares are received by Promethean. The parties also acknowledge that NextTrip waives all past debts incurred by Promethean in consideration of this Agreement.
3.2 Exercise of Shares; Repurchase Right. The Shares are “restricted stock” and are subject to a minimum six-month holding period under Rule 144 in accordance with SEC rules. Notwithstanding the foregoing, during the holding period, NextTrip Parent has the right to repurchase up to 50% of the Shares, or the shares of common stock underlying the Shares if they are converted into shares of NextTrip Parent’s common stock during the holding period, for $1.00 as consideration for any breaches of representations and warranties or indemnities of Promethean set forth in Sections 7 and 8.
3.3 Expenses. Each party shall pay all expenses incurred by it in the negotiation, execution and performance of this Agreement.
SECTION 4. SERVICE OBLIGATIONS
4.1 NextTrip to Provide Services to End Users. NextTrip shall be solely responsible, at its expense, for (a) promoting, marketing and monetizing the Licensed Software; (b) training End Users in the use of the Licensed Software; (c) providing the Licensed Services to End Users; (d) establishing sufficient infrastructure and/or maintaining existing infrastructure to provide the Licensed Services.
4.2 Integration and Consultancy Services. For a period of two (2) years from the Effective Date, Promethean shall make itself available and provide on a commercially timely basis integration services to NextTrip for the purpose of assisting NextTrip in the integration and use of the Licensed Software with NextTrip’s solutions or otherwise. NextTrip shall request integration and consultancy services by project on a “pay as you go basis”. Prior to Promethean providing services, the parties shall agree in writing or by email on the scope of the project, the estimated number of hours, and a schedule of milestones and deliverables, as applicable. Promethean shall invoice NextTrip for such services at an hourly rate of $150.00 or as otherwise agreed to by the parties in a separate writing. Invoices shall be paid net 5 days. The parties shall use reasonable efforts to cooperate and coordinate with each other during the integration period for a smooth and orderly transition.
SECTION 5. PURCHASE OPTION; RIGHT OF FIRST REFUSAL
5.1 Purchase Option; Right of First Refusal. Promethean hereby grants NextTrip a first right and option and first refusal right to acquire Promethean for a period of one (1) years from the Effective Date on such terms as are mutually acceptable to the parties (the “Purchase Agreement”).
SECTION 6. TITLE AND CONFIDENTIAL INFORMATION.
6.1 Title. The Licensed Software and the Code are the sole property of Promethean except the Perpetual License granted to NextTrip herein, the copies of the Code delivered to NextTrip hereunder, and any Modification developed by NextTrip pursuant to Section 2.4, all of which shall be owned by NextTrip.
6.2 Confidential Information. The parties agree that any information received by either party in connection with this Agreement which is not in the public domain including but not limited to the Licensed Software and the Code including information received verbally that a reasonable person would understand to constitute proprietary information (hereinafter “Confidential Information”) is not to be disclosed to any person other than employees, contractors, professional advisors, and actual or prospective investors, lenders or acquirers of either party who have a need to know such information. The receiving party shall be responsible for unauthorized disclosures of the other party’s Confidential Information by such employees, contractors and others to whom it disclosed the Confidential Information. The parties agree that any Confidential Information disclosed to a party pursuant to this Agreement may be used by the receiving party only in the performance of this Agreement (or, as to advisors and other authorized discloses, for purposes of evaluation and advice), and for no other purpose. The parties further agree that with respect to the Confidential Information of the other party, during the Term of this Agreement and thereafter, the receiving party will at all times maintain its confidentiality using the same degree of care that such party uses to protect its own Confidential Information and in no case using less than the usual standard of care used in the software licensing industry. Confidential Information does not include information (i) which becomes public knowledge by acts other than those of the receiving party and through no fault of the receiving party; (ii) rightfully received by the receiving party from a third party who is not bound by a nondisclosure agreement with respect to such information and without breach of this Agreement; or (iii) which must be disclosed pursuant to a court or administrative order, provided that the receiving party first promptly notifies the disclosing party of such order so that the disclosing party may take appropriate action to preserve the confidentiality of such information.
SECTION 7. REPRESENTATIONS AND WARRANTIES
7.1 Promethean Representation and Warranties. Promethean warrants and represents to NextTrip that (a) the Code and all Licensed Software shall perform substantially as described it its user manuals and other descriptions and specifications; (b) the Code and the Licensed Software will not contain any computer viruses or other code designed or intended to disable the functionality of any software or system, or otherwise designed or intended to adversely affect the operation of any systems or data of NextTrip; (c) Promethean has the full power and authority to enter into this Agreement and all necessary rights to perform its obligation hereunder according to the terms and conditions of this Agreement and is the sole owner of all right, title and interest in and to the Code and the Licensed Software; and (d) Promethean has not granted and will not grant any rights in the Licensed Software or the Code (including any Modifications) to any third party which grant is inconsistent with the rights granted to NextTrip in this Agreement.
7.2 NextTrip Representation and Warranties. NextTrip warrants and represents to Promethean that NextTrip (a) has the full power and authority to enter into this Agreement and all necessary rights to perform its obligation hereunder according to the terms and conditions of this Agreement; (b) will not give permission to any third party to use the Licensed Software or the Code for any purpose other than as expressly permitted by this Agreement; (c) will not possess, use, import, export or resell (and shall not permit the possession, use, importation, exportation, or resale of) the Code or the Licensed Software in any manner which would cause it or its affiliates to breach any applicable export control laws, rules, or regulations of any jurisdiction applicable to NextTrip; and (d) will not grant any rights in the Licensed Software or the Code (including any Modifications) to any third party which grant is inconsistent with the rights granted to NextTrip in this Agreement.
SECTION 8. INDEMNIFICATION; LIMITATION OF LIABILITY.
8.1 Promethean Indemnity. Promethean shall indemnify, defend and hold NextTrip and its affiliates, and their respective end users, resellers, officers, directors, employees, independent contractors, and agents harmless from and against any and all third party claims of loss, liability, costs and expenses (including reasonable legal fees and costs) arising out of (a) a breach by Promethean of any representation, warranty or covenant by it in this Agreement or the Rights Agreement; or (b) any claim or action by a third party alleging that the Code, the Licensed Software or any Modifications as provided by Promethean to NextTrip hereunder at anytime infringes or misappropriates any patent, copyright, trade secret or other intellectual property right of a third party.
8.2 NextTrip Indemnity. NextTrip shall indemnify, defend and hold Promethean and its affiliates and their respective officers, directors, employees, independent contractors, agents and affiliates harmless from and against any and all third-party claims of loss, liability, costs and expenses (including reasonable legal fees and costs) arising out of a breach by NextTrip of any representation, warranty or covenant by it in this Agreement or the Rights Agreement.
8.3 Limitations on Liability. Except for Promethean’s obligations under sections 8.1 and the Purchase Agreement, neither party shall be liable to the other party, for any incidental, indirect, special, punitive or consequential damages of any kind, in connection with or arising out of this agreement.
SECTION 9. TERM; TERMINATION
9.1 Term. This Agreement shall commence on the Effective Date and shall continue in perpetuity unless this Agreement is rightfully terminated by either party (the “Term”).
9.2 Termination by Either Party. Either party may terminate this Agreement if (a) the other party materially breaches any representation, warranty or covenant of such party in this Agreement or the Rights Agreement which breach is not cured within thirty (30) days of the receipt of written notice of breach specifically identifying the breach on which termination is based, or (b) upon receipt of notice in the event of the insolvency, bankruptcy, or inability of the other party to pay debts as and when due, or an assignment for the benefit of creditors, or the appointment of a receiver for all or a substantial part of the other party’s business or property, or an attachment of any assets lasting more than sixty (60) days or the other party ceases to conduct its business operations in the ordinary course of business. All rights and licenses granted under or pursuant to this Agreement by Promethean to NextTrip are, and shall otherwise be deemed to be, for the purposes of Section 365(n) of the United States Bankruptcy Code (“Bankruptcy Code”), licenses to rights to “intellectual property” as defined in the Bankruptcy Code. The parties agree that NextTrip, as licensee of such rights under this Agreement, shall retain and may fully exercise all of its rights and elections under the Bankruptcy Code including, in the event of a bankruptcy proceeding by or against Promethean under the Bankruptcy Code.
9.3 Effect of Termination. No termination of any kind pursuant to Section 9 or otherwise shall affect NextTrip’s right to retain the Code and the Perpetual License forever. If NextTrip breaches its payment obligations to Promethean, Promethean’s sole remedy is a claim of money damages at law and Promethean shall have no right to terminate the Perpetual License and other rights granted to NextTrip under this Agreement. In the event Promethean’s breaches its fundamental obligations to NextTrip under Sections 8.1(b), or under the Purchase Agreement, NextTrip shall have the right to seek any remedies available at law or equity including the right to seek specific performance, injunctive relief, or other equitable relief against the breaching party, each of which shall be independent of the others and severally enforceable, and each of which is in addition to, and not in lieu of, any rights and remedies available to NextTrip at law or in equity.
SECTION 10. MISCELLANEOUS.
10.1 Relationship of the Parties. Neither party will have any right, power, or authority to assume, create, or incur any expense, liability, or obligation, expressed or implied, on behalf of the other party. This Agreement is not intended to be nor will it be construed as a joint venture, association, partnership, or other form of a business organization or agency relationship.
10.2 Voting of Shares. Promethean covenants to vote all of the Shares with respect to any resolution presented to the stockholders of the NextTrip Parent for the purpose of obtaining stockholder approval of an amended or amendments to NextTrip Parent’s amended and restated articles of incorporation (“Charter”) to effect (i) an increase in the number of shares of common stock authorized for issuance under NextTrip Parent’s Charter to 100,000,000 shares or more (the “Increase in Authorized”), (ii) a change in NextTrip Parent’s corporate name to NextTrip, Inc. (the “Name Change”), and (iii) approving an adjournment of any meeting of NextTrip Parent’s stockholders called to vote on the Increase in Authorized and Name Change
10.3 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matters and supersedes all previous written or oral negotiations, commitments and writings.
10.4 Assignability. This Agreement and the rights and obligations hereunder are not assignable by either party except to (a) an affiliate of a party, or (b) to a successor of a party in the event of a sale of substantially all of the assets or stock of such party (subject to the Rights Agreement) provided such successor or assign assumes the obligations hereunder as if it were the original Promethean party to this Agreement and agrees to be bound by the terms of this Agreement in writing. In such event, each party shall provide the other party with written notice of the identity and contact information of a permitted successor or assign and a copy of an assignment and assumption agreement. This Agreement shall bind and inure to the benefit of the parties hereto and their permitted successors and assigns.
10.5 Waivers; Severability. The failure of any of the parties to this Agreement to require the performance of a term or obligation under this Agreement or the waiver by any of the parties to this Agreement of any breach hereunder shall not prevent subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach hereunder. If any one or more of the provisions of this Agreement are held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Agreement will not be affected thereby, and the parties will use all reasonable efforts to substitute for such invalid, illegal or unenforceable provisions one or more valid, legal and enforceable provisions which, insofar as practicable, implement the purposes and intents hereof. To the extent permitted by applicable law, each party waives any provision of law which renders any provision of this Agreement invalid, illegal or unenforceable in any respect.
10.6 Amendments. This Agreement may not be amended or modified, nor may compliance with any condition or covenant set forth herein be waived, except by a writing duly and validly executed by each party hereto, or in the case of a waiver, the party waiving compliance.
10.7 Law Governing. This Agreement and performance hereunder will be governed by the laws of the state of Florida, exclusive of its conflict of law rules. In the event of a dispute regarding this Agreement or its subject matter that the parties do not resolve by negotiation, the complaining party must submit the dispute to binding arbitration with the other party in Sunrise, Florida, before a single arbitrator under the Commercial Arbitration Rules of the American Arbitration Association. The cost of the arbitrator shall be borne equally by the parties. The arbitrator may award reasonable attorneys’ fees and costs as part of the award. The award of the arbitrator will be binding and may be entered as a judgment in any court of competent jurisdiction. Notwithstanding the foregoing, to the extent that the remedy sought by a party is injunctive relief, the parties agree to the personal and subject matter jurisdiction, and the forum convenience, of the federal and state courts located in Sunrise, Florida.
10.8 Notices. All notices, requests, demands and other communications hereunder shall be deemed to have been duly given on the date delivered if delivered by hand, three days after being sent by certified or registered mail (postage prepaid and with return receipt requested), on the date delivered if by overnight courier service, or on the date delivered if by fax transmission to:
| TO: NEXTTRIP or NEXTTRIP PARENT |
NextTrip Holdings, Inc. | |
| 3900 Paseo Del Sol | ||
| Santa Fe, New Mexico 87507 | ||
| Attention: Chief Executive Officer | ||
| Email: | ||
| To: PROMETHEAN | Promethean TV, Inc. | |
| 11682 Wembley Road. Los Alamitos | ||
| Los Alamitos, CA 90720 | ||
| Attention: Chief Executive Officer | ||
| Email: |
or to such other address of which any party may notify the other parties as provided above. Notices are effective upon receipt or, if mailed, five (5) business days after the placing thereof in the United States mail in the manner provided above.
10.8 Continuing Obligations. Unless otherwise expressly provided for therein, Sections 2, 3, 4, 5, 6, 7, 8, 9, and 10 of this Agreement will survive termination of this Agreement for any reason.
10.9 Headings. The section headings contained in this Agreement are for reference purposes only and do not affect in any way the meaning or interpretation of this Agreement.
[signature page follows]
IN WITNESS WHEREOF, the undersigned duly authorized officers of the respective parties have hereto affixed their signatures to this Agreement as of the date and year first written above.
| PROMETHEAN TV, INC. | NEXTTRIP HOLDINGS, INC. | |||
| /s/ Ian Sharpe | /s/ William Kerby | |||
| By: | Ian Sharpe | By: | William Kerby | |
| Its: | Chief Executive Officer | Its: | Chief Executive Officer | |
| SIGMA ADDITIVE SOLUTIONS, INC. | ||
| /s/ William Kerby | ||
| By: | William Kerby | |
| Its: | Chief Executive Officer | |
Exhibit A
Licensed Software
Licensed Software:
| 1. | Licensed Software: |
Promethean.TV Dynamic Overlays platform and tools as follows;
| - | Promethean TV XSDK for web, native Android and native iOS platforms | |
| - | Promethean TV Broadcast Center | |
| - | Promethean TV embeddable web video player | |
| - | Promethean TV Online documentation |
Documentation:
Cover |
Jan. 26, 2024 |
|---|---|
| Cover [Abstract] | |
| Document Type | 8-K |
| Amendment Flag | false |
| Document Period End Date | Jan. 26, 2024 |
| Current Fiscal Year End Date | --12-31 |
| Entity File Number | 001-38015 |
| Entity Registrant Name | SIGMA ADDITIVE SOLUTIONS, INC. |
| Entity Central Index Key | 0000788611 |
| Entity Tax Identification Number | 27-1865814 |
| Entity Incorporation, State or Country Code | NV |
| Entity Address, Address Line One | 3900 Paseo del Sol |
| Entity Address, City or Town | Santa Fe |
| Entity Address, State or Province | NM |
| Entity Address, Postal Zip Code | 87507 |
| City Area Code | (505) |
| Local Phone Number | 438-2576 |
| Written Communications | false |
| Soliciting Material | false |
| Pre-commencement Tender Offer | false |
| Pre-commencement Issuer Tender Offer | false |
| Title of 12(b) Security | Common stock, par value $0.001 per share |
| Trading Symbol | SASI |
| Security Exchange Name | NASDAQ |
| Entity Emerging Growth Company | false |
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