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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(D)
OF
THE SECURITIES EXCHANGE ACT OF 1934
Date
of Report (Date of earliest event reported): June 14, 2024
ONEMEDNET
CORPORATION
(Exact
name of registrant as specified in its charter)
Delaware |
|
001-40386 |
|
86-2076743 |
(State
or other jurisdiction
of
incorporation) |
|
(Commission
File
Number) |
|
(I.R.S.
Employer
Identification
No.) |
6385
Old Shady Oak Road, Suite 250
Eden
Prairie, MN 55344
(Address
of Principal Executive Offices) (Zip Code)
Registrant’s
telephone number, including area code: 800-918-7189
Check
the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of
the following provisions:
|
☐ |
Written
communication pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
|
|
☐ |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
|
|
|
☐ |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
|
|
|
☐ |
Pre-commencements
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class |
|
Trading
Symbol(s) |
|
Name
of each exchange on which registered |
Common
Stock, $0.0001 par value per share |
|
ONMD |
|
The
Nasdaq Stock Market LLC |
Redeemable
Warrants, each exercisable for one share of Common Stock at an exercise price of $11.50 per share |
|
ONMDW |
|
The
Nasdaq Stock Market LLC |
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).
Emerging
growth company ☒
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. |
Standby
Equity Purchase Agreement
On
June 17, 2024, OneMedNet Corporation, a Delaware corporation (“the Company”) entered into a standby equity purchase agreement
(the “SEPA”) with YA II PN, LTD, a Cayman Islands exempt limited partnership managed by Yorkville Advisors Global, LP (“Yorkville”).
Pursuant to the SEPA, subject to certain conditions, the Company has the option to sell to Yorkville an aggregate amount of up to up
to $25 million of the Company’s shares of Common Stock, par value $0.0001 per share (the “Common Stock”), at the Company’s
request from time to time following both the repayment of the Promissory Note described below and the effectiveness of a resale registration
statement covering the shares of issued under the SEPA. The SEPA terminates on its 24-month anniversary.
Each
advance may not exceed the greater of 500,000 shares and 100% of the average daily volume traded of the Common Stock during the five
trading days immediately prior to requested advance. The shares would be purchased at a price equal to 97% of the Market Price as defined
in the SEPA. The Company may establish a minimum acceptable price in each advance below which the Company will not be obligated to make
any sales to Yorkville.
Any
purchase under an advance would be subject to certain limitations, including that Yorkville will not purchase or acquire any shares that
would result in it and its affiliates beneficially owning more than 4.99% of the then outstanding voting power or number of shares of
Common Stock or any shares that when aggregated with shares issued under all other earlier Advances, would exceed 4,767,616 shares of
Common Stock (representing 19.99% of the aggregate number of then outstanding shares of Common Stock) (the “Exchange Cap”)
unless shareholders approved issuances in excess of the Exchange Cap.
In
connection with the execution of the SEPA, the Company paid a $25,000 structuring fee to Yorkville. The Company agreed to pay a commitment
fee of $500,000 to Yorkville, which will be paid in shares in two tranches.
Additionally,
Yorkville agreed to advance to the Company, in exchange for a convertible promissory note (the “Promissory Note”), a principal
amount of $1.5 million, which was funded on June 18, 2024. The Promissory Note is due on June 18, 2025, and interest shall accrue at
an annual rate equal to 0%, subject to an increase to 18% upon an event of default as described in the Promissory Note. The Promissory
Note will be convertible by Yorkville into shares of Common Stock at an aggregate purchase price based on a price per share equal to
the lower of (a) $1.3408 per share (the “Fixed Price”) (subject to downward reset upon the filing of the resale registration
statement described below) or (b) 90% of the lowest daily VWAP of the Common Stock on Nasdaq during the seven trading days immediately
prior to each conversion (the “Variable Price”), but which Variable Price may not be lower than the Floor Price then in effect.
The “Floor Price” is $0.28 per share, subject to the Company’s option to reduce the Floor Price to any amounts set
forth in a written notice to Yorkville. While the Promissory Note is outstanding, Yorkville may initiate an investor advance under the
SEPA at the Promissory Note conversion price, the proceeds of which would be used to repay the Promissory Note.
The
Promissory Note may be accelerated by Yorkville upon specified events of default, and may become amortizable for cash if (i) the daily
VWAP is less than the Floor Price for five trading days during a period of seven consecutive trading days, (ii) the Company has issued
in excess of 95% of the shares of Common Stock available under the Exchange Cap or (iii) the Company is in material breach of its obligations
under the Registration Rights Agreement (as defined below) or Yorkville becomes limited in its ability to freely resell shares subject
to an advance as further described in the Promissory Note, subject to de-amortization after certain cures.
The
foregoing description of each of the SEPA and the Promissory Note is not complete and is qualified in its entirety by reference to the
SEPA and the Promissory Note, respectively, each of which is filed as Exhibit 10.1 and Exhibit 10.2, respectively, to this Current Report
on Form 8-K (this “Current Report”) and incorporated herein by reference.
In
connection with the SEPA, the Company entered into a Registration Rights Agreement with Yorkville pursuant to which the Company agreed
to file a resale registration statement by August 30, 2024, and to use commercially reasonable efforts to have the resale registration
statement declared effective within 30 days of such filing and to maintain its effectiveness. The Company may not request any advances
unless there is an effective resale registration statement covering the applicable shares.
The
foregoing description of the Registration Rights Agreement is not complete and is qualified in its entirety by reference to the Registration
Rights Agreement, which is filed as Exhibit 10.3 to this Current Report and incorporated herein by reference.
Item
1.02. |
Termination
of a Material Definitive Agreement. |
Termination
Agreement
As
previously disclosed, on March 28, 2024, the Company entered into a definitive securities purchase agreement (as amended on June 4, 2024,
the “Securities Purchase Agreement”) with Helena Global Investment Opportunities 1 Ltd. (the “Investor”), an
affiliate of Helena Partners Inc., a Cayman-Islands based advisor and investor, providing for up to USD$4.54 million in funding through
a private placement for the issuance of senior secured convertible notes.
On
June 14, 2024, the Company and the Investor entered into a termination agreement (the “Termination Agreement”) to terminate
the Securities Purchase Agreement and related documents (the “Transaction Documents”). As a result of the Termination Agreement,
each of the Transaction Documents is null and void and is of no further force or effect, including, without limitation, those provisions
of the Transaction Documents that by their terms would otherwise survive the termination of the applicable Transaction Document. Except
as set forth in the Termination Agreement, there is no liability or obligation under the Transaction Documents on the part of the Investor
or the Company.
Pursuant
to the Termination Agreement, the Company is issuing to the Investor a warrant to purchase 50,000 shares of Common Stock at an exercise
price of $1.20 per share. Also pursuant to the Termination Agreement, the Company will reimburse the Investor for reasonable and documented
out-of-pocket legal fees and expenses incurred in connection with the Transaction Documents.
The
foregoing description of the Termination Agreement is not complete and is qualified in its entirety by reference to the Termination Agreement,
which is filed as Exhibit 10.4 to this Current Report and incorporated herein by reference.
Item
2.03. |
Creation
of a Direct Financial Obligation or an Obligation Under an Off-balance Sheet Arrangement of a Registrant. |
The
disclosure contained in Item 1.01 of this Current Report is incorporated by reference in this Item 2.03.
Item
9.01. |
Financial
Statements and Exhibits. |
(d) Exhibits.
Exhibit
No. |
|
Description |
10.1 |
|
Standby Equity Purchase Agreement, dated as of June 17, 2024, by and between OneMedNet Corporation and YA II PN, LTD. |
10.2 |
|
Promissory Note, dated as of June 18, 2024, issued by OneMedNet Corporation to YA II PN, LTD. |
10.3 |
|
Registration Rights Agreement, dated as of June 17, 2024, by and between OneMedNet Corporation to YA II PN, LTD. |
10.4 |
|
Termination Agreement, dated as of June 14, 2024, between OneMedNet Corporation and Helena Global Investment Opportunities 1 Ltd. |
104 |
|
Cover
Page Interactive Data File (embedded within the Inline XBRL document). |
SIGNATURE
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.
Dated:
June 21, 2024
|
ONEMEDNET
CORPORATION |
|
|
|
|
By: |
/s/
Aaron Green |
|
|
Aaron
Green |
|
|
Chief
Executive Officer |
Exhibit
10.1
STANDBY
EQUITY PURCHASE AGREEMENT
THIS
STANDBY EQUITY PURCHASE AGREEMENT (this “Agreement”) dated as of June 17, 2024 is made by and between YA II
PN, LTD., a Cayman Islands exempt limited partnership (the “Investor”), and ONEMEDNET CORPORATION, a company
incorporated under the laws of the state of Delaware (the “Company”). The Investor and the Company may be referred
to herein individually as a “Party” and collectively as the “Parties.”
WHEREAS,
the Parties desire that, upon the terms and subject to the conditions contained herein, the Company shall have the right to issue and
sell to the Investor, from time to time as provided herein, and the Investor shall purchase from the Company, up to $25 million in aggregate
gross purchase price of newly issued fully paid shares of the Company’s Class A Common Stock, par value $0.0001 per share (the
“Common Shares”);
WHEREAS,
the Common Shares are listed for trading on the Nasdaq Global Market under the symbol “ONMD;”
WHEREAS,
the offer and sale of the Common Shares issuable hereunder will be made in reliance upon Section 4(a)(2) under the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder (the “Securities Act”), or upon such other
exemption from the registration requirements of the Securities Act as may be available with respect to any or all of the transactions
to be made hereunder; and
WHEREAS,
the Parties are concurrently entering into a Registration Rights Agreement in the form attached as Exhibit A hereto (the “Registration
Rights Agreement”), pursuant to which the Company shall register the resale of the Registrable Securities (as defined in the
Registration Rights Agreement), upon the terms and subject to the conditions set forth therein.
NOW,
THEREFORE, the Parties hereto agree as follows:
Article
I. Certain Definitions
Capitalized
terms used in this Agreement shall have the meanings ascribed to such terms in Annex I hereto, and hereby made a part hereof,
or as otherwise set forth in this Agreement.
Article
II. Pre-Paid Advances
Section
2.01 Pre-Paid Advances. Subject to the satisfaction of the conditions set forth in Annex II attached hereto, the Investor
shall advance to the Company the principal amount of $1,500,000 (the “Pre-Paid Advance”), which shall be evidenced
by a convertible promissory note in the form attached hereto as Exhibit B (together with any Other Note (as defined in Exhibit
B), each, a “Promissory Note”). The Pre-Paid Advance shall be advanced on the Effective Date of this Agreement
(the “Pre-Advance Closing”).
Section
2.02 Pre-Advance Closing. The Pre-Advance Closing shall occur remotely by conference call and electronic delivery of documentation.
The Pre-Advance Closing shall take place at 10:00 a.m., New York time, on the Effective Date, provided that the conditions set forth
on Annex II have been satisfied (or such other date as is mutually agreed to by the Company and the Investor). At the Pre-Advance Closing,
the Investor shall advance to the Company the principal amount of the Pre-Paid Advance, less a discount in the amount equal to 10% of
the principal amount of the Pre-Paid Advance netted from the purchase price due and structured as an original issue discount (the “Original
Issue Discount”), in immediately available funds to an operating account of the Company designated by the Company in writing,
and the Company shall deliver the Promissory Note with a principal amount equal to the full amount of the Pre-Paid Advance, duly executed
on behalf of the Company. The Company acknowledges and agrees that the Original Issue Discount (i) shall not be funded but shall be deemed
to be fully earned on the Pre-Advance Closing, and (ii) shall not reduce the principal amount of each Promissory Note. As and to the
extent that the Investor converts outstanding amounts under the Promissory Note into Shares, the principal amount of the Pre-Paid Advance
shall automatically be reduced by the principal amount of the Promissory Note so converted without any additional fee or penalty in accordance
with the terms of the Promissory Note.
Article
III. Advances
Section
3.01 Advances; Mechanics. Upon the terms and subject to the conditions of this Agreement, during the Commitment Period, (i) the
Company, at its sole discretion, shall have the right, but not the obligation, to issue and sell to the Investor, and the Investor shall
subscribe for and purchase from the Company, Advance Shares by the delivery to the Investor of Advance Notices, provided (x) no balance
is outstanding under a Promissory Note, or, (y) if there is a balance outstanding under a Promissory Note, in accordance with Section
3.01(a)(iii) hereof, and (ii) for as long as there is a balance outstanding under a Promissory Note, the Investor, at its sole discretion
shall have the right, but not the obligation, by the delivery to the Company of Investor Notices, to cause an Advance Notice to be deemed
delivered to the Investor and the issuance and sale of Shares to the Investor pursuant to an Advance, on the following terms:
|
(a) |
Advance
Notice. At any time during the Commitment Period the Company may require the Investor to purchase Shares by delivering an Advance
Notice to the Investor, subject to the satisfaction or waiver by the Investor of the conditions set forth in Annex III, and
in accordance with the following provisions: |
|
(i) |
The
Company shall, in its sole discretion, select the number of Advance Shares, not to exceed the Maximum Advance Amount (unless otherwise
agreed to in writing by the Company and the Investor), it desires to issue and sell to the Investor in each Advance Notice, the time
it desires to deliver each Advance Notice and any Minimum Acceptable Price. |
|
|
|
|
(ii) |
There
shall be no mandatory minimum Advances and there shall be no non-usages fee for not utilizing the Commitment Amount or any part thereof. |
|
(iii) |
For
so long as any amount remains outstanding under a Promissory Note, without the prior written consent of the Investor, (A) the Company
may only (other than with respect to a deemed Advance Notice pursuant to an Investor Notice) submit an Advance Notice if an Amortization
Event has occurred and the obligation of the Company to make monthly prepayments under the Promissory Note has not ceased, and (B)
the Investor shall pay the aggregate purchase price owed to the Company from such Advances (“Advance Proceeds”)
by offsetting the amount of the Advance Proceeds against an equal amount outstanding under the subject Promissory Note (first towards
accrued and unpaid interest, and then towards outstanding principal and the corresponding payment premium (as set forth in the subject
Promissory Note) in respect of such principal amount, if applicable). |
|
(b) |
Investor
Notice. At any time during the Commitment Period, provided that there is a balance remaining outstanding under a Promissory Note,
the Investor may, by delivering an Investor Notice to the Company, cause an Advance Notice to be deemed delivered to the Investor
and the issuance and sale of Shares to the Investor pursuant to an Advance, in accordance with the following provisions: |
|
(i) |
The
Investor shall, in its sole discretion, select the amount of the Advance up to the Maximum Advance Amount applicable to the Investor,
and the time it desires to deliver each Investor Notice; provided that the amount of the Advance selected shall not exceed the balance
owed under all Promissory Notes outstanding on the date of delivery of the Investor Notice. |
|
|
|
|
(ii) |
The
Purchase Price of the Shares in respect of any Advance Notice deemed delivered pursuant to an Investor Notice shall be equal to the
Conversion Price (as defined in the Promissory Note) in effect on the date of delivery of the Investor Notice. The Investor shall
pay the Purchase Price for the Shares to be issued pursuant to the Investor Notice by offsetting the amount of the Purchase Price
to be paid by the Investor against an equal amount outstanding under a Promissory Note (first towards accrued and unpaid interest,
if any, then towards principal). |
|
|
|
|
(iii) |
Each
Investor Notice shall set forth the amount of the Advance requested, the Purchase Price (which shall be equal to the Conversions
Price) along with a report by Bloomberg, L.P. indicating the relevant VWAP used in calculating the Conversion Price, the number of
Shares to be issued by the Company and purchased by the Investor, the aggregate amount of accrued and unpaid interest under the subject
Promissory Note (if any) that shall be offset by the issuance of Shares, the aggregate amount of principal of the Promissory Note
that shall be offset by the issuance of Shares, and the total amount of the Promissory Note that shall be outstanding following the
closing of the Advance, and each Investor Notice shall serve as the Settlement Document in respect of such Advance. |
|
|
|
|
(iv) |
Upon
the delivery of an Investor Notice, a corresponding Advance Notice shall simultaneously and automatically be deemed to have been
delivered by the Company to the Investor requesting the amount of the Advance set forth in the Investor Notice, and any conditions
precedent to such Advance Notice under the terms of this Agreement that have not been satisfied shall be deemed to have been waived
by the Investor. |
|
(c) |
Date
of Delivery of Advance Notice. Advance Notices shall be delivered in accordance with the instructions set forth on the bottom
of Exhibit C attached hereto. An Advance Notice shall be deemed delivered on (i) the day it is received by the Investor if
such notice is received by e-mail at or before 9:00 a.m. New York City time (or at such later time if agreed to by the Investor in
its sole discretion), or (ii) the immediately succeeding day if it is received by e-mail after 9:00 a.m. New York City time. An Advance
Notice deemed delivered pursuant to an Investor Notice shall be deemed delivered on the same date upon which the Investor Notice
is received by the Company. Upon receipt of an Advance Notice, the Investor shall promptly provide written confirmation (which may
be by e-mail) of receipt of such Advance Notice. |
Section
3.02 Advance Limitations, Regulatory. Regardless of the Advance requested in an Advance Notice, including an Advance Notice deemed
delivered pursuant to an Investor Notice, the final number of Shares to be issued and sold pursuant to such Advance Notice shall be reduced
(if at all) in accordance with each of the following limitations:
|
(a) |
Ownership
Limitation; Commitment Amount. At the request of the Company, the Investor will inform the Company in writing of the number of
Common Shares the Investor currently beneficially owns. At the request of the Investor, the Company shall promptly confirm orally
or in writing to the Investor the number of Common Shares then outstanding. Notwithstanding anything to the contrary contained in
this Agreement, the Investor shall not be obligated to purchase or acquire, and shall not purchase or acquire, any Common Shares
under this Agreement which, when aggregated with all other Common Shares beneficially owned by the Investor and its affiliates (as
calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder), would result in the beneficial ownership
by the Investor and its affiliates (on an aggregated basis) to exceed 4.99% of the then outstanding voting power or number of Common
Shares (the “Ownership Limitation”). In connection with each Advance Notice, any portion of an Advance that would
(i) cause the Investor to exceed the Ownership Limitation or (ii) cause the aggregate number of Shares issued and sold to the Investor
hereunder to exceed the Commitment Amount shall automatically be withdrawn with no further action required by the Company, and such
Advance Notice shall be deemed automatically modified to reduce the Advance by an amount equal to such withdrawn portion; provided
that in the event of any such automatic withdrawal and automatic modification, the Investor will promptly notify the Company of such
event. |
|
|
|
|
(b) |
Registration
Limitation. In no event shall an Advance exceed the amount registered in respect of the transactions contemplated hereby under
the Registration Statement then in effect (the “Registration Limitation”). In connection with each Advance Notice,
any portion of an Advance that would exceed the Registration Limitation shall automatically be withdrawn with no further action required
by the Company and such Advance Notice shall be deemed automatically modified to reduce the aggregate amount of the requested Advance
by an amount equal to such withdrawn portion; provided that in the event of any such automatic withdrawal and automatic modification,
the Investor will promptly notify the Company of such event. |
|
(c) |
Compliance
with Rules of Principal Market. Notwithstanding anything to the contrary herein, the Company shall not effect any sales under
this Agreement and the Investor shall not have the obligation to purchase Common Shares under this Agreement to the extent (but only
to the extent) that after giving effect to such purchase and sale the aggregate number of Common Shares issued under this Agreement
would exceed 4,767,616 Common Shares (representing 19.99% of the aggregate number of Common Shares issued and outstanding as of the
Effective Date), which number shall be reduced, on a share-for-share basis, by the number of Common Shares issued or issuable pursuant
to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under the
applicable rules of the Principal Market (such maximum number of shares, the “Exchange Cap”) unless the Company’s
stockholders have approved the issuance of Common Shares pursuant to this Agreement in excess of the Exchange Cap in accordance with
the applicable rules of the Principal Market. In connection with each Advance Notice, any portion of an Advance that would exceed
the Exchange Cap shall automatically be withdrawn with no further action required by the Company and such Advance Notice shall be
deemed automatically modified to reduce the aggregate amount of the requested Advance by an amount equal to such withdrawn portion
in respect of each Advance Notice. |
Section
3.03 Advance Limitations, Minimum Acceptable Price.
|
(a) |
With
respect to each Advance Notice the Company may notify the Investor of the Minimum Acceptable Price with respect to such Advance by
indicating a Minimum Acceptable Price on such Advance Notice. If no Minimum Acceptable Price is specified in an Advance Notice, then
no Minimum Acceptable Price shall be in effect in connection with such Advance. Each Trading Day during a Pricing Period for which
(A) with respect to each Advance Notice with a Minimum Acceptable Price, the VWAP of the Common Shares is below the Minimum Acceptable
Price in effect with respect to such Advance Notice, or (B) there is no VWAP (each such day, an “Excluded Day”),
shall result in an automatic reduction to the number of Advance Shares set forth in such Advance Notice by 33% (the resulting amount
of each Advance being the “Adjusted Advance Amount”), and each Excluded Day shall be excluded from the Pricing
Period for purposes of determining the Market Price. |
|
|
|
|
(b) |
If
a Minimum Acceptable Price is specified in the Advance Notice, the total Advance Shares in respect of each Advance (after reductions
have been made to arrive at the Adjusted Advance Amount, if any) shall be automatically increased by such number of Common Shares
(the “Additional Shares”) equal to greater of (a) the number of Common Shares sold by the Investor on such Excluded
Day(s), if any, or (b) such number of Common Shares elected to be subscribed for by the Investor, and the subscription price per
share for each Additional Share shall be equal to the Minimum Acceptable Price in effect with respect to such Advance Notice multiplied
by 97%, provided that this increase shall not cause the total Advance Shares to exceed the number of Advance Shares set forth in
the applicable Advance Notice or any applicable limitations set forth in Section 3.02. |
Section
3.04 Unconditional Contract. Notwithstanding any other provision in this Agreement, the Company and the Investor acknowledge and
agree that upon the Investor’s receipt of a valid Advance Notice from the Company the Parties shall be deemed to have entered into
an unconditional contract binding on both Parties for the purchase and sale of Advance Shares pursuant to such Advance Notice in accordance
with the terms of this Agreement and (i) subject to Applicable Laws and (ii) subject to Section 7.19, the Investor may sell Common Shares
after receipt of an Advance Notice, including during a Pricing Period.
Section
3.05 Closings. The closing of each Advance and each sale and purchase of Advance Shares (whether pursuant to an Advance Notice
delivered by the Company or in connection with an Advance Notice deemed delivered by the Company in connection with an Investor Notice)
(each, a “Closing”) shall take place as soon as practicable on each applicable Advance Date in accordance with the
procedures set forth below. The Company acknowledges that, other than in connection with an Investor Notice, the Purchase Price is not
known at the time an Advance Notice is delivered but shall be determined on each Closing based on the daily prices of the Common Shares
that are the inputs to the determination of the Purchase Price. In connection with each Closing, the Company and the Investor shall fulfill
each of its obligations as set forth below:
|
(a) |
On
or prior to each Advance Date, the Investor shall deliver to the Company a Settlement Document along with a report by Bloomberg,
L.P. (or, if not reported on Bloomberg, L.P., another reporting service reasonably agreed to by the parties) indicating the VWAP
for each of the Trading Days during the Pricing Period or period for determining the Conversion Price, in each case in accordance
with the terms and conditions of this Agreement. In connection with an Investor Notice, the Investor Notice shall serve as the Settlement
Document. |
|
|
|
|
(b) |
Promptly
after receipt of the Settlement Document with respect to each Advance (and, in any event, not later than one Trading Day after such
receipt), the Company will, or will cause its transfer agent to, electronically transfer such number of Advance Shares to be purchased
by the Investor (as set forth in the Settlement Document) by crediting the Investor’s account or its designee’s account
at the Depository Trust Company through its Deposit Withdrawal at Custodian System or by such other means of delivery as may be mutually
agreed upon by the parties hereto, and transmit notification to the Investor that such share transfer has been requested. Promptly
upon receipt of such notification, the Investor shall pay to the Company the aggregate purchase price of the Shares (as set forth
in the Settlement Document) either (i) in the case of an Advance Notice submitted other than after the occurrence of an Amortization
Event, in cash in immediately available funds to an account designated by the Company in writing and transmit notification to the
Company that such funds transfer has been requested, or (ii) in the case of an Investor Notice or an Advance Notice submitted after
the occurrence of an Amortization Event, as an offset of amounts owed under the Promissory Note as described in Section 3.01(b)(iii).
No fractional shares shall be issued, and any fractional amounts shall be rounded to the next higher whole number of shares. To facilitate
the transfer of the Common Shares by the Investor, the Common Shares will not bear any restrictive legends so long as there is an
effective Registration Statement covering the resale of such Common Shares (it being understood and agreed by the Investor that notwithstanding
the lack of restrictive legends, the Investor may only sell such Common Shares pursuant to the Plan of Distribution set forth in
the Prospectus included in the Registration Statement and otherwise in compliance with the requirements of the Securities Act (including
any applicable prospectus delivery requirements) or pursuant to an available exemption). |
|
(c) |
On
or prior to the Advance Date, each of the Company and the Investor shall deliver to the other all documents, instruments and writings
expressly required to be delivered by either of them pursuant to this Agreement in order to implement and effect the transactions
contemplated herein. |
|
|
|
|
(d) |
Notwithstanding
anything to the contrary in this Agreement, other than in respect of Advance Notices deemed to be given pursuant to Investor Notices,
if on any day during the Pricing Period (i) the Company notifies Investor that a Material Outside Event has occurred, or (ii) the
Company notifies the Investor of a Black Out Period, the parties agree that any pending Advance shall end and the final number of
Advance Shares to be purchased by the Investor at the Closing for such Advance shall be equal to the number of Common Shares sold
by the Investor during the applicable Pricing Period prior to the notification from the Company of a Material Outside Event or Black
Out Period. |
Section
3.06 Hardship.
|
(a) |
In
the event the Investor sells Common Shares after receipt, or deemed receipt of an Advance Notice and the Company fails to perform
its obligations as mandated in this Agreement, the Company agrees that in addition to and in no way limiting the rights and obligations
set forth in Article VI hereto and in addition to any other remedy to which the Investor is entitled at law or in equity, including,
without limitation, specific performance, it will hold the Investor harmless against any loss, claim, damage, or expense (including
reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company and acknowledges
that irreparable damage may occur in the event of any such default. It is accordingly agreed that the Investor shall be entitled
to an injunction or injunctions to prevent such breaches of this Agreement and to specifically enforce (subject to Applicable Laws
and the rules of the Principal Market), without the posting of a bond or other security, the terms and provisions of this Agreement. |
Article
IV. Representations and Warranties of the Investor
The
Investor hereby makes the following representations, warrants, and covenants to the Company as of the date hereof, as of each Advance
Notice Date and as of the date of the Pre-Advance Closing:
Section
4.01 Organization and Authorization. The Investor is duly organized, validly existing and in good standing under the laws of the
Cayman Islands and has the requisite corporate power and authority to enter into and perform its obligations under the Transaction Documents
to which it is a party and to purchase or acquire the Shares in accordance with the terms hereof. The decision to invest and the execution
and delivery of the Transaction Documents to which it is a party by the Investor, the performance by the Investor of its obligations
hereunder and thereunder and the consummation by the Investor of the transactions contemplated hereby and thereby have been duly authorized
and require no other proceedings on the part of the Investor. The undersigned has the right, power and authority to execute and deliver
the Transaction Documents to which it is a party and all other instruments on behalf of the Investor or its shareholders. This Agreement
and the Transaction Documents to which it is a party have been duly executed and delivered by the Investor and, assuming the execution
and delivery hereof and acceptance thereof by the Company, will constitute the legal, valid and binding obligations of the Investor,
enforceable against the Investor in accordance with its terms.
Section
4.02 Evaluation of Risks. The Investor has such knowledge and experience in financial, tax and business matters as to be capable
of evaluating the merits and risks of, and bearing the economic risks entailed by, an investment in the Shares and of protecting its
interests in connection with the transactions contemplated hereby. The Investor acknowledges and agrees that its investment in the Company
involves a high degree of risk, and that the Investor may lose all or a part of its investment.
Section
4.03 No Legal, Investment or Tax Advice from the Company. The Investor acknowledges that it had the opportunity to review the
Transaction Documents and the transactions contemplated by the Transaction Documents with its own legal counsel and investment and tax
advisors. The Investor is relying solely on such counsel and advisors and not on any statements or representations of the Company or
any of the Company’s representatives or agents for legal, tax, investment or other advice with respect to the Investor’s
acquisition of Shares hereunder, the transactions contemplated by this Agreement or the laws of any jurisdiction, and the Investor acknowledges
that the Investor may lose all or a part of its investment.
Section
4.04 Investment Purpose. The Investor is acquiring the Shares and any Promissory Note for its own account, for investment purposes
and not with a view towards, or for resale in connection with, the public sale or distribution thereof, in violation of the Securities
Act; provided, however, that by making the representations herein, the Investor does not agree, or make any representation or warranty,
to hold any of the Shares for any minimum or other specific term and reserves the right to dispose of the Shares at any time in accordance
with, or pursuant to, a registration statement filed pursuant to this Agreement or an applicable exemption under the Securities Act.
The Investor does not presently have any agreement or understanding, directly or indirectly, with any Person to sell or distribute any
of the Shares. This Investor is acquiring the Shares and the Promissory Note hereunder in the ordinary
course of its business. The Investor acknowledges that it will be disclosed as an “underwriter” and a “selling
stockholder” in each Registration Statement and in any Prospectus contained therein to the extent required by applicable law and
to the extent the Prospectus is related to the resale of Registrable Securities.
Section
4.05 Accredited Investor. The Investor is an “Accredited Investor” as that term is defined in Rule 501(a)(3)
of Regulation D.
Section
4.06 Information. The Investor and its advisors (and its counsel), if any, have been furnished with all materials relating to
the business, finances and operations of the Company and information the Investor deemed material to making an informed investment decision.
The Investor and its advisors (and its counsel), if any, have been afforded the opportunity to ask questions of the Company and its management
and have received answers to such questions. Neither such inquiries nor any other due diligence investigations conducted by such Investor
or its advisors (and its counsel), if any, or its representatives shall modify, amend or affect the Investor’s right to rely on
the Company’s representations and warranties contained in this Agreement. The Investor acknowledges and agrees that the Company
has not made to the Investor, and the Investor acknowledges and agrees it has not relied upon, any representations and warranties of
the Company, its employees or any third party other than the representations and warranties of the Company contained in this Agreement.
The Investor understands that its investment involves a high degree of risk. The Investor has sought such accounting, legal and tax advice,
as it has considered necessary to make an informed investment decision with respect to the transactions contemplated hereby.
Section
4.07 Not an Affiliate. The Investor is not an officer, director or a person that directly, or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with the Company or any affiliate of the Company (as that term is defined in
Rule 405 promulgated under the Securities Act).
Section
4.08 General Solicitation. Neither the Investor, nor any of its affiliates, nor any person acting on its or their behalf, has
engaged or will engage in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection
with any offer or sale of the Shares by the Investor.
Section
4.09 Trading Activities. The Investor has not directly or indirectly, nor has any Person acting on behalf of or pursuant to any
understanding with the Investor, engaged in any transactions in the securities of the Company (including, without limitation, any Short
Sales (as defined below) involving the Company’s securities) during the period commencing as of the time that the Investor first
contacted the Company or the Company’s agents regarding the specific investment in the Company contemplated by this Agreement and
ending immediately prior to the execution of this Agreement by the Investor.
Article
V. Representations and Warranties of the Company
Except
as set forth in the disclosure schedule delivered by the Company to the Investor concurrently with this Agreement (which is hereby incorporated
by reference in, and constitutes an integral part of, this Agreement) (the “Disclosure Schedule”), or where specifically
set forth below with respect to certain specified representations and warranties, the SEC Documents, the Company hereby makes the following
representations, warranties and covenants to the Investor as of the date hereof, as of each Advance Notice Date and as of the date of
the Pre-Advance Closing:
Section
5.01 Organization and Qualification. The Company and each of its Subsidiaries are entities duly formed, validly existing and in
good standing under the laws of the jurisdiction in which they are formed and have the requisite power and authority to own their properties
and to carry on their business as now being conducted. The Company and each of its Subsidiaries is duly qualified to do business and
is in good standing or the equivalent in every jurisdiction in which the nature of the business conducted by it makes such qualification
necessary, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect.
Section
5.02 Authorization, Enforcement, Compliance with Other Instruments. The Company has the requisite corporate power and authority
to enter into and perform its obligations under this Agreement and the other Transaction Documents and to issue the Shares in accordance
with the terms hereof and thereof. The execution and delivery by the Company of this Agreement and the other Transaction Documents, and
the consummation by the Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the
Shares) have been or (with respect to consummation) will be duly authorized by the Company’s board of directors and no further
consent or authorization will be required by the Company or its board of directors except for the approval of the Company’s shareholders.
This Agreement and the other Transaction Documents to which the Company is a party have been (or, when executed and delivered, will be)
duly executed and delivered by the Company and, assuming the execution and delivery thereof and acceptance by the Investor, constitute
(or, when duly executed and delivered, will be) the legal, valid and binding obligations of the Company, enforceable against the Company
in accordance with their respective terms, except as such enforceability may be limited by general principles of equity or applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or other laws relating to, or affecting generally, the enforcement of
applicable creditors’ rights and remedies and except as rights to indemnification and to contribution may be limited by federal
or state securities law.
Section
5.03 Authorization of the Shares. The Shares to be issued under this Agreement have been, or with respect to Shares to be purchased
by the Investor pursuant to an Advance Notice, will be, when issued and delivered pursuant to the terms approved by the board of directors
of the Company or a duly authorized committee thereof, or a duly authorized executive committee, against payment therefor as provided
herein, duly and validly authorized and issued and fully paid and nonassessable, free and clear of any pledge, lien, encumbrance, security
interest or other claim, including any statutory or contractual preemptive rights, resale rights, rights of first refusal or other similar
rights. The Shares, when issued, will conform to the description thereof set forth in or incorporated into the Prospectus. As of the
date of the Pre-Advance Closing, and at all times thereafter that a Promissory Note is outstanding, the Company shall have reserved from
its duly authorized capital stock not less than the number of shares of Common Shares then issuable upon conversion of all Promissory
Notes (assuming for purposes hereof that (x) such Promissory Note is convertible at a Conversion Price (as defined in each Promissory
Note) equal to the Floor Price as of the date of determination, and (y) any such conversion shall not take into account any limitations
on the conversion of the Promissory Note set forth therein).
Section
5.04 No Conflict. The execution, delivery and performance of the Transaction Documents by the Company and the consummation by
the Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Shares) will not
(i) result in a violation of the articles of incorporation or other organizational documents of the Company or its Subsidiaries (with
respect to consummation, as the same may be amended prior to the date on which any of the transactions contemplated hereby are consummated),
(ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or
give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which
the Company or its Subsidiaries is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including
federal and state securities laws and regulations) applicable to the Company or its Subsidiaries or by which any property or asset of
the Company or its Subsidiaries is bound or affected except, in the case of clause (ii) or (iii) above, to the extent such violations
that would not reasonably be expected to have a Material Adverse Effect.
Section
5.05 The Company understands and acknowledges that the number of Common Shares issuable upon conversion of the Promissory Notes will
increase in certain circumstances. The Company further acknowledges its obligation to issue the Common Shares upon conversion of the
Promissory Notes in accordance with the terms thereof or upon delivery of an Advance Notice (including upon receipt of an Investor Notice)
is absolute and unconditional regardless of the dilutive effect that such issuance may have on the ownership interests of other stockholders
of the Company.
Section
5.06 SEC Documents; Financial Statements. For the past two years the Company has timely filed (giving effect to permissible extensions
in accordance with Rule 12b-25 under the Exchange Act) all SEC Documents. The Company has delivered or made available to the Investor
through the SEC’s website at http://www.sec.gov, true and complete copies of the SEC Documents, as applicable. Except as disclosed
in amendments or subsequent filings to the SEC Documents, as of its filing date (or, if amended or superseded by a filing prior to the
date hereof, on the date of such amended or superseded filing), each of the SEC Documents complied in all material respects with the
requirements of the Exchange Act or the Securities Act, as applicable, and the rules and regulations of the SEC promulgated thereunder
applicable to the SEC Documents, and did not contain any untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made,
not misleading.
Section
5.07 Financial Statements. The consolidated financial statements of the Company included or incorporated by reference in the SEC
Documents, together with the related notes and schedules, present fairly, in all material respects, the consolidated financial position
of the Company and the Subsidiaries as of the dates indicated and the consolidated results of operations, cash flows and changes in stockholders’
equity of the Company for the periods specified and have been prepared in compliance with the requirements of the Securities Act and
Exchange Act and in conformity with generally accepted accounting principles in the United States (“GAAP”) applied
on a consistent basis (except for (i) such adjustments to accounting standards and practices as are noted therein, (ii) in the case of
unaudited interim financial statements, to the extent such financial statements may not include footnotes required by GAAP or may be
condensed or summary statements and (iii) such adjustments which are not material, either individually or in the aggregate) during the
periods involved; the other financial and statistical data with respect to the Company and the Subsidiaries contained or incorporated
by reference in the SEC Documents are accurately and fairly presented and prepared on a basis consistent with the financial statements
and books and records of the Company; there are no financial statements (historical or pro forma) that are required to be included or
incorporated by reference in the SEC Documents that are not included or incorporated by reference as required; the Company and the Subsidiaries
do not have any material liabilities or obligations, direct or contingent (including any off-balance sheet obligations), not described
in the SEC Documents (excluding the exhibits thereto); and all disclosures contained or incorporated by reference in the SEC Documents
regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the SEC) comply in all material
respects with Regulation G of the Exchange Act and Item 10 of Regulation S-K under the Securities Act, to the extent applicable. The
interactive data in eXtensible Business Reporting Language included or incorporated by reference in the SEC Documents fairly presents
the information called for in all material respects and has been prepared in accordance with the SEC’s rules and guidelines applicable
thereto.
Section
5.08 Registration Statement and Prospectus. The Company and the transactions contemplated by this Agreement meet the requirements
for and comply with the conditions for the use of Form S-1 under the Securities Act. Each Registration Statement and the offer and sale
of Shares as contemplated hereby, if and when filed, will meet the requirements of Rule 415 under the Securities Act and comply in all
material respects with said rule. Any statutes, regulations, contracts or other documents that are required to be described in a Registration
Statement or a Prospectus, or to be filed as exhibits to a Registration Statement have been so described or filed. Copies of each Registration
Statement, any Prospectus, and any such amendments or supplements thereto and all documents incorporated by reference therein that were
filed with the SEC on or prior to the date of this Agreement have been delivered, or are available through EDGAR, to the Investor and
its counsel. The Company has not distributed and, prior to the later to occur of each Advance Notice Date and completion of the distribution
of the Shares, will not distribute any offering material in connection with the offering or sale of the Shares other than a Registration
Statement and the Prospectus.
Section
5.09 No Misstatement or Omission. Each Registration Statement, when it became or becomes effective, and any Prospectus, on the
date of such Prospectus or amendment or supplement, conformed and will conform in all material respects with the requirements of the
Securities Act. At each Advance Notice Date, the Registration Statement, and the Prospectus, as of such date, will conform in all material
respects with the requirements of the Securities Act. Each Registration Statement, when it became or becomes effective, did not, and
will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading. Each Prospectus did not, or will not, include an untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not
misleading. The documents incorporated by reference in a Prospectus or any Prospectus Supplement did not, and any further documents filed
and incorporated by reference therein will not, when filed with the SEC, contain an untrue statement of a material fact or omit to state
a material fact required to be stated in such document or necessary to make the statements in such document, in light of the circumstances
under which they were made, not misleading. The foregoing shall not apply to statements in, or omissions from, any such document made
in reliance upon, and in conformity with, information furnished to the Company by the Investor specifically for use in the preparation
thereof.
Section
5.10 Conformity with Securities Act and Exchange Act. Each Registration Statement, each Prospectus, or any amendment or supplement
thereto, and the documents incorporated by reference in each Registration Statement, Prospectus or any amendment or supplement thereto,
when such documents were or are filed with the SEC under the Securities Act or the Exchange Act or became or become effective under the
Securities Act, as the case may be, conformed or will conform in all material respects with the requirements of the Securities Act and
the Exchange Act, as applicable.
Section
5.11 Equity Capitalization.
(a)
Authorized and Outstanding Capital Stock. As of the date hereof, the authorized capital stock of the Company consists of 101,000,000
shares each with a par value of $0.0001 par value, consisting of (i) 100,000,000 shares of Common Stock, and (ii) 1,000,000 shares of
preferred stock. As of the date hereof 23,850,010 shares of common stock are issued and outstanding, and no shares of preferred stock
are issued and outstanding.
(b)
Valid Issuance; Available Shares. All of such outstanding shares are duly authorized and have been validly issued and are
fully paid and nonassessable.
(C)
Existing Securities; Obligations. Except as disclosed in the SEC Documents: (A) none of the Company’s or any Subsidiary’s
shares, interests or capital stock is subject to preemptive rights or any other similar rights or liens suffered or permitted by the
Company or any Subsidiary; (B) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of
any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares, interests
or capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company
or any of its Subsidiaries is or may become bound to issue additional shares, interests or capital stock of the Company or any of its
Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities
or rights convertible into, or exercisable or exchangeable for, any shares, interests or capital stock of the Company or any of its Subsidiaries;
(C) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any
of their securities under the Securities Act (except pursuant to this Agreement); (D) there are no outstanding securities or instruments
of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments,
understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company
or any of its Subsidiaries; (E) there are no securities or instruments containing anti-dilution or similar provisions that will be
triggered by the issuance of the Shares; and (G) neither the Company nor any Subsidiary has entered into any Variable Rate Transaction.
Section
5.12 Intellectual Property Rights. The Company and its Subsidiaries own or possess adequate rights or licenses to use all material
trademarks, trade names, service marks, service mark registrations, service names, patents, patent rights, copyrights, inventions, licenses,
approvals, governmental authorizations, trade secrets and rights, if any, necessary to conduct their respective businesses as now conducted,
except as would not cause a Material Adverse Effect. The Company and its Subsidiaries have not received written notice of any infringement
by the Company or its Subsidiaries of trademark, trade name rights, patents, patent rights, copyrights, inventions, licenses, service
names, service marks, service mark registrations, or trade secrets, except as would not cause a Material Adverse Effect. To the knowledge
of the Company, there is no claim, action or proceeding being made or brought against, or to the Company’s knowledge, being threatened
against the Company or its Subsidiaries regarding trademark, trade name, patents, patent rights, invention, copyright, license, service
names, service marks, service mark registrations, trade secret or other infringement; and, except as would not cause a Material Adverse
Effect, the Company is not aware of any facts or circumstances which might give rise to any of the foregoing.
Section
5.13 Employee Relations. Neither the Company nor any of its Subsidiaries is involved in any labor dispute nor, to the knowledge
of the Company or any of its Subsidiaries, is any such dispute threatened, in each case which is reasonably likely to cause a Material
Adverse Effect.
Section
5.14 Environmental Laws. The Company and its Subsidiaries (i) have not received written notice alleging any failure to comply
in all material respects with all Environmental Laws (as defined below), (ii) have received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their respective businesses and (iii) have not received written notice
alleging any failure to comply with all terms and conditions of any such permit, license or approval where, in each of the foregoing
clauses (i), (ii) and (iii), the failure to so comply would be reasonably expected to have, individually or in the aggregate, a Material
Adverse Effect. The term “Environmental Laws” means all applicable federal, state and local laws relating to pollution
or protection of human health or the environment (including, without limitation, ambient air, surface water, groundwater, land surface
or subsurface strata), including, without limitation, laws relating to emissions, discharges, releases or threatened releases of chemicals,
pollutants, contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the
environment, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling
of Hazardous Materials, as well as all authorizations, codes, decrees, demands or demand letters, injunctions, judgments, licenses, notices
or notice letters, orders, permits, plans or regulations issued, entered, promulgated or approved thereunder.
Section
5.15 Title. Except as would not cause a Material Adverse Effect, the Company (or its Subsidiaries) has indefeasible fee simple
or leasehold title to its properties and material assets owned by it, free and clear of any pledge, lien, security interest, encumbrance,
claim or equitable interest other than such as are not material to the business of the Company. Any real property and facilities held
under lease by the Company and its Subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions
as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and
its Subsidiaries.
Section
5.16 Insurance. The Company and each of its Subsidiaries are insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as management of the Company believes to be prudent and customary in the businesses in which
the Company and its Subsidiaries are engaged. The Company has no reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business
at a cost that would not have a Material Adverse Effect.
Section
5.17 Regulatory Permits. Except as would not cause a Material Adverse Effect, the Company and its Subsidiaries possess all material
certificates, authorizations and permits issued by the appropriate federal, state or foreign regulatory authorities necessary to own
their respective businesses, and neither the Company nor any such Subsidiary has received any written notice of proceedings relating
to the revocation or modification of any such certificate, authorization or permits.
Section
5.18 Internal Accounting Controls. The Company maintains a system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and
to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific
authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences, and management is not aware of any material weaknesses that are not disclosed in the
SEC Documents as and when required.
Section
5.19 Absence of Litigation. There is no action, suit, proceeding, inquiry or investigation before or by any court, public board,
government agency, self-regulatory organization or body pending against or affecting the Company, the Common Shares or any of the Company’s
Subsidiaries, wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
Section
5.20 Absence of Certain Changes. Since the date of the Company’s most recent audited financial statements contained in a
Form 10-K, there has been no Material Adverse Effect. Since the date of the Company’s most recent audited financial statements
contained in a Form 10-K, neither the Company nor any of its Subsidiaries has (i) declared or paid any dividends, (ii) sold any material
assets, individually or in the aggregate, outside of the ordinary course of business, or (iii) made any material capital expenditures,
individually or in the aggregate, outside of the ordinary course of business. Neither the Company nor any of its Subsidiaries has taken
any steps to seek protection pursuant to any law or statute relating to bankruptcy, insolvency, reorganization, receivership, liquidation
or winding up, nor does the Company or any Subsidiary have any knowledge or reason to believe that any of their respective creditors
intend to initiate involuntary bankruptcy proceedings. The Company is Solvent.
Section
5.21 Subsidiaries. Other than as set forth in the Disclosure Schedule, the Company does not own or control, directly or indirectly,
any interest in any other corporation, partnership, association or other business entity.
Section
5.22 Tax Status. Each of the Company and its Subsidiaries (i) has timely made or filed all foreign, federal and state income and
all other tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has timely paid all taxes and
other governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and declarations,
except those being contested in good faith and (iii) has set aside on its books provision reasonably adequate for the payment of all
taxes for periods subsequent to the periods to which such returns, reports or declarations apply. The Company has not received written
notification of any unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers
of the Company and its Subsidiaries know of no basis for any such claim where failure to pay would cause a Material Adverse Effect.
Section
5.23 Certain Transactions. Except as not required to be disclosed pursuant to Applicable Laws or as disclosed in the SEC Documents,
none of the officers or directors of the Company is presently a party to any transaction with the Company (other than for services as
employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to
or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any officer or director,
or to the knowledge of the Company, any corporation, partnership, trust or other entity in which any officer or director has a substantial
interest or is an officer, director, trustee or partner.
Section
5.24 Rights of First Refusal. The Company is not obligated to offer the Common Shares or the Promissory Notes offered hereunder
on a right of first refusal basis to any third parties including, but not limited to, current or former shareholders of the Company,
underwriters, brokers, agents or other third parties.
Section
5.25 Dilution. The Company is aware and acknowledges that issuance of Common Shares hereunder could cause dilution to existing
shareholders and could significantly increase the outstanding number of Common Shares.
Section
5.26 Acknowledgment Regarding Investor’s Purchase of Shares. The Company acknowledges and agrees that the Investor is acting
solely in the capacity of an arm’s length investor with respect to this Agreement and the transactions contemplated hereunder.
The Company further acknowledges that the Investor is not acting as a financial advisor or fiduciary of the Company (or in any similar
capacity) with respect to this Agreement and the transactions contemplated hereunder and any advice given by the Investor or any of its
representatives or agents in connection with this Agreement and the transactions contemplated hereunder is merely incidental to the Investor’s
purchase of the Shares hereunder or the Promissory Note. The Company is aware and acknowledges that it shall not be able to request Advances
under this Agreement if the Registration Statement is not effective or if any issuances of Common Shares pursuant to any Advances would
violate any rules of the Principal Market. The Company acknowledges and agrees that it is capable of evaluating and understanding, and
understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement.
Section
5.27 Finder’s Fees. Neither the Company nor any of the Subsidiaries has incurred any liability for any finder’s fees,
brokerage commissions or similar payments in connection with the transactions herein contemplated.
Section
5.28 Relationship of the Parties. Neither the Company, nor any of its subsidiaries, affiliates, nor any person acting on its or
their behalf is a client or customer of the Investor or any of its affiliates and neither the Investor nor any of its affiliates has
provided, or will provide, any services to the Company or any of its affiliates, its subsidiaries, or any person acting on its or their
behalf. The Investor’s relationship to Company is solely as investor as provided for in the Transaction Documents.
Section
5.29 Operations. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with
the Applicable Laws and neither the Company nor the Subsidiaries, nor any director, officer, or employee of the Company or any Subsidiary
nor, to the Company’s knowledge, any agent, affiliate or other person acting on behalf of the Company or any Subsidiary has, not
complied with Applicable Law; and no action, suit or proceeding by or before any governmental authority involving the Company or any
of its Subsidiaries with respect to Applicable Laws is pending or, to the knowledge of the Company, threatened.
Section
5.30 Forward-Looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section
21E of the Exchange Act) contained in the Registration Statement or a Prospectus has been made made or reaffirmed without a reasonable
basis or has been disclosed other than in good faith.
Section
5.31 Compliance with Laws. The Company and each of its Subsidiaries are in compliance in all material respects with Applicable
Laws; the Company has not received a notice of non-compliance, nor knows of, nor has reasonable grounds to know of, any facts that any
director, officer, or employee of the Company or any Subsidiary nor, to the Company’s knowledge, any agent, affiliate or other
person acting on behalf of the Company or any Subsidiary has, has not complied with Applicable Laws, or could give rise to a notice of
non-compliance with Applicable Laws, and is not aware of any pending change or contemplated change to any applicable law or regulation
or governmental position; in each case that would have a Material Adverse Effect.
Section
5.32 Sanctions Matters. Neither the Company nor any of its Subsidiaries or, to the knowledge of the Company, any director, officer
or controlled affiliate of the Company or any director or officer of any Subsidiary, is a Person that is, or is owned or controlled by
a Person that is (i) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign
Asset Control (“OFAC”), the United Nations Security Council, the European Union, His Majesty’s Treasury, or
other relevant sanctions authorities, including, without limitation, designation on OFAC’s Specially Designated Nationals and Blocked
Persons List or OFAC’s Foreign Sanctions Evaders List or other relevant sanctions authority (collectively, “Sanctions”),
or (ii) located, organized or resident in a country or territory that is the subject of Sanctions that broadly prohibit dealings with
that country or territory (including, without limitation, the Crimea, Zaporizhzhia and Kherson regions, the Donetsk People’s Republic
and Luhansk People’s Republic in Ukraine, Cuba, Iran, North Korea, Russia, Sudan and Syria (the “Sanctioned Countries”)).
Neither the Company nor any of its Subsidiaries will, directly or indirectly, use the proceeds from the sale of Advance Shares or any
Pre-Paid Advance, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person
(a) for the purpose of funding or facilitating any activities or business of or with any Person or in any country or territory that,
at the time of such funding or facilitation, is the subject of Sanctions or is a Sanctioned Country, or (b) in any other manner that
will result in a violation of Sanctions or Applicable Laws by any Person (including any Person participating in the transactions contemplated
by this Agreement, whether as underwriter, advisor, investor or otherwise). For the past five years, neither the Company nor any of its
Subsidiaries has engaged in, and is now not engaged in, any dealings or transactions with any Person, or in any country or territory,
that at the time of the dealing or transaction is or was the subject of Sanctions or was a Sanctioned Country. Neither the Company nor
any of its Subsidiaries nor any director, officer or controlled affiliate of the Company or any of its Subsidiaries, has ever had funds
blocked by a United States bank or financial institution, temporarily or otherwise, as a result of OFAC concerns.
Article
VI. Indemnification
The
Investor and the Company represent to the other the following with respect to itself:
Section
6.01 Indemnification by the Company. In consideration of the Investor’s execution and delivery of this Agreement and acquiring
the Shares hereunder, and in addition to all of the Company’s other obligations under this Agreement, the Company shall defend,
protect, indemnify and hold harmless the Investor and its investment manager, Yorkville Advisors Global, LP, and each of their respective
officers, directors, managers, members, partners, employees and agents (including, without limitation, those retained in connection with
the transactions contemplated by this Agreement) and each person who controls the Investor within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act (collectively, the “Investor Indemnitees”) from and against any and all actions,
causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and reasonable and documented expenses in connection
therewith, and including reasonable attorneys’ fees and disbursements (the “Indemnified Liabilities”), incurred
by the Investor Indemnitees or any of them as a result of, or arising out of, or relating to (a) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement for the registration of the Shares as originally filed or in any
amendment thereof, or in any related prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that the Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Investor
specifically for inclusion therein; (b) any material misrepresentation or breach of any material representation or material warranty
made by the Company in this Agreement or any other certificate, instrument or document contemplated hereby or thereby; or (c) any material
breach of any material covenant, material agreement or material obligation of the Company contained in this Agreement or any other certificate,
instrument or document contemplated hereby or thereby. To the extent that the foregoing undertaking by the Company may be unenforceable
under Applicable Law, the Company shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities,
which is permissible under Applicable Law.
Section
6.02 Indemnification by the Investor. In consideration of the Company’s execution and delivery of this Agreement, and in
addition to all of the Investor’s other obligations under this Agreement, the Investor shall defend, protect, indemnify and hold
harmless the Company, its Subsidiaries and all of its and their officers, directors, shareholders, employees and agents (including, without
limitation, those retained in connection with the transactions contemplated by this Agreement) and each person who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Company Indemnitees”)
from and against any and all Indemnified Liabilities incurred by the Company Indemnitees or any of them as a result of, or arising out
of, or relating to (a) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement for
the registration of the Shares as originally filed or in any amendment thereof, or in any related prospectus, or in any amendment thereof
or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading; provided, however, that the Investor will
only be liable for written information relating to the Investor furnished to the Company by or on behalf of the Investor specifically
for inclusion in the documents referred to in the foregoing indemnity, and will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity with written information furnished to the Investor by or on behalf
of the Company specifically for inclusion therein; (b) any misrepresentation or breach of any representation or warranty made by the
Investor in this Agreement or any instrument or document contemplated hereby or thereby executed by the Investor; or (c) any breach of
any covenant, agreement or obligation of the Investor contained in this Agreement or any other certificate, instrument or document contemplated
hereby or thereby executed by the Investor. To the extent that the foregoing undertaking by the Investor may be unenforceable under Applicable
Laws, the Investor shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities, which
is permissible under Applicable Laws.
Section
6.03 Notice of Claim. Promptly after receipt by an Investor Indemnitee or Company Indemnitee of notice of the commencement of
any action or proceeding (including any governmental action or proceeding) involving an Indemnified Liability, such Investor Indemnitee
or Company Indemnitee, as applicable, shall, if a claim for an Indemnified Liability in respect thereof is to be made against any indemnifying
party under this Article VI, deliver to the indemnifying party a written notice of the commencement thereof; but the failure to so notify
the indemnifying party will not relieve it of liability under this Article VI except to the extent the indemnifying party is prejudiced
by such failure. The indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party similarly noticed, to assume control of the defense thereof with counsel mutually reasonably
satisfactory to the indemnifying party and the Investor Indemnitee or Company Indemnitee, as the case may be; provided, however, that
an Investor Indemnitee or Company Indemnitee shall have the right to retain its own counsel with the actual and reasonable third party
fees and expenses of not more than one counsel for such Investor Indemnitee or Company Indemnitee to be paid by the indemnifying party,
if, in the reasonable opinion of counsel retained by the indemnifying party, the representation by such counsel of the Investor Indemnitee
or Company Indemnitee and the indemnifying party would be inappropriate due to actual or potential differing interests between such Investor
Indemnitee or Company Indemnitee and any other party represented by such counsel in such proceeding. The Investor Indemnitee or Company
Indemnitee shall cooperate fully with the indemnifying party in connection with any negotiation or defense of any such action or claim
by the indemnifying party and shall furnish to the indemnifying party all information reasonably available to the Investor Indemnitee
or Company Indemnitee which relates to such action or claim. The indemnifying party shall keep the Investor Indemnitee or Company Indemnitee
reasonably apprised as to the status of the defense or any settlement negotiations with respect thereto. No indemnifying party shall
be liable for any settlement of any action, claim or proceeding effected without its prior written consent, provided, however, that the
indemnifying party shall not unreasonably withhold, delay or condition its consent. No indemnifying party shall, without the prior written
consent of the Investor Indemnitee or Company Indemnitee, consent to entry of any judgment or enter into any settlement or other compromise
which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Investor Indemnitee or Company
Indemnitee of a release from all liability in respect to such claim or litigation. Following indemnification as provided for hereunder,
the indemnifying party shall be subrogated to all rights of the Investor Indemnitee or Company Indemnitee with respect to all third parties,
firms or corporations relating to the matter for which indemnification has been made. The indemnification required by this Article VI
shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received
and payment therefor is due.
Section
6.04 Remedies. The remedies provided for in this Article VI are not exclusive and shall not limit any right or remedy which may
be available to any indemnified person at law or equity. The obligations of the parties to indemnify or make contribution under this
Article VI shall survive expiration or termination of this Agreement.
Section
6.05 Limitation of liability. Notwithstanding the foregoing, no party shall seek, nor shall any be entitled to recover from the
other party be liable for, special, incidental, indirect, consequential, punitive or exemplary damages.
Article
VII.
Covenants
The
Company covenants with the Investor, and the Investor covenants with the Company, as follows, which covenants of one party are for the
benefit of the other party, during the Commitment Period:
Section
7.01 Effective Registration Statement. During the Commitment Period, the Company shall maintain the continuous effectiveness of
each Registration Statement filed with the SEC under the Securities Act pursuant to and in accordance with the Registration Rights Agreement;
provided, however, that in the event there are no Pre-Paid Advances outstanding, the Company shall only be required to use its commercially
reasonable efforts to maintain the continuous effectiveness of the Registration Statement and each subsequent Registration Statement
filed with the SEC under the Securities Act pursuant to and in accordance with the Registration Rights Agreement.
Section
7.02 Registration and Listing. The Company shall cause the Common Shares to continue to be registered as a class of securities
under Section 12(b) of the Exchange Act, and to comply with its reporting and filing obligations under the Exchange Act, and shall not
take any action or file any document (whether or not permitted by the Securities Act or the Exchange Act) to terminate or suspend such
registration or to terminate or suspend its reporting and filing obligations under the Exchange Act or Securities Act, except as permitted
herein. The Company shall continue the listing and trading of its Common Shares and the listing of the Shares purchased by the Investor
hereunder on the Principal Market and to comply with the Company’s reporting, filing and other obligations under the rules and
regulations of the Principal Market. If the Company receives any final and non-appealable notice that the listing or quotation of the
Common Shares on the Principal Market shall be terminated on a date certain, the Company shall promptly (and in any case within 24 hours)
notify the Investor of such fact in writing and shall use its commercially reasonable efforts to cause the Common Shares to be listed
or quoted on another Principal Market.
Section
7.03 Blue Sky. The Company shall take such action, if any, as is necessary by the Company in order to obtain an exemption for
or to qualify the Shares for sale by the Company to the Investor pursuant to the Transaction Documents, and at the request of the Investor,
the subsequent resale of Registrable Securities by the Investor, in each case, under applicable state securities or “Blue Sky”
laws and shall provide evidence of any such action so taken to the Investor from time to time during the Commitment Period; provided,
however, that the Company shall not be required in connection therewith or as a condition thereto to (x) qualify to do business
in any jurisdiction where it would not otherwise be required to qualify, (y) subject itself to general taxation in any such jurisdiction,
or (z) file a general consent to service of process in any such jurisdiction.
Section
7.04 Suspension of Registration Statement.
|
(a) |
Establishment
of a Black Out Period. During the Commitment Period, the Company from time to time may suspend the use of a Registration Statement
by written notice to the Investor in the event that the Company determines in good faith that such suspension is necessary to (A)
delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the
good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the Registration Statement or
Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading (a “Black Out Period”). |
|
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(b) |
No
Sales by Investor During the Black Out Period. During such Black Out Period, the Investor agrees not to sell any Common Shares
of the Company pursuant to such Registration Statement, but may sell shares pursuant to an exemption from registration, if available,
subject to the Investor’s compliance with Applicable Laws. |
|
|
|
|
(c) |
Limitations
on the Black Out Period. The Company shall not impose any Black Out Period that is longer than 20 days or in a manner that is
more restrictive (including, without limitation, as to duration) than the comparable restrictions that the Company may impose on
transfers of the Company’s equity securities by its directors and senior executive officers. In addition, the Company shall
not deliver any Advance Notice during any Black Out Period. If the public announcement of such material, nonpublic information is
made during a Black Out Period, the Black Out Period shall terminate immediately after such announcement, and the Company shall immediately
notify the Investor of the termination of the Black Out Period. |
Section
7.05 Listing of Common Shares. As of each Advance Notice Date, the Shares to be sold by the Company from time to time hereunder
will have been registered under Section 12(b) of the Exchange Act and approved for listing on the Principal Market, subject to official
notice of issuance.
Section
7.06 Opinion of Counsel. Prior to the date of the delivery by the Company of the first Advance Notice, the Investor shall have
received an opinion letter from counsel to the Company substantially similar in form and substance to the opinion letter required pursuant
to Annex II.
Section
7.07 Exchange Act Registration. The Company will file in a timely manner all reports and other documents required of it as a reporting
company under the Exchange Act and, during the Commitment Period, will not take any action or file any document (whether or not permitted
by Exchange Act or the rules thereunder) to terminate or suspend its reporting and filing obligations under the Exchange Act.
Section
7.08 Transfer Agent Instructions. For any time while there is a Registration Statement in effect for this transaction, the Company
shall (if required by the transfer agent for the Common Shares) deliver to the transfer agent for the Common Shares (with a copy to the
Investor) instructions to issue Common Shares to the Investor free of restrictive legends upon each Advance if the delivery of such instructions
are consistent with Applicable Law, in each case supported as needed by an opinion from legal counsel for the Company.
Section
7.09 Corporate Existence. The Company will use commercially reasonable efforts to preserve and continue the corporate existence
of the Company during the Commitment Period.
Section
7.10 Notice of Certain Events Affecting Registration; Suspension of Right to Make an Advance. The Company will promptly notify
the Investor, and confirm in writing, upon its becoming aware of the occurrence of any of the following events in respect of a Registration
Statement or related Prospectus: (i) receipt of any request from the SEC for amendments or supplements to the Registration Statement
or related Prospectus; (ii) the issuance by the SEC or any other Federal governmental authority of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceedings for that purpose; (iii) receipt of any notification with respect to
the suspension of the qualification or exemption from qualification of any of the Common Shares for sale in any jurisdiction or the initiation
or written threat of any proceeding for such purpose; (iv) the happening of any event that makes any statement made in the Registration
Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material
respect or that requires the making of any changes in the Registration Statement, related Prospectus or documents so that, in the case
of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading, and that in the case of the related Prospectus, it will
not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they were made, not misleading, or of the necessity to amend
the Registration Statement or supplement a related Prospectus to comply with the Securities Act or any other law (and the Company will
promptly make available to the Investor any such supplement or amendment to the related Prospectus). The Company shall not deliver to
the Investor any Advance Notice, and the Company shall not sell any Shares pursuant to any pending Advance Notice (other than as required
pursuant to Section 3.05(d)), during the continuation of any of the foregoing events (each of the events described in the immediately
preceding clauses (i) through (iv), inclusive, a “Material Outside Event”).
Section
7.11 Consolidation. If an Advance Notice has been delivered to the Investor, then the Company shall not effect any consolidation
of the Company with or into, or a transfer of all or substantially all the assets of the Company to another entity before the transaction
contemplated in such Advance Notice has been closed in accordance with Section 2.02 hereof, and all Shares in connection with such Advance
have been received by the Investor.
Section
7.12 Issuance of the Company’s Common Shares. The issuance and sale of the Common Shares to the Investor hereunder shall
be made in accordance with the provisions and requirements of Section 4(a)(2) of the Securities Act and any applicable state securities
law.
Section
7.13 Reservation of Shares. As of the date of the Pre-Advance Closing, and at all times thereafter, the Company shall have reserved
from its duly authorized capital stock not less than the number of Common Shares then issuable upon conversion of the Promissory Note
(assuming for purposes hereof that (x) such Promissory Note is convertible at a Conversion Price (as defined in each Promissory Note)
equal to the Floor Price as of the date of determination, and (y) any such conversion shall not take into account any limitations on
the conversion of the Promissory Note set forth therein). Unless shareholder approval has previously been obtained, if at any time the
number of Common Shares that remain available for issuance under the Exchange Cap have an aggregate market value of less than two times
the remaining (non-converted) principal balance of the Promissory Note (based on a price per Common Share equal to the average VWAP over
the prior five (5) Trading Day period), the Company will use commercially reasonable efforts to promptly call and hold a special meeting
of stockholders for the purpose of seeking the approval of its stockholders as required by the applicable rules of the Principal Market,
for issuances of shares in excess of the Exchange Cap.
Section
7.14 Expenses. The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated,
will pay all of its expenses incident to the performance of its obligations hereunder, including but not limited to (i) the preparation,
printing and filing of the Registration Statement and each amendment and supplement thereto, of each Prospectus and of each amendment
and supplement thereto; (ii) the preparation, issuance and delivery of any Shares issued pursuant to this Agreement, (iii) all fees and
disbursements of the Company’s counsel, accountants and other advisors (but not, for the avoidance doubt, the fees and disbursements
of Investor’s counsel, accountants and other advisors), (iv) the qualification of the Shares under securities laws in accordance
with the provisions of this Agreement, including filing fees in connection therewith, (v) the printing and delivery of copies of any
Prospectus and any amendments or supplements thereto requested by the Investor, (vi) the fees and expenses incurred in connection with
the listing or qualification of the Shares for trading on the Principal Market, or (vii) filing fees of the SEC and the Principal Market.
Section
7.15 Current Report. The Company shall, not later than 9:00 a.m., New York City time, on the fourth business day after the date
of this Agreement, file with the SEC a current report on Form 8-K describing all the material terms of the transactions contemplated
by the Transaction Documents in the form required by the Exchange Act and attaching all the material Transaction Documents (including
any exhibits thereto, the “Current Report”). The Company shall provide the Investor and its legal counsel a reasonable
opportunity to comment on a draft of the Current Report prior to filing the Current Report with the SEC and shall give due consideration
to all such comments. Notwithstanding anything contained in this Agreement to the contrary, the Company expressly agrees that from and
after the filing of the Current Report with the SEC, the Company shall have publicly disclosed all material, nonpublic information provided
to the Investor (or the Investor’s representatives or agents) by the Company or any of its Subsidiaries, or any of their respective
officers, directors, employees, agents or representatives in connection with the transactions contemplated by the Transaction Documents.
In addition, effective upon the filing of the Current Report, the Company acknowledges and agrees that any and all confidentiality or
similar obligations under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective
officers, directors, affiliates, employees or agents, on the one hand, and the Investor or any of its respective officers, directors,
affiliates, employees or agents, on the other hand shall terminate. The Company shall not, and the Company shall cause each of its Subsidiaries
and each of its and their respective officers, directors, employees and agents not to, provide the Investor with any material, non-public
information regarding the Company or any of its Subsidiaries without the express prior written consent of the Investor (which may be
granted or withheld in the Investor’s sole discretion). The Company understands and confirms that the Investor will rely on the
foregoing representations in effecting resales of Shares.
Section
7.16 Use of Proceeds. Neither the Company nor any Subsidiary will, directly or indirectly, use the proceeds of the transactions
contemplated herein to repay any advances or loans to any executives, directors, or employees of the Company or any Subsidiary or to
make any payments in respect of any related party obligations, including without limitation any payables or notes payable to related
parties of the Company or any Subsidiary whether or not such amounts are described on the balance sheets of the Company in any SEC Documents
and any Subsidiary or described in any “Related Party Transactions” section of any SEC Documents. The net proceeds from the
Pre-Paid Advance shall be paid (i) in such amount as is mutually agreed and set forth in the closing statement to be mutually agreed
by the Parties in accordance with Annex II (the “Closing Statement”), directly to the independent registered
public accounting firm engaged by the Company to audit the Company’s financial statements (the “Independent Accountant”)
for use to pay outstanding invoices and as a credit for future invoices incurred by the Company in connection with the Independent Accountant’s
audit of the Company’s financial statements, (ii) in such other amounts and to the accounts set forth on the Closing Statement.
Neither the Company nor any of its Subsidiaries will, directly or indirectly, use the proceeds from the transactions contemplated herein,
or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person (a) for the purpose
of funding or facilitating any activities or business of or with any Person or in any country or territory that, at the time of such
funding or facilitation, is the subject of Sanctions or is a Sanctioned Country, or (b) in any other manner that will result in a violation
of Sanctions or Applicable Laws by any Person (including any Person participating in the transactions contemplated by this Agreement,
whether as underwriter, advisor, investor or otherwise). The Company shall not without the prior written consent of the Investor loan,
invest, transfer or “downstream” any cash proceeds, or assets or property acquired with cash proceeds from the issuance and
sale of the Promissory Note to any Subsidiary, unless the Investor and the Subsidiary enter into a subsidiary guaranty in the form of
the Global Guaranty Agreement.
Section
7.17 Compliance with Laws. The Company shall comply in all material respects with all Applicable Laws.
Section
7.18 Market Activities. Neither the Company, nor any Subsidiary, nor any of their respective officers, directors or controlling
persons will, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes or might reasonably be
expected to constitute or result, in the stabilization or manipulation of the price of any security of the Company to facilitate the
sale or resale of Common Shares or (ii) sell, bid for, or purchase Common Shares in violation of Regulation M, or pay anyone any compensation
for soliciting purchases of the Shares.
Section
7.19 Trading Information. On the first Trading Day of each week (provided the Investor sold any shares during the prior week)
and otherwise upon the Company’s reasonable request, the Investor agrees to provide the Company with trading reports setting forth
the number and average sales prices of shares of Common Shares sold by the Investor during the prior trading week.
Section
7.20 Selling Restrictions. Except as expressly set forth below, the Investor covenants that from and after the date hereof through
and including the Trading Day next following the expiration or termination of this Agreement as provided in Section 10.01 (the “Restricted
Period”), none of the Investor any of its officers, or any entity managed or controlled by the Investor (collectively, the
“Restricted Persons” and each of the foregoing is referred to herein as a “Restricted Person”)
shall, directly or indirectly, engage in any “short sale” (as such term is defined in Rule 200 of Regulation SHO of the Exchange
Act) of the Common Shares, either for its own principal account or for the principal account of any other Restricted Person. Notwithstanding
the foregoing, it is expressly understood and agreed that nothing contained herein shall (without implication that the contrary would
otherwise be true) prohibit any Restricted Person during the Restricted Period from: (1) selling “long” (as defined under
Rule 200 promulgated under Regulation SHO) any Common Shares; or (2) selling a number of Common Shares equal to the number of Advance
Shares that such Restricted Person is unconditionally obligated to purchase under a pending Advance Notice but has not yet received from
the Company or the transfer agent pursuant to this Agreement; or (3) selling a number of shares of Common Shares equal to the number
of Common Shares that the Investor is entitled to receive, but has not yet received from the Company or the transfer agent, upon the
completion of a pending conversion of the Promissory Note for which a valid Conversion Notice (as defined in the Promissory Note) has
been submitted to the Company.
Section
7.21 Assignment. Neither this Agreement nor any rights or obligations of the parties hereto may be assigned to any other Person,
except for assignments by the Investor to any of its affiliates. Without the consent of the Investor, the Company shall not have the
right to assign or transfer any of its rights, or provide any third party the right to bind or obligate the Company, to deliver Advance
Notices or effect Advances hereunder.
Section
7.22 No Frustration; No Variable Rate Transactions, Etc.
|
(a) |
No
Frustration. The Company shall not enter into, announce or recommend to its stockholders any agreement, plan, arrangement or
transaction in or of which the terms thereof would restrict, materially delay, conflict with or impair the ability or right of the
Company to perform its obligations under the Transaction Documents to which it is a party, including, without limitation, the obligation
of the Company to deliver the Shares to the Investor in respect of an Advance Notice. |
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(b) |
No
Variable Rate Transactions or Related Party Payments. From the date hereof until the date upon which the Promissory Note to be
issued hereunder has been repaid in full, the Company shall not (A) repay any loans to any executives or employees of the Company
or to make any payments in respect of any related party debt, other than payments in the form of Common Shares pursuant to the terms
of any such loans or debt, and (B) effect or enter into an agreement to effect any issuance by the Company or any of its Subsidiaries
of Common Shares or any security which entitles the holder to acquire Common Shares (or a combination of units thereof) involving
a Variable Rate Transaction, other than involving a Variable Rate Transaction with the Investor. During the Commitment Period, the
Company shall not draw down funding under a preexisting agreement involving a Variable Rate Transaction, other than under the Transaction
Documents. The Investor shall be entitled to seek injunctive relief against the Company and its Subsidiaries to preclude any such
issuance, which remedy shall be in addition to any right to collect damages, without the necessity of showing economic loss and without
any bond or other security being required. It is agreed and understood that this Section 7.22(b) shall not in any way restrict or
limit the issuance of Common Shares in respect of any convertible debt funded and issued before the Effective Date. |
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(c) |
During
the period beginning on the date hereof and ending on the date upon which the Promissory Note to be issued hereunder has been repaid
in full, the Company shall not effect any reverse stock split or share consolidation except as required for the Common Shares to
continue to be listed on the Principal Market. |
Article
VIII.
Non-Exclusive
Agreement
Subject
to Section 7.21 hereof, this Agreement and the rights awarded to the Investor hereunder are non-exclusive, and the Company may, at any
time throughout the term of this Agreement and thereafter, issue and allot, or undertake to issue and allot, any shares and/or securities
and/or convertible notes, bonds, debentures, options to acquire shares or other securities and/or other facilities which may be converted
into or replaced by Common Shares or other securities of the Company, and to extend, renew and/or recycle any bonds and/or debentures,
and/or grant any rights with respect to its existing and/or future share capital.
Article
IX.
Choice
of Law/Jurisdiction
Section
9.01 This Agreement, and any and all claims, proceedings or causes of action relating to this Agreement or arising from this Agreement
or the transactions contemplated herein, including, without limitation, tort claims, statutory claims and contract claims, shall be interpreted,
construed, governed and enforced under and solely in accordance with the substantive and procedural laws of the State of New York, in
each case as in effect from time to time and as the same may be amended from time to time, and as applied to agreements performed wholly
within the State of New York. The Parties further agree that any action between them shall be heard in New York County, New York, and
expressly consent to the jurisdiction and venue of the Supreme Court of New York, sitting in New York County, New York and the United
States District Court of the Southern District of New York, sitting in New York, New York, for the adjudication of any civil action asserted
pursuant to this Agreement.
EACH
PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN, THE PERFORMANCE
THEREOF OR THE FINANCINGS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HERETO HAVE BEEN INDUCED
TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS PARAGRAPH.
Article
X. Termination
Section
10.01 Termination.
|
(a) |
Unless
earlier terminated as provided hereunder, this Agreement shall terminate automatically on the earliest of (i) the 24-month anniversary
of the Effective Date, provided that if the Promissory Note is then outstanding, such termination shall be delayed until such date
that the Promissory Note that was outstanding has been repaid, or (ii) the date on which the Investor shall have made payment of
Advances pursuant to this Agreement for Common Shares equal to the Commitment Amount. |
|
|
|
|
(b) |
The
Company may terminate this Agreement effective upon five Trading Days’ prior written notice to the Investor; provided that
(i) there are no outstanding Advance Notices under which Common Shares have yet to be issued, (ii) there is not an outstanding Promissory
Note, (iii) the Company has paid all amounts owed to the Investor pursuant to this Agreement, and (iv) the Company has paid the Deferred
Fee. This Agreement may be terminated at any time by the mutual written consent of the parties, effective as of the date of such
mutual written consent unless otherwise provided in such written consent. |
|
|
|
|
(c) |
Nothing
in this Section 10.01 shall be deemed to release the Company or the Investor from any liability for any breach under this Agreement,
or to impair the rights of the Company and the Investor to compel specific performance by the other party of its obligations under
this Agreement. The indemnification provisions contained in Article VI shall survive termination hereunder. |
Article
XI. Notices
Other
than with respect to Advance Notices, which must be in writing and will be deemed delivered on the day set forth in Section 2.01(b),
any notices, consents, waivers, or other communications required or permitted to be given under the terms of this Agreement must be in
writing and will be deemed to have been delivered (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by e-mail
if sent on a Trading Day, or, if not sent on a Trading Day, on the immediately following Trading Day; (iii) 5 days after being sent by
U.S. certified mail, return receipt requested, (iv) 1 day after deposit with a nationally recognized overnight delivery service, in each
case properly addressed to the party to receive the same. The addresses for such communications (except for Advance Notices which shall
be delivered in accordance with Exhibit C hereof) shall be:
If
to the Company, to: |
|
OneMedNet
Corporation
6385
Old Shady Oak Rd Ste 250
Eden
Prairie, MN 55344
|
|
|
Attn: |
Aaron Green |
|
|
E-mail: |
aaron.green@onemednet.com |
If
to the Investor(s): |
|
YA
II PN, Ltd. |
|
|
1012
Springfield Avenue |
|
|
Mountainside,
NJ 07092 |
|
|
Attention: |
Mark
Angelo |
|
|
|
Portfolio
Manager |
|
|
Telephone: |
(201)
985-8300 |
|
|
Email: |
mangelo@yorkvilleadvisors.com |
|
|
|
With
a Copy (which shall not constitute notice or delivery of process) to: |
|
David
Fine, Esq.
1012
Springfield Avenue
Mountainside,
NJ 07092 |
|
|
Telephone: |
(201)
985-8300 |
|
|
Email:
|
legal@yorkvilleadvisors.com |
or
at such other address and/or e-mail and/or to the attention of such other person as the recipient party has specified by written notice
given to each other party three Business Days prior to the effectiveness of such change. Written confirmation of receipt (i) given by
the recipient of such notice, consent, waiver or other communication, (ii) electronically generated by the sender’s email service
provider containing the time, date, recipient email address or (iii) provided by a nationally recognized overnight delivery service shall
be rebuttable evidence of delivery in accordance with clause (i), (ii) or (iii) above, respectively.
Article
XII. Miscellaneous
Section
12.01 Counterparts. This Agreement may be executed in identical counterparts, both which shall be considered one and the same
agreement and shall become effective when counterparts have been signed by each party and delivered to the other party. Facsimile or
other electronically scanned and delivered signatures (including any electronic signature covered by the U.S. federal ESIGN Act of 2000,
Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com),
including by e-mail attachment, shall be deemed to have been duly and validly delivered and be valid as originals and effective for all
purposes of this Agreement.
Section
12.02 Entire Agreement; Amendments. This Agreement supersedes all other prior oral or written agreements between the Investor,
the Company, their respective affiliates and persons acting on their behalf with respect to the matters discussed herein, and this Agreement
contains the entire understanding of the parties with respect to the matters covered herein and, except as specifically set forth herein,
neither the Company nor the Investor makes any representation, warranty, covenant or undertaking with respect to such matters. No provision
of this Agreement may be waived or amended other than by an instrument in writing signed by the parties to this Agreement.
Section
12.03 Reporting Entity for Common Shares. The reporting entity relied upon for the determination of the trading price or trading
volume of the Common Shares on any given Trading Day for the purposes of this Agreement shall be Bloomberg, L.P. or any successor thereto.
The written mutual consent of the Investor and the Company shall be required to employ any other reporting entity.
Section
12.04 Commitment and Structuring Fee. Each of the parties shall pay its own fees and expenses (including the fees of any attorneys,
accountants, appraisers or others engaged by such party) in connection with this Agreement and the transactions contemplated hereby,
except that the Company shall pay to the Investor, a structuring fee in the amount of $25,000, of which, $12,500 has been paid prior
to the date hereof, and $12,500 shall be paid upon the Pre-Paid Advance Closing. The Company shall pay a commitment fee in an amount
equal to 2% of the Commitment Amount (the “Commitment Fee”) of which (a) one-half of the Commitment Fee shall be paid
within three Trading Days of the date hereof by the issuance to the Investor of such number of Common Shares that is equal to one-half
of the Commitment Fee divided by the VWAP for the Trading Day immediately prior to the date hereof (the “Commitment Shares”),
and (b) the remaining one-half of the Commitment Fee (the “Deferred Fee”) shall be paid within three Trading Days
of the three-month anniversary of the date hereof (“Deferred Fee Date”) and shall be paid by the issuance to the Investor
of such number of Common Shares that is equal to one-half of the Commitment Fee divided by the VWAP for the Trading Day immediately prior
to the Deferred Fee Date. The Commitment Shares issuable hereunder shall be included in the initial Registration Statement.
Section
12.05 Brokerage. Each of the parties hereto represents that it has had no dealings in connection with this transaction with any
finder or broker who will demand payment of any fee or commission from the other party. The Company on the one hand, and the Investor,
on the other hand, agree to indemnify the other against and hold the other harmless from any and all liabilities to any person claiming
brokerage commissions or finder’s fees on account of services purported to have been rendered on behalf of the indemnifying party
in connection with this Agreement or the transactions contemplated hereby.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the parties hereto have caused this Standby Equity Purchase Agreement to be executed by the undersigned, thereunto
duly authorized, as of the date first set forth above.
|
COMPANY: |
|
ONEMEDNET
CORPORATION |
|
|
|
By: |
/s/
Aaron Green |
|
Name: |
Aaron
Green |
|
Title: |
Chief
Executive Officer |
|
|
|
|
INVESTOR: |
|
YA
II PN, Ltd. |
|
|
|
By: |
Yorkville
Advisors Global, LP |
|
Its: |
Investment
Manager |
|
|
|
|
By: |
Yorkville
Advisors Global II, LLC |
|
Its: |
General
Partner |
|
|
|
|
By: |
/s/
Matt Beckman |
|
Name: |
Matt
Beckman |
|
Title: |
Member |
ANNEX
I TO THE
STANDBY
EQUITY PURCHASE AGREEMENT
DEFINITIONS
“Additional
Shares” shall have the meaning set forth in Section 3.03.
“Adjusted
Advance Amount” shall have the meaning set forth in Section 3.03
“Advance”
shall mean any issuance and sale of Advance Shares by the Company to the Investor pursuant to this Agreement.
“Advance
Date” shall mean the first Trading Day after expiration of the applicable Pricing Period for each Advance, provided that, with
respect to an Advance pursuant to an Investor Notice, the Advance Date shall be the first Trading Day after the date of delivery of such
Investor Notice.
“Advance
Notice” shall mean a written notice in the form of Exhibit C attached hereto to the Investor executed by an officer of the
Company and setting forth the number of Advance Shares that the Company desires to issue and sell to the Investor.
“Advance
Notice Date” shall mean each date the Company is deemed to have delivered (in accordance with Section 3.01(c) of this Agreement)
an Advance Notice to the Investor, subject to the terms of this Agreement.
“Advance
Shares” shall mean the Common Shares that the Company shall issue and sell to the Investor pursuant to an Advance Notice delivered
in accordance with the terms of this Agreement.
“Affiliate”
shall have the meaning set forth in Section 4.07.
“Agreement”
shall have the meaning set forth in the preamble of this Agreement.
“Amortization
Event” shall have the meaning set forth in the Promissory Note.
“Applicable
Laws” shall mean all applicable laws, statutes, rules, regulations, orders, executive orders, directives, policies, guidelines
and codes having the force of law, whether local, national, or international, as amended from time to time, including without limitation
(i) all applicable laws that relate to money laundering, terrorist financing, financial record keeping and reporting, (ii) all applicable
laws that relate to anti-bribery, anti-corruption, books and records and internal controls, including the United States Foreign Corrupt
Practices Act of 1977, and (iii) any Sanctions laws.
“Black
Out Period” shall have the meaning set forth in Section 7.01
“Closing”
shall have the meaning set forth in Section 3.05.
“Commitment
Amount” shall mean $25,000,000 of Common Shares.
“Commitment
Fee” shall have the meaning set forth in Section 12.04.
“Commitment
Shares” shall have the meaning set forth in Section 12.04.
“Commitment
Period” shall mean the period commencing on the Effective Date and expiring upon the date of termination of this Agreement
in accordance with Section 10.01.
“Common
Share Equivalents” shall mean any securities of the Company or its Subsidiaries which entitle the holder thereof to acquire
at any time Common Shares, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that
is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Shares.
“Common
Shares” shall have the meaning set forth in the recitals of this Agreement.
“Company”
shall have the meaning set forth in the preamble of this Agreement.
“Company
Indemnitees” shall have the meaning set forth in Section 6.02.
“Condition
Satisfaction Date” shall have the meaning set forth in Annex II.
“Conversion
Price” shall have the meaning set forth in the Promissory Note.
“Daily
Traded Amount” shall mean the daily trading volume of the Company’s Common Shares on the Principal Market during regular
trading hours as reported by Bloomberg L.P.
“Deferred
Fee” shall have the meaning set forth in Section 12.04.
“Disclosure
Schedule” shall have the meaning set forth in Article V.
“Effective
Date” shall mean the date hereof.
“Environmental
Laws” shall have the meaning set forth in Section 5.14.
“Event
of Default” shall have the meaning set forth in the Promissory Note.
“Exchange
Act” shall mean the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exchange
Cap” shall have the meaning set forth in Section 3.02(c).
“Excluded
Day” shall have the meaning set forth in Section 3.03.
“Fixed
Price” shall have the meaning set forth in the Promissory Note.
“Global
Guaranty Agreement” shall mean the global guaranty agreement in the form attached hereto as Exhibit G.
“Hazardous
Materials” shall have the meaning set forth in Section 5.14.
“Indemnified
Liabilities” shall have the meaning set forth in Section 6.01.
“Investor”
shall have the meaning set forth in the preamble of this Agreement.
“Investor
Notice” shall mean a written notice to the Company in the form set forth herein as Exhibit E attached hereto.
“Investor
Indemnitees” shall have the meaning set forth in Section 6.01.
“Market
Price” shall mean the lowest daily VWAP of the Common Shares during the Pricing Period, other than the daily VWAP on an Excluded
Day.
“Material
Adverse Effect” shall mean any event, occurrence or condition that has had or would reasonably be expected to have (i) a material
adverse effect on the legality, validity or enforceability of this Agreement or the transactions contemplated herein, (ii) a material
adverse effect on the results of operations, assets, business or condition (financial or otherwise) of the Company and its Subsidiaries,
taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform in any material respect on a timely basis
its obligations under this Agreement.
“Material
Outside Event” shall have the meaning set forth in Section 7.10.
“Maximum
Advance Amount” means (A) in respect of each Advance Notice delivered by the Company pursuant to Section 3.01(a) of this Agreement,
the greater of (i) an amount equal to one hundred percent (100%) of the average of the Daily Traded Amount during the five consecutive
Trading Day immediately preceding an Advance Notice, and (ii) five hundred thousand (500,000) Common Shares, and (B) in respect of each
Advance Notice deemed delivered by the Company pursuant to an Investor Notice, the amount selected by the Investor in such Investor Notice,
which amount shall not exceed the limitations set forth in Section 3.02 of this Agreement.
“Minimum
Acceptable Price” shall mean the minimum price notified by the Company to the Investor in each Advance Notice, if applicable.
“Nasdaq”
shall mean The Nasdaq Stock Market LLC.
“OFAC”
shall have the meaning set forth in Section 5.32.
“Original
Issue Discount” shall have the meaning set forth in Section 2.02.
“Ownership
Limitation” shall have the meaning set forth in Section 3.02(a).
“Person”
shall mean an individual, a corporation, a partnership, a limited liability company, a trust or other entity or organization, including
a government or political subdivision or an agency or instrumentality thereof.
“Plan
of Distribution” shall mean the section of a Registration Statement disclosing the plan of distribution of the Shares.
“Pre-Advance
Closing” shall have the meaning set forth in Section 2.01.
“Pre-Paid
Advance” shall mean have the meaning set forth in Section 2.01.
“Pricing
Period” shall mean the three consecutive Trading Days commencing on the Advance Notice Date.
“Principal
Market” shall mean the Nasdaq Global Market; provided however, that in the event the Common Shares are ever listed or traded
on the Nasdaq Global Select Market, the Nasdaq Capital Market, New York Stock Exchange, or the NYSE American, then the “Principal
Market” shall mean such other market or exchange on which the Common Shares are then listed or traded to the extent such other
market or exchange is the principal trading market or exchange for the Common Shares.
“Promissory
Note” shall have the meaning set forth in Section 2.01.
“Prospectus”
shall mean any prospectus (including, without limitation, all amendments and supplements thereto) used by the Company in connection with
a Registration Statement, including documents incorporated by reference therein.
“Prospectus
Supplement” shall mean any prospectus supplement to a Prospectus filed with the SEC pursuant to Rule 424(b) under the Securities
Act, including documents incorporated by reference therein.
“Purchase
Price” shall mean (i) the price per Advance Share obtained by multiplying the Market Price by 97% in respect of an Advance
Notice delivered by the Company, or (ii) in the case of any Advance Notice delivered pursuant to an Investor Notice the Purchase Price
set forth in Section 3.01(b)(ii).
“Registration
Limitation” shall have the meaning set forth in Section 3.02(b).
“Registration
Statement” shall have the meaning set forth in the Registration Rights Agreement.
“Registrable
Securities” shall have the meaning set forth in the Registration Rights Agreement.
“Regulation
D” shall mean the provisions of Regulation D promulgated under the Securities Act.
“Sanctions”
shall have the meaning set forth in Section 5.32.
“Sanctioned
Countries” shall have the meaning set forth in Section 5.32.
“SEC”
shall mean the U.S. Securities and Exchange Commission.
“SEC
Documents” shall mean (1) any registration statement on Form S-4 filed by the Company with the SEC, including the financial
statements, schedules, exhibits and all other documents filed as a part thereof or incorporated therein and all information deemed to
be a part thereof as of the effective date of such registration statement under the Securities Act, (2) any proxy statement or prospectus
filed by the Company with the SEC, including all documents incorporated or deemed incorporated therein by reference, whether or not included
in a registration statement on Form S-4, in the form in which such proxy statement or prospectus has most recently been filed with the
SEC pursuant to Rule 424(b) under the Securities Act, (3) all reports, schedules, registrations, forms, statements, information and other
documents filed with or furnished to the SEC by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act during
the two years prior to the date hereof, including, without limitation, the Current Report, (4) each Registration Statement, as the same
may be amended from time to time, the Prospectus contained therein and each Prospectus Supplement thereto and (5) all information contained
in such filings and all documents and disclosures that have been and heretofore shall be incorporated by reference therein.
“Securities
Act” shall have the meaning set forth in the recitals of this Agreement.
“Settlement
Document” in respect of an Advance Notice delivered by the Company, shall mean a settlement document in the form set out on
Exhibit D, and in respect of an Advance Notice deemed delivered pursuant to an Investor Notice, shall mean the Investor Notice
containing the information set forth on Exhibit E.
“Shares”
shall mean the Commitment Shares and the Common Shares to be issued from time to time hereunder pursuant to an Advance.
“Solvent”
shall mean, as to any Person as of any date of determination, that on such date (a) the fair value of the property of such Person is
greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair saleable value of
such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become
absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s
ability to pay such debts and liabilities as they mature and (d) such Person is not engaged in a business or a transaction, and is not
about to engage in a business or a transaction, for which such Person’s property would constitute an unreasonably small capital.
The amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
“Subsidiaries”
shall mean any Person in which the Company, directly or indirectly, (x) owns a majority of the outstanding capital stock or holds a majority
of the equity or similar interest of such Person or (y) controls or operates all or substantially all of the business, operations or
administration of such Person, and the foregoing are collectively referred to herein as “Subsidiaries.”
“Trading
Day” shall mean any day during which the Principal Market shall be open for business.
“Transaction
Documents” means, collectively, this Agreement, the Registration Rights Agreement, any Promissory Notes issued by the Company
hereunder, and each of the other agreements and instruments entered into or delivered by any of the parties hereto in connection with
the transactions contemplated hereby and thereby, as may be amended from time to time.
“Variable
Rate Transaction” shall mean a transaction in which the Company (i) issues or sells any Common Shares or Common Share Equivalents
that are convertible into, exchangeable or exercisable for, or include the right to receive additional Common Shares either (A) at a
conversion price, exercise price, exchange rate or other price that is based upon and/or varies with the trading prices of or quotations
for the Common Shares at any time after the initial issuance of Common Shares or Common Share Equivalents, or (B) with a conversion,
exercise or exchange price that is subject to being reset at some future date after the initial issuance of such equity or debt security
or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market
for the Common Shares (including, without limitation, any “full ratchet,” “share ratchet,” “price ratchet,”
or “weighted average” anti-dilution provisions, but not including any standard anti-dilution protection for any reorganization,
recapitalization, non-cash dividend, stock split or other similar transaction), (ii) enters into, or effects a transaction under, any
agreement, including but not limited to an “equity line of credit” or other continuous offering or similar offering of Common
Shares or Common Share Equivalents, (iii) issues or sells any Common Shares or Common Share Equivalents (or any combination thereof)
at an implied discount (taking into account all the securities issuable in such offering) to the market price of the Common Shares at
the time of the offering in excess of 30%, or (iv) enters into or effects any forward purchase agreement, equity pre-paid forward transaction
or other similar offering of securities where the purchaser of securities of the Company receives an upfront or periodic payment of all,
or a portion of, the value of the securities so purchased, and the Company receives proceeds from such purchaser based on a price or
value that varies with the trading prices of the Common Shares.
“VWAP”
shall mean for any Trading Day or specified period, the daily volume weighted average price of the Common Shares for such Trading Day
on the Principal Market during regular trading hours, or such specified period, as reported by Bloomberg L.P through its “AQR”
function. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization
or other similar transaction during such period.
ANNEX
II TO THE
STANDBY
EQUITY PURCHASE AGREEMENT
CONDITIONS
PRECEDENT TO THE INVESTOR’S OBLIGATION TO FUND A PRE-PAID ADVANCE
The
obligation of the Investor to advance to the Company the Pre-Paid Advance hereunder at the Pre-Advance Closing is subject to the satisfaction,
as of the date of the Pre-Advance Closing, of each of the following conditions, provided that these conditions are for the Investor’s
sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice
thereof:
|
(a) |
The
Company shall have duly executed and delivered to the Investor each of the Transaction Documents to which it is a party and the Company
shall have duly executed and delivered to the Investor a Promissory Note with a principal amount corresponding to the amount of the
applicable Pre-Paid Advance (before any deductions made thereto). |
|
|
|
|
(b) |
The
Investor shall have received an opinion of counsel to the Company, dated on or before the Pre-Advance Closing Date, in a form reasonably
acceptable to the Investor. |
|
|
|
|
(c) |
The
Investor shall have received a closing statement in a form to be agreed by the parties, duly executed by an officer of the Company,
setting forth wire transfer instructions of the Company for the payment of the amount of the Pre-Paid Advance, the amount to be paid
by the Investor, which shall be the full principal amount of the Pre-Paid Advance, less the Original Issue Discount, and any other
deductions that may be agreed by the parties. |
|
|
|
|
(d) |
The
Company shall have delivered to the Investor copies of its and each Subsidiaries certified copies of its charter, as well as any
shareholder or operating agreements by or among the shareholders or members of any of the Company’s Subsidiaries. |
|
|
|
|
(e) |
The
Company shall have delivered to the Investor a certificate evidencing the incorporation and good standing of the Company as of a
date within ten (10) days of the Pre-Advance Closing date. |
|
|
|
|
(f) |
The
board of directors of the Company has approved the transactions contemplated by the Transaction Documents; said approval has not
been amended, rescinded or modified and remains in full force and effect as of the date hereof, and a true, correct and complete
copy of such resolutions duly adopted by the board of directors of the Company shall have been provided to the Investor. |
|
(g) |
Each
and every representation and warranty of the Company shall be true and correct in all material respects (other than representations
and warranties qualified by materiality, which shall be true and correct in all respects) as of the date when made and as of the
date of the Pre-Advance Closing as though originally made at that time (except for representations and warranties that speak as of
a specific date, which shall be true and correct in all material respects as of such specific date) and the Company shall have performed,
satisfied and complied in all material respects with the covenants, agreements and conditions set forth in each Transaction Document
required to be performed, satisfied or complied with by the Company at or prior to the Pre-Advance Closing date. |
|
|
|
|
(h) |
No
Suspension of Trading in or Delisting of Common Shares. Trading in the Common Shares shall not have been suspended by the SEC,
the Principal Market or FINRA, the Company shall not have received any final and non-appealable notice that the listing or quotation
of the Common Shares on the Principal Market shall be terminated on a date certain (unless, prior to such date certain, the Common
Shares is listed or quoted on any subsequent Principal Market), nor shall there have been imposed any suspension of, or restriction
on, accepting additional deposits of the Common Shares, electronic trading or book-entry services by DTC with respect to the Common
Shares that is continuing, the Company shall not have received any notice from DTC to the effect that a suspension of, or restriction
on, accepting additional deposits of the Common Shares, electronic trading or book-entry services by DTC with respect to the Common
Shares is being imposed or is contemplated (unless, prior to such suspension or restriction, DTC shall have notified the Company
in writing that DTC has determined not to impose any such suspension or restriction). |
|
|
|
|
(i) |
The
Company shall have obtained all governmental, regulatory or third-party consents and approvals, if any, necessary for the sale of
the Common Shares to the Investor. |
|
|
|
|
(j) |
No
statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed
by any court or governmental entity of competent jurisdiction that prohibits the consummation of any of the transactions contemplated
by the Transaction Documents. |
|
|
|
|
(k) |
The
officers and directors of the Company that hold convertible notes issued in connection with the financing transaction conducted contemporaneously
with the closing of the business combination (the “Business Combination Notes”) shall have entered into a lock-up
agreement, solely with respect to the Common Stock to be issued upon the conversion of the Business Combination Notes, in a form
reasonably acceptable to by the Investor, that shall provide that such Persons shall not sell any Common Stock issued upon conversion
of the Business Combination Notes for a period beginning on the Closing Date and continuing for so long as any Promissory Note remains
outstanding. |
|
|
|
|
(l) |
The
Company and its Subsidiaries shall have delivered to the Investor such other documents, instruments or certificates relating to the
transactions contemplated by this Agreement as the Investor or its counsel may reasonably request. |
ANNEX
III TO THE
STANDBY
EQUITY PURCHASE AGREEMENT
CONDITIONS
PRECEDENT TO THE RIGHT OF THE COMPANY TO DELIVER AN ADVANCE NOTICE
The
right of the Company to deliver an Advance Notice and the obligations of the Investor hereunder with respect to an Advance are subject
to the satisfaction or waiver, on each Advance Notice Date (a “Condition Satisfaction Date”), of each of the following
conditions:
|
(a) |
Accuracy
of the Company’s Representations and Warranties. The representations and warranties of the Company in this Agreement shall
be true and correct in all material respects as of the Advance Notice Date, except to the extend such representations and warranties
are as of another date, such representations and warranties shall be true and correct in all material respects as of such other date. |
|
|
|
|
(b) |
Issuance
of Commitment Shares. The Company shall have paid the Commitment Fee or issued the Commitment Shares to an account designated
by the Investor on or prior to the Effective Date, in accordance with Section 12.04. |
|
|
|
|
(c) |
Registration
of the Common Shares with the SEC. There is an effective Registration Statement pursuant to which the Investor is permitted to
utilize the prospectus thereunder to resell all of the Common Shares issuable pursuant to such Advance Notice. The Current Report
shall have been filed with the SEC and the Company shall have filed with the SEC in a timely manner all reports, notices and other
documents required under the Exchange Act and applicable SEC regulations during the twelve-month period immediately preceding the
applicable Condition Satisfaction Date. |
|
|
|
|
(d) |
Authority.
The Company shall have obtained all permits and qualifications required by any applicable state for the offer and sale of all the
Common Shares issuable to the Investor pursuant to such Advance Notice, or shall have the availability of exemptions therefrom. The
sale and issuance of such Common Shares to the Investor shall be legally permitted by all laws and regulations to which the Company
is subject. |
|
|
|
|
(e) |
Board.
The board of directors of the Company has approved the transactions contemplated by the Transaction Documents; said approval has
not been amended, rescinded or modified and remains in full force and effect as of the date hereof, and a true, correct and complete
copy of such resolutions duly adopted by the board of directors of the Company shall have been provided to the Investor. |
|
|
|
|
(f) |
No
Material Outside Event. No Material Outside Event shall have occurred and be continuing. |
|
|
|
|
(g) |
Performance
by the Company. The Company shall have performed, satisfied and complied in all material respects with all covenants, agreements
and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior the applicable Condition
Satisfaction Date. |
|
(h) |
No
Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated
or endorsed by any court or governmental authority of competent jurisdiction that prohibits or directly, materially and adversely
affects any of the transactions contemplated by this Agreement. |
|
|
|
|
(i) |
No
Suspension of Trading in or Delisting of Common Shares. Trading in the Common Shares shall not have been suspended by the SEC,
the Principal Market or FINRA, the Company shall not have received any final and non-appealable notice that the listing or quotation
of the Common Shares on the Principal Market shall be terminated on a date certain (unless, prior to such date certain, the Common
Shares is listed or quoted on any subsequent Principal Market), nor shall there have been imposed any suspension of, or restriction
on, accepting additional deposits of the Common Shares, electronic trading or book-entry services by DTC with respect to the Common
Shares that is continuing, the Company shall not have received any notice from DTC to the effect that a suspension of, or restriction
on, accepting additional deposits of the Common Shares, electronic trading or book-entry services by DTC with respect to the Common
Shares is being imposed or is contemplated (unless, prior to such suspension or restriction, DTC shall have notified the Company
in writing that DTC has determined not to impose any such suspension or restriction). |
|
|
|
|
(j) |
Authorized.
All of the Shares issuable pursuant to the applicable Advance Notice shall have been duly authorized by all necessary corporate action
of the Company. All Shares relating to all prior Advance Notices required to have been received by the Investor under this Agreement
shall have been delivered to the Investor in accordance with this Agreement. |
|
|
|
|
(k) |
Executed
Advance Notice. The representations contained in the applicable Advance Notice shall be true and correct in all material respects
as of the applicable Condition Satisfaction Date. |
EXHIBIT
A
REGISTRATION
RIGHTS AGREMEENT
EXHIBIT
B
CONVERTIBLE
PROMISSORY NOTE
EXHIBIT
C
ADVANCE
NOTICE
Dated:
______________ |
|
Advance
Notice Number: ____ |
The
undersigned, _______________________, hereby certifies, with respect to the sale of Common Shares of ONEMEDNET CORPORATION (the
“Company”) issuable in connection with this Advance Notice, delivered pursuant to that certain Standby Equity Purchase
Agreement, dated as of [____________] (the “Agreement”), as follows (with capitalized terms used herein without definition
having the same meanings as given to them in the Agreement):
1.
The undersigned is the duly elected ______________ of the Company.
2.
There are no fundamental changes to the information set forth in the Registration Statement which would require the Company to file a
post-effective amendment to the Registration Statement.
3.
The Company has performed in all material respects all covenants and agreements to be performed by the Company contained in this Agreement
on or prior to the Advance Notice Date. All conditions to the delivery of this Advance Notice are satisfied as of the date hereof.
4.
The number of Advance Shares the Company is requesting is _____________________.
5.
The Minimum Acceptable Price with respect to this Advance Notice is ____________ (if left blank then no Minimum Acceptable Price will
be applicable to this Advance).
6.
The number of Common Shares of the Company outstanding as of the date hereof is ___________.
The
undersigned has executed this Advance Notice as of the date first set forth above.
|
ONEMEDNET
CORPORATION |
|
|
|
|
By: |
|
Please
deliver this Advance Notice by email to:
|
Email:
|
Trading@yorkvilleadvisors.com |
|
Attention:
|
Trading
Department and Compliance Officer |
|
Confirmation
Telephone Number: |
(201)
985-8300. |
EXHIBIT
D
SETTLEMENT
DOCUMENT
VIA
EMAIL
ONEMEDNET
CORPORATION |
|
|
|
Attn:
|
|
|
Email:
|
|
|
|
Below
please find the settlement information with respect to the Advance Notice Date of: |
|
|
|
|
1. |
Number
of Common Shares requested in the Advance Notice |
|
|
|
|
2. |
Minimum
Acceptable Price for this Advance (if any) |
|
|
|
|
3. |
Number
of Excluded Days (if any) |
|
|
|
|
4. |
Adjusted
Advance Amount (if applicable) |
|
|
|
|
5. |
Market
Price |
|
|
|
|
6. |
Purchase
Price (Market Price x 97%) per share |
|
|
|
|
7. |
Number
of Advance Shares due to the Investor |
|
|
|
|
8. |
Total
Purchase Price due to Company (row 6 x row 7) |
|
If
there were any Excluded Days then add the following
9. |
Number
of Additional Shares to be issued to the Investor |
|
|
|
|
10. |
Additional
amount to be paid to the Company by the Investor (Additional Shares in row 9 x Minimum Acceptable Price x 97%) |
|
|
|
|
11. |
Total
Amount to be paid to the Company (Purchase Price in row 8 + additional amount in row 10) |
|
|
|
|
12. |
Total
Advance Shares to be issued to the Investor (Advance Shares due to the Investor in row 7 + Additional Shares in row 9) |
|
Please
issue the number of Advance Shares due to the Investor to the account of the Investor as follows:
Investor’s
DTC participant #: |
|
|
|
ACCOUNT
NAME: |
|
ACCOUNT
NUMBER: |
|
ADDRESS: |
|
CITY: |
|
COUNTRY:
|
|
Contact
person: |
|
Number
and/or email: |
|
Sincerely, |
|
|
YA II PN, LTD. |
Agreed
and approved By: ONEMEDNET CORPORATION: |
|
|
|
|
|
Name: |
|
|
Title: |
|
|
EXHIBIT
E
INVESTOR
NOTICE,
CORRESPONDING
ADVANCE NOTICE,
AND
SETTLEMENT DOCUMENT
YA
II PN, LTD.
Dated:
______________ |
Investor
Notice Number: ____ |
On
behalf of YA II PN, LTD. (the “Investor”), the undersigned hereby certifies, with respect to the purchase of Common
Shares of ONEMEDNET CORPORATION (the “Company”) issuable in connection with this Investor Notice, delivered
pursuant to that certain Standby Equity Purchase Agreement, dated as of [_____________], as amended and supplemented from time to time
(the “Agreement”), as follows:
1. |
Advance
requested in the Advance Notice |
|
|
|
|
2. |
Purchase
Price (equal to the Conversion Price as defined in the Promissory Note) |
|
|
|
|
3. |
Number
of Shares due to Investor |
|
The
aggregate purchase price of the Shares to be paid by Investor pursuant to this Investor Notice and corresponding Advance Notice shall
be offset against amounts outstanding under the Pre-Paid Advance evidenced by the Promissory Note dated [___________ ], to the extent
then outstanding (first towards accrued and unpaid interest, and then towards outstanding principal) as follows (and this information
shall satisfy the obligations of the Investor to deliver a Settlement Document pursuant to the Agreement):
1. |
Amount
offset against accrued and unpaid Interest |
$[____________] |
|
|
|
2. |
Amount
offset against Principal |
$[____________] |
|
|
|
3. |
Total
amount of the Promissory Note outstanding following the Advance |
$[____________] |
Please
issue the number of Shares due to the Investor to the account of the Investor as follows:
Investor’s
DTC participant #: |
|
|
|
ACCOUNT
NAME: |
|
ACCOUNT
NUMBER: |
|
ADDRESS: |
|
CITY: |
|
Please
deliver this Investor Notice by email to:
Email:
[_____________]
With
copy by email to: [_____________]
Attention:
The
undersigned has executed this Investor Notice as of the date first set forth above.
YA
II PN, Ltd. |
|
|
|
By: |
Yorkville
Advisors Global, LP |
|
Its: |
Investment
Manager |
|
|
|
|
By:
|
Yorkville
Advisors Global II, LLC |
|
Its:
|
General
Partner |
|
|
|
|
By: |
|
|
Name: |
|
|
EXHIBIT
G
FORM
OF GLOBAL GUARANTY AGREEMENT
Exhibit
10.2
NEITHER
THIS NOTE NOR THE SECURITIES INTO WHICH THIS NOTE IS CONVERTIBLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR
THE SECURITIES COMMISSION OF ANY STATE. THESE SECURITIES HAVE BEEN SOLD IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. NOTWITHSTANDING THE
FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED
BY THE SECURITIES.
ONEMEDNET
CORPORATION
Convertible
Promissory Note
Original
Principal Amount: $1,500,000
Issuance
Date: June 18, 2024
Number:
ONMD-1
FOR
VALUE RECEIVED, OneMedNet Corporation, an entity organized under the laws of the State of Delaware (the “Company”),
hereby promises to pay to the order of YA II PN, LTD., or its registered assigns (the “Holder”), the amount set out
above as the Original Principal Amount (or such lesser amount as reduced pursuant to the terms hereof pursuant to repayment, redemption,
conversion or otherwise, the “Principal”) and the Payment Premium or the Redemption Premium, as applicable, in each
case when due, and to pay interest (“Interest”) on any outstanding Principal at the applicable Interest Rate (as defined
below) from the date set out above as the Issuance Date (the “Issuance Date”) until the same becomes due and payable,
whether upon the Maturity Date or acceleration, conversion, redemption or otherwise (in each case in accordance with the terms hereof).
Certain capitalized terms used herein are defined in Section (12). The Issuance Date is the date of the first issuance of this
Convertible Promissory Note (as amended, amended and restated, extended, supplemented or otherwise modified in writing from time to time,
this “Note”) regardless of the number of transfers and regardless of the number of instruments, which may be issued
to evidence such Note. This Note was issued with a 10% original issue discount. The Company and the Holder are referred to herein at
times, collectively, as the “Parties,” and each, a “Party.”
This
Note is being issued pursuant to Section 2.01 of the Standby Equity Purchase Agreement, dated June 18, 2024 (as may be amended, amended
and restated, extended, supplemented or otherwise modified in writing from time to time, the “SEPA”), by and between
the Company and YA II PN, Ltd., as the Investor. This Note may be repaid in accordance with the terms of the SEPA, including, without
limitation, pursuant to Investor Notices and corresponding Advance Notices deemed given by the Company in connection with such Investor
Notices. The Holder also has the option of converting on one or more occasions all or part of the then-outstanding balance under this
Note by delivering to the Company one or more Conversion Notices in accordance with Section 3 of this Note.
(1) GENERAL
TERMS
(a) Maturity
Date. On the Maturity Date, the Company shall pay to the Holder an amount in cash representing all outstanding Principal, accrued
and unpaid Interest, and any other amounts outstanding pursuant to the terms of this Note. The “Maturity Date” shall
be June 17, 2025, as may be extended at the option of the Holder. Other than as specifically permitted by this Note, the Company may
not prepay or redeem any portion of the outstanding Principal and accrued and unpaid Interest.
(b) Interest
Rate and Payment of Interest. Interest shall accrue on the outstanding Principal balance hereof at an annual rate equal to 0% (“Interest
Rate”), which Interest Rate shall increase to an annual rate of 18% upon the occurrence of an Event of Default (for so long
as such event remains uncured). Interest shall be calculated based on a 365-day year and the actual number of days elapsed, to the extent
permitted by applicable law.
(c) Monthly
Payments. If, any time after the Issuance Date set forth above, and from time to time thereafter, an Amortization Event has occurred,
then the Company shall make monthly payments beginning on the tenth (10th) Trading Day after the Amortization Event Date and
continuing on the same day of each successive Calendar Month until the entire outstanding principal amount shall have been repaid or
such earlier date that the Company’s obligations terminate pursuant to the last sentence of this Section 1(c). Each monthly
payment shall be in an amount equal to the sum of (i) $500,000 of Principal in the aggregate among this Note and all Other Notes (or
the outstanding Principal if less than such amount) (the “Amortization Principal Amount”), plus (ii) the Payment Premium
(as defined below) in respect of such Amortization Principal Amount, and (iii) accrued and unpaid interest hereunder as of each payment
date. The obligation of the Company to make monthly prepayments related to an Amortization Event shall cease (with respect to any payment
that has not yet come due) if at any time after the Amortization Event Date (A) in the event of a Floor Price Event, on the date that
is the fifth (5th) consecutive Trading Day that the daily VWAP is greater than 110% of the Floor Price then in effect, or
(B) in the event of an Exchange Cap Event, the date the Company has obtained stockholder approval to increase the number of Common Shares
under the Exchange Cap and/or the Exchange Cap no longer applies, (C) in the event of a Registration Event, the condition or event causing
the Registration Event has been cured or the holder is able to resell the Common Shares issuable upon conversion of this Note in accordance
with Rule 144 promulgated under the Securities Act, unless a subsequent Amortization Event occurs.
(d) Optional
Redemption. The Company at its option shall have the right, but not the obligation, to redeem (“Optional Redemption”)
early a portion or all amounts outstanding under this Note as described in this Section 1(d); provided, that the Company
provides the Holder with at least five (5) Trading Days’ written notice (each, a “Redemption Notice”) of its
desire to exercise an Optional Redemption, which Redemption Notice (i) shall be delivered to the Holder after the close of regular trading
hours on a Trading Day and (ii) may only be given if the VWAP of the Common Shares was less than the Fixed Price on the date such Redemption
Notice is delivered, unless otherwise agreed by the Holder. Each Redemption Notice shall be irrevocable and shall specify the outstanding
balance of the Note to be redeemed and the Redemption Amount. The “Redemption Amount” shall be an amount equal to
(a) the outstanding Principal balance being redeemed by the Company plus (b) the Redemption Premium in respect of such Principal
balance plus (c) all accrued and unpaid interest, if any, on such Principal balance. After receipt of a Redemption Notice, the
Holder shall have five (5) Trading Days (beginning with the Trading Day immediately following the date such Redemption Notice is delivered
to the Holder in accordance with the terms of Section 5) to elect to convert all or any portion of this Note. On the sixth (6th)
Trading Day following delivery of the applicable Redemption Notice, the Company shall deliver to the Holder the Redemption Amount with
respect to the Principal amount redeemed to the extent not converted and otherwise after giving effect to conversions or other payments
made during such five (5) Trading Day period.
(e) Payment
Dates. Whenever any payment or other obligation hereunder shall be due on a day other than a Business Day, such payment shall be
made on the next succeeding Business Day.
(2) EVENTS
OF DEFAULT.
(a) An
“Event of Default”, wherever used herein, means any one of the following events (whatever the reason and whether it
shall be voluntary or involuntary or effected by operation of law or pursuant to any judgment, decree or order of any court, or any order,
rule or regulation of any administrative or governmental body) shall have occurred:
(i) The
Company’s failure to pay to the Holder any amount of Principal, Redemption Amount, Payment Premium, Interest, or other amounts
when and as due under this Note or any other Transaction Document within five (5) Trading Days after such payment is due;
(ii) (A)
The Company or any Subsidiary of the Company shall commence, or there shall be commenced against the Company or any Subsidiary of the
Company, any proceeding under any applicable bankruptcy or insolvency laws as now or hereafter in effect or any successor thereto, or
the Company or any Subsidiary of the Company commences any other proceeding under any reorganization, arrangement, adjustment of debt,
relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction, whether now or hereafter in effect relating
to the Company or any Subsidiary of the Company, in any case which remains undismissed for a period of sixty one (61) days; (B) the Company
or any Subsidiary of the Company is adjudicated insolvent or bankrupt; or any order of relief or other order approving any such case
or proceeding is entered; (C) the Company or any Subsidiary of the Company suffers any appointment of any custodian, private or court
appointed receiver or the like for it or all or substantially all of its property which continues undischarged or unstayed for a period
of sixty one (61) days; (D) the Company or any Subsidiary of the Company makes a general assignment of all or substantially all of its
assets for the benefit of creditors; (E) the Company or any Subsidiary of the Company shall fail to pay, or shall state that it is unable
to pay, or shall be unable to pay, its debts generally as they become due; (F) the Company or any Subsidiary of the Company shall call
a meeting of its creditors with a view to arranging a composition, adjustment or restructuring of its debts; (G) the Company or any Subsidiary
of the Company shall by any act or failure to act expressly indicate its consent to, approval of or acquiescence in any of the foregoing;
or (H) any corporate or other legally binding action is taken by the Company or any Subsidiary of the Company for the purpose of effecting
any of the foregoing;
(iii) The
Company or any Subsidiary of the Company shall default in any of its obligations under any note, debenture, mortgage, credit agreement
or other facility, indenture agreement, factoring agreement or other instrument under which there may be issued, or by which there may
be secured or evidenced, any indebtedness for borrowed money or money due under any long term leasing or factoring arrangement of the
Company or any Subsidiary of the Company in an amount exceeding $500,000, whether such indebtedness now exists or shall hereafter be
created, and such default is not cured within the time prescribed by the documents governing such indebtedness or, if no time is prescribed,
within ten (10) Trading Days, and as a result, such indebtedness becomes or is declared due and payable;
(iv) A
final judgment or judgments for the payment of money in excess of $250,000 in the aggregate are rendered against the Company and/or any
of its Subsidiaries and which judgments are not, within thirty (30) days after the entry thereof, bonded, discharged, settled or stayed
pending appeal, or are not discharged within thirty (30) days after the expiration of such stay; provided, however, any judgment
which is covered by insurance or an indemnity from a creditworthy party shall not be included in calculating the $250,000 amount set
forth above so long as the Company provides the Holder a written statement from such insurer or indemnity provider (which written statement
shall be reasonably satisfactory to the Holder) to the effect that such judgment is covered by insurance or an indemnity and the Company
or such Subsidiary (as the case may be) will receive the proceeds of such insurance or indemnity within thirty (30) days of the issuance
of such judgment;
(v) The
Common Shares shall cease to be quoted or listed for trading, as applicable, on any Primary Market for a period of ten (10) consecutive
Trading Days;
(vi) The
Company or any Subsidiary of the Company shall be a party to any Change of Control Transaction (as defined in Section (12)) unless
in connection with such Change of Control Transaction this Note is retired;
(vii) The
Company’s (A) failure to deliver the required number of Common Shares to the Holder within two (2) Trading Days after the applicable
Share Delivery Date or (B) notice to any holder of this Note, including by way of public announcement, at any time, of its intention
not to comply with a request for conversion of all or a portion of this Note into Common Shares that is tendered in accordance with the
provisions of this Note;
(viii) The
Company shall fail for any reason to deliver the payment in cash pursuant to a Buy-In (as defined below) within five (5) Business Days
after such payment is due;
(ix) The
Company’s failure to timely file with the Commission any Periodic Report on or before the due date of such filing as established
by the Commission, it being understood, for the avoidance of doubt, that due date includes any permitted filing deadline extension under
Rule 12b-25 under the Exchange Act;
(x) Any
material representation or warranty made or deemed to be made by or on behalf of the Company in or in connection with any Transaction
Document, or any waiver hereunder or thereunder, shall prove to have been incorrect in any material respect (or, in the case of any such
representation or warranty already qualified by materiality, such representation or warranty shall prove to have been incorrect) when
made or deemed made;
(xi) (1)
Any material provision of any Transaction Document, at any time after its execution and delivery and for any reason other than as expressly
permitted hereunder or thereunder, ceases to be in full force and effect with respect to the Company; (2) the Company or any other Person
contests in writing the validity or enforceability of any provision of any Transaction Document; or (3) the Company denies in writing
that it has any further liability or obligation under any Transaction Document, or purports in writing to revoke, terminate (other than
in accordance with the relevant termination provisions) or rescind any Transaction Document;
(xii) The
Company uses the proceeds of the issuance of this Note, whether directly or indirectly, and whether immediately, incidentally or ultimately,
to purchase or carry margin stock (within the meaning of Regulations T, U and X of the Federal Reserve Board, as in effect from time
to time and all official rulings and interpretations thereunder or thereof), or to extend credit to others for the purpose of purchasing
or carrying margin stock or to refund indebtedness originally incurred for such purpose; or
(xiii) Any
Event of Default (as defined in the Other Notes or in any Transaction Document other than this Note) occurs with respect to any Other
Notes, or any breach of any material term of any other debenture, note, or instrument held by the Holder in the Company or any agreement
between or among the Company and the Holder; or
(xiv) The
Company shall fail to observe or perform any material covenant, agreement or warranty contained in, or otherwise commit any material
breach or default of any provision of this Note (except as may be covered by Section (2)(a)(i) through (2)(a)(xiii) hereof)
or any other Transaction Document, which is not cured or remedied within the time prescribed or if no time is prescribed within ten (10)
Business Days after receiving written notice of such breach from the Holder.
(b) During
the time that any portion of this Note is outstanding, if any Event of Default has occurred (other than an event with respect to the
Company described in Section (2)(a)(ii)), the full unpaid Principal amount of this Note, together with interest and other amounts
owing in respect thereof, to the date of acceleration shall become, at the Holder’s election given by notice pursuant to Section
(5), immediately due and payable in cash; provided, that in the case of any event with respect to the Company described in
Section (2)(a)(ii), the full unpaid Principal amount of this Note, together with interest and other amounts owing in respect thereof
to the date of acceleration, shall automatically become due and payable, in each case without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Company. Furthermore, in addition to any other remedies, the Holder shall have the
right (but not the obligation) to convert, on one or more occasions all or part of the Note in accordance with Section (3) (and
subject to the limitations set out in Section (3)(c)(i) and Section (3)(c)(ii)) at any time after an Event of Default has
occurred and is continuing until all amounts outstanding under this Note have been repaid in full. The Holder need not provide and the
Company hereby waives any presentment, demand, protest or other notice of any kind (other than required notice of conversion) and the
Holder may immediately enforce any and all of its rights and remedies hereunder and all other remedies available to it under applicable
law. Such declaration may be rescinded and annulled by the Holder in writing at any time prior to payment hereunder. No such rescission
or annulment shall affect any subsequent Event of Default or impair any right consequent thereon.
(3) CONVERSION
OF NOTE. This Note shall be convertible into shares of the Company’s Common Shares, on the terms and conditions set forth
in this Section (3).
(a) Conversion
Right. Subject to the limitations of Section (3)(c), at any time or times on or after the Issuance Date, the Holder shall
be entitled to convert any portion of the outstanding and unpaid Conversion Amount into fully paid and nonassessable Common Shares in
accordance with Section (3)(b) at the Conversion Price. The number of Common Shares issuable upon conversion of any Conversion
Amount pursuant to this Section (3)(a) shall be determined by dividing (x) such Conversion Amount by (y) the Conversion Price.
The Company shall not issue any fraction of a share of Common Shares upon any conversion. All calculations under this Section (3)
shall be rounded to the nearest $0.0001. If the issuance would result in the issuance of a fraction of a share of Common Shares,
the Company shall round such fraction of a share of Common Shares up or down to the nearest whole share. The Company shall pay any and
all transfer, stamp and similar taxes that may be payable with respect to the issuance and delivery of Common Shares upon conversion
of any Conversion Amount.
(b) Mechanics
of Conversion.
(i) Optional
Conversion. To convert any Conversion Amount into Common Shares on any date (a “Conversion Date”), the Holder
shall (A) transmit by email (or otherwise deliver), for receipt on or prior to 11:59 p.m., New York Time, on such date, a copy of an
executed notice of conversion in the form attached hereto as Exhibit I (the “Conversion Notice”) to the Company
and (B) if required by Section (3)(b)(iii), surrender this Note to a nationally recognized overnight delivery service for delivery
to the Company (or an indemnification undertaking reasonably satisfactory to the Company with respect to this Note in the case of its
loss, theft or destruction). On or before the third (3rd) Trading Day following the date of receipt of a Conversion Notice
(the “Share Delivery Date”), the Company shall (X) if legends are not required to be placed on certificates of Common
Shares and, provided that the Transfer Agent is participating in the Depository Trust Company’s (“DTC”) Fast
Automated Securities Transfer Program, credit such aggregate number of Common Shares to which the Holder shall be entitled to the Holder’s
or its designee’s balance account with DTC through its Deposit Withdrawal Agent Commission system or (Y) if the Transfer Agent
is not participating in the DTC Fast Automated Securities Transfer Program, issue and deliver to the address as specified in the Conversion
Notice, a certificate, registered in the name of the Holder or its designee, for the number of Common Shares to which the Holder shall
be entitled, which certificates shall not bear any restrictive legends unless required pursuant to rules and regulations of the Commission.
If this Note is physically surrendered for conversion and the outstanding Principal of this Note is greater than the Principal portion
of the Conversion Amount being converted, then the Company shall, as soon as practicable and in no event later than three (3) Business
Days after receipt of this Note and at its own expense, issue and deliver to the holder a new Note representing the outstanding Principal
not converted. The Person or Persons entitled to receive the Common Shares issuable upon a conversion of this Note shall be treated for
all purposes as the record holder or holders of such Common Shares upon the transmission of a Conversion Notice.
(ii) Company’s
Failure to Timely Convert. If within three (3) Trading Days after the Company’s receipt of an email copy of a Conversion Notice
the Company shall fail to issue and deliver a certificate to the Holder or credit the Holder’s balance account with DTC for the
number of Common Shares to which the Holder is entitled upon such holder’s conversion of any Conversion Amount (a “Conversion
Failure”), and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) Common Shares
to deliver in satisfaction of a sale by the Holder of Common Shares issuable upon such conversion that the Holder anticipated receiving
from the Company (a “Buy-In”), then the Company shall, within three (3) Business Days after the Holder’s request
and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price
(including brokerage commissions and other out of pocket expenses, if any) for the Common Shares so purchased (the “Buy-In Price”),
at which point the Company’s obligation to deliver such certificate (and to issue such Common Shares) shall terminate, or (ii)
promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Common Shares to which the Holder
is entitled with respect to such Conversion Notice and pay cash to the Holder in an amount equal to the excess (if any) of the Buy-In
Price over the product of (A) such number of Common Shares multiplied by(B) the Closing Price on the Conversion Date.
(iii) Book-Entry.
Notwithstanding anything to the contrary set forth herein, upon conversion of any portion of this Note in accordance with the terms hereof,
the Holder shall not be required to physically surrender this Note to the Company unless (A) the full Conversion Amount represented by
this Note is being converted or (B) the Holder has provided the Company with prior written notice (which notice may be included in a
Conversion Notice) requesting reissuance of this Note upon physical surrender of this Note. The Holder and the Company shall maintain
records showing the Principal and Interest converted and the dates of such conversions or shall use such other method, reasonably satisfactory
to the Holder and the Company, so as not to require physical surrender of this Note upon conversion.
(c) Limitations
on Conversions.
(i) Beneficial
Ownership. The Holder shall not have the right to convert any portion of this Note to the extent that after giving effect to such
conversion, the Holder, together with any affiliate thereof, would beneficially own (as determined in accordance with Section 13(d) of
the Exchange Act and the rules promulgated thereunder) in excess of 4.99% of the number of Common Shares outstanding immediately after
giving effect to such conversion or receipt of shares as payment of interest. Since the Holder will not be obligated to report to the
Company the number of Common Shares it may hold at the time of a conversion hereunder, unless the conversion at issue would result in
the issuance of Common Shares in excess of 4.99 % of the then outstanding Common Shares without regard to any other shares which may
be beneficially owned by the Holder or an affiliate thereof, the Holder shall have the authority and obligation to determine whether
the restriction contained in this Section 3(c)(i) will limit any particular conversion hereunder and to the extent that the Holder
determines that the limitation contained in this Section 3(c)(i) applies, the determination of which portion of the Principal
amount of this Note is convertible shall be the responsibility and obligation of the Holder. If the Holder has delivered a Conversion
Notice for a Principal amount of this Note that, without regard to any other shares that the Holder or its affiliates may beneficially
own, would result in the issuance in excess of the permitted amount hereunder, the Company shall notify the Holder of this fact and shall
honor the conversion for the maximum Principal amount permitted to be converted on such Conversion Date in accordance with Section
(3)(a) and, any Principal amount tendered for conversion in excess of the permitted amount hereunder shall remain outstanding under
this Note. The provisions of this Section 3(c)(i) may be waived by a Holder (but only as to itself and not to any other Holder)
upon not less than 65 days prior notice to the Company. Other Holders shall be unaffected by any such waiver.
(ii) Principal
Market Limitation. Notwithstanding anything in this Note to the contrary, the Company shall not issue any Common Shares upon conversion
of this Note, or otherwise, if the issuance of such Common Shares, together with any Common Shares issued in connection the SEPA and
any other related transactions that may be considered part of the same series of transactions, would exceed the aggregate number Common
Shares that the Company may issue in a transaction in compliance with the Company’s obligations under the rules or regulations
of The Nasdaq Stock Market LLC (“Nasdaq”) and shall be referred to as the “Exchange Cap,” except
that such limitation shall not apply if the Company’s stockholders have approved such issuances on such terms in excess of the
Exchange Cap in accordance with the rules and regulations of Nasdaq.
(d) Other
Provisions.
(i) All
calculations under this Section (3) shall be rounded to the nearest $0.0001 or whole share.
(ii) So
long as this Note or any Other Notes remain outstanding, the Company shall have reserved from its duly authorized share capital, and
shall have instructed its transfer agent to irrevocably reserve, the maximum number of Common Shares issuable upon conversion of this
Note and the Other Notes (assuming for purposes hereof that (x) this Note and such Other Notes are convertible at the Floor Price as
of the date of determination and(y) any such conversion shall not take into account any limitations on the conversion of the Note or
Other Notes set forth herein or therein (with respect to the Note or the Other Notes, their “Required Reserve Amount”)),
provided, that at no time shall the number of Common Shares reserved pursuant to this Section (3)(d)(ii) be reduced other
than pursuant to the conversion or repayment in full of this Note and the Other Notes in accordance with their terms and/or cancellation
or reverse stock split. If at any time while this Note or any Other Notes remain outstanding, the Company does not have a sufficient
number of authorized and unreserved Common Shares to satisfy the obligation to reserve for issuance their applicable Required Reserve
Amount, the Company will promptly take all corporate action necessary to propose to its general meeting of shareholders an increase of
its authorized share capital necessary to meet the Company’s obligations pursuant to this Note, and cause its board of directors
to recommend to the shareholders that they approve such proposal. If at any time the number of Common Shares that remain available for
issuance under the Exchange Cap is less than 100% of the maximum number of shares issuable upon conversion of all the Notes and Other
Notes then outstanding (assuming for purposes hereof that (x) the Notes are convertible at the Conversion Price then in effect and (y)
any such conversion shall not take into account any limitations on the conversion of the Note, other than the Floor Price then in effect
but solely with respect to the Variable Price), the Company will use commercially reasonable efforts to promptly call and hold a shareholder
meeting for the purpose of seeking the approval of its shareholders as required by the applicable rules of the Principal Market for issuances
of shares in excess of the Exchange Cap. The Company covenants that, upon issuance in accordance with conversion of this Note in accordance
with its terms, the Common Shares, when issued, will be validly issued, fully paid and nonassessable.
(iii) Nothing
herein shall limit a Holder’s right to pursue actual damages or declare an Event of Default pursuant to Section (2) herein
for the Company’s failure to deliver certificates representing Common Shares upon conversion within the period specified herein
and such Holder shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree
of specific performance and/or injunctive relief, in each case without the need to post a bond or provide other security. The exercise
of any such rights shall not prohibit the Holder from seeking to enforce damages pursuant to any other Section hereof or under applicable
law.
(iv) Legal
Opinions. The Company is obligated to cause its legal counsel to deliver legal opinions to the Company’s transfer agent in
connection with any legend removal upon the expiration of any holding period or other requirement for which the Underlying Shares may
bear legends restricting the transfer thereof. To the extent that a legal opinion is not provided (either timely or at all), and such
failure results in Underlying Shares without legends not being timely delivered as required by the terms of this Note, then the Company
agrees to reimburse the Holder for all reasonable costs incurred by the Holder in connection with any legal opinions paid for by the
Holder in connection with the sale or transfer of the Underlying Common Shares. The Holder shall notify the Company of any such costs
and expenses it incurs that are referred to in this Section 3(d)(iv) from time to time and all amounts owed hereunder shall be
paid by the Company with reasonable promptness.
(e) Adjustment
of Conversion Price upon Subdivision or Combination of Common Shares. If the Company, at any time while this Note is outstanding,
shall (i) pay a stock dividend or otherwise make a distribution or distributions on shares of its Common Shares or any other equity or
equity equivalent securities payable in Common Shares, (ii) subdivide outstanding Common Shares into a larger number of shares, (iii)
combine (including by way of reverse stock split) outstanding Common Shares into a smaller number of shares, or (iv) issue by reclassification
of Common Shares any shares of capital stock of the Company, then each of the Fixed Price and the Floor Price shall be multiplied by
a fraction of which the numerator shall be the number of Common Shares (excluding treasury shares, if any) outstanding before such event
and of which the denominator shall be the number of Common Shares outstanding after such event. Any adjustment made pursuant to this
Section 3(e) shall become effective, in the case of a dividend or distribution, immediately after the record date for the determination
of stockholders entitled to receive such dividend or distribution or, in the case of a subdivision, combination or re-classification,
shall become effective immediately after the effective date of such subdivision, combination or re-classification.
(f) Adjustment
of Conversion Price upon Issuance of Common Stock. Reserved.
(g) Other
Corporate Events. In addition to and not in substitution for any other rights hereunder, prior to the consummation of any Fundamental
Transaction pursuant to which holders of Common Shares are entitled to receive securities or other assets with respect to or in exchange
for Common Shares (a “Corporate Event”), the Company shall make appropriate provision to ensure that the Holder will
thereafter have the right to receive upon a conversion of this Note, at the Holder’s option, (i) in addition to the Common Shares
receivable upon such conversion, such securities or other assets to which the Holder would have been entitled with respect to such Common
Shares had such Common Shares been held by the Holder upon the consummation of such Corporate Event (without taking into account any
limitations or restrictions on the convertibility of this Note) or (ii) in lieu of the Common Shares otherwise receivable upon such conversion,
such securities or other assets received by the holders of Common Shares in connection with the consummation of such Corporate Event
in such amounts as the Holder would have been entitled to receive had this Note initially been issued with conversion rights for the
form of such consideration (as opposed to Common Shares) at a conversion rate for such consideration commensurate with the Conversion
Price. Provision made pursuant to the preceding sentence shall be in a form and substance reasonably satisfactory to the Required Holders.
The provisions of this Section (3) shall apply similarly and equally to successive Corporate Events and shall be applied without
regard to any limitations on the conversion or redemption of this Note.
(h) Whenever
the Conversion Price is adjusted pursuant to Section (3) hereof, the Company shall promptly provide the Holder with a written
notice setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment.
(i) In
case of any (1) merger or consolidation of the Company or any Subsidiary of the Company with or into another Person, or (2) sale by the
Company or any Subsidiary of the Company of more than one-half of the assets of the Company in one or a series of related transactions,
a Holder shall have the right to (A) exercise any rights under Section (2)(a)(xiii), (B) convert the aggregate amount of this
Note then outstanding into the shares of stock and other securities, cash and property receivable upon or deemed to be held by holders
of Common Shares following such merger, consolidation or sale, and such Holder shall be entitled upon such event or series of related
events to receive such amount of securities, cash and property as the Common Shares into which such aggregate Principal amount of this
Note could have been converted immediately prior to such merger, consolidation or sales would have been entitled, or (C) in the case
of a merger or consolidation, require the surviving entity to issue to the Holder a convertible Note with a Principal amount equal to
the aggregate Principal amount of this Note then held by such Holder, plus all accrued and unpaid interest and other amounts owing thereon,
which such newly-issued convertible Note shall have terms identical (including with respect to conversion) to the terms of this Note,
and shall be entitled to all of the rights and privileges of the Holder of this Note set forth herein and the agreements pursuant to
which this Note was issued. In the case of clause (C), the conversion price applicable for the newly-issued shares of convertible preferred
stock or convertible debentures shall be based upon the amount of securities, cash and property that each Common Shares would receive
in such transaction and the Conversion Price in effect immediately prior to the effectiveness or closing date for such transaction. The
terms of any such merger, sale or consolidation shall include such terms so as to continue to give the Holder the right to receive the
securities, cash and property set forth in this Section upon any conversion or redemption following such event. This provision shall
similarly apply to successive such events.
(4) REISSUANCE
OF THIS NOTE.
(a) Transfer.
If this Note is to be transferred, the Holder shall surrender this Note to the Company, whereupon the Company will forthwith issue and
deliver upon the order of the Holder a new Note (in accordance with Section (4)(d)), registered in the name of the registered
transferee or assignee, representing the outstanding Principal being transferred by the Holder (along with any accrued and unpaid interest
thereof) and, if less than the entire outstanding Principal is being transferred, a new Note (in accordance with Section (4)(d))
to the Holder representing the outstanding Principal not being transferred. The Holder and any assignee, by acceptance of this Note,
acknowledge and agree that, by reason of the provisions of Section (3)(b)(iii) following conversion or redemption of any portion
of this Note, the outstanding Principal represented by this Note may be less than the Principal stated on the face of this Note.
(b) Lost,
Stolen or Mutilated Note. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft, destruction
or mutilation of this Note, and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to the Company
in customary form and substance and, in the case of mutilation, upon surrender and cancellation of this Note, the Company shall execute
and deliver to the Holder a new Note (in accordance with Section (4)(d)) representing the outstanding Principal.
(c) Note
Exchangeable for Different Denominations. This Note is exchangeable, upon the surrender hereof by the Holder at the principal office
of the Company, for a new Note or Notes (in accordance with Section (4)(d)) representing in the aggregate the outstanding Principal
of this Note, and each such new Note will represent such portion of such outstanding Principal as is designated by the Holder at the
time of such surrender.
(d) Issuance
of New Notes. Whenever the Company is required to issue a new Note pursuant to the terms hereof, such new Note (i) shall be of like
tenor with this Note, (ii) shall represent, as indicated on the face of such new Note, the Principal remaining outstanding (or in the
case of a new Note being issued pursuant to Section (4)(a) or Section (4)(c), the Principal designated by the Holder which,
when added to the Principal represented by the other new Note(s) issued in connection with such issuance, does not exceed the Principal
remaining outstanding under this Note immediately prior to such issuance of such new Note), (iii) shall have an issuance date, as indicated
on the face of such new Note, which is the same as the Issuance Date of this Note, (iv) shall have the same rights and conditions as
this Note, and (v) shall represent accrued and unpaid Interest from the Issuance Date.
(5) NOTICES. Any
notices, consents, waivers or other communications required or permitted to be given under the terms hereof must be in writing by letter
or electronic mail (“e-mail”) and will be deemed to have been delivered: upon the later of (A) either (i) receipt,
when delivered personally or (ii) one (1) Business Day after deposit with an overnight courier service with next day delivery specified,
as applicable and in each case, properly addressed to the party to receive the same and (B) receipt, when sent by e-mail. The addresses
and e-mail addresses for such communications shall be:
If
to the Company, to: |
OneMedNet
Corporation |
|
6385
Old Shady Oak Rd Ste 250
Eden
Prairie, MN 55344 |
|
Attn:
Aaron Green |
|
Email:
aaron.green@onemednet.com |
|
|
If
to the Holder: |
YA
II PN, Ltd |
|
c/o
Yorkville Advisors Global, LLC
1012
Springfield Avenue |
|
Mountainside,
NJ 07092 |
|
Attention:
Mark Angelo |
|
Telephone:
201-985-8300 |
|
Email:
Legal@yorkvilleadvisors.com |
or
at such other address, e-mail address and/or to the attention of such other person as the recipient party has specified by written notice
given to each other party in accordance with this Section (5) at least three (3) Business Days prior to the effectiveness of such
change. Written confirmation of receipt (a) given by the recipient of such notice, consent, waiver or other communication, (b) electronically
generated by the sender’s e-mail service provider containing the time, date, recipient email address or (c) provided by a nationally
recognized overnight delivery service, shall be rebuttable evidence of personal service, receipt by e-mail or receipt from a nationally
recognized overnight delivery service in accordance with clauses (A)(i), (A)(ii) or (B) above, respectively.
(6) Except
as expressly provided herein, no provision of this Note shall alter or impair the obligations of the Company, which are absolute and
unconditional, to pay the Principal of, and interest and other charges (if any) on, this Note at the time, place, and rate, and in the
currency, herein prescribed. This Note is a direct obligation of the Company. As long as this Note is outstanding, the Company shall
not and shall cause each of its Subsidiaries not to, without the consent of the Holder, (i) amend its certificate of incorporation, bylaws
or other charter documents so as to adversely affect any rights of the Holder; (ii) repay, repurchase or offer to repay, repurchase or
otherwise acquire shares of its Common Shares or other equity securities; (iii) enter into any agreement with respect to any of the foregoing,
or (iv) enter into any agreement, arrangement or transaction in or of which the terms thereof would materially restrict, materially delay,
materially conflict with or materially impair the ability of the Company to perform its obligations under the this Note, including, without
limitation, the obligation of the Company to make cash payments hereunder.
(7) This
Note shall not entitle the Holder to any of the rights of a stockholder of the Company, including without limitation, the right to vote,
to receive dividends and other distributions, or to receive any notice of, or to attend, meetings of stockholders or any other proceedings
of the Company, unless and to the extent converted into Common Shares in accordance with the terms hereof.
(8) CHOICE
OF LAW; VENUE; WAIVER OF JURY TRIAL
(a) Governing
Law. This Note and the rights and obligations of the Parties hereunder shall, in all respects, be governed by, and construed in accordance
with, the laws (excluding the principles of conflict of laws) of the State of New York (the “Governing Jurisdiction”)
(including Section 5-1401 and Section 5-1402 of the General Obligations Law of the State of New York), including all matters of construction,
validity and performance.
(b) Jurisdiction;
Venue; Service.
(i) The
Company hereby irrevocably consents to the non-exclusive personal jurisdiction of the state courts of the Governing Jurisdiction located
in Manhattan, New York, and, if a basis for federal jurisdiction exists, the non-exclusive personal jurisdiction of any United States
District Court for the Southern District of New York.
(ii) The
Company agrees that venue shall be proper in any court of the Governing Jurisdiction sitting in New York County and selected by the Holder
or, if a basis for federal jurisdiction exists, in any United States District Court for the Southern District of New York selected by
the Holder. The Company waives any right to object to the maintenance of any suit, claim, action, litigation or proceeding of any kind
or description, whether in law or equity, whether in contract or in tort or otherwise, in any of the foregoing state or federal courts
on the basis of improper venue or inconvenience of forum.
(iii) Any
suit, claim, action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or tort or otherwise,
brought by the Company against the Holder arising out of or based upon this Note or any matter relating to this Note, or any other Transaction
Document, or any contemplated transaction, shall be brought in a court only in the Governing Jurisdiction and specified in Section
8(b)(ii). The Company shall not file any counterclaim against the Holder in any suit, claim, action, litigation or proceeding brought
by the Holder against the Company in a jurisdiction outside of the Governing Jurisdiction unless under the rules of the court in which
the Holder brought such suit, claim, action, litigation or proceeding the counterclaim is mandatory, and not permissive, and would be
considered waived unless filed as a counterclaim in the suit, claim, action, litigation or proceeding instituted by the Holder against
the Company. The Company agrees that any forum outside the Governing Jurisdiction is an inconvenient forum and that any suit, claim,
action, litigation or proceeding brought by the Company against the Holder in any court outside the Governing Jurisdiction should be
dismissed or transferred to a court located in the Governing Jurisdiction. Furthermore, the Company irrevocably and unconditionally agrees
that it will not bring or commence any suit, claim, action, litigation or proceeding of any kind or description, whether in law or equity,
whether in contract or in tort or otherwise, against the Holder arising out of or based upon this Note or any matter relating to this
Note, or any other Transaction Document, or any contemplated transaction, in any forum other than the courts of the State of New York
sitting in New York County, and the United States District Court of the Southern District of New York, and any appellate court from any
thereof, and each of the parties hereto irrevocably and unconditionally submits to the jurisdiction of such courts and agrees that all
claims in respect of any such suit, claim, action, litigation or proceeding may be heard and determined in such State of New York court
or, to the fullest extent permitted by applicable law, in such federal court. The Company and the Holder agree that a final judgment
in any such suit, claim, action, litigation or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
(iv) The
Company and the Holder irrevocably consent to the service of process out of any of the aforementioned courts in any such suit, claim,
action, litigation or proceeding by the mailing of copies thereof by registered or certified mail postage prepaid to it at the address
provided for notices in Section (5) this Note, such service to become effective thirty (30) days after the date of mailing.
(v) Nothing
herein shall affect the right of the Holder to serve process in any other manner permitted by law or to commence legal proceedings or
to otherwise proceed against the Company or any other Person in the Governing Jurisdiction or in any other jurisdiction.
(c) THE
PARTIES MUTUALLY WAIVE ALL RIGHT TO TRIAL BY JURY OF ALL CLAIMS OF ANY KIND ARISING OUT OF OR BASED UPON THIS NOTE OR ANY MATTER RELATING
TO THIS NOTE, OR ANY OTHER TRANSACTION DOCUMENT, OR ANY CONTEMPLATED TRANSACTION. THE PARTIES ACKNOWLEDGE THAT THIS IS A WAIVER OF A
LEGAL RIGHT AND THAT THE PARTIES EACH MAKE THIS WAIVER VOLUNTARILY AND KNOWINGLY AFTER CONSULTATION WITH COUNSEL OF THEIR RESPECTIVE
CHOICE. THE PARTIES AGREE THAT ALL SUCH CLAIMS SHALL BE TRIED BEFORE A JUDGE OF A COURT HAVING JURISDICTION, WITHOUT A JURY.
(9) If
there occurs an Event of Default, then the Company shall reimburse the Holder promptly for all fees, costs and expenses, including, without
limitation, attorneys’ fees and expenses incurred by the Holder in any action in connection with this Note, including, without
limitation, those incurred: (i) during any workout, attempted workout, and/or in connection with the rendering of legal advice as to
the Holder’s rights, remedies and obligations, (ii) collecting any sums which become due to the Holder, (iii) defending or prosecuting
any proceeding or any counterclaim to any proceeding or appeal; or (iv) the protection, preservation or enforcement of any rights or
remedies of the Holder.
(10) Any
waiver by a Party of a breach of any provision of this Note shall not operate as or be construed to be a waiver of any other breach of
such provision or of any breach of any other provision of this Note. The failure of a Party to insist upon strict adherence to any term
of this Note on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Note. Any waiver must be in writing.
(11) If
any provision of this Note is invalid, illegal or unenforceable, the balance of this Note shall remain in effect, and if any provision
is inapplicable to any person or circumstance, it shall nevertheless remain applicable to all other persons and circumstances. If it
shall be found that any interest or other amount deemed interest due hereunder shall violate applicable laws governing usury, the applicable
rate of interest due hereunder shall automatically be lowered to equal the maximum permitted rate of interest. The Company covenants
(to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay, extension or usury law or other law which would prohibit or forgive the Company from paying all
or any portion of the Principal of or interest on this Note as contemplated herein, wherever enacted, now or at any time hereafter in
force, or which may affect the covenants or the performance of this indenture, and the Company (to the extent it may lawfully do so)
hereby expressly waives all benefits or advantage of any such law, and covenants that it will not, by resort to any such law, hinder,
delay or impede the execution of any power herein granted to the Holder, but will suffer and permit the execution of every such power
as though no such law has been enacted.
(12) CERTAIN
DEFINITIONS. For purposes of this Note, the following terms shall have the following meanings:
(a) Amortization
Event” shall mean (i) the daily VWAP is less than the Floor Price then in effect for five (5) Trading Days during a period
of seven (7) consecutive Trading Days (a “Floor Price Event”), (ii) unless the Company has obtained the requisite
approvals of its stockholders in accordance with the rules of the Principal Market for the issuance of all Common Shares to be issued
pursuant to this Note or the SEPA in excess of the Exchange Cap, the Company has issued to the Investor, pursuant to the transactions
contemplated in this Note and the SEPA, in excess of 95% of the Common Shares available under the Exchange Cap, where applicable (an
“Exchange Cap Event”), or (iii) the Company is in material breach of the Registration Rights Agreement, and such breach
remains uncured for a period of 20 Trading Days, or the occurrence of an Event (as defined in the Registration Rights Agreement) (a “Registration
Event”) (the last day of each such occurrence, an “Amortization Event Date”)
(b) “Amortization
Principal Amount” shall have the meaning set forth in Section (1)(c).
(c) “Applicable
Price” shall have the meaning set forth in Section (3)(f).
(d) “Bloomberg”
means Bloomberg Financial Markets.
(e) “Business
Day” means any day except Saturday, Sunday and any day which shall be a federal legal holiday in the United States or a day
on which banking institutions are authorized or required by law or other government action to close.
(f) “Buy-In”
shall have the meaning set forth in Section (3)(b)(ii).
(g) “Buy-In
Price” shall have the meaning set forth in Section (3)(b)(ii).
(h) “Calendar
Month” means one of the months as named in the calendar.
(i) “Change
of Control Transaction” means the occurrence of (a) an acquisition after the date hereof by an individual or legal entity or
“group” (as described in Rule 13d-5(b)(1) promulgated under the Exchange Act) of effective control (whether through legal
or beneficial ownership of capital stock of the Company, by contract or otherwise) of in excess of fifty percent (50%) of the voting
power of the Company (except that the acquisition of voting securities by the Holder or any other current holder of convertible securities
of the Company shall not constitute a Change of Control Transaction for purposes hereof), (b) a replacement at one time or over time
of more than one-half of the members of the board of directors (or other similar governing body) of the Company (other than as due to
the death or disability of a member of the board of directors) which is not approved by a majority of those individuals who are members
of the board of directors on the date hereof (or by those individuals who are serving as members of the board of directors on any date
whose nomination to the board of directors was approved by a majority of the members of the board of directors who are members on the
date hereof), (c) the merger, consolidation or sale of fifty percent (50%) or more of the assets of the Company or any Subsidiary of
the Company in one or a series of related transactions with or into another entity, or (d) the execution by the Company of an agreement
to which the Company is a party or by which it is bound, providing for any of the events set forth above in clause (a), (b) or (c). No
transfer to a wholly-owned Subsidiary shall be deemed a Change of Control Transaction under this provision.
(j) “Closing
Price” means the price per share in the last reported trade of the Common Shares on a Primary Market or on the exchange which
the Common Shares are then listed as quoted by Bloomberg.
(k) “Commission”
means the Securities and Exchange Commission.
(l) “Common
Shares” means the shares of common stock, par value $0.0001, of the Company and stock of any other class into which such shares
may hereafter be changed or reclassified.
(m) “Conversion
Amount” means the portion of the Principal, Interest, or other amounts outstanding under this Note to be converted, redeemed
or otherwise with respect to which this determination is being made.
(n) “Conversion
Date” shall have the meaning set forth in Section (3)(b)(i).
(o) “Conversion
Failure” shall have the meaning set forth in Section (3)(b)(ii).
(p) “Conversion
Notice” shall have the meaning set forth in Section (3)(b)(i).
(q) “Conversion
Price” means, as of any Conversion Date or other date of determination the lower of (i) $1.3408per Common Share (the “Fixed
Price”), or (ii) 90% of the lowest daily VWAP during the seven (7) consecutive Trading Days immediately preceding the Conversion
Date or other date of determination (the “Variable Price”), but which Variable Price shall not be lower than the Floor
Price then in effect. On the date the initial Registration Statement becomes effective (the “Fixed Price Reset Date”),
the Fixed Price shall be adjusted (downwards only) to equal the average of the daily VWAPs for the three (3) Trading Days immediately
prior to the Fixed Price Reset Date. The Conversion Price shall be adjusted from time to time pursuant to the other terms and conditions
of this Note.
(r) “Convertible
Securities” means any stock or securities directly or indirectly convertible into or exercisable or exchangeable for Common
Shares.
(s) Reserved.
(t) “Exchange
Act” means the Securities Exchange Act of 1934, as amended.
(u) “Floor
Price” solely with respect to the Variable Price, shall mean $0.28per Common Share. Notwithstanding the foregoing, the Company
may reduce the Floor Price to any amounts set forth in a written notice to the Holder; provided, that such reduction shall be
irrevocable and shall not be subject to increase thereafter.
(v) “Fundamental
Transaction” means any of the following: (1) the Company effects any merger or consolidation of the Company with or
into another Person and the Company is the non-surviving company (other than a merger or consolidation with a wholly owned Subsidiary
of the Company for the purpose of redomiciling the Company), (2) the Company effects any sale of all or substantially all of its assets
in one or a series of related transactions, (3) any tender offer or exchange offer (whether by the Company or another Person) is completed
pursuant to which holders of Common Shares are permitted to tender or exchange their shares for other securities, cash or property, or
(4) the Company effects any reclassification of the Common Shares or any compulsory share exchange pursuant to which the Common Shares
is effectively converted into or exchanged for other securities, cash or property.
(w) “Governing
Jurisdiction” shall have the meaning set forth in Section (8)(a).
(x) “New
Issuance Price” shall have the meaning set forth in Section (3)(f).
(y) “Other
Notes” means any other notes issued pursuant to the SEPA and any other debentures, notes, or other instruments issued in exchange,
replacement, or modification of the foregoing.
(z) “Party”
and “Parties” shall have the meanings set forth in the Preamble.
(aa) “Payment
Premium” means 10% of the Principal amount being paid.
(bb) “Periodic
Reports” shall mean all of the Company’s reports required to be filed by the Company with the Commission under applicable
laws and regulations (including, without limitation, Regulation S-K), including annual reports (on Form 10-K), quarterly reports (on
Form 10-Q), and current reports (on Form 8-K), for so long as any amounts are outstanding under this Note or any Other Note; provided,
that all such Periodic Reports shall include, when filed, all information, financial statements, audit reports (when applicable) and
other information required to be included in such Periodic Reports in compliance with all applicable laws and regulations.
(cc) “Person”
means a corporation, an association, a partnership, organization, a business, an individual, a government or political subdivision thereof
or a governmental agency.
(dd) “Primary
Market” means any of The New York Stock Exchange, the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market or
the Nasdaq Global Select Market, and any successor to any of the foregoing markets or exchanges.
(ee) “Redemption
Premium” means 10% of the Principal amount being redeemed.
(ff) “Registration
Rights Agreement” means the registration rights agreement entered into between the Company and the Holder on the date hereof.
(gg) “Registration
Statement” means a registration statement meeting the requirements set forth in the Registration Rights Agreement, covering
among other things the resale of the Underlying Shares and naming the Holder as a “selling stockholder” thereunder.
(hh) “Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
(ii)
“Share Delivery Date” shall have the meaning set forth in Section (3)(b)(i).
(jj) “Subsidiary”
shall mean any Person in which the Company, directly or indirectly, (x) owns a majority of the outstanding capital stock or holds a majority
of the equity or similar interest of such Person or (y) controls or operates all or substantially all of the business, operations or
administration of such Person, and the foregoing are collectively referred to herein as “Subsidiaries.”
(kk) “Trading
Day” means a day on which the Common Shares are quoted or traded on a Primary Market on which the Common Shares are then quoted
or listed; provided, that in the event that the Common Shares are not listed or quoted, then Trading Day shall mean a Business
Day.
(ll) “Transaction
Documents” means this Note, the Other Notes, the SEPA, the Registration Rights Agreement and any and all other documents, agreements,
instruments or other items executed or delivered in connection with this Note or any of the foregoing.
(mm) “Underlying
Shares” means the Common Shares issuable upon conversion of this Note or as payment of interest in accordance with the terms
hereof.
(nn) “VWAP”
means, for any Trading Day, the daily volume weighted average price of the Common Shares for such Trading Day on the Principal Market
during regular trading hours as reported by Bloomberg L.P.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the Company has caused this Convertible Promissory Note to be duly executed by a duly authorized officer as of the
date set forth above.
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COMPANY: |
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ONEMEDNET
CORPORATION |
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By:
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/s/
Aaron Green |
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Name: |
Aaron
Green |
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Title: |
Chief
Executive Officer |
EXHIBIT
I
CONVERSION NOTICE
(To
be executed by the Holder in order to Convert the Note)
TO:
COMPANY NAME INC.
Via
Email:
The
undersigned hereby irrevocably elects to convert a portion of the outstanding and unpaid Conversion Amount of Note No. ONMD-1
into Common Shares of ONEMEDNET CORPORATION, according to the conditions stated therein, as of the Conversion Date written below.
Conversion
Date:
Principal
Amount to be Converted:
Accrued
Interest to be Converted:
Total
Conversion Amount to be converted:
Fixed
Price:
Variable
Price:
Applicable
Conversion Price:
Number
of Common Shares to be issued:
Please
issue the Common Shares in the following name and deliver them to the following account:
Issue
to:
Broker
DTC Participant Code:
Account
Number:
Authorized
Signature: |
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Name: |
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Title: |
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Exhibit
10.3
REGISTRATION
RIGHTS AGREEMENT
THIS
REGISTRATION RIGHTS AGREEMENT (this “Agreement”) dated as of June 17, 2024 is made by and between YA II PN, LTD.,
a Cayman Islands exempt limited partnership (the “Investor”), and OneMedNet Corporation, a company incorporated under
the laws of the State of Delaware (the “Company”). The Investor and the Company may be referred to herein individually
as a “Party” and collectively as the “Parties.”
WHEREAS,
the Company and the Investor have entered into (i) that certain Standby Equity Purchase Agreement, dated as of the date hereof (the “Purchase
Agreement”), pursuant to which the Company may issue, from time to time, to the Investor up to $25 million of newly issued
shares of the Company’s shares of Common Stock, par value $0.0001 per share (the “Common Shares”) and (ii) that
certain Convertible Promissory Note, dated as of the date hereof, issued by the Company in favor of the Investor in the original principal
amount of $1,500,000 (the “Promissory Note”); and
WHEREAS,
pursuant to the terms of, and in consideration for the Investor entering into, the Purchase Agreement, and to induce the Investor
to execute and deliver the Purchase Agreement, the Company has agreed to provide the Investor with certain registration rights under
the Securities Act of 1933, as amended, and the rules and regulations thereunder, or any similar successor statute (collectively, the
“Securities Act”).
AGREEMENT
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained herein and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Company and the Investor hereby agree as follows:
1. DEFINITIONS.
Capitalized
terms used herein and not otherwise defined herein shall have the respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following terms shall have the following meanings:
(a) “Adverse
Disclosure” shall mean any public disclosure of material nonpublic information, which disclosure, in the good faith judgment
of the principal chief executive officer or principal financial officer of the Company, after consultation with counsel to the Company,
(i) would be required to be made in any Registration Statement or Prospectus in order for the applicable Registration Statement or Prospectus
not to contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein
(in the case of any prospectus and any preliminary prospectus, in the light of the circumstances under which they were made) not misleading,
(ii) would not be required to be made at such time if the Registration Statement were not being filed, declared effective, or used, as
the case may be, and (iii) the Company has a bona fide business purpose for not making such information public.
(b) “Business
Day” shall mean any day on which the New York Stock Exchange is open for trading, other than any day on which commercial banks
are authorized or required to be closed in New York City.
(c) “Effectiveness
Deadline” means, with respect to the a Registration Statement filed hereunder, the 30th calendar day following the initial
filing thereof, provided, however, in the event the Company is notified by the U.S. Securities and Exchange Commission
(“SEC”) that the Registration Statement will not be reviewed or is no longer subject to further review and comments,
the Effectiveness Deadline as to such Registration Statement shall be the fifth Business Day following the date on which the Company
is so notified if such date precedes the date required above or the first Business Day thereafter if the rules of the Securities Act
or SEC limit the ability to make the Regsitration Statement effective on or before the fifth Business Day (such as stale financial statements).
(d) “Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
(e) “Filing
Deadline” means, with respect to the initial Registration Statement required hereunder, August 30, 2024.
(f) “Person”
means a corporation, a limited liability company, an association, a partnership, an organization, a business, an individual, a governmental
or political subdivision thereof or a governmental agency.
(g) “Prospectus”
means the prospectus included in a Registration Statement (including, without limitation, a prospectus that includes any information
previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A promulgated under
the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion
of the Registrable Securities covered by a Registration Statement, and all other amendments and supplements to the Prospectus, including
post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus.
(h) “Registrable
Securities” means all of (i) the Shares (as defined in the Purchase Agreement) and the Commitment Shares (as defined in the
Purchase Agreement), and (ii) any capital stock issued or issuable with respect to the Shares and Commitment Shares, including, without
limitation, (1) as a result of any stock split, stock dividend or other distribution, recapitalization or similar event or otherwise,
and (2) shares of capital stock of the Company into which the Common Shares are converted or exchanged and shares of capital stock of
a successor entity into which the Common Shares are converted or exchanged.
(i) “Registration
Statement” means any registration statement of the Company filed pursuant to this Agreement, including the Prospectus, amendments
and supplements to such registration statement or Prospectus, including post-effective amendments, all exhibits thereto, and all material
incorporated by reference or deemed to be incorporated by reference in such registration statement.
(j) “Required
Registration Amount” means (i) with respect to the initial Registration Statement at least 5,750,000 shares of Common Shares
issued or to be issued upon pursuant to the Purchase Agreement and anyCommitment Shares that have been issued prior to the date of filing
the initial Registration Statment, and (ii) with respect to subsequent Registration Statements such number of shares of Common Stock
as requested by the Investor not to exceed 200% of the maximum number of shares of Common Shares issuable upon conversion of all Promissory
Notes then outstanding (assuming for purposes hereof that (x) such Promissory Notes are convertible at the Conversion Price (as defined
therein) in effect as of the date of determination, and (y) any such conversion shall not take into account any limitations on the conversion
of the Promissory Notes set forth therein), in each case subject to any cutback set forth in Section 2(e).
(k) “Rule
144” means Rule 144 under the Securities Act or any successor rule thereto.
(l) “Rule
415” means Rule 415 promulgated by the SEC pursuant to the Securities Act, as such Rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the SEC having substantially the same purpose and effect as such Rule.
(m) “SEC”
means the Securities and Exchange Commission or any other federal agency administering the Securities Act and the Exchange Act at the
time.
(n) “Securities
Act” shall have the meaning set forth in the Recitals above.
2. REGISTRATION.
(a) The
Company’s registration obligations set forth in this Section 2, including its obligations to file Registration Statements,
obtain effectiveness of Registration Statements, and maintain the continuous effectiveness of any Registration Statement that has been
declared effective shall begin on the date hereof and continue until the earlier of (i) the date on which the Investor has sold all of
the Registrable Securities and (ii) the date of termination of the Purchase Agreement if, as of such termination date, the Investor holds
no Registrable Securities (the “Registration Period”).
(b) Subject
to the terms and conditions of this Agreement, the Company shall (i) as soon as practicable, but in no case later than the Filing Deadline,
prepare and file with the SEC an initial Registration Statement on Form S-3 (or, if the Company is not then eligible, on Form S-1) or
any successor form thereto covering the resale by the Investor of the Required Registration Amount in accordance with applicable SEC
rules, regulations and interpretations so as to permit the resale of such Registrable Securities by the Investor under Rule 415 at then
prevailing market prices (and not fixed prices). The initial Registration Statement shall contain “Selling Stockholders”
and “Plan of Distribution” sections. The Company shall use commercially reasonable efforts to have the initial Registration
Statement declared effective by the SEC as soon as practicable, but in no event later than the Effectiveness Deadline. By 9:30 am on
the second Business Day following the date of effectiveness of the initial Registration Statement, the Company shall file with the SEC,
in accordance with Rule 424 under the Securities Act, the final Prospectus to be used in connection with sales pursuant to such Registration
Statement. Prior to the filing of the initial Registration Statement with the SEC, the Company shall furnish a draft of the initial Registration
Statement to the Investor for its review and comment. The Investor shall furnish comments on the initial Registration Statement to the
Company reasonably promptly following the receipt thereof from the Company.
(c) Sufficient
Number of Shares Registered. If at any time all Registrable Securities are not covered by the initial Registration Statement filed
pursuant to Section 2(a) as a result of Section 2(e) or otherwise, the Company shall use commercially reasonable efforts
to file with the SEC one or more additional Registration Statements so as to cover all of the Registrable Securities not covered by such
initial Registration Statement, in each case as soon as practicable (taking into account any position of the staff of the SEC with respect
to the date on which the Staff will permit such additional Registration Statement(s) to be filed with the SEC and the rules and regulations
of the SEC). The Company shall use commercially reasonable efforts to cause each such new Registration Statement to become effective
as soon as reasonably practicable following the filling thereof with the SEC.
(d) During
the Registration Period, the Company shall (i) promptly prepare and file with the SEC such amendments (including post-effective amendments)
and supplements to a Registration Statement and the Prospectus used in connection with such Registration Statement, which Prospectus
is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective
at all times during the Registration Period, (ii) prepare and file with the SEC additional Registration Statements in order to register
for resale under the Securities Act all of the Registrable Securities; (iii) cause any related Prospectus to be amended or supplemented
by any required Prospectus supplement (subject to the terms of this Agreement), and as so supplemented or amended to be filed pursuant
to Rule 424; (iv) respond as promptly as reasonably possible to any comments received from the SEC with respect to a Registration Statement
or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from
and to the SEC relating to a Registration Statement (provided, that the Company may excise any information contained therein which
would constitute material non-public information as to any Investor which has not executed a confidentiality agreement with the Company);
and (v) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company
covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance
with the intended methods of disposition by the seller or sellers thereof as set forth in such Registration Statement. In the case of
amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant
to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report
under the Exchange Act, the Company shall incorporate such report by reference into such Registration Statement, if applicable, or shall
file such amendments or supplements with the SEC as promptly as reasonably practicable after the Exchange Act report is filed which created
the requirement for the Company to amend or supplement such Registration Statement.
(e) Reduction
of Registrable Securities Included in a Registration Statement. Notwithstanding anything to the contrary contained herein, in the
event that the SEC requires the Company to reduce the number of Registrable Securities to be included in a Registration Statement in
order to allow the Company to rely on Rule 415 with respect to a Registration Statement, then the Company shall reduce the number of
Registrable Securities to be included in such Registration Statement (after consultation with the Investor as to the specific Registrable
Securities to be removed therefrom) to the maximum number of securities as is permitted to be registered by the SEC in such Registration
Statement. In the event of any reduction in Registrable Securities pursuant to this paragraph, the Company shall use commercially reasonable
efforts to file one or more New Registration Statements with the Commission in accordance with Section 2(c) until such time as
all Registrable Securities have been included in Registration Statements that have been declared effective and the Prospectuses contained
therein are available for use by the Investor.
(f) Failure
to File or Obtain Effectiveness of the Registration Statement or Remain Current. If: (i) a Registration Statement is not filed on
or prior to its Filing Date, (ii) a Registration Statement is not declared effective on or prior to the Effectiveness Deadline, (iii)
after the effectiveness, a Registration Statement ceases for any reason to remain continuously effective as to all Registrable Securities
for which it is required to be effective, (iv) the Investor is not permitted to utilize the Prospectus therein to resell such Registrable
Securities for more than 15 consecutive calendar days or more than an aggregate of 60 calendar days during any 12-month period (which
need not be consecutive calendar days), or (v) if after the date that is six months from the date hereof, the Company does not have available
adequate current public information as set forth in clause (c) of Rule 144 unless the Registrable Securities are then covered by an effective
Registration Statement (any such failure or breach being referred to as an “Event”), then in addition to any other
rights the Investor may have hereunder or under applicable law, such Event shall constitute a Registration Event (as defined in the Promissory
Note) and the Company shall be in breach of the terms and conditions of this Agreement and such Event shall be deemed an Event of Default
(as defined in the Promissory Note) for so long as such Event remains uncured. During the period of the existence of an uncured Event,
the Investor shall have no obligation to accept an Advance Notice or accept or purchase any Advance Shares (other than any Advance Shares
purchased by the Investor prior to the occurrence of the Event).
(g) Piggy-Back
Registrations. If at any time there is not an effective Registration Statement covering all of the Registrable Securities and the
Company proposes to register the offer and sale of any Common Shares under the Securities Act (other than a registration (i) pursuant
to a Registration Statement on Form S-8 ((or other registration solely relating to an offering or sale to employees or directors of the
Company pursuant to any employee stock plan or other employee benefit arrangement), (ii) pursuant to a Registration Statement on Form
S-4 (or similar form that relates to a transaction subject to Rule 145 under the Securities Act or any successor rule thereto), or (iii)
in connection with any dividend or distribution reinvestment or similar plan), whether for its own account or for the account of one
or more stockholders of the Company, and the form of Registration Statement to be used may be used for any registration of Registrable
Securities, the Company shall give prompt written notice (in any event no later than five days prior to the filing of such Registration
Statement) to the holders of Registrable Securities of its intention to effect such a registration and shall include in such registration
all Registrable Securities with respect to which the Company has received written requests for inclusion from the holders of Registrable
Securities; provided, however, that the Company shall not be required to register any Registrable Securities pursuant to
this Section 2(g) that have been sold or may permanently be sold without any restrictions pursuant to Rule 144, as determined
by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer
agent.
3. RELATED
OBLIGATIONS.
(a) The
Company shall, not less than three business days prior to the filing of each Registration Statement and not less than one business day
prior to the filing of any related amendments and supplements to all Registration Statements (except for supplements and amendments to
update the Registration Statement solely for information reflected in the Company’s annual reports on Form 10-K, quarterly reports
on Form 10-Q or current reports on Form 8-K), furnish to the Investor copies of all such documents proposed to be filed, which documents
(other than those incorporated or deemed to be incorporated by reference) will be subject to the reasonable and prompt review of such
Investor. The Company shall not file a Registration Statement or any such Prospectus or any amendments or supplements thereto to which
the Investor shall reasonably object in good faith; provided, that the Company is notified of such objection in writing no later
than two (2) Trading Days after the Investors have been so furnished copies of a Registration Statement; provided that the Company may
proceed with any filing that legal counsel to the Company advises is necessary to comply with the Company’s obligations under applicable
securities laws.
(b) The
Company shall furnish to each Investor whose Registrable Securities are included in any Registration Statement, without charge (i) at
least one copy (which may be in electronic form) of such Registration Statement as declared effective by the SEC and any amendment(s)
thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary
prospectus, (ii) at least one copy (which may be in electronic form) of the final prospectus included in such Registration Statement
and all amendments and supplements thereto, and (iii) any documents, which are not publicly available through EDGAR, as such Investor
may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
(c) The
Company shall use commercially reasonable efforts to (i) register and qualify the Registrable Securities covered by a Registration Statement
under such other securities or “blue sky” laws of such jurisdictions in the United States as the Investor reasonably requests,
(ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations
and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period, (iii) take such other actions
as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv)
take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided,
however, that the Company shall not be required in connection therewith or as a condition thereto to (w) make any change to its
articles of incorporation or by-laws, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify
but for this Section 3(c), (y) subject itself to general taxation in any such jurisdiction, or (z) file a general consent to service
of process in any such jurisdiction. The Company shall promptly notify the Investor of the receipt by the Company of any notification
with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities
or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threat of
any proceeding for such purpose.
(d) As
promptly as practicable after becoming aware of such event or development, the Company shall notify the Investor in writing of the happening
of any event as a result of which the Prospectus included in a Registration Statement, as then in effect, includes an untrue statement
of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading (provided, that in no event shall such notice contain any
material, nonpublic information), and promptly prepare a supplement or amendment to such Registration Statement to correct such untrue
statement or omission and deliver one electronic copy of such supplement or amendment to the Investor. The Company shall also promptly
notify the Investor in writing (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and when
a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered
to each Investor by email on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to a Registration
Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective
amendment to a Registration Statement would be appropriate. The Company shall respond as promptly as reasonably practicable to any comments
received from the SEC with respect to a Registration Statement or any amendment thereto.
(e) The
Company shall use commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of a
Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction within
the United States of America and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the
earliest possible moment and to notify the Investor of such order and the resolution thereof or its receipt of actual notice of the initiation
or threat of any proceeding for such purpose.
(f) Without
limiting any obligation of the Company under the Purchase Agreement, the Company shall use commercially reasonable efforts to cause all
of the Registrable Securities covered by each Registration Statement to be listed on the Principal Market. The Company shall pay all
fees and expenses in connection with satisfying its obligation under this Section 3(f).
(g) The
Company shall hold in confidence and not make any disclosure of information concerning the Investor provided to the Company unless (i)
disclosure of such information is necessary to comply with federal or state securities laws, (ii) the disclosure of such information
is necessary to avoid or correct a misstatement or omission in any Registration Statement, (iii) the release of such information is ordered
pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction, or (iv) such
information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement.
The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court
or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor,
at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such
information.
(h) The
Company shall cooperate with the holders of the Registrable Securities to facilitate the timely preparation and delivery of certificates
representing the Registrable Securities to be sold pursuant to such Registration Statement or Rule 144 free of any restrictive legends
and representing such number of Common Shares and registered in such names as the holders of the Registrable Securities may reasonably
request a reasonable period of time prior to sales of Registrable Securities pursuant to such Registration Statement or Rule; provided,
that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository
Trust Company’s Direct Registration System.
(i) The
Company shall use commercially reasonable efforts to cause the Registrable Securities to be registered with or approved by such other
governmental agencies or authorities as may be necessary to consummate the disposition of such Registrable Securities.
(j) The
Company shall otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection
with any registration hereunder.
(k) Within
two business days after a Registration Statement which covers Registrable Securities is declared effective by the SEC, the Company shall
deliver, and shall cause legal counsel for the Company to deliver, to the transfer agent for such Registrable Securities (with copies
to the Investor) confirmation that such Registration Statement has been declared effective by the SEC.
(l) The
Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities
pursuant to a Registration Statement.
4. OBLIGATIONS
OF THE INVESTOR.
(a) The
Investor agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3(d),
the Investor shall as soon as reasonably practicable discontinue disposition of Registrable Securities pursuant to any Registration Statement
covering such Registrable Securities until the Investor’s receipt of the copies of the supplemented or amended prospectus contemplated
by Section 3(d) or receipt of notice that no supplement or amendment is required. Notwithstanding anything to the contrary contained
herein and subject to compliance with applicable securities laws, the Company shall cause its transfer agent to deliver unlegended certificates
for Common Shares to a transferee of the Investor in accordance with the terms of the Purchase Agreement in connection with any sale
of Registrable Securities with respect to which an Investor has entered into a contract for sale prior to the Investor’s receipt
of a notice from the Company of the happening of any event of the kind described in Section 3(d) and for which the Investor has
not yet settled.
(b) If
the filing, initial effectiveness or continued use of a Registration Statement at any time would require the Company to make an Adverse
Disclosure or would require the inclusion in such Registration Statement of financial statements that are unavailable to the Company
for reasons beyond the Company’s control, the Company may, upon giving prompt written notice of such action to the Investor, delay
the filing or initial effectiveness of, or suspend use of such Registration Statement (each, an “Allowable Suspension Period”)
for the shortest period of time, but in no event more than twenty (20) days, determined in good faith by the Company to be necessary
for such purpose. In the event the Company exercises its rights under the preceding sentence, the Investor agree to suspend, immediately
upon their receipt of the notice referred to above, its use of the Prospectus relating to any Registration in connection with any sale
or offer to sell Registrable Securities. The Company shall immediately notify the Investor of the expiration of any period during which
it exercised its rights under this Section.
(c)
The Investor covenants and agrees that it will comply with the prospectus delivery requirements of the Securities Act as applicable to
it or an exemption therefrom in connection with sales of Registrable Securities pursuant to the Registration Statement.
(d) The
Investor, by its acceptance of the Registrable Securities, agrees to cooperate with the Company as reasonably requested by the Company
in connection with the preparation and filing of each Registration Statement hereunder, unless the Investor has notified the Company
in writing of the Investor’s election to exclude all of the Investor’s Registrable Securities from such Registration Statement.
5. EXPENSES
OF REGISTRATION.
All
expenses incurred by the Company in complying with its obligations pursuant to this Agreement and in connection with the registration
and disposition of Registrable Securities shall be paid by the Company, including, without limitation, all registration, listing and
qualification fees, printers’ fees, and fees and expenses of the Company’s counsel and accountants (except legal fees of
the Investor’s counsel associated with the review of the Registration Statement).
6. INDEMNIFICATION.
With
respect to Registrable Securities which are included in a Registration Statement under this Agreement:
(a) To
the fullest extent permitted by law, the Company will, and hereby does, indemnify, hold harmless and defend the Investor, the directors,
officers, partners, employees, agents, representatives of, and each Person, if any, who controls the Investor within the meaning of the
Securities Act or the Exchange Act (each, an “Investor Indemnified Person”), against any losses, claims, damages,
liabilities, judgments, fines, penalties, charges, costs, reasonable attorneys’ fees, amounts paid in settlement and other expenses,
whether joint or several (collectively, “Indemnified Damages”), incurred in investigating, preparing for or defending
any action, claim, suit, inquiry, proceeding, investigation or appeal by or before any court or governmental, administrative or other
regulatory agency or body or the SEC, whether pending or threatened, whether or not an Investor Indemnified Person is or may be made
a party thereto or to which any of them may become subject (collectively, “Claims”) insofar as such Claims (or actions
or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon: (i) any untrue statement or alleged
untrue statement of a material fact in a Registration Statement or any post-effective amendment thereto or in any filing made in connection
with the qualification of the offering under the securities or other “blue sky” laws of any jurisdiction in which Registrable
Securities are offered (“Blue Sky Filing”), or the omission or alleged omission to state a material fact required
to be stated therein or necessary to make the statements therein not misleading; (ii) any untrue statement or alleged untrue statement
of a material fact contained in any final prospectus (as amended or supplemented, if the Company files any amendment thereof or supplement
thereto with the SEC) or the omission or alleged omission to state therein any material fact necessary to make the statements made therein,
in light of the circumstances under which the statements therein were made, not misleading; or (iii) any violation or alleged violation
by the Company of the Securities Act, the Exchange Act, any other law, including, without limitation, any state securities law, or any
rule or regulation thereunder relating to the offer or sale of the Registrable Securities pursuant to a Registration Statement (the matters
in the foregoing clauses (i) through (iii) being, collectively, “Violations”). The Company shall reimburse the Investor
and each Investor Indemnified Person promptly as such Indemnified Damages are incurred and are due and payable, including for any legal
fees or disbursements that are reasonably incurred by them or other reasonable expenses incurred by them in connection with investigating,
preparing for or defending any such Claim. Notwithstanding anything to the contrary contained herein, the indemnification provisions
contained in this Section 6(a): (x) shall not apply to a Claim against an Investor Indemnified Person arising out of or based
upon a Violation which occurs in reliance upon and in conformity with information furnished in writing to the Company by such Investor
Indemnified Person expressly for use in connection with the preparation of the Registration Statement or any such amendment thereof or
supplement thereto; (y) shall not be available to the extent such Claim is based on a failure of the Investor to deliver or to cause
to be delivered the Prospectus made available by the Company, if such Prospectus was timely made available by the Company to the Investor
pursuant to Section 3(c); and (z) shall not apply to amounts paid in settlement of any Claim if such settlement is effected without
the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on behalf of any Investor Indemnified Person.
(b) In
connection with a Registration Statement, the Investor agrees to indemnify, hold harmless and defend, to the same extent and in the same
manner as is set forth in Section 6(a), the Company, each of its directors, officers, employees, representatives, or agents and
each Person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act (each a “Company
Indemnified Person”), against any Indemnified Damages incurred in investigating, preparing for or defending any Claim (whether
or not such Company Indemnified Person is or may be made a party thereto) to which any of them may become subject, under the Securities
Act, the Exchange Act or otherwise, insofar as such Claim arises out of or is based upon any Violation, in each case to the extent, and
only to the extent, that such Violation occurs (i) in reliance upon and in conformity with written information furnished to the Company
by the Investor expressly for use in connection with such Registration Statement or (ii) from the Investor’s violation of any prospecuts
delivery requirements under the Securities Act, the Exchange Act, any other law, including, without limitation, any state securities
law, or any rule or regulation thereunder relating to the offer or sale of the Registrable Securities pursuant to a Registration Statement,
provided, that such prospectus was timely made available by the Company to the Investor pursuant to Section 3(c). Subject
to Section 6(d), the Investor shall reimburse any legal or other expenses reasonably incurred by a Company Indemnified Person
in connection with investigating or defending any such Claim; provided, however, that the indemnity provisions contained
in this Section 6(b) and the agreement with respect to contribution contained in Section 7 shall not apply to amounts paid
in settlement of any Claim if such settlement is effected without the prior written consent of suthech Investor, which consent shall
not be unreasonably withheld, conditioned or delayed; provided, further, that, absent fraud or gross negligence on the
part of the Investor, the Investor shall be liable under this Section 6(b) for only that amount of Indemnified Damages as does
not exceed the net proceeds received by the Investor as a result of the sale of Registrable Securities pursuant to such Registration
Statement. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any Company Indemnified
Person. Notwithstanding anything to the contrary contained herein, the indemnification provisions contained in this Section 6(b)
with respect to any Prospectus shall not inure to the benefit of any Company Indemnified Person if such Company Indemnified Person’s
claim for indemnification is based upon an untrue statement or omission of material fact contained in such Prospectus and such untrue
statement or omission of material fact was corrected and a new Prospectus was delivered to the Investor prior to such Investor’s
use of the Prospectus to which the Claim relates.
(c) Promptly
after receipt by an Investor Indemnified Person or Company Indemnified Person under this Section 6 of notice of the commencement
of any action or proceeding (including any governmental action or proceeding) involving a Claim, such Investor Indemnified Person or
Company Indemnified Person shall, if a Claim in respect thereof is to be made against any indemnifying Party under this Section 6,
deliver to the indemnifying Party a written notice of the commencement thereof, and the indemnifying Party shall have the right to participate
in, and, to the extent the indemnifying Party so desires, jointly with any other indemnifying Party similarly noticed, to assume control
of the defense thereof with counsel reasonably and mutually satisfactory to the indemnifying Party and such Investor Indemnified Person
or Company Indemnified Person, as the case may be; provided, however, that an Investor Indemnified Person or Company Indemnified
Person shall have the right to retain its own counsel with the fees and expenses of not more than one (1) counsel for such Investor Indemnified
Person or Company Indemnified Person to be paid by the indemnifying Party, if, in the reasonable opinion of counsel retained by the indemnifying
Party, the representation by such counsel of the Investor Indemnified Person or Company Indemnified Person and the indemnifying Party
would be inappropriate due to actual or potential differing interests between such Investor Indemnified Person or Company Indemnified
Person and any other party represented by such counsel in such proceeding. The Investor Indemnified Person or Company Indemnified Person
shall cooperate fully with the indemnifying Party in connection with any negotiation or defense of any such action or claim by the indemnifying
Party and shall furnish to the indemnifying Party all information reasonably available to the Investor Indemnified Person or Company
Indemnified Person which relates to such action or claim. The indemnifying Party shall keep the Investor Indemnified Person or Company
Indemnified Person fully apprised at all times as to the status of the defense or any settlement negotiations with respect thereto. No
indemnifying Party shall be liable for any settlement of any action, claim or proceeding effected without its prior written consent;
provided, however, that the indemnifying Party shall not unreasonably withhold, delay or condition its consent. No indemnifying
Party shall, without the prior written consent of the Investor Indemnified Person or Company Indemnified Person, which consent shall
not be unreasonably withheld, conditioned or delayed, consent to entry of any judgment or enter into any settlement or other compromise
which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Investor Indemnified Person or
Company Indemnified Person of a release from all liability in respect to such claim or litigation. Following indemnification as provided
for hereunder, the indemnifying Party shall be subrogated to all rights of the Investor Indemnified Person or Company Indemnified Person
with respect to all third parties, firms or corporations relating to the matter for which indemnification has been made. The failure
to deliver written notice to the indemnifying Party within a reasonable time after the commencement of any such action or proceeding
shall not relieve such indemnifying Party of any obligation to indemnify such Investor Indemnified Person or Company Indemnified Person
under this Section 6, except to the extent that the indemnifying Party is actually prejudiced in its ability to defend such action
or proceeding.
(d) The
indemnification required by this Section 6 shall be made by periodic payments of the amount thereof during the course of the investigation
or defense, as and when bills are received or Indemnified Damages are incurred.
(e) The
indemnity provisions contained in this Section 6 shall be in addition to (i) any cause of action or similar right of any Investor
Indemnified Person or Company Indemnified Person against the indemnifying Party or others, and (ii) any liabilities the indemnifying
Party may be subject to pursuant to the law.
7. CONTRIBUTION.
To
the extent any indemnification by an indemnifying Party is prohibited or limited by law, the indemnifying Party agrees to make the maximum
contribution with respect to any amounts for which it would otherwise be liable under Section 6 to the fullest extent permitted
by law; provided, however, that: (i) no seller of Registrable Securities guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any seller of Registrable Securities who was
not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount
to the net amount of proceeds received by such seller from the sale of such Registrable Securities.
8. REPORTS
UNDER THE EXCHANGE ACT.
With
a view to making available to the Investor the benefits of Rule 144 promulgated under the Securities Act or any similar rule or regulation
of the SEC that may at any time permit the Investors to sell securities of the Company to the public without registration, and as a material
inducement to the Investor’s purchase of the Promissory Note, the Company represents, warrants, and covenants to the following:
(a) The
Company is subject to the reporting requirements of section 13 or 15(d) of the Exchange Act and has filed all required reports under
section 13 or 15(d) of the Exchange Act during the 12 months prior to the date hereof (or for such shorter period that the issuer was
required to file such reports), other than the Company’s Form 10-Q for its first fiscal quarter of 2024 in connection with the
dismissal of BF Borgers as its independent public accountant.
(b) During
the Registration Period, other than the Company’s Form 10-Q for its first fiscal quarter of 2024 in connection with the dismissal
of BF Borgers as its independent public accountant, the Company shall file with the SEC in a timely manner all required reports under
section 13 or 15(d) of the Exchange Act (it being understood that nothing herein shall limit the Company’s obligations under the
Purchase Agreement) and such reports shall conform in all material respects to the requirements of the Exchange Act and the SEC for filing
thereunder.
(c) The
Company shall furnish to the Investor so long as such Investor owns Registrable Securities, promptly upon request, (i) a written statement
by the Company that it has complied with the reporting requirements of Rule 144, (ii) a copy of the most recent annual or quarterly report
of the Company and such other reports and documents filed by the Company reasonably requested by the Investor, and (iii) such other information
as may be reasonably requested to permit the Investor to sell such securities pursuant to Rule 144 without registration.
9. AMENDMENT
OF REGISTRATION RIGHTS.
Provisions
of this Agreement may be amended and the observance thereof may be waived (either generally or in a particular instance and either retroactively
or prospectively), only with the written consent of the Company and the Investor. Any amendment or waiver effected in accordance with
this Section 9 shall be binding upon each of the Investor and the Company. No such amendment shall be effective to the extent
that it applies to fewer than all of the holders of the Registrable Securities. No consideration shall be offered or paid to any Person
to amend or consent to a waiver or modification of any provision of any of this Agreement unless the same consideration also is offered
to all of the parties to this Agreement.
10. MISCELLANEOUS.
(a) A
Person is deemed to be a holder of Registrable Securities whenever such Person owns or is deemed to own of record such Registrable Securities
or owns the right to receive the Registrable Securities. If the Company receives conflicting instructions, notices or elections from
two or more Persons with respect to the same Registrable Securities, the Company shall act upon the basis of instructions, notice or
election received from the registered owner of such Registrable Securities.
(b) No
Other Securities. The Company shall not include any other securities on a Registration Statement which includes Registrabel Securities,
other than (i) the resale of shares issued and outstanding shares of of Common Stock held by a selling shareholder, or (ii) shares of
Common Stock issued or issuable pursunt to the Business Combination Notes (as defined in the Purchase Agreement), unless otherwise agreed
by the Investor.
(c) Any
notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must be in writing
and will be deemed to have been delivered pursuant to the notice provisions of the Purchase Agreement or to such other address and/or
electronic mail (“email”) address and/or to the attention of such other person as the recipient Party has specified
by written notice given to each other Party at least five (5) days prior to the effectiveness of such change. Written confirmation of
receipt (A) given by the recipient of such notice, consent, waiver or other communication, (B) electronically generated by the sender’s
email service provider containing the time, date, and recipient of such electronic mail or (C) provided by a courier or overnight courier
service shall be rebuttable evidence of personal service, receipt by email or receipt from a nationally recognized overnight delivery
service in accordance with this section.
(d) Failure
of any Party to exercise any right or remedy under this Agreement or otherwise, or delay by a Party in exercising such right or remedy,
shall not operate as a waiver thereof.
(e) The
laws of the State of New York shall govern all issues concerning the relative rights of the Company and the Investor as its stockholder.
All other questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by the
internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the
State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of
New York. Each Party hereby irrevocably submits to the non-exclusive jurisdiction of the Supreme Court of the State of New York, sitting
in New York County, New York and federal courts for the Southern District of New York sitting New York, New York, for the adjudication
of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding
is improper. Each Party hereby irrevocably waives personal service of process and consents to process being served in any such suit,
action or proceeding by mailing a copy thereof to such party at the address for such notices to it under this Agreement and agrees that
such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to
limit in any way any right to serve process in any manner permitted by law. If any provision of this Agreement shall be invalid or unenforceable
in any jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of the remainder of this Agreement
in that jurisdiction or the validity or enforceability of any provision of this Agreement in any other jurisdiction. EACH PARTY HEREBY
IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
(f) This
Agreement shall inure to the benefit of and be binding upon the permitted successors and assigns of each of the parties hereto.
(g) The
headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.
(h) This
Agreement may be executed in identical counterparts, both of which shall be considered one and the same agreement and shall become effective
when counterparts have been signed by each Party and delivered to the other Party. Electronically scanned and delivered signatures (including
any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures
and Records Act or other applicable law, e.g., www.docusign.com), including by email attachment, shall be deemed to have been duly and
validly delivered and be valid and effective for all purposes of this Agreement.
(i) Each
Party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such
other agreements, certificates, instruments and documents, as the other Party may reasonably request in order to carry out the intent
and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
(j) The
language used in this Agreement will be deemed to be the language chosen by the Parties to express their mutual intent and no rules of
strict construction will be applied against any Party.
(k) This
Agreement is intended for the benefit of the Parties hereto and their respective permitted successors and assigns, and is not for the
benefit of, nor may any provision hereof be enforced by, any other Person.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the Investor and the Company have caused their signature page to this Registration Rights Agreement to be duly executed
as of the date first above written.
|
COMPANY: |
|
|
|
|
ONEMEDNET
CORPORATION |
|
|
|
|
By: |
/s/
Aaron Green |
|
Name: |
Aaron
Green |
|
Title: |
Chief
Executive Officer |
|
INVESTOR: |
|
|
|
|
YA II PN, Ltd. |
|
|
|
|
By: |
Yorkville
Advisors Global, LP |
|
Its: |
Investment
Manager |
|
|
|
|
By: |
Yorkville
Advisors Global II, LLC |
|
Its: |
General
Partner |
|
By: |
/s/
Matt Beckman |
|
Name: |
Matt
Beckman |
|
Title: |
Member |
Exhibit
10.4
TERMINATION
AGREEMENT
This
Termination Agreement (this “Agreement”), effective as of June 14, 2024, is made between ONEMEDNET CORPORATION, a
corporation organized under the laws of the State of Delaware (the “Company”), and Helena Global Investment Opportunities
1 Ltd. (together with its successors and assigns, the “Lead Investor”).
RECITALS
WHEREAS,
the Company and the Lead Investor are parties to: (a) a Securities Purchase Agreement, dated as of March 28, 2024, as amended (the “SPA”);
(b) a Subscription Escrow Agreement, dated as of March 28, 2024; (c) a Registration Rights Agreement, dated as of March 28, 2024 (collectively,
the “Transaction Documents”; capitalized terms used but not defined herein shall have the meanings given to them in
the SPA);
WHEREAS,
the Lead Investor is also the Requisite Holder;
WHEREAS,
the Company and the Lead Investor desire to terminate the Transaction Documents with no further obligation or liability to either party
following the date of this Agreement, except for the limited obligations expressly set forth in this Agreement;
WHEREAS,
each of the Transaction Documents may be amended by a written instrument signed by the Company and the Lead Investor; and
WHEREAS,
this Agreement constitutes an amendment of each of the Transaction Documents, to the extent required to cause the Transaction Documents
to be terminated in accordance with this Agreement.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1.
Effective as of the execution of this Agreement, without further action of the Company or the Investor, each of the Transaction Documents
is terminated in its entirety, is null and void and is of no further force or effect, including, without limitation, those provisions
of the Transaction Documents that by their terms would otherwise survive the termination of the applicable Transaction Document, and
except as set forth in this Agreement, there shall be no liability or obligation on the part of the Investor, on the one hand, and the
Company and the Subsidiaries, on the other hand.
2.
Notwithstanding anything to the contrary in Section 1, the Company shall comply with the following covenants and agreements:
(a) No
later than two (2) Business Days after the date of this Agreement, the Company shall reimburse the reasonable and documented out-of-pocket
legal fees and expenses, including the reasonable and documented fees and disbursements of its counsel, incurred by the Investor in connection
with the Transaction Documents. The $20,000 advance paid by the Company to the Investor pursuant to Section 11.1 of the SPA shall be
applied as a credit against the Company’s reimbursement obligation and shall be retained by the Investor.
(b) No
later than five (5) Business Days after the date of this Agreement, the Company shall issue to the Investor a warrant (the “Termination
Warrant”) to purchase 50,000 shares of Common Stock at an exercise price equal to the price of the Common Stock as of the end
of the June 14, 2024 Trading Day on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P.
(based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)). The Termination Warrant shall be in form
and substance reasonably acceptable to the Lead Investor.
(c) The
Company shall use its commercially reasonable efforts to effect the registration of the shares of Common Stock issuable under the Termination
Warrant under the 1933 Act pursuant to a registration statement filed by the Company declared effective by the SEC (“Registered”);
provided, that the Company’s obligations pursuant to this Section 2(c) shall be suspended until all shares of Common Stock
issued or issuable pursuant to that certain Standby Equity Purchase Agreement to be entered into by the Company and the other parties
thereto on or around the date hereof are Registered.
3.
Except as specified in Section 2(a), each party to the Transaction Documents shall pay the fees and expenses of its advisers, counsel,
accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution,
delivery and performance of the Transaction Documents.
4.
Sections 11.2 to 11.14 of the SPA are incorporated herein by reference, mutatis mutandis.
[signature
pages follow]
IN
WITNESS WHEREOF, the undersigned have caused this Amendment to the Securities Purchase Agreement to be duly executed by their respective
authorized signatories as of the date first indicated above.
|
THE
COMPANY:
ONEMEDNET
CORPORATION |
|
|
|
By: |
/s/
Aaron Green |
|
Name: |
Aaron
Green |
|
Title: |
President
and Chief Executive Officer |
|
THE
LEAD INVESTOR:
HELENA
GLOBAL INVESTMENT OPPORTUNITIES 1 LTD. |
|
|
|
By: |
/s/
Jeremy Weetch |
|
Name: |
Jeremy
Weetch |
|
Title: |
Managing
Partner |
[Signature
Page to Termination Agreement]
v3.24.1.1.u2
Cover
|
Jun. 14, 2024 |
Document Type |
8-K
|
Amendment Flag |
false
|
Document Period End Date |
Jun. 14, 2024
|
Entity File Number |
001-40386
|
Entity Registrant Name |
ONEMEDNET
CORPORATION
|
Entity Central Index Key |
0001849380
|
Entity Tax Identification Number |
86-2076743
|
Entity Incorporation, State or Country Code |
DE
|
Entity Address, Address Line One |
6385
Old Shady Oak Road
|
Entity Address, Address Line Two |
Suite 250
|
Entity Address, City or Town |
Eden
Prairie
|
Entity Address, State or Province |
MN
|
Entity Address, Postal Zip Code |
55344
|
City Area Code |
800
|
Local Phone Number |
918-7189
|
Written Communications |
false
|
Soliciting Material |
false
|
Pre-commencement Tender Offer |
false
|
Pre-commencement Issuer Tender Offer |
false
|
Entity Emerging Growth Company |
true
|
Elected Not To Use the Extended Transition Period |
false
|
Common Stock, $0.0001 par value per share |
|
Title of 12(b) Security |
Common
Stock, $0.0001 par value per share
|
Trading Symbol |
ONMD
|
Security Exchange Name |
NASDAQ
|
Redeemable Warrants, each exercisable for one share of Common Stock at an exercise price of $11.50 per share |
|
Title of 12(b) Security |
Redeemable
Warrants, each exercisable for one share of Common Stock at an exercise price of $11.50 per share
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ONMDW
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Security Exchange Name |
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Grafico Azioni Data Knights Acquisition (NASDAQ:DKDCU)
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Da Giu 2024 a Lug 2024
Grafico Azioni Data Knights Acquisition (NASDAQ:DKDCU)
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Da Lug 2023 a Lug 2024