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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 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): May 21, 2024
AGRIFY CORPORATION
(Exact
name of registrant as specified in its charter)
Nevada |
|
001-39946 |
|
30-0943453 |
(State
or other jurisdiction
of
incorporation) |
|
(Commission
File Number) |
|
(IRS
Employer
Identification
No.) |
2468 Industrial Row Dr.
Troy,
MI |
|
48084 |
(Address
of principal executive offices) |
|
(Zip
Code) |
Registrant’s
telephone number, including area code: (617) 896-5243
(Former
name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions:
☐ |
Written communications
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-commencement 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, par value $0.001 per share |
|
AGFY |
|
Nasdaq Capital Market |
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.
Amendment
of Convertible Note
As
previously reported, on January 25, 2024, Agrify Corporation (the “Company”) and CP Acquisitions, LLC (“CP”),
an entity affiliated with and controlled by Raymond Chang, the Chief Executive Officer of the Company and a member of its Board of Directors
(the “Board”), and I-Tseng Jenny Chan, a member of the Board, agreed to amend, restate and consolidate certain outstanding
notes held by CP into a Senior Secured Amended, Restated and Consolidated Convertible Note (the “Convertible Note”).
On
May 21, 2024, the Company and CP entered into an amendment to the Convertible Note (the “CP Note Amendment”), pursuant to
which CP may elect, in lieu of shares of common stock issuable upon conversion of the Convertible Note, to instead receive pre-funded
warrants (“Pre-Funded Warrants”). The conversion price applicable to the Pre-Funded Warrants will remain unchanged at $1.46.
The
Pre-Funded Warrants have an exercise price of $0.001 per share, were exercisable upon issuance, will expire when the applicable warrant
is exercised in full, and are exercisable on a cash basis or, if there is no effective registration statement registering the resale of
the underlying shares of common stock, on a cashless exercise basis at CP’s discretion.
The
Pre-Funded Warrants provide that each time the Company consummates any bona fide equity financing with the primary purpose of raising
capital, then the number of shares of common stock underlying the Pre-Funded Warrants will be increased (the “Adjustment Provision”)
to an amount equal to (i) the amount of the Convertible Note that was originally converted into the applicable Pre-Funded Warrants divided
by (ii) the purchase or conversion price in the equity financing transaction, subject to proportional adjustment in the event the Pre-Funded
Warrant has been partially exercised. The Adjustment Provision will not be effective unless and until it is approved by stockholders
of the Company pursuant to Nasdaq Listing Rule 5635.
Immediately
following the execution of the CP Note Amendment, CP elected to convert $11.5 million of outstanding principal into a Pre-Funded Warrant
exercisable at issuance for up to 7,876,712 shares of common stock.
Amendment
and Restatement of Junior Secured Promissory Note
As
previously reported, on July 12, 2023, the Company issued an unsecured promissory note with an original principal amount of $500,000
in favor of GIC Acquisition LLC (“GIC”), an entity that is indirectly owned and managed by Mr. Chang, and on October 27,
2023, GIC and the Company amended and restated the note to extend the maturity date to December 31, 2023, and to grant a security interest
in the Company’s assets that ranks junior to the Convertible Note (the “Junior Note”). As previously reported, on January
25, 2024, GIC and the Company amended and restated the Junior Note to increase the principal amount thereunder to $1.0 million and to
extend the maturity date until June 30, 2024.
On
May 21, 2024, GIC and the Company amended and restated the Junior Note (the “Restated Junior Note”) to increase the aggregate
principal amount to approximately $2.29 million, extend the maturity date to December 31, 2025, and provide that the Junior Note may
be converted into common stock of the Company or, at GIC’s election, Pre-Funded Warrants, in each case at a conversion price of
$0.31.
Immediately
following the execution of the Restated Junior Note, GIC elected to convert all of the outstanding principal and accrued but unpaid interest
under the Restated Junior Note into a Pre-Funded Warrant exercisable at issuance for up to 7,383,053 shares of common stock. The Pre-Funded
Warrant includes an Adjustment Provision, subject to stockholder approval pursuant to Nasdaq Listing Rule 5635.
The
foregoing summaries of the CP Note Amendment, the form of Pre-Funded Warrant, and the Restated Junior Note do not purport to be complete,
and are qualified in their entirety by reference to copies of the CP Note Amendment, the form of Pre-Funded Warrant, and the Restated
Junior Note, which are filed as Exhibits 4.1, 4.2, and 4.3 hereto, respectively.
Item
2.03. Creation of a Direct Financial Obligation.
The
information set forth in Item 1.01 of this Current Report on Form 8-K regarding the CP Note Amendment and the Restated Junior
Note is incorporated herein by reference into this Item 2.03.
Item
3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard.
As
previously reported, on December 1, 2023, the Company received a notice from Nasdaq stating that the Company was no longer in compliance
with Nasdaq Listing Rule 5550(b)(1) (the “Listing Rule”), which requires that listed companies maintain a minimum of $2.5
million in stockholders’ equity. In response, the Company timely requested a hearing before a Nasdaq Hearings Panel (the “Panel”).
On January 30, 2024, the Company received formal notice that the Panel had granted the Company’s request for an exception through
April 15, 2024, to evidence compliance with the Listing Rule, which exception was subsequently extended through May 22, 2024.
As
a result of the conversion of the Convertible Note and the Restated Junior Note as set forth in Item 1.01 above, the Company believes
it has stockholders’ equity of at least $2.5 million as of the date of this filing, as required by the Listing Rule.
Item
3.02. Unregistered Sales of Securities.
The
information set forth in Item 1.01 of this Current Report on Form 8-K regarding the amendment of the Convertible Note, the
restatement of the Restated Junior Note, and the issuance of the Pre-Funded Warrants upon conversion of the Convertible Note and the
Restated Junior Note is incorporated herein by reference into this Item 3.02.
The
Convertible Note, the Restated Junior Note, and the shares of common stock and/or Pre-Funded Warrants underlying such notes (collectively,
the “Securities”) were, and will be, offered and sold in transactions exempt from registration under the Securities Act in
reliance on Section 4(a)(2) thereof and Rule 506(b) of Regulation D thereunder. Each of CP and GIC is an “accredited investor,”
as defined in Regulation D, and is acquiring the Securities for investment only and not with a view towards, or for resale in connection
with, the public sale or distribution thereof. Accordingly, the Securities will not be registered under the Securities Act and the Securities
may not be offered or sold in the United States absent registration or an exemption from registration under the Securities Act and any
applicable state securities laws.
Neither
this Current Report on Form 8-K nor the exhibits attached hereto is an offer to sell or the solicitation of an offer to buy
shares of common stock, notes, or any other securities of the Company.
Item
7.01 Regulation FD Disclosure.
On
May 22, 2024, the Company issued a press release announcing the note conversion as set forth in Item 1.01 and the Company’s belief
that it is in compliance with the Listing Rule as set forth in Item 3.01 of this Current Report on Form 8-K. The
full text of the press release is filed as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated herein by reference.
The
information in this Item 7.01 of this Current Report on Form 8-K and Exhibit 99.1 attached hereto shall not be deemed “filed”
for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liabilities of that section
or Sections 11 and 12(a)(2) of the Securities Act of 1933, as amended. The information contained in this Item 7.01 shall not be
incorporated by reference into any filing with the SEC made by the Company, whether made before or after the date hereof, regardless
of any general incorporation language in such filing.
Forward-Looking
Statements
This
Current Report on Form 8-K contains certain “forward-looking statements” within the meaning of the federal U.S. securities
laws with respect to the Company’s compliance with Nasdaq listing rules, other future plans and intentions, or other future events.
These forward-looking statements generally are identified by words such as “will,” “intend,” “should,”
“plan,” or similar statements, reflect management’s current beliefs and assumptions and are based on the information
currently available to management. Forward-looking statements are predictions, projections and other statements about future events that
are based on current expectations and assumptions and, as a result, are subject to risks and uncertainties. Many factors could cause
actual results or developments to differ materially from those expressed or implied by such forward-looking statements. For additional
details on the uncertainties that may cause our actual results to be materially different than those expressed in our forward-looking
statements, please review the most recent Annual Reports on Form 10-K filed by the Company with the Securities and Exchange Commission
at www.sec.gov, particularly the information contained in the sections entitled “Risk Factors.” Forward-looking statements
speak only as of the date on which they are made, and the Company does not assume any obligation to update or revise any forward-looking
statements or other information contained herein, whether as a result of new information, future events or otherwise. You are cautioned
not to put undue reliance on these forward-looking statements.
Item
9.01. Financial Statement and Exhibits.
(d)
Exhibits.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
|
AGRIFY CORPORATION |
|
|
|
Date: May 22, 2024 |
By: |
/s/ Raymond
Nobu Chang |
|
|
Raymond Nobu Chang |
|
|
Chief Executive Officer |
4
Exhibit 4.1
AMENDMENT NO. 1 TO
SENIOR SECURED AMENDED, RESTATED AND CONSOLIDATED
CONVERTIBLE NOTE
This AMENDMENT NO. 1 TO SENIOR
SECURED AMENDED, RESTATED AND CONSOLIDATED CONVERTIBLE NOTE, dated as of May 21, 2024 (this “Amendment”), is entered
into by and among Agrify Corporation, a Nevada corporation (the “Company”) and CP Acquisitions, LLC, a Delaware limited
liability company (“Holder”).
RECITALS
WHEREAS, the Company issued
to Holder a senior secured amended, restated and consolidated convertible note with an aggregate
original principal amount of $18,900,583.71 (as amended, supplemented or otherwise modified from time to time, the “Note”);
WHEREAS, the Company and Holder
desire to modify certain of the terms of the Note, including certain of the conversion provisions set forth in the Note, as further set
forth herein.
NOW, THEREFORE, in consideration
of the premises and the agreements, provisions and covenants herein contained, the Company and Holder agree as follows:
SECTION 1 DEFINED TERMS
AND SECTIONS
Capitalized terms set forth
herein shall, unless otherwise expressly provided, have the meanings when used herein as set forth in the Note. Section references used
herein shall, unless otherwise expressly provided, be deemed to be references to Sections of the Note.
SECTION 2 AMENDMENTS
TO NOTE
(a) Section 1 of the Note is hereby amended to add the following defined term “Pre-Funded Warrants” in the appropriate alphabetical order:
“
“Pre-Funded Warrants” means the pre-funded common share purchase warrants in the form of Exhibit B, which may
be issued pursuant to Section 7(J) of this Note.”
(b) Section 7 of the Note is hereby amended to add a new section (J) immediately following Section (I), as follows:
“(J)
Pre-Funded Warrants. Notwithstanding anything herein to the contrary, the Holder shall have the right, in its sole discretion,
to elect to receive the shares of Common Stock due in respect of any conversion of this Note pursuant to this Section 7 in the form of
Pre-Funded Warrants.”
(c) Exhibits.
The Note is hereby amended to add a new Exhibit B, immediately following Exhibit A therein, which new Exhibit B shall be in the form of
Schedule 1 attached hereto.
SECTION
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
(a) The
Company has the requisite power and authority to enter into and perform its obligations under this Amendment and the Note (as amended
hereby).
(b) This
Amendment and the Note (as amended hereby), constitutes a legal, valid and binding obligation of the Company, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights
generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
SECTION
4. CONDITIONS TO EFFECTIVENESS OF THIS AMENDMENT
(a) The
Company and the Holder shall have executed this Amendment.
SECTION
5. MISCELLANEOUS
(a) Except
as expressly modified herein, the Note shall remain in full force and effect with no further amendments, modifications or changes.
(b) This
Amendment may be executed by one or more of the parties hereto on any number of separate counterparts, and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. The words “execution,” “signed,” “signature,”
“delivery,” and words of like import in or relating to this Amendment and/or any document to be signed in connection with
this Amendment and the transactions contemplated hereby shall be deemed to include Electronic Signatures (as defined below), electronic
deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as
a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be. As used
herein, “Electronic Signatures” means any electronic symbol or process attached to, or associated with, any contract
or other record and adopted by a person with the intent to sign, authenticate or accept such contract or record. A party’s electronic
signature (complying with the New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309), as amended from
time to time, or other applicable law) of this Agreement shall have the same validity and effect as a signature affixed by the party’s
hand.
(c) All
questions concerning the construction, validity, enforcement and interpretation of this Amendment shall be determined in accordance with
the provisions of the Note, including without, limitation, Sections 19 and 20 of the Note, which are incorporated herein by reference,
mutatis mutandis.
[SIGNATURE PAGE FOLLOWS]
WITNESS
the due execution hereof by the respective duly authorized officers of the undersigned as of the date first written above.
|
COMPANY: |
|
|
|
AGRIFY CORPORATION |
|
|
|
By: |
/s/ David Kessler |
|
Name: |
David Kessler |
|
Title: |
EVP |
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|
|
HOLDER: |
|
|
|
CP ACQUISITIONS, LLC |
|
|
|
By: |
/s/ Raymond Chang |
|
Name: |
Raymond Chang |
|
Title: |
Manager |
[Signature Page to the Amendment
No. 1 to Senior Secured Amended, Restated and Consolidated Convertible Note]
Schedule 1
See attached.
Exhibit 4.2
NEITHER THIS SECURITY NOR THE
SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION
OF ANY STATE 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. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION
WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
PRE-FUNDED COMMON STOCK PURCHASE WARRANT
agrify
corporation
Warrant Shares: __________ |
Issue Date: May
21, 2024 |
THIS PRE-FUNDED COMMON STOCK
PURCHASE WARRANT (the “Warrant”) certifies that, for value received, ______________ or its assigns (the “Holder”)
is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after
the Issue Date set forth above (the “Initial Exercise Date”) and until this Warrant is exercised in full (the “Termination
Date”) but not thereafter, to subscribe for and purchase from Agrify Corporation, a Nevada corporation (the “Company”),
up to ____________ shares (as subject to adjustment hereunder, the “Warrant Shares”) of Common Stock. The purchase
price of one share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
Section 1. Definitions.
In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated in this Section 1:
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Bid Price”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or
quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date) 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)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price
of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then
listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on the Pink Open Market (or a similar
organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported,
or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in
good faith by the Holder and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“Board
of Directors” means the board of directors of the Company.
“Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized
or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee”
or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority
so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York generally
are open for use by customers on such day.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the common stock of the Company, par value $0.001 per share, and any other class of securities into which such
securities may hereafter be reclassified or changed.
“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire
at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is
at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Subsidiary”
means any subsidiary of the Company and shall, where applicable, also include any direct or indirect subsidiary of the Company formed
or acquired after the date hereof.
“Trading
Day” means a day on which the Common Stock is traded on a Trading Market.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock
Exchange (or any successors to any of the foregoing).
“Transfer
Agent” means Broadridge Corporate Issuer Solutions, Inc., the current transfer agent of the Company, with a mailing address
of 51 Mercedes Way, Edgewood, New York 11717, and any successor transfer agent of the Company.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or
quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
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)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted
average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock
is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on the Pink Open Market
(or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common
Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser
selected in good faith by the holder of the Warrant and reasonably acceptable to the Company, the fees and expenses of which shall be
paid by the Company.
Section 2. Exercise.
a) Exercise
of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on
or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed PDF copy submitted
by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”). Within
the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined in Section
2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the shares specified
in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank unless the cashless exercise
procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise. No ink-original Notice of Exercise shall
be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required. Notwithstanding
anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company until the Holder
has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full, in which case, the Holder shall
surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date on which the final Notice of Exercise
is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares
available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal
to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number of Warrant
Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise within one (1) Business
Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of
the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available
for purchase hereunder at any given time may be less than the amount stated on the face hereof.
b) Exercise
Price. The aggregate exercise price of this Warrant, except for a nominal exercise price of $0.001 per Warrant Share, was pre-funded
to the Company on or prior to the Initial Exercise Date and, consequently, no additional consideration (other than the nominal exercise
price of $0.001 per Warrant Share) shall be required to be paid by the Holder to any Person to effect any exercise of this Warrant. The
Holder shall not be entitled to the return or refund of all, or any portion, of such pre-paid aggregate exercise price under any circumstance
or for any reason whatsoever, including in the event this Warrant shall not have been exercised prior to the Termination Date. The remaining
unpaid exercise price per share of Common Stock under this Warrant shall be $0.001, subject to adjustment hereunder (the “Exercise
Price”).
c) Cashless
Exercise. If at the time of exercise hereof there is no effective registration statement registering, or the prospectus contained
therein is not available for the resale of the Warrant Shares by the Holder, then this Warrant may also be exercised, in whole or in part,
at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number of Warrant Shares
equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
| (A) = | as applicable: (i) the VWAP on the Trading Day immediately
preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant to Section
2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 2(a) hereof on a Trading Day prior
to the opening of “regular trading hours” (as defined in Rule 600(b) of Regulation NMS promulgated under the federal securities
laws) on such Trading Day, (ii) at the option of the Holder, either (y) the VWAP on the Trading Day immediately preceding the date of
the applicable Notice of Exercise or (z) the Bid Price of the Common Stock on the principal Trading Market as reported by Bloomberg L.P.
as of the time of the Holder’s execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular
trading hours” on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close
of “regular trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable
Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered
pursuant to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day; |
| (B) = | the Exercise Price of this Warrant, as adjusted hereunder;
and |
| (X) = | the number of Warrant Shares that would be issuable upon
exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise rather than a
cashless exercise. |
If Warrant Shares
are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the Securities Act,
the Warrant Shares shall take on the characteristics of the Warrants being exercised, and the holding period of the Warrant Shares being
issued may be tacked onto the holder period of this Warrant. The Company agrees not to take any position contrary to this Section 2(c).
i. Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by the Holder or (B) the Warrant Shares are eligible for resale by the Holder without volume or manner-of-sale limitations pursuant to Rule 144 (assuming cashless exercise of the Warrants), and otherwise by physical delivery of a certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date that is the earliest of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise, (ii) one (1) Trading Day after delivery of the aggregate Exercise Price to the Company and (iii) the number of Trading Days comprising the Standard Settlement Period after the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”). Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the third Trading Day after the Warrant Share Delivery Date) for each Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of Exercise.
ii. Delivery
of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and
upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing
the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects
be identical with this Warrant.
iii. Rescission
Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i)
by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv. Compensation
for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder, if
the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of Section
2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required by its
broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares of Common
Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise
(a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s
total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds (y) the amount obtained
by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise
at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option of the
Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored (in
which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock that would have been
issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases Common
Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of shares of Common Stock with
an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the
Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable
to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit
a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree
of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares of Common Stock
upon exercise of the Warrant as required pursuant to the terms hereof.
v. No
Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this
Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall,
at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the
Exercise Price or round up to the next whole share.
vi. Charges,
Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental
expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and such Warrant
Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however,
that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for
exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may require, as a condition
thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all Transfer Agent
fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established clearing
corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vii. Closing
of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
e) Holder’s
Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise
any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise
as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other Persons acting
as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence,
the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number
of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude
the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject
to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its
Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial
ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder,
it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section
13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the
extent that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation
to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is
exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s
determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates
and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation,
and the Company shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any
group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder. For purposes of this Section 2(e), in determining the number of outstanding shares of Common Stock, a Holder may
rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report
filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice
by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request
of a Holder, the Company shall within one Trading Day confirm orally and in writing to the Holder the number of shares of Common Stock
then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion
or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date
as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall
be 49.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common
Stock issuable upon exercise of this Warrant. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership
Limitation provisions of this Section 2(e), provided that the Beneficial Ownership Limitation in no event exceeds 49.99% of the number
of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise of this
Warrant held by the Holder and the provisions of this Section 2(e) shall continue to apply. Any increase in the Beneficial Ownership Limitation
will not be effective until the 61st day after such notice is delivered to the Company. The provisions of this paragraph shall
be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2(e) to correct this paragraph
(or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to
make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph
shall apply to a successor holder of this Warrant.
Section 3. Certain
Adjustments.
a) Stock
Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes
a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of
Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this
Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse
stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the Common
Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the
numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event
and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of
shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant
shall remain unchanged, subject to the limitation on fractional shares in Section 2(d)(v). Any adjustment made pursuant to this Section
3(a) shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend
or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.
b) Subsequent
Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants, issues or sells
any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any
class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms
applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number
of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including
without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance
or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are
to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that, to the extent that the Holder’s
right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder
shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as
a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until
such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
c) Pro
Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or other distribution
of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including,
without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification,
corporate rearrangement, scheme of arrangement or other similar transaction) other than a dividend or other distribution of the type described
in Section 3(a) above (a “Distribution”), at any time after the issuance of this Warrant, then, in each such case,
the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if
the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations
on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date of which a record is
taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to
be determined for the participation in such Distribution (provided, however, that, to the extent that the Holder's right
to participate in any such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall
not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any shares of Common Stock as a
result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance for the benefit of the Holder
until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
d) Fundamental
Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions
effects any merger or consolidation of the Company with or into another Person, (ii) the Company (and all of its Subsidiaries, taken as
a whole), directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially
all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange
offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender
or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding
Common Stock, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization
or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into
or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates
a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization,
spin-off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires 50% or
more of the outstanding shares of Common Stock (not including any shares of Common Stock held by the other Person or other Persons making
or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business
combination) (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall
have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence
of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this
Warrant), the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation,
and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction
by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction
(without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination
of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration
issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among
the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration.
If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then
the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such
Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor
(the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant in accordance
with the provisions of this Section 3(d) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and
approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver
to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar
in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity
(or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon exercise of this Warrant (without regard
to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the
exercise price hereunder to such shares of capital stock (but taking into account the relative value of the shares of Common Stock pursuant
to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise
price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental
Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction,
the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions
of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and
power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor
Entity had been named as the Company herein. For the avoidance of doubt, except as expressly set forth in this Warrant, in no event does
this agreement result in the Company having an obligation to issue cash or other assets to the Holder.
e) Calculations.
All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes
of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the
number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
f) Notice
to Holder.
i. Adjustment
to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly
deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number
of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii. Notice
to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Common
Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Company shall
authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of capital stock
of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with any reclassification
of the Common Stock, any consolidation or merger to which the Company is a party, any sale or transfer of all or substantially all of
its assets, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property, or (E) the
Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each
case, the Company shall cause to be delivered by email to the Holder at its last email address as it shall appear upon the Warrant Register
of the Company, at least twenty (20) calendar days prior to the applicable record or effective date hereinafter specified, a notice stating
(x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a
record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions,
redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer
or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of
record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in
the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. The Holder shall remain
entitled to exercise this Warrant during the period commencing on the date of such notice to the effective date of the event triggering
such notice except as may otherwise be expressly set forth herein.
g) Adjustment
to Number of Warrant Shares Issuable. During the twelve (12) month period after the Issue Date and following the Requisite Stockholder
Approval, upon each bona fide equity financing (either as a single transaction or series of related transactions) pursuant to which the
Company issues and sells shares of its capital stock with the principal purpose of raising capital (each, a “Qualified Equity
Financing”), the number of Warrant Shares shall be adjusted to be equal to, rounded up to the next whole number, the quotient
of (A) the product of (x) $_____________ and (y) the percentage of the Warrant Shares initially issuable under this Warrant for which
Warrant Shares have not been issued at the time of such adjustment (the “Adjustment Amount”) divided by (B)
the price per share of Common Stock offered in the Qualified Equity Financing (the “Adjustment Price”). Notwithstanding the
foregoing, under no circumstances shall the number of Warrant Shares be reduced as a result of the adjustments pursuant to this Section
3(g) and no adjustment or issuance pursuant to this Section 3(g) shall become effective unless and until the Requisite Stockholder Approval
has been obtained. As used herein, “Requisite Stockholder Approval” means the stockholder approval contemplated by
Nasdaq Listing Rule 5635 with respect to the adjustment provision in this Warrant pursuant to this Section 3(g); provided, however, that
the Requisite Stockholder Approval will be deemed to be obtained if, due to any amendment or binding change in the interpretation of the
applicable listing standards of the Nasdaq Capital Market, such stockholder approval is no longer required.
Section 4. Transfer
of Warrant.
a) Transferability.
Subject to compliance with any applicable securities laws and the conditions set forth in Section 4(d) hereof, this Warrant and all rights
hereunder (including, without limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant
at the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially in the
form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon
the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or
Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument
of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant
shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender
this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant
to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the Company assigning this
Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant
Shares without having a new Warrant issued.
b) New
Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company,
together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or
its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division or combination,
the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance
with such notice. All Warrants issued on transfers or exchanges shall be dated the initial issuance date of this Warrant and shall be
identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c) Warrant
Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant
Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder
of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other
purposes, absent actual notice to the contrary.
d) Transfer
Restrictions. If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant, the transfer of this
Warrant shall not be either (i) registered pursuant to an effective registration statement under the Securities Act and under applicable
state securities or blue sky laws or (ii) eligible for resale without volume or manner-of-sale restrictions or current public information
requirements pursuant to Rule 144, the Company may require, as a condition of allowing such transfer, that the Holder provide to the Company
an opinion of counsel selected by the transferor and reasonably acceptable to the Company, the form and substance of which opinion shall
be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Warrants
under the Securities Act.
e) Representation
by the Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant and, upon any exercise
hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to or for distributing or
reselling such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securities law, except pursuant
to sales registered or exempted under the Securities Act.
Section 5. Miscellaneous.
a) No
Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends
or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly set
forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant to
Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, in no event shall the Company be required
to net cash settle an exercise of this Warrant.
b) Loss,
Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case
of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include
the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make
and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
c) Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted
herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business Day.
d) Authorized
Shares.
The Company covenants
that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a sufficient number
of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant. The Company further
covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of issuing the
necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all such reasonable action
as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation,
or of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants that all Warrant Shares
which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented
by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable
and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other than taxes in respect of any
transfer occurring contemporaneously with such issue).
Except as otherwise
waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate of
incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any
other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times
in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to
protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company
will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior to such
increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and legally
issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts to obtain
all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary to enable
the Company to perform its obligations under this Warrant.
Before taking any
action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price,
the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory
body or bodies having jurisdiction thereof.
e) Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed by and
construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of
law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions
contemplated by this Warrant (whether brought against a party hereto or their respective affiliates, directors, officers, shareholders,
partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York.
Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough
of Manhattan 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 improper or is an inconvenient venue for such proceeding.
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 via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address
in effect for notices to it under this Warrant 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 other manner permitted
by law. If either party shall commence an action, suit or proceeding to enforce any provisions of this Warrant, the prevailing party in
such action, suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’ fees and other costs and
expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
f) Restrictions.
The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and the Holder does not
utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
g) Nonwaiver
and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as
a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision of this
Warrant, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material damages
to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including, but
not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting any amounts
due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
h) Notices.
Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without limitation, any Notice
of Exercise, shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service, addressed
to the Company, at 2468 Industrial Row Drive, Troy, Michigan 48084, Attention: Chief Executive Officer, email address: raymond.chang@agrify.com,
or such other email address or address as the Company may specify for such purposes by notice to the Holders. Any and all notices or other
communications or deliveries to be provided by the Company hereunder shall be in writing and delivered personally, by e-mail, or sent
by a nationally recognized overnight courier service addressed to each Holder at the e-mail address or address of such Holder appearing
on the books of the Company. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest
of (i) the time of transmission, if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section
prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the time of transmission, if such notice or communication
is delivered via e-mail at the e-mail address set forth in this Section on a day that is not a Trading Day or later than 5:30 p.m. (New
York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized
overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given.
i) Limitation
of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant
Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase
price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the
Company.
j) Remedies.
The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any
action for specific performance that a remedy at law would be adequate.
k) Successors
and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the
benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder.
The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable
by the Holder or holder of Warrant Shares.
l) Amendment.
This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company, on the one hand, and
the Holder or the beneficial owner of this Warrant, on the other hand.
m) Severability.
Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
n) Headings.
The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
********************
(Signature Page Follows)
IN WITNESS WHEREOF, the Company
has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
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AGRIFY CORPORATION |
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By: |
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Name: |
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Title: |
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NOTICE OF EXERCISE
To: agrify
corporation
(1) The
undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised
in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment
shall take the form of (check applicable box):
☐ in lawful money
of the United States; or
☐ if permitted the
cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise
this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in
subsection 2(c).
(3) Please issue said Warrant
Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
[SIGNATURE
OF HOLDER]
Name of Investing Entity: ___________________________________________________________________________
Signature of Authorized Signatory of Investing
Entity: _____________________________________________________
Name of Authorized Signatory: _______________________________________________________________________
Title of Authorized Signatory: ________________________________________________________________________
Date: ___________________________________________________________________________________________
ASSIGNMENT FORM
(To assign the foregoing
Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing
Warrant and all rights evidenced thereby are hereby assigned to
Name: |
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(Please Print) |
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Address: |
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______________________________________ |
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(Please Print) |
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Phone Number: |
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______________________________________ |
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Email Address: |
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______________________________________ |
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Dated: _______________ __, ______ |
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Holder’s Signature: ______________________ |
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Holder’s Address: _______________________ |
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Exhibit 4.3
THIRD
AMENDED AND RESTATED JUNIOR SECURED CONVERTIBLE PROMISSORY NOTE
$2,288,746.45 |
May 21, 2024 |
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Boston, Massachusetts |
FOR VALUE RECEIVED, AGRIFY
CORPORATION, a Nevada corporation (“Maker”), promises to pay to the order of GIC ACQUISITION LLC, a Delaware
limited liability company with an office at 675 VFW Parkway, Suite 152, Chestnut Hill, Massachusetts 02467-3656 (“Holder”),
the principal sum advanced to Maker from time to time up to a maximum of TWO MILLION TWO HUNDRED EIGHTY-EIGHT THOUSAND SEVEN HUNDRED
FORTY-SIX AND 45/00 DOLLARS ($2,288,746.45) in lawful money of the United States of America, under the terms and at the times
stated herein.
The principal and interest
due under this Third Amended and Restated Junior Secured Convertible Promissory Note (this “Note”) shall be payable in full
on December 31, 2025 (the “Maturity Date”).
This Note may be prepaid,
in whole or in part, at any time without any penalty, fee, or premium of any kind.
This Note represents a junior
security interest in Maker secured by the security granted under that certain Security Agreement, dated as of October 27, 2023, by and
between the Maker and the Holder, and such junior security interest herein granted and provided for is made and given to secure, and shall
secure, the payment and performance of this Note, provided that such security interest and any payments due under this
Note shall be subordinate to any obligations of and interests granted in those certain senior secured notes previously issued by Maker
(the “Senior Secured Notes”).
The principal balance outstanding
under this Note from time to time shall bear interest at the rate of ten percent (10%) per annum computed on the basis of a 360 day year.
Upon the occurrence a payment
default, and at all times thereafter until this Note is paid in full, the principal balance of this Note shall bear interest at the default
rate of eighteen percent (18%) per annum computed on the basis of a 360 day year.
This Note may be converted
in part, but only in an Authorized Denomination (as defined below). Provisions herein relating to the conversion of this Note in whole
will equally apply to conversions of any permitted portion of this Note. The Holder may convert this Note at any time until the close
of business on the second (2nd) Scheduled Trading Day (as defined below) immediately before the Maturity Date. To convert this Note, the
Holder must complete, sign and deliver to the Maker the conversion notice attached to this Note on Exhibit A or portable document
format (.pdf) version of such conversion notice (at which time such conversion will become irrevocable) (a “Holder Conversion Notice”).
For the avoidance of doubt, the Holder Conversion Notice may be delivered by e-mail. If the Maker fails to deliver, by the related Conversion
Settlement Date (as defined below), any shares of common stock, par value $0.001 per share, of the Maker (“Common Stock”)
forming part of the Conversion Consideration (as defined below) of the conversion of this Note, the Holder, by notice to the Maker, may
rescind all or any portion of the corresponding Holder Conversion Notice at any time until such shares of Common Stock are delivered.
The person in whose name any shares of Common Stock is issuable upon conversion of this Note will be deemed to become the holder of record
of such shares as of the close of business on the Conversion Date (as defined below) for such conversion, conferring, as of such time,
upon such person, without limitation, all voting and other rights appurtenant to such shares. If the Holder converts all or any portion
of this Note, the Maker will pay any documentary, stamp or similar issue or transfer tax or duty due on the issue of any shares of Common
Stock upon such conversion.
The consideration (the “Conversion
Consideration”) due in respect of any portion of the outstanding principal amount of this Note, to be converted (the “Conversion
Amount”) will consist of the following:
(1) a
number of shares of Common Stock determined by dividing the Conversion Amount by the Conversion Price (as defined below); and
(2) cash
in an amount equal to the aggregate accrued and unpaid interest on this Note to, but excluding, the Conversion Settlement Date for such
conversion or, at the election of the Maker, a number of validly issued, fully paid and Common Stock (the “Conversion Consideration
Interest Shares”) equal to the quotient (rounded up to the closest whole number) obtained by dividing the aggregate accrued and
unpaid interest on this Note to, but excluding, the Conversion Settlement Date by the Conversion Price.
The total number of shares
of Common Stock due in respect of any conversion of this Note will be determined on the basis of the total principal amount of this Note
to be converted with the same Conversion Date; provided, however, that if such number of shares of Common Stock is not a
whole number, then such number will be rounded up to the nearest whole number.
The Maker will pay or deliver,
as applicable, the Conversion Consideration due upon the conversion of this Note, to the Maker on or before the second (2nd) business
day (or, if earlier, the standard settlement period for the primary Eligible Exchange (as defined below) (measured in terms of trading
volume for its Common Stock) on which the Common Stock are traded) immediately after the Conversion Date for such conversion (the “Conversion
Settlement Date”).
If this Note is converted
in full, then, from and after the date the Conversion Consideration therefor is issued or delivered in settlement of such conversion,
this Note will cease to be outstanding and all interest will cease to accrue on this Note.
Each share of Common Stock delivered pursuant to
this Note will be a newly issued or treasury share and will be duly and validly issued, fully paid, non-assessable, free from preemptive
rights and free of any lien or adverse claim (except to the extent of any lien or adverse claim created by the action or inaction of the
Holder or the Person to whom such share will be delivered). If the Common Stock is then listed on any securities exchange, or quoted on
any inter-dealer quotation system, then the Maker will cause each share of Common Stock issued pursuant to this Note, when delivered,
to be admitted for listing on such exchange or quotation on such system.
If there occurs:
(1) recapitalization,
reclassification or change of the Common Stock (other than (x) changes solely resulting from a subdivision or combination of the Common
Stock, (y) a change only in par value or from par value to no par value or no par value to par value and (z) stock splits and stock combinations
that do not involve the issuance of any other series or class of securities);
(2) consolidation,
merger, combination or binding or statutory share exchange involving the Maker;
(3) sale,
lease or other transfer of all or substantially all of the assets of the Maker and its subsidiaries, taken as a whole, to any person;
or
(4) other similar
event,
and, in each case, as a result of such occurrence, the Common Stock is converted into, or is exchanged for, or represents
solely the right to receive, other securities or other property (including cash or any combination of the foregoing) (such an event,
a “Common Stock Change Event,” and such other securities or other property, the “Reference Property,” and
the amount and kind of Reference Property that a holder of one (1) share of Common Stock would be entitled to receive on account of
such Common Stock Change Event (without giving effect to any arrangement not to issue fractional shares of securities or other
property), a “Reference Property Unit”), then, notwithstanding anything to the contrary in this Note, at the effective
time of such Common Stock Change Event, (x) the Conversion Consideration due upon conversion of any Note will be determined in the
same manner as if each reference to any number of shares of Common Stock were instead a reference to the same number of Reference
Property Units; and (y) each reference to any number of shares of Common Stock herein will instead be deemed to be a reference to
the same number of Reference Property Units;
If the Reference Property
consists of more than a single type of consideration to be determined based in part upon any form of stockholder election, then the composition
of the Reference Property Unit will be deemed to be the weighted average of the types and amounts of consideration actually received,
per share of Common Stock, by the holders of Common Stock. The Maker will notify the Holder of such weighted average as soon as practicable
after such determination is made.
At or before the effective
date of such Common Stock Change Event, the Maker and the resulting, surviving or transferee Person (if not the Maker) of such Common
Stock Change Event (the “Successor Person”) will execute and deliver such instruments or agreements that (x) provides for
subsequent conversions of this Note in the manner set forth herein; and (y) contains such other provisions as the Maker reasonably determines
are appropriate to preserve the economic interests of the Holder and to give effect to the provisions of this Note. If the Reference Property
includes shares of stock or other securities or assets of a person other than the Successor Person, then such other person will also execute
such instruments or agreements and such instruments or agreements will contain such additional provisions the Maker reasonably determines
are appropriate to preserve the economic interests of the Holder. As soon as practicable after learning the anticipated or actual effective
date of any Common Stock Change Event, the Maker will provide written notice to the Holder of such Common Stock Change Event, including
a brief description of such Common Stock Change Event, its anticipated effective date and a brief description of the anticipated change
in the conversion right of this Note.
Notwithstanding anything herein
to the contrary, the Holder shall have the right, in its sole discretion, to elect to receive the shares of Common Stock due in respect
of any conversion of this Note in the form of Pre-Funded Warrants (as defined below).
As used herein, the following
capitalized terms shall be defined as follows:
“Authorized Denomination”
means, with respect to this Note, a principal amount equal to $1,000 or any integral multiple of $1,000 in excess thereof, or, if the
principal amount then-outstanding is less than $1,000, then such outstanding principal amount.
“Conversion Date”
means the first business day on which the requirements to convert this Note are satisfied.
“Conversion Price”
means an amount equal to $0.31 per share of Common Stock; provided, however, that if after the date of the amendment and restatement of
this Note the Company effects any stock split, reverse stock split, share combination or similar transaction, the Conversion Price shall
be equitably adjusted to reflect the ratio of such split or similar transaction.
“Eligible Exchange”
means any of The New York Stock Exchange, The NYSE American LLC, The Nasdaq Capital Market, The Nasdaq Global Market or The Nasdaq Global
Select Market (or any of their respective successors).
“Market Disruption Event”
means, with respect to any date, the occurrence or existence, during the one-half hour period ending at the scheduled close of trading
on such date on the principal U.S. national or regional securities exchange or other market on which the Common Stock is listed for trading
or trades, of any material suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by
the relevant exchange or otherwise) in the Common Stock or in any options contracts or futures contracts relating to the Common Stock.
“Pre-Funded Warrants”
means the pre-funded common share purchase warrants in the form of Exhibit B, which may be issued pursuant to this Note.
“Scheduled Trading Day”
means any day that is scheduled to be a Trading Day on the principal U.S. national or regional securities exchange on which the Common
Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, on the principal,
in terms of volume, Eligible Exchange on which the Common Stock is listed for trading. If the Common Stock is not so listed or traded,
then “Scheduled Trading day” means a business day.
“Trading Day”
means any day on which (A) trading in the Common Stock generally occurs on the principal U.S. national or regional securities exchange
on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange,
on the principal other market on which the Common Stock is then traded; and (B) there is no Market Disruption Event. If the Common Stock
is not so listed or traded, then “Trading Day” means a business day.
Maker waives presentment,
demand, notice, protest, and delay in connection with the delivery, acceptance, performance, collection, and enforcement of this Note.
No delay or omission on the
part of Holder in exercising any right hereunder shall operate as a waiver of such right or of any other right under this Note. A waiver
on anyone occasion shall not be construed as a bar to or a waiver of any such right and/or remedy on any future occasion.
Holder shall be entitled to
an award of its reasonable costs and expenses, including, but not limited to, reasonable attorney’s fees, incurred in enforcing
and collecting the amounts due under this Note.
This Note shall be governed
by the laws of the Commonwealth of Massachusetts.
Maker will take all reasonably
necessary steps to publish and file any financing statements associated with the security interest contained herein under applicable law.
This Note constitutes an amendment
and restatement, but not an extinguishment, of the Second Amended and Restated Junior Secured Promissory Note, made by Maker on January
25, 2024 (the “Prior Note”). Nothing herein shall be construed to constitute satisfaction of the outstanding obligations under
the Prior Note, provided, however, that upon the execution and delivery of this Note, such obligations shall be enforceable
in accordance with this Note and not the Prior Note.
[Signature Page Follows]
IN WITNESS WHEREOF, Maker
has executed this Note as a sealed instrument as of the date first hereinabove written.
|
AGRIFY CORPORATION |
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By: |
/s/ David Kessler |
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Name: |
David Kessler |
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Title: |
Executive Vice President |
Exhibit A
Conversion Notice
Agrify
Corporation
Junior Secured
Convertible Note due 2025
Subject to the terms of this Note, by executing
and delivering this Conversion Notice, the undersigned Holder of this Note directs the Maker to convert the following principal amount
of this Note: $ ____________________ ,000 in accordance with the following details.
Shares of Common Stock to be delivered (the “Delivered
Shares”):
________________________________________
Accrued interest amount:
________________________________________
Date: ________________________ |
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(Legal Name of Holder) |
Exhibit B
Form of Pre-Funded Warrants
See attached.
Exhibit 99.1
Agrify Corporation Announces Approximately $13.8
Million Debt-to-Equity Conversion
Company Expects to Regain Compliance with Nasdaq
Shareholders’ Equity Requirement
TROY, Michigan, May 22, 2024 - Agrify Corporation
(Nasdaq: AGFY) (“Agrify” or the “Company”), a leading provider of innovative cultivation and extraction solutions
for the cannabis industry, today announced an approximately $13.8 million debt-to-equity conversion by CP Acquisitions, LLC and GIC Acquisitions
LLC. As a result of the conversion, the Company is expected to regain compliance with Nasdaq’s Listing Rule, achieving stockholder’s
equity of at least $2.5 million as of the date of conversion.
In connection with the conversions, CP Acquisitions,
LLC (“CP”), an entity affiliated with and controlled by Raymond Chang, the Chairman and Chief Executive Officer of the Company,
and I-Tseng Jenny Chan, a member of Agrify’s Board of Directors, converted $11.5 million of its senior convertible note into a Pre-Funded
Warrant exercisable at issuance for up to 8,561,644 shares of common stock. GIC Acquisitions LLC (“GIC”), an entity affiliate
with and controlled by Mr. Chang, converted approximately $2.29 million of its junior secured note into a Pre-Funded Warrant exercisable
at issuance for up to 3,225,807 shares of common stock. Each Pre-Funded Warrant includes adjustment provisions in the event that Agrify
conducts any equity financing during the twelve month period following conversion, subject to shareholder approval.
As a result of the conversions, the Company believes
that its shareholders’ equity exceeds $2.5 million, which would allow the Company to regain compliance with Nasdaq Listing Rule
5550(b)(1). Raymond Chang, Chairman and Chief Executive Office of Agrify, stated “I am very pleased to see the continuous turnaround
in Agrify. The decision to convert a substantial portion of the senior debt shows the management and the shareholders’ commitment
to the future of Agrify. We are excited to see the strong positive momentum in our business across both the extraction and cultivation
divisions. We believe this large debt conversion allows Agrify to meet the minimum shareholders’ equity requirement under Nasdaq
continued listing rules and provides Agrify with a cleaner and positive balance sheet to fuel our future growth. We remain focused on
executing the Company’s turnaround.”
About Agrify (Nasdaq:AGFY)
Agrify is a leading provider of innovative cultivation
and extraction solutions for the cannabis industry, bringing data, science, and technology to the forefront of the market. Agrify’s
proprietary micro-environment-controlled Vertical Farming Units (VFUs) enable cultivators to produce the highest quality products with
unmatched consistency, yield, and ROI at scale. Agrify’s comprehensive extraction product line, which includes hydrocarbon, ethanol,
solventless, post-processing, and lab equipment, empowers producers to maximize the quantity and quality of extract required for premium
concentrates. For more information, please visit Agrify at http://www.agrify.com.
Forward-Looking Statements
This press release contains forward-looking statements
within the meaning of the Private Securities Litigation Reform Act of 1995 concerning Agrify and other matters. All statements contained
in this press release that do not relate to matters of historical fact should be considered forward-looking statements including, without
limitation, statements regarding the ability to regian compliance with Nasdaq listing rules, Agrify’s future growth, and Agrify’s
ability to deliver solutions and services. In some cases, you can identify forward-looking statements by terms such as “may,”
“will,” “should,” “expects,” “plans,” “anticipates,” “could,” “intends,”
“targets,” “projects,” “contemplates,” “believes,” “estimates,” “predicts,”
“potential” or “continue” or the negative of these terms or other similar expressions. The forward-looking statements
in this press release are only predictions. We have based these forward-looking statements largely on our current expectations and projections
about future events and financial trends that we believe may affect our business, financial condition and results of operations. Forward-looking
statements involve known and unknown risks, uncertainties and other important factors that may cause our actual results, performance or
achievements to be materially different from any future results, performance or achievements expressed or implied by the forward-looking
statements. You should carefully consider the risks and uncertainties that affect our business, including those described in our filings
with the Securities and Exchange Commission (“SEC”), including under the caption “Risk Factors” in our Annual
Report on Form 10-K filed for the year ended December 31, 2023 with the SEC, which can be obtained on the SEC website at www.sec.gov.
These forward-looking statements speak only as of the date of this communication. Except as required by applicable law, we do not plan
to publicly update or revise any forward-looking statements, whether as a result of any new information, future events or otherwise. You
are advised, however, to consult any further disclosures we make on related subjects in our public announcements and filings with the
SEC.
Company Contacts
Agrify Investor Relations
IR@agrify.com
(857) 256-8110
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Agrify (NASDAQ:AGFY)
過去 株価チャート
から 5 2024 まで 6 2024
Agrify (NASDAQ:AGFY)
過去 株価チャート
から 6 2023 まで 6 2024